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1 FREEMAN MATHIS & GARY, LLP
Gregory T. Fayard (SBN 212930)
2 gfayard@fmglaw.com Electronically Filed
1013 Galleria Boulevard, Suite 250 2/1/2021 3:45 PM
3 Roseville, California 95678-1363 Superior Court of California
(916) 472-3301; FAX: (213) 417-9729
4 County of Stanislaus
Attorneys for Defendants Clerk of the Court
5 ETH ENTERPRISES, INC. dba CALIFORNIA HOMES By: Christine Zulim, Deputy
DIRECT; DALE ROBERT BOUCHER; TIMOTHY S.
6 EILAND; DAVID ALAN BENNETT;ERIC TRAVIS $585 PD
HAZER; SHARON E. GARCIA HAZER
7
8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 COUNTY OF STANISLAUS
10
11 BARBARA J. BARTEL, Case No. CV-20-004625
12 Plaintiff, DEFENDANTS ETH ENTERPRISES,
vs. INC. dba CALIFORNIA HOMES
13 DIRECT; DALE ROBERT BOUCHER;
14 RAYLEN WARREN GRITTON, an individual; TIMOTHY S. EILAND; DAVID ALAN
RWG ENTERPRISES, INC., a California BENNETT; ERIC TRAVIS HAZER
15 corporation; CALIFORNIA HOMES DIRECT, a AND SHARON E. GARCIA HAZER’S
business entity form unknown; HOMES ANSWER TO COMPLAINT
16 DIRECT, a business entity, form unknown;
WESTERN SURETY COMPANY, a South
17 ASSIGNED TO HON. J. FREELAND IN
Dakota corporation; DALE ROBERT
18 BOUCHER, an individual; TIMOTHY S. DEPT. 23 FOR ALL PURPOSES
EILAND, an individual; DAVID ALAN
19 BENNETT, an individual; ETH ENTERPRISES, Complaint Filed: October 19, 2020
INC., a California Corporation; ERIC TRAVIS Trial Date: None Set
20 HAZER, an individual; SHARON E. GARCIA
HAZER, an individual; BARBARA ANN
21
NEVILLE, an individual; and DOES 1 through
22 15, inclusive,
23 Defendants.
24
25 Defendants ETH ENTERPRISES, INC (dba CALIFORNIA HOMES DIRECT), DALE
26 ROBERT BOUCHER, TIMOTHY S. EILAND, DAVID ALAN BENNETT, ERIC TRAVIS
27 HAZER, and SHARON E. GARCIA HAZER (hereafter “Defendants”) answer Plaintiff BARBARA
28 J. BARTEL’S (hereafter “Plaintiff”) Unverified Complaint on file and deny and allege as follows:
DEFENDANT ETH ENTERPRISES, INC. ET AL’S ANSWER TO COMPLAINT
1 GENERAL DENIAL
2 1. Defendant ETH Enterprises, Inc (dba California Homes Direct) is a California
3 corporation with its principal place of business in Stanislaus County, California. Defendant ETH
4 Enterprises, Inc. did business in Salida, California. Defendant ETH Enterprises, Inc. operated under
5 Occupational License DL 1094484, issues by the Business, Consumer Services and Housing Agency,
6 Department of Housing and Community Development, Division of Codes and Standards,
7 Occupational Licensing Program.
8 2. Except as admitted above, by virtue of and pursuant to the provisions of California
9 Code of Civil Procedure section 431.30, these Answering Defendants deny, generally and
10 specifically, each and every allegation contained in each and every cause of action of Plaintiff's
11 Complaint, and the whole thereof, and further deny that Plaintiff has been damaged as alleged or in
12 any manner whatsoever as a result of any wrongful conduct on the part of these Answering
13 Defendants.
14 AFFIRMATIVE DEFENSES
15 2. The following affirmative defenses are alleged on information and belief by
16 Defendants as to Plaintiff so as not to be waived at trial. Defendants reserves the right to amend or
17 withdraw any or all defenses or to raise additional defenses as or after they may become known
18 during the course of investigation and discovery.
19 FIRST AFFIRMATIVE DEFENSE
20 (Failure to State a Claim)
21 3. As a first affirmative defense to each cause of action of the Complaint, Plaintiff’s
22 Complaint and the purported causes of action asserted against Defendants therein fail to state facts
23 sufficient to constitute a claim against Defendants.
