Preview
1 TERESA A. LIBERTINO, ESQ. (SBN 128942)
GERALD B. MALANGA, ESQ. (SBN 167065)
2 LATTIE | MALANGA | LIBERTINO, LLP
8300 Beverly Boulevard, Suite 200 08/14/2020
3 Los Angeles, California 90048
(323) 938-3102 Telephone
4 (323) 938-0110 Facsimile
5 Attorneys for Defendants,
GERALD MALANGA; TERESA LIBERTINO (erroneously sued herein as
6 “THERESA LIBERTINO”), INDIVIDUALLY, AND
ALSO AS TRUSTEES OF THE MALANGA LIVING TRUST,
7 DATED OCTOBER 14, 2010
8
9
SUPERIOR COURT OF THE STATE OF CALIFORNIA
10
FOR THE COUNTY OF PLACER
11
12 RINNOVO GROUP, INC., CASE NO.: SCV0043932
13 Plaintiff, Dept. 42
Judge: Hon. Charles Wachob
14
v.
15
DEFENDANTS GERALD MALANGA AND
16 TERESA LIBERTINO, INDIVIDUALLY,
GOLDMAN SACHS BANK USA; GERALD AND ALSO AS TRUSTEES OF THE
17 MALANGA AND THERESA LIBERTINO, MALANGA LIVING TRUST, DATED
INDIVIDUALLY AND ALSO AS OCTOBER 14, 2010’S ANSWER TO
18 TRUSTEES OF THE MALANGA LIVING COMPLAINT
TRUST, DATED OCTOBER 14, 2010; and
19 DOES 1 through 50, Inclusive,;
20 Defendants. Complaint Filed: November 4, 2019
21
Defendants, GERALD MALANGA and TERESA LIBERTINO (erroneously sued herein as
22
“THERESA LIBERTINO”), INDIVIDUALLY, AND ALSO AS TRUSTEES OF THE
23
MALANGA LIVING TRUST, DATED OCTOBER 14, 20210 (hereinafter “Defendants”), in
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answer to the Complaint of RINNOVO GROUP, INC. (hereinafter “Plaintiff”) as follows:
25
GENERAL DENIAL & AFFIRMATIVE DEFENSES
26
Pursuant to the provisions of Section 431.30 of the California Code of Civil Procedure,
27
Defendants generally deny each and every, all and singular, the allegations of the Complaint, and
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ANSWER TO COMPLAINT
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the Complaint as a whole, and in this connection Defendants deny that Plaintiff has been injured or
2
damaged in any of the sums mentioned in said Complaint, or in any sum, or at all as the result of
3
any act or omission of these answering Defendants.
4
Defendants have not completed their investigation of the facts of this case, has not
5
completed discovery in this matter, and has not completed its preparation for trial. The affirmative
6
defenses asserted herein are based on Defendants’ knowledge, information, and belief at this time,
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and Defendants specifically reserves the right to modify, amend, or supplement any affirmative
8
defenses contained herein. Defendants have insufficient information upon which to form a belief as
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to whether it may have additional unstated affirmative defenses. Defendants reserve the right to
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assert additional affirmative defenses in the event discovery indicates they are appropriate. Subject
11
to the preceding qualifications and without waiving or excusing Plaintiff’s applicable burdens of
12
proof with respect to each and every element of the claims alleged by Plaintiff or admitting that
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Defendants have any burden of proof as to any defense, Defendants hereby asserts the following
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affirmative defenses to the Complaint:
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FIRST AFFIRMATIVE DEFENSE
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(Failure to State a Claim)
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AS A FURTHER, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT
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ON FILE HEREIN, AND TO EACH ALLEGED CAUSE OF ACTION CONTAINED THEREIN,
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these answering Defendants allege that each purported cause of action in the Complaint fails to
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state a claim upon which relief may be granted.
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SECOND AFFIRMATIVE DEFENSE
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(Statute of Limitations)
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AS A FURTHER, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT
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ON FILE HEREIN, AND TO EACH ALLEGED CAUSE OF ACTION CONTAINED THEREIN,
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these answering Defendants allege the Complaint is barred by applicable statutes of limitation,
26
including Cal. Code Civ. Proc. § 335 et seq.
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ANSWER TO COMPLAINT
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THIRD AFFIRMATIVE DEFENSE
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(Equitable Estoppel)
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AS A FURTHER, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT
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ON FILE HEREIN AND TO EACH ALLEGED CAUSE OF ACTION CONTAINED THEREIN,
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these answering Defendants allege that Plaintiff herein, and each and every cause of action
6
contained in said Complaint, is barred by reason of acts, omissions, representations, and courses of
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conduct by Plaintiff, by which these answering Defendants were led to rely on to its detriment
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thereby barring each and every cause of action under the Doctrine of Equitable Estoppel.
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FOURTH AFFIRMATIVE DEFENSE
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(Failure to Mitigate Damages)
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AS A FURTHER, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT
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ON FILE HEREIN AND TO EACH ALLEGED CAUSE OF ACTION CONTAINED THEREIN,
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these answering Defendants allege that at all times and places mentioned in the Complaint herein,
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that Plaintiff’s claims are barred, in whole or in part, because it has failed to exercise reasonable
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care and diligence to avoid loss and minimize damages. Plaintiff may not recover losses that could
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have been prevented by reasonable efforts by Plaintiff, and therefore, Plaintiff’s recovery, if any,
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should be reduced by its failure to mitigate damages.
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FIFTH AFFIRMATIVE DEFENSE
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(Unclean Hands)
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AS A FURTHER, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT
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ON FILE HEREIN AND TO EACH ALLEGED CAUSE OF ACTION CONTAINED THEREIN,
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these answering Defendants are informed and believe, and on such information and belief, allege
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that by reason of Plaintiffs’ claims are barred, in whole or in part, by the equitable doctrine of
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unclean hands.
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ANSWER TO COMPLAINT
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SIXTH AFFIRMATIVE DEFENSE
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(Novation)
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AS A FURTHER, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT
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ON FILE HEREIN AND TO EACH ALLEGED CAUSE OF ACTION CONTAINED THEREIN,
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these answering Defendants allege that Plaintiff’s claims are barred, in whole or in part, because
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Plaintiff has engaged in conduct and actions to constitute a novation concerning the obligations,
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conduct, or acts at issue in the Complaint, barring Plaintiff’s recovery from the answering
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Defendants.
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SEVENTH AFFIRMATIVE DEFENSE
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(Promissory Estoppel)
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AS A FURTHER, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT
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ON FILE HEREIN AND TO EACH ALLEGED CAUSE OF ACTION CONTAINED THEREIN,
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these answering Defendants allege that Plaintiff’s claims are barred, in whole or in part, because it
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relied on Plaintiff’s promise to waive and/or release any claims to its detriment.
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EIGHTH AFFIRMATIVE DEFENSE
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(Lack of Consideration)
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AS A FURTHER, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT
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ON FILE HEREIN AND TO EACH ALLEGED CAUSE OF ACTION CONTAINED THEREIN,
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these answering Defendants allege that any recovery is barred on the ground that for each and every
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oral, implied, written or other contract or quasi-contract alleged therein, there is a failure of
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consideration.
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NINTH AFFIRMATIVE DEFENSE
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(Statute of Frauds)
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AS A FURTHER, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT
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ON FILE HEREIN AND TO EACH ALLEGED CAUSE OF ACTION CONTAINED THEREIN,
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these answering Defendants allege that Plaintiff’s claims are barred, in whole or in part, by the
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statute of frauds.
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ANSWER TO COMPLAINT
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TENTH AFFIRMATIVE DEFENSE
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(Unjust Enrichment)
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AS A FURTHER, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT
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ON FILE HEREIN AND TO EACH ALLEGED CAUSE OF ACTION CONTAINED THEREIN,
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these answering Defendants allege that Plaintiff’s claims are barred, in whole or in part, to the
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extent that any recovery by Plaintiff would constitute unjust enrichment.
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ELEVENTH AFFIRMATIVE DEFENSE
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(Complete Performance)
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AS A FURTHER, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT
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ON FILE HEREIN AND TO EACH ALLEGED CAUSE OF ACTION CONTAINED THEREIN,
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these answering Defendants allege that Plaintiff’s claims are barred, in whole or in part, because
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Defendants have appropriately, completely, and fully performed and discharged any and all
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obligations and legal duties, to the extent any exist or ever existed, arising out of the matters alleged
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in Plaintiff’s Complaint.
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TWELFTH AFFIRMATIVE DEFENSE
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(Accord and Satisfaction)
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AS A FURTHER, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT
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ON FILE HEREIN AND TO EACH ALLEGED CAUSE OF ACTION CONTAINED THEREIN,
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these answering Defendants allege that Plaintiff’s claims are barred, in whole or in part, because
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Plaintiff engaged in conduct and actions to constitute an accord and satisfaction concerning the
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obligations, conduct, or acts at issue in the Complaint, barring recovery from the answering
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Defendants.
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THIRTEENTH AFFIRMATIVE DEFENSE
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(Lack of Privity)
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AS A FURTHER, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT
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ON FILE HEREIN AND TO EACH ALLEGED CAUSE OF ACTION CONTAINED THEREIN,
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these answering Defendants allege that Plaintiff’s claims are barred, in whole or in part, because
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ANSWER TO COMPLAINT
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there is no privity between Plaintiff and Defendants, and Plaintiff’s recovery sought herein should
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be diminished and/or barred.
3
FOURTEENTH AFFIRMATIVE DEFENSE
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(Release)
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AS A FURTHER, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT
6
ON FILE HEREIN AND TO EACH ALLEGED CAUSE OF ACTION CONTAINED THEREIN,
7
these answering Defendants allege that Plaintiff’s claims are barred, in whole or in part, because
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Plaintiff engaged in an express, implied, and/or equitable release of any claims of which it now
9
complains.
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FIFTEENTH AFFIRMATIVE DEFENSE
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(Lack of Causation)
12
AS A FURTHER, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT
13
ON FILE HEREIN AND TO EACH ALLEGED CAUSE OF ACTION CONTAINED THEREIN,
14
these answering Defendants allege that Plaintiff may not pursue claims against Defendants because
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its conduct was not the proximate or legal cause of Plaintiff’s alleged injuries.
16
SIXTEENTH AFFIRMATIVE DEFENSE
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(Comparative Fault)
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AS A FURTHER, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT
19
ON FILE HEREIN AND TO EACH ALLEGED CAUSE OF ACTION CONTAINED THEREIN,
20
these answering Defendants allege that Plaintiff’s damages, if any, were proximately caused and/or
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contributed to by Plaintiff’s own actions, or the acts and omissions of others, thus barring or
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diminishing Plaintiff’s ability to recover from Defendants, to which Defendants dispute there is
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any.