24 SECOND AFFIRMATIVE DEFENSE
25 (Laches)
26 4. As a second affirmative defense to each cause of action of the Complaint, Defendants
27 have been prejudiced because of Plaintiff’s unreasonable delay in filing and prosecuting this action.
28 Therefore, Plaintiff’s claims are barred by the doctrine of laches.
-2-
DEFENDANT ETH ENTERPRISES, INC. ET AL’S ANSWER TO COMPLAINT
1 THIRD AFFIRMATIVE DEFENSE
2 (Waiver)
3 5. As a third affirmative defense to each cause of action of the Complaint, Plaintiff, by
4 her conduct and pursuant to the contract terms, has waived her purported claims against Defendants.
5 FOURTH AFFIRMATIVE DEFENSE
6 (Privilege)
7 6. As a fourth affirmative defense to each cause of action of the Complaint, Defendants
8 were privileged in doing the things upon which Plaintiff erroneously bases her claims.
9 FIFTH AFFIRMATIVE DEFENSE
10 (Estoppel)
11 7. As a fifth affirmative defense to each cause of action of the Complaint, Plaintiff is
12 estopped to obtain the relief sought by the Complaint by reason of her conduct and/or omissions and
13 Defendants’ reliance thereon and/or pursuant to the terms of the contract at issue in this action.
14 SIXTH AFFIRMATIVE DEFENSE
15 (Statute of Limitations)
16 8. As a sixth affirmative defense to each cause of action of the Complaint, Plaintiff’s
17 claims against Defendants are barred by the applicable statutes of limitation including, but not limited
18 to sections 335.1, 337, 337.1, 338, 339, 340 of the Code of Civil Procedure and section 2725 of the
19 Uniform Commercial Code.
20 SEVENTH AFFIRMATIVE DEFENSE
21 (Plaintiff’s Conduct Bars Recovery)
22 9. As a seventh affirmative defense to each cause of action of the Complaint, Plaintiff is
23 not entitled to any relief or recovery from Defendants by virtue of the conduct of the Plaintiff.
24 EIGHTH AFFIRMATIVE DEFENSE
25 (Unclean Hands)
26 10. As an eighth affirmative defense to each cause of action of the Complaint, Plaintiff’s
27 claims for relief should be denied because of Plaintiff’s unclean hands.
28 ///
-3-
DEFENDANT ETH ENTERPRISES, INC. ET AL’S ANSWER TO COMPLAINT
1 NINTH AFFIRMATIVE DEFENSE
2 (Third Party Responsibility)
3 11. As a ninth affirmative defense to each cause of action of the Complaint, if it is found
4 that Defendants are in any matter liable for any injuries or damages alleged in the Complaint, which
5 liability is generally and specifically denied, such liability was proximately cause for contributed to
6 by the acts or omissions of other persons or entities. Defendants’ liability, if any, should therefore
7 be reduced to the extent that the acts or omissions of other persons or entities causes Plaintiff’s
8 alleged loss.
9 TENTH AFFIRMATIVE DEFENSE
10 (Third Party Liability)
11 12. As a tenth affirmative defense to each cause of action of the Complaint, if Plaintiff is
12 entitled to any recovery or any other relief sought in the Complaint, third parties are solely liable for
13 the alleged recovery or relief to which Plaintiff is, if at all, entitled.
14 ELEVENTH AFFIRMATIVE DEFENSE
15 (No Proximate Cause)
16 13. As an eleventh affirmative defense to each cause of action of the Complaint, to the
17 extent that Plaintiff has suffered any damages, the purported damages were not proximately caused
18 by or foreseeable as a result of conduct of Defendants.
19 TWELFTH AFFIRMATIVE DEFENSE
20 (Unjust Enrichment)
21 14. As a twelfth affirmative defense to each cause of action of the Complaint, Plaintiff is
22 not entitled to any of the relief sought against Defendants because Plaintiff would be unjustly
23 enriched if permitted to recover on any of the purported claims alleged in the Complaint.
24 THIRTEENTH AFFIRMATIVE DEFENSE
25 (Good Faith)
26 15. As a thirteenth affirmative defense to each cause of action of the Complaint, any and
27 all of Defendants’ purported acts of which Plaintiff complains were undertaken in good faith.
28
-4-
DEFENDANT ETH ENTERPRISES, INC. ET AL’S ANSWER TO COMPLAINT
1 FOURTEENTH AFFIRMATIVE DEFENSE
2 (Failure to Mitigate)
3 16. As a fourteenth affirmative defense to each cause of action of the Complaint, Plaintiff
4 has failed to mitigate her alleged damages.