24
SEVENTEENTH AFFIRMATIVE DEFENSE
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(Contribution)
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AS A FURTHER, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT
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ON FILE HEREIN AND TO EACH ALLEGED CAUSE OF ACTION CONTAINED THEREIN,
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ANSWER TO COMPLAINT
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these answering Defendants allege that Plaintiff’s damages, if any, were a direct and proximate
2
result of the acts, omissions, or negligence of third parties not within the knowledge or control of
3
Defendants, and, therefore, were sustained, if at all, without any conduct on the part of Defendants.
4
EIGHTEENTH AFFIRMATIVE DEFENSE
5
(Indemnification)
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AS A FURTHER, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT
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ON FILE HEREIN AND TO EACH ALLEGED CAUSE OF ACTION CONTAINED THEREIN,
8
these answering Defendants allege that should Plaintiff recover any damages from Defendants, that
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Defendants is entitled to indemnification, either in whole or in part, from all persons or entities
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whose actions contributed to Plaintiff’s damages, to the extent there are any.
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NINETEENTH AFFIRMATIVE DEFENSE
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(Setoff and Recoupment)
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AS A FURTHER, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT
14
ON FILE HEREIN AND TO EACH ALLEGED CAUSE OF ACTION CONTAINED THEREIN,
15
these answering Defendants allege that if Plaintiff has sustained any damages, which Defendants
16
deny, Defendants are entitled under the equitable doctrine of setoff and recoupment to offset all
17
overpayments and/or all obligations against any judgment that may be entered against Defendants.
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TWENTIETH AFFIRMATIVE DEFENSE
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(Laches)
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AS A FURTHER, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT
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ON FILE HEREIN AND TO EACH ALLEGED CAUSE OF ACTION CONTAINED THEREIN,
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these answering Defendants allege that Plaintiff unreasonably delayed in filing its complaint and in
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notifying Defendants of alleged harm and damages, thereby barring or diminishing its recovery
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under the doctrine of laches.
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ANSWER TO COMPLAINT
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TWENTY-FIRST AFFIRMATIVE DEFENSE
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(Independent Intervening and Superseding Causes)
3
AS A FURTHER, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT
4
ON FILE HEREIN AND TO EACH ALLEGED CAUSE OF ACTION CONTAINED THEREIN,
5
these answering Defendants allege that to the extent Plaintiff suffered injury or damages, which
6
Defendants denies occurred, such damages were caused by intervening and/or superseding acts of
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other parties, persons and/or entities, thus barring Plaintiff from any recovery against Defendants.
8
TWENTY-THIRD AFFIRMATIVE DEFENSE
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(Reasonable Value)
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AS A FURTHER, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT
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ON FILE HEREIN AND TO EACH ALLEGED CAUSE OF ACTION CONTAINED THEREIN,
12
these answering Defendants allege that the value of materials and/or labor alleged by Plaintiff is not
13
the reasonable value of said materials and labor.
14
TWENTY-FOURTH AFFIRMATIVE DEFENSE
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(Failure to Properly Serve Preliminary Notice)
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AS A FURTHER, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT
17
ON FILE HEREIN AND TO EACH ALLEGED CAUSE OF ACTION CONTAINED THEREIN,
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these answering Defendants allege that Plaintiff failed to comply with the requirements of Civil
19
Code Sections 8200, et seq., including in that Plaintiff failed to properly and timely serve the
20
preliminary notice required.
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TWENTY-FIFTH AFFIRMATIVE DEFENSE
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(Failure to Include Reasonable Estimate in Preliminary Notice)
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AS A FURTHER, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT
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ON FILE HEREIN AND TO EACH ALLEGED CAUSE OF ACTION CONTAINED THEREIN,
25
these answering Defendants allege that Plaintiff’s preliminary notice did not contain a reasonable
26
estimate of the total price of the labor, services, equipment or materials furnished or to be furnished
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by Plaintiff.
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ANSWER TO COMPLAINT
1
TWENTY-SIXTH AFFIRMATIVE DEFENSE
2
(Failure to Timely Record Mechanic’s Lien)
3
AS A FURTHER, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT
4
ON FILE HEREIN AND TO EACH ALLEGED CAUSE OF ACTION CONTAINED THEREIN,
5
these answering Defendants allege that Plaintiff failed to comply with the requirements of Civil
6
Code Sections 8414, including because Plaintiff failed to properly and timely serve the preliminary
7
notice required.
8
TWENTY-SEVENTH AFFIRMATIVE DEFENSE
9
(Failure to Timely Record Mechanic’s Lien)
10
AS A FURTHER, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT
11
ON FILE HEREIN AND TO EACH ALLEGED CAUSE OF ACTION CONTAINED THEREIN,
12
these answering Defendants allege that Plaintiff failed to comply with the requirements of Civil
13
Code Sections 8212 and 8414, including because Plaintiff failed to properly and timely serve the
14
preliminary notice required.
15
TWENTY-EIGHTH AFFIRMATIVE DEFENSE
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(Forfeiture)
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AS A FURTHER, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT
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ON FILE HEREIN AND TO EACH ALLEGED CAUSE OF ACTION CONTAINED THEREIN,
19
these answering Defendants allege that Plaintiff has willfully overstated the amount of its purported
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mechanic’s lien claim, and thereby forfeited any mechanic’s lien claim.
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TWENTY-NINTH AFFIRMATIVE DEFENSE
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(Anticipatory Breach)
23
AS A FURTHER, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT
24
ON FILE HEREIN AND TO EACH ALLEGED CAUSE OF ACTION CONTAINED THEREIN,
25
these answering Defendants allege that Plaintiff’s claims are barred, in whole or in part, because
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Plaintiff engaged in conduct and actions to constitute anticipatory breach concerning the
27
obligations, conduct, or acts at issue in the Complaint, barring recovery from the answering
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ANSWER TO COMPLAINT
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Defendants.
2
THIRTIETH AFFIRMATIVE DEFENSE
3
(Anticipatory Repudiation)
4
AS A FURTHER, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT
5
ON FILE HEREIN AND TO EACH ALLEGED CAUSE OF ACTION CONTAINED THEREIN,
6
these answering Defendants allege that Plaintiff’s claims are barred, in whole or in part, because
7
Plaintiff engaged in conduct and actions to constitute anticipatory repudiation concerning the
8
obligations, conduct, or acts at issue in the Complaint, barring recovery from the answering
9
Defendants.
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THIRTY-FIRST AFFIRMATIVE DEFENSE
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(Assumption of the Risk)
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AS A FURTHER, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT
13
ON FILE HEREIN AND TO EACH ALLEGED CAUSE OF ACTION CONTAINED THEREIN,
14
these answering Defendants allege that Plaintiff’s claims are barred, in whole or in part, because
15
Plaintiff engaged in conduct and actions to constitute assumption of the risk concerning the
16
obligations, conduct, or acts at issue in the Complaint, barring recovery from the answering
17
Defendants.
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ANSWER TO COMPLAINT
1
PRAYER FOR RELIEF
2
WHEREFORE, Defendants request the following relief:
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1. The Complaint be dismissed as to the answering Defendants with prejudice;
4
2. Plaintiff take nothing by virtue of the Complaint;
5
3. Judgment be entered in the answering Defendants’ favor and against Plaintiff on all
6
causes of action asserted in the Complaint;
7
4. The answering Defendants be awarded reasonable attorneys’ fees;
8
5. The Court award the answering Defendants its expenses and costs to the full extent
9
permitted by law; and
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6. The Court award such other relief as is just and proper under the circumstances.
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12
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14 DATED: August 14, 2020 LATTIE | MALANGA | LIBERTINO, LLP
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16 ____________________________________
By: Gerald B. Malanga, Esq.
17 Teresa A. Libertino, Esq.
Attorneys for Defendants
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ANSWER TO COMPLAINT
1 Rinnovo Group, Inc. v. Goldman Sachs Bank USA, et al.
Case Number: SCV0043932
2
3 PROOF OF SERVICE
4 I am a citizen of the United States. My business address is 8300 Beverly Boulevard,
Suite 200, Los Angeles, California 90048. I am employed in the county of Los Angeles where this
5 service occurs. I am over the age of 18 years, and not a party to the within cause. I am readily
familiar with my employer’s normal business practice for collection and processing of
6 correspondence for mailing with the U.S. Postal Service, and that practice is that correspondence is
deposited with the U.S. Postal Service the same day as the day of collection in the ordinary course
7 of business.
8 On the date set forth below, following ordinary business practice, I served a true copy of the
foregoing document(s) described below upon the following:
9
10 1. DEFENDANTS GERALD MALANGA AND TERESA LIBERTINO,
INDIVIDUALLY AND AS TRUSTEES, OF THE MALANGA LIVING TRUST,
11
DATED OCTOBER 14, 2010’S ANSWER TO COMPLAINT
12
13
SEE ATTACHED SERVICE LIST
14
15
(BY MAIL) I caused such envelope(s) with postage thereon fully prepaid to
16 be placed in the United States mail at Los Angeles, California.
17 (State) I declare under penalty of perjury under the laws of the State of California
that the above is true and correct.
18
Executed on August 14, 2020 at Los Angeles, California.
19
20
Shannon Heliker
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PROOF OF SERVICE
Rinnovo Group, Inc. v. Goldman Sachs Bank USA, et al.
Case Number: S-CV-0043932
SERVICE LIST
Counsel of Record Phone/Fax Nos. Party
Sean J. Filippini, Esq. T. [916] 444-1000 Attorneys for Plaintiff:
David M. Fox, Esq. F. [916] 444-2100 RINNOVO GROUP, INC.