5 FIFTEENTH AFFIRMATIVE DEFENSE
6 (Set-off/off-set)
7 17. As a fifteenth affirmative defense to each cause of action of the Complaint,
8 Defendants allege that Plaintiff’s claims are subject to set-off in an amount subject to proof at trial.
9 SIXTEENTH AFFIRMATIVE DEFENSE
10 (Intervening Acts)
11 18. As a sixteenth affirmative defense to each cause of action of the Complaint,
12 Defendants allege that Plaintiff’s claims are barred due to the intervening acts or superseding acts of
13 third parties.
14 SEVENTEENTH AFFIRMATIVE DEFENSE
15 (Ratification)
16 19. As a seventeenth affirmative defense to each cause of action of the Complaint,
17 Defendants allege that Plaintiff has ratified the alleged acts of Defendants by conduct which is
18 inconsistent on its part with any position other than that Plaintiff intended to and did approve, adopt
19 and ratify the acts of Defendants.
20 EIGHTEENTH AFFIRMATIVE DEFENSE
21 (Plaintiff’s Conduct Prevented Performance; Excuse)
22 20. As an eighteenth affirmative defense to each cause of action of the Complaint,
23 Defendants have performed any and all things required of them under the contract alleged in the
24 Complaint. To the extent Defendants did not perform any and all things required of them, Defendants
25 were excused from performance by virtue of, among other things, Plaintiff’s conduct which
26 prevented and/or excused from any further obligation to perform.
27 ///
28 ///
-5-
DEFENDANT ETH ENTERPRISES, INC. ET AL’S ANSWER TO COMPLAINT
1 NINETEENTH AFFIRMATIVE DEFENSE
2 (Right to Arbitrate Under Contract)
3 21. As a nineteenth separate affirmative defense to the Complaint, and to every cause of
4 action contained therein, Defendant alleges that the Complaint should be abated pursuant to an
5 arbitration agreement agreed to by the parties. Defendants do not waive their right to arbitrate and
6 reserve their right to compel arbitration in the event the parties do not voluntarily agree to arbitrate,
7 or a petition to compel is otherwise necessary.
8 TWENTIETH AFFIRMATIVE DEFENSE
9 (Comparative Fault of Plaintiff)
10 22. As a twentieth separate affirmative defense to the Complaint, and to every cause of
11 action contained therein, Defendants allege that Plaintiff is entitled to no recovery, or her recovery
12 should be proportionally decreased, due to Plaintiff’s total or partial comparative fault.
13 TWENTY-FIRST AFFIRMATIVE DEFENSE
14 (Representations were true)
15 23. Plaintiff’s claims and causes of action are barred, in whole or in part, because any
16 statements made by Defendants were true, or if not true, were reasonably believed to be true at the
17 time they were made.
18 TWENTY-SECOND AFFIRMATIVE DEFENSE
19 (Materiality and Reliance)
20 24. Plaintiff’s claims and causes of action are barred, in whole or in part, because any
21 misrepresentation, omission, or concealment alleged in the Complaint was immaterial and not
22 reasonable or actually relied upon by Plaintiff.
23 TWENTY-THIRD AFFIRMATIVE DEFENSE
24 (No Misrepresentations, Omissions, or Concealment)
25 25. Plaintiff’s claims and causes of action are barred, in whole or in part, because
26 Defendants allege that they did not make any of the misrepresentations, omissions, or concealments
27 alleged in the Complaint.
28 ///
-6-
DEFENDANT ETH ENTERPRISES, INC. ET AL’S ANSWER TO COMPLAINT
1 TWENTY-FOURTH AFFIRMATIVE DEFENSE
2 (Speculative Damages)
3 26. Plaintiff’s claims are barred because her damages are speculative.
4 TWENTY-FIFTH AFFIRMATIVE DEFENSE
5 (Reservation of Defenses)
6 27. As a twenty-first affirmative defense to each cause of action of the Complaint,
7 Defendants expressly and specifically reserves the right to assert further affirmative defenses as the
8 discovery, investigation and litigation of this action develops.
9 WHEREFORE, Defendants pray for judgment against Plaintiff as follows:
10 1. That Plaintiff takes nothing by way of her Complaint;
11 2. That judgment be entered in favor of Defendants and against Plaintiff;
12 3. That Defendants have judgment for costs of suit incurred herein; and
13 4. For such other and further relief as the Court may deem just and
14 proper.