DOWNEY BRAND, LLP
621 Capitol Mall, Eighteenth Floor sfilippini@downeybrand.com
Sacramento, CA 95814-4686 dfox@downeybrand.com
Jason W. Reese, Esq. T. [424] 204-7700 Attorneys for Defendant:
Deborah A. Hedley, Esq. F. [424] 204-7702 GOLDMAN SACHS
VEDDER PRICE (CA), LLP BANK USA
1925 Century Park East, Suite 1900 jreese@vedderprice.com
Los Angeles, CA 90067 dhedley@vedderprice.com
1
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1 TERESA A. LIBERTINO, ESQ. (SBN 128942) GERALD B. MALANGA, ESQ. (SBN 167065) 2 LATTIE | MALANGA | LIBERTINO, LLP 8300 Beverly Boulevard, Suite 200 08/14/2020 3 Los Angeles, California 90048 (323) 938-3102 Telephone 4 (323) 938-0110 Facsimile 5 Attorneys for Defendants, GERALD MALANGA; TERESA LIBERTINO (erroneously sued herein as 6 “THERESA LIBERTINO”), INDIVIDUALLY, AND ALSO AS TRUSTEES OF THE MALANGA LIVING TRUST, 7 DATED OCTOBER 14, 2010 8 9 SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 FOR THE COUNTY OF PLACER 11 12 RINNOVO GROUP, INC., CASE NO.: SCV0043932 13 Plaintiff, Dept. 42 Judge: Hon. Charles Wachob 14 v. 15 DEFENDANTS GERALD MALANGA AND 16 TERESA LIBERTINO, INDIVIDUALLY, GOLDMAN SACHS BANK USA; GERALD AND ALSO AS TRUSTEES OF THE 17 MALANGA AND THERESA LIBERTINO, MALANGA LIVING TRUST, DATED INDIVIDUALLY AND ALSO AS OCTOBER 14, 2010’S ANSWER TO 18 TRUSTEES OF THE MALANGA LIVING COMPLAINT TRUST, DATED OCTOBER 14, 2010; and 19 DOES 1 through 50, Inclusive,; 20 Defendants. Complaint Filed: November 4, 2019 21 Defendants, GERALD MALANGA and TERESA LIBERTINO (erroneously sued herein as 22 “THERESA LIBERTINO”), INDIVIDUALLY, AND ALSO AS TRUSTEES OF THE 23 MALANGA LIVING TRUST, DATED OCTOBER 14, 20210 (hereinafter “Defendants”), in 24 answer to the Complaint of RINNOVO GROUP, INC. (hereinafter “Plaintiff”) as follows: 25 GENERAL DENIAL & AFFIRMATIVE DEFENSES 26 Pursuant to the provisions of Section 431.30 of the California Code of Civil Procedure, 27 Defendants generally deny each and every, all and singular, the allegations of the Complaint, and 28 -1- ANSWER TO COMPLAINT 1 the Complaint as a whole, and in this connection Defendants deny that Plaintiff has been injured or 2 damaged in any of the sums mentioned in said Complaint, or in any sum, or at all as the result of 3 any act or omission of these answering Defendants. 4 Defendants have not completed their investigation of the facts of this case, has not 5 completed discovery in this matter, and has not completed its preparation for trial. The affirmative 6 defenses asserted herein are based on Defendants’ knowledge, information, and belief at this time, 7 and Defendants specifically reserves the right to modify, amend, or supplement any affirmative 8 defenses contained herein. Defendants have insufficient information upon which to form a belief as 9 to whether it may have additional unstated affirmative defenses. Defendants reserve the right to 10 assert additional affirmative defenses in the event discovery indicates they are appropriate. Subject 11 to the preceding qualifications and without waiving or excusing Plaintiff’s applicable burdens of 12 proof with respect to each and every element of the claims alleged by Plaintiff or admitting that 13 Defendants have any burden of proof as to any defense, Defendants hereby asserts the following 14 affirmative defenses to the Complaint: 15 FIRST AFFIRMATIVE DEFENSE 16 (Failure to State a Claim) 17 AS A FURTHER, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT 18 ON FILE HEREIN, AND TO EACH ALLEGED CAUSE OF ACTION CONTAINED THEREIN, 19 these answering Defendants allege that each purported cause of action in the Complaint fails to 20 state a claim upon which relief may be granted. 21 SECOND AFFIRMATIVE DEFENSE 22 (Statute of Limitations) 23 AS A FURTHER, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT 24 ON FILE HEREIN, AND TO EACH ALLEGED CAUSE OF ACTION CONTAINED THEREIN, 25 these answering Defendants allege the Complaint is barred by applicable statutes of limitation, 26 including Cal. Code Civ. Proc. § 335 et seq. 27 /// 28 -2- ANSWER TO COMPLAINT 1 THIRD AFFIRMATIVE DEFENSE 2 (Equitable Estoppel) 3 AS A FURTHER, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT 4 ON FILE HEREIN AND TO EACH ALLEGED CAUSE OF ACTION CONTAINED THEREIN, 5 these answering Defendants allege that Plaintiff herein, and each and every cause of action 6 contained in said Complaint, is barred by reason of acts, omissions, representations, and courses of 7 conduct by Plaintiff, by which these answering Defendants were led to rely on to its detriment 8 thereby barring each and every cause of action under the Doctrine of Equitable Estoppel. 9 FOURTH AFFIRMATIVE DEFENSE 10 (Failure to Mitigate Damages) 11 AS A FURTHER, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT 12 ON FILE HEREIN AND TO EACH ALLEGED CAUSE OF ACTION CONTAINED THEREIN, 13 these answering Defendants allege that at all times and places mentioned in the Complaint herein, 14 that Plaintiff’s claims are barred, in whole or in part, because it has failed to exercise reasonable 15 care and diligence to avoid loss and minimize damages. Plaintiff may not recover losses that could 16 have been prevented by reasonable efforts by Plaintiff, and therefore, Plaintiff’s recovery, if any, 17 should be reduced by its failure to mitigate damages. 18 FIFTH AFFIRMATIVE DEFENSE 19 (Unclean Hands) 20 AS A FURTHER, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT 21 ON FILE HEREIN AND TO EACH ALLEGED CAUSE OF ACTION CONTAINED THEREIN, 22 these answering Defendants are informed and believe, and on such information and belief, allege 23 that by reason of Plaintiffs’ claims are barred, in whole or in part, by the equitable doctrine of 24 unclean hands. 25 /// 26 /// 27 /// 28 -3- ANSWER TO COMPLAINT 1 SIXTH AFFIRMATIVE DEFENSE 2 (Novation) 3 AS A FURTHER, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT 4 ON FILE HEREIN AND TO EACH ALLEGED CAUSE OF ACTION CONTAINED THEREIN, 5 these answering Defendants allege that Plaintiff’s claims are barred, in whole or in part, because 6 Plaintiff has engaged in conduct and actions to constitute a novation concerning the obligations, 7 conduct, or acts at issue in the Complaint, barring Plaintiff’s recovery from the answering 8 Defendants. 9 SEVENTH AFFIRMATIVE DEFENSE 10 (Promissory Estoppel) 11 AS A FURTHER, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT 12 ON FILE HEREIN AND TO EACH ALLEGED CAUSE OF ACTION CONTAINED THEREIN, 13 these answering Defendants allege that Plaintiff’s claims are barred, in whole or in part, because it 14 relied on Plaintiff’s promise to waive and/or release any claims to its detriment. 15 EIGHTH AFFIRMATIVE DEFENSE 16 (Lack of Consideration) 17 AS A FURTHER, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT 18 ON FILE HEREIN AND TO EACH ALLEGED CAUSE OF ACTION CONTAINED THEREIN, 19 these answering Defendants allege that any recovery is barred on the ground that for each and every 20 oral, implied, written or other contract or quasi-contract alleged therein, there is a failure of 21 consideration. 22 NINTH AFFIRMATIVE DEFENSE 23 (Statute of Frauds) 24 AS A FURTHER, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT 25 ON FILE HEREIN AND TO EACH ALLEGED CAUSE OF ACTION CONTAINED THEREIN, 26 these answering Defendants allege that Plaintiff’s claims are barred, in whole or in part, by the 27 statute of frauds. 28 -4- ANSWER TO COMPLAINT 1 TENTH AFFIRMATIVE DEFENSE 2 (Unjust Enrichment) 3 AS A FURTHER, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT 4 ON FILE HEREIN AND TO EACH ALLEGED CAUSE OF ACTION CONTAINED THEREIN, 5 these answering Defendants allege that Plaintiff’s claims are barred, in whole or in part, to the 6 extent that any recovery by Plaintiff would constitute unjust enrichment. 7 ELEVENTH AFFIRMATIVE DEFENSE 8 (Complete Performance) 9 AS A FURTHER, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT 10 ON FILE HEREIN AND TO EACH ALLEGED CAUSE OF ACTION CONTAINED THEREIN, 11 these answering Defendants allege that Plaintiff’s claims are barred, in whole or in part, because 12 Defendants have appropriately, completely, and fully performed and discharged any and all 13 obligations and legal duties, to the extent any exist or ever existed, arising out of the matters alleged 14 in Plaintiff’s Complaint. 15 TWELFTH AFFIRMATIVE DEFENSE 16 (Accord and Satisfaction) 17 AS A FURTHER, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT 18 ON FILE HEREIN AND TO EACH ALLEGED CAUSE OF ACTION CONTAINED THEREIN, 19 these answering Defendants allege that Plaintiff’s claims are barred, in whole or in part, because 20 Plaintiff engaged in conduct and actions to constitute an accord and satisfaction concerning the 21 obligations, conduct, or acts at issue in the Complaint, barring recovery from the answering 22 Defendants. 23 THIRTEENTH AFFIRMATIVE DEFENSE 24 (Lack of Privity) 25 AS A FURTHER, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT 26 ON FILE HEREIN AND TO EACH ALLEGED CAUSE OF ACTION CONTAINED THEREIN, 27 these answering Defendants allege that Plaintiff’s claims are barred, in whole or in part, because 28 -5- ANSWER TO COMPLAINT 1 there is no privity between Plaintiff and Defendants, and Plaintiff’s recovery sought herein should 2 be diminished and/or barred. 3 FOURTEENTH AFFIRMATIVE DEFENSE 4 (Release) 5 AS A FURTHER, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT 6 ON FILE HEREIN AND TO EACH ALLEGED CAUSE OF ACTION CONTAINED THEREIN, 7 these answering Defendants allege that Plaintiff’s claims are barred, in whole or in part, because 8 Plaintiff engaged in an express, implied, and/or equitable release of any claims of which it now 9 complains. 10 FIFTEENTH AFFIRMATIVE DEFENSE 11 (Lack of Causation) 12 AS A FURTHER, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT 13 ON FILE HEREIN AND TO EACH ALLEGED CAUSE OF ACTION CONTAINED THEREIN, 14 these answering Defendants allege that Plaintiff may not pursue claims against Defendants because 15 its conduct was not the proximate or legal cause of Plaintiff’s alleged injuries. 16 SIXTEENTH AFFIRMATIVE DEFENSE 17 (Comparative Fault) 18 AS A FURTHER, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT 19 ON FILE HEREIN AND TO EACH ALLEGED CAUSE OF ACTION CONTAINED THEREIN, 20 these answering Defendants allege that Plaintiff’s damages, if any, were proximately caused and/or 21 contributed to by Plaintiff’s own actions, or the acts and omissions of others, thus barring or 22 diminishing Plaintiff’s ability to recover from Defendants, to which Defendants dispute there is 23 any. 24 SEVENTEENTH AFFIRMATIVE DEFENSE 25 (Contribution) 26 AS A FURTHER, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT 27 ON FILE HEREIN AND TO EACH ALLEGED CAUSE OF ACTION CONTAINED THEREIN, 28 -6- ANSWER TO COMPLAINT 1 these answering Defendants allege that Plaintiff’s damages, if any, were a direct and proximate 2 result of the acts, omissions, or negligence of third parties not within the knowledge or control of 3 Defendants, and, therefore, were sustained, if at all, without any conduct on the part of Defendants. 4 EIGHTEENTH AFFIRMATIVE DEFENSE 5 (Indemnification) 6 AS A FURTHER, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT 7 ON FILE HEREIN AND TO EACH ALLEGED CAUSE OF ACTION CONTAINED THEREIN, 8 these answering Defendants allege that should Plaintiff recover any damages from Defendants, that 9 Defendants is entitled to indemnification, either in whole or in part, from all persons or entities 10 whose actions contributed to Plaintiff’s damages, to the extent there are any. 11 NINETEENTH AFFIRMATIVE DEFENSE 12 (Setoff and Recoupment) 13 AS A FURTHER, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT 14 ON FILE HEREIN AND TO EACH ALLEGED CAUSE OF ACTION CONTAINED THEREIN, 15 these answering Defendants allege that if Plaintiff has sustained any damages, which Defendants 16 deny, Defendants are entitled under the equitable doctrine of setoff and recoupment to offset all 17 overpayments and/or all obligations against any judgment that may be entered against Defendants. 18 TWENTIETH AFFIRMATIVE DEFENSE 19 (Laches) 20 AS A FURTHER, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT 21 ON FILE HEREIN AND TO EACH ALLEGED CAUSE OF ACTION CONTAINED THEREIN, 22 these answering Defendants allege that Plaintiff unreasonably delayed in filing its complaint and in 23 notifying Defendants of alleged harm and damages, thereby barring or diminishing its recovery 24 under the doctrine of laches. 25 /// 26 /// 27 /// 28 -7- ANSWER TO COMPLAINT 1 TWENTY-FIRST AFFIRMATIVE DEFENSE 2 (Independent Intervening and Superseding Causes) 3 AS A FURTHER, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT 4 ON FILE HEREIN AND TO EACH ALLEGED CAUSE OF ACTION CONTAINED THEREIN, 5 these answering Defendants allege that to the extent Plaintiff suffered injury or damages, which 6 Defendants denies occurred, such damages were caused by intervening and/or superseding acts of 7 other parties, persons and/or entities, thus barring Plaintiff from any recovery against Defendants. 8 TWENTY-THIRD AFFIRMATIVE DEFENSE 9 (Reasonable Value) 10 AS A FURTHER, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT 11 ON FILE HEREIN AND TO EACH ALLEGED CAUSE OF ACTION CONTAINED THEREIN, 12 these answering Defendants allege that the value of materials and/or labor alleged by Plaintiff is not 13 the reasonable value of said materials and labor. 14 TWENTY-FOURTH AFFIRMATIVE DEFENSE 15 (Failure to Properly Serve Preliminary Notice) 16 AS A FURTHER, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT 17 ON FILE HEREIN AND TO EACH ALLEGED CAUSE OF ACTION CONTAINED THEREIN, 18 these answering Defendants allege that Plaintiff failed to comply with the requirements of Civil 19 Code Sections 8200, et seq., including in that Plaintiff failed to properly and timely serve the 20 preliminary notice required. 21 TWENTY-FIFTH AFFIRMATIVE DEFENSE 22 (Failure to Include Reasonable Estimate in Preliminary Notice) 23 AS A FURTHER, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT 24 ON FILE HEREIN AND TO EACH ALLEGED CAUSE OF ACTION CONTAINED THEREIN, 25 these answering Defendants allege that Plaintiff’s preliminary notice did not contain a reasonable 26 estimate of the total price of the labor, services, equipment or materials furnished or to be furnished 27 by Plaintiff. 28 -8- ANSWER TO COMPLAINT 1 TWENTY-SIXTH AFFIRMATIVE DEFENSE 2 (Failure to Timely Record Mechanic’s Lien) 3 AS A FURTHER, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT 4 ON FILE HEREIN AND TO EACH ALLEGED CAUSE OF ACTION CONTAINED THEREIN, 5 these answering Defendants allege that Plaintiff failed to comply with the requirements of Civil 6 Code Sections 8414, including because Plaintiff failed to properly and timely serve the preliminary 7 notice required. 8 TWENTY-SEVENTH AFFIRMATIVE DEFENSE 9 (Failure to Timely Record Mechanic’s Lien) 10 AS A FURTHER, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT 11 ON FILE HEREIN AND TO EACH ALLEGED CAUSE OF ACTION CONTAINED THEREIN, 12 these answering Defendants allege that Plaintiff failed to comply with the requirements of Civil 13 Code Sections 8212 and 8414, including because Plaintiff failed to properly and timely serve the 14 preliminary notice required. 15 TWENTY-EIGHTH AFFIRMATIVE DEFENSE 16 (Forfeiture) 17 AS A FURTHER, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT 18 ON FILE HEREIN AND TO EACH ALLEGED CAUSE OF ACTION CONTAINED THEREIN, 19 these answering Defendants allege that Plaintiff has willfully overstated the amount of its purported 20 mechanic’s lien claim, and thereby forfeited any mechanic’s lien claim. 21 TWENTY-NINTH AFFIRMATIVE DEFENSE 22 (Anticipatory Breach) 23 AS A FURTHER, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT 24 ON FILE HEREIN AND TO EACH ALLEGED CAUSE OF ACTION CONTAINED THEREIN, 25 these answering Defendants allege that Plaintiff’s claims are barred, in whole or in part, because 26 Plaintiff engaged in conduct and actions to constitute anticipatory breach concerning the 27 obligations, conduct, or acts at issue in the Complaint, barring recovery from the answering 28 -9- ANSWER TO COMPLAINT 1 Defendants. 2 THIRTIETH AFFIRMATIVE DEFENSE 3 (Anticipatory Repudiation) 4 AS A FURTHER, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT 5 ON FILE HEREIN AND TO EACH ALLEGED CAUSE OF ACTION CONTAINED THEREIN, 6 these answering Defendants allege that Plaintiff’s claims are barred, in whole or in part, because 7 Plaintiff engaged in conduct and actions to constitute anticipatory repudiation concerning the 8 obligations, conduct, or acts at issue in the Complaint, barring recovery from the answering 9 Defendants. 10 THIRTY-FIRST AFFIRMATIVE DEFENSE 11 (Assumption of the Risk) 12 AS A FURTHER, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT 13 ON FILE HEREIN AND TO EACH ALLEGED CAUSE OF ACTION CONTAINED THEREIN, 14 these answering Defendants allege that Plaintiff’s claims are barred, in whole or in part, because 15 Plaintiff engaged in conduct and actions to constitute assumption of the risk concerning the 16 obligations, conduct, or acts at issue in the Complaint, barring recovery from the answering 17 Defendants. 18 /// 19 /// 20 /// 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 -10- ANSWER TO COMPLAINT 1 PRAYER FOR RELIEF 2 WHEREFORE, Defendants request the following relief: 3 1. The Complaint be dismissed as to the answering Defendants with prejudice; 4 2. Plaintiff take nothing by virtue of the Complaint; 5 3. Judgment be entered in the answering Defendants’ favor and against Plaintiff on all 6 causes of action asserted in the Complaint; 7 4. The answering Defendants be awarded reasonable attorneys’ fees; 8 5. The Court award the answering Defendants its expenses and costs to the full extent 9 permitted by law; and 10 6. The Court award such other relief as is just and proper under the circumstances. 11 12 13 14 DATED: August 14, 2020 LATTIE | MALANGA | LIBERTINO, LLP 15 16 ____________________________________ By: Gerald B. Malanga, Esq. 17 Teresa A. Libertino, Esq. Attorneys for Defendants 18 19 20 21 22 23 24 25 26 27 28 -11- ANSWER TO COMPLAINT 1 Rinnovo Group, Inc. v. Goldman Sachs Bank USA, et al. Case Number: SCV0043932 2 3 PROOF OF SERVICE 4 I am a citizen of the United States. My business address is 8300 Beverly Boulevard, Suite 200, Los Angeles, California 90048. I am employed in the county of Los Angeles where this 5 service occurs. I am over the age of 18 years, and not a party to the within cause. I am readily familiar with my employer’s normal business practice for collection and processing of 6 correspondence for mailing with the U.S. Postal Service, and that practice is that correspondence is deposited with the U.S. Postal Service the same day as the day of collection in the ordinary course 7 of business. 8 On the date set forth below, following ordinary business practice, I served a true copy of the foregoing document(s) described below upon the following: 9 10 1. DEFENDANTS GERALD MALANGA AND TERESA LIBERTINO, INDIVIDUALLY AND AS TRUSTEES, OF THE MALANGA LIVING TRUST, 11 DATED OCTOBER 14, 2010’S ANSWER TO COMPLAINT 12 13 SEE ATTACHED SERVICE LIST 14 15 (BY MAIL) I caused such envelope(s) with postage thereon fully prepaid to 16 be placed in the United States mail at Los Angeles, California. 17 (State) I declare under penalty of perjury under the laws of the State of California that the above is true and correct. 18 Executed on August 14, 2020 at Los Angeles, California. 19 20 Shannon Heliker 21 22 23 24 25 26 27 28 -1- PROOF OF SERVICE Rinnovo Group, Inc. v. Goldman Sachs Bank USA, et al. Case Number: S-CV-0043932 SERVICE LIST Counsel of Record Phone/Fax Nos. Party Sean J. Filippini, Esq. T. [916] 444-1000 Attorneys for Plaintiff: David M. Fox, Esq. F. [916] 444-2100 RINNOVO GROUP, INC. DOWNEY BRAND, LLP 621 Capitol Mall, Eighteenth Floor sfilippini@downeybrand.com Sacramento, CA 95814-4686 dfox@downeybrand.com Jason W. Reese, Esq. T. [424] 204-7700 Attorneys for Defendant: Deborah A. Hedley, Esq. F. [424] 204-7702 GOLDMAN SACHS VEDDER PRICE (CA), LLP BANK USA 1925 Century Park East, Suite 1900 jreese@vedderprice.com Los Angeles, CA 90067 dhedley@vedderprice.com 1