15
16 Dated: February 1, 2021 FREEMAN MATHIS & GARY, LLP
17
18 By:
GREGORY T. FAYARD
19 Attorneys for Defendants ETH
ENTERPRISES, INC. dba CALIFORNIA
20 HOMES DIRECT; DALE ROBERT
BOUCHER; TIMOTHY S. EILAND; DAVID
21 ALAN BENNETT;ERIC TRAVIS HAZER;
and SHARON E. GARCIA HAZER
22
23
24
25
26
27
28
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DEFENDANT ETH ENTERPRISES, INC. ET AL’S ANSWER TO COMPLAINT
1
PROOF OF SERVICE
2
I am employed in the County of Placer, State of California. I am over the age of 18 and not
3 a party to the within action. My business address is 1013 Galleria Boulevard, Suite 250, Roseville,
4 California 95678-1363.
5 On January 26, 2021, I served the within document(s) described as:
6 DEFENDANTS ETH ENTERPRISES, INC. dba CALIFORNIA HOMES DIRECT;
DALE ROBERT BOUCHER; TIMOTHY S. EILAND; DAVID ALAN BENNETT; ERIC
7 TRAVIS HAZER AND SHARON E. GARCIA HAZER’S ANSWER TO COMPLAINT
8
on the interested parties in this action as follows:
9
10 Attorney for Plaintiff
Michael R. Germain, Esq.
11 GERMAIN LAW
945 Morning Star Drive
12 Sonora, CA 95370
Email: germainlaw@mlode.com
13
14 X (BY MAIL) By placing a true copy of the foregoing document(s) in a sealed envelope
addressed as set forth above. I placed each such envelope for collection and mailing
15 following ordinary business practices. I am readily familiar with this Firm's practice for
collection and processing of correspondence for mailing. Under that practice, the
16 correspondence would be deposited with the United States Postal Service on that same day,
with postage thereon fully prepaid at Roseville, California, in the ordinary course of
17 business. I am aware that on motion of the party served, service is presumed invalid if
postal cancellation date or postage meter date is more than one day after date of deposit for
18 mailing in affidavit.
19
20 X (BY E-MAIL) By transmitting a true copy of the foregoing document(s) to the e-mail
addresses set forth above which are being served by electronic means pursuant to
21 Emergency Rule 12,
22 I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct.
23
Executed on January 26, 2021, at Roseville, California.
24
25 SANDRA ANDRADE
(Type or print name) (Signature)
26
27
28
DEFENDANT ETH ENTERPRISES, INC.’S ANSWER TO COMPLAINT
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1 FREEMAN MATHIS & GARY, LLP Gregory T. Fayard (SBN 212930) 2 gfayard@fmglaw.com Electronically Filed 1013 Galleria Boulevard, Suite 250 2/1/2021 3:45 PM 3 Roseville, California 95678-1363 Superior Court of California (916) 472-3301; FAX: (213) 417-9729 4 County of Stanislaus Attorneys for Defendants Clerk of the Court 5 ETH ENTERPRISES, INC. dba CALIFORNIA HOMES By: Christine Zulim, Deputy DIRECT; DALE ROBERT BOUCHER; TIMOTHY S. 6 EILAND; DAVID ALAN BENNETT;ERIC TRAVIS $585 PD HAZER; SHARON E. GARCIA HAZER 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 COUNTY OF STANISLAUS 10 11 BARBARA J. BARTEL, Case No. CV-20-004625 12 Plaintiff, DEFENDANTS ETH ENTERPRISES, vs. INC. dba CALIFORNIA HOMES 13 DIRECT; DALE ROBERT BOUCHER; 14 RAYLEN WARREN GRITTON, an individual; TIMOTHY S. EILAND; DAVID ALAN RWG ENTERPRISES, INC., a California BENNETT; ERIC TRAVIS HAZER 15 corporation; CALIFORNIA HOMES DIRECT, a AND SHARON E. GARCIA HAZER’S business entity form unknown; HOMES ANSWER TO COMPLAINT 16 DIRECT, a business entity, form unknown; WESTERN SURETY COMPANY, a South 17 ASSIGNED TO HON. J. FREELAND IN Dakota corporation; DALE ROBERT 18 BOUCHER, an individual; TIMOTHY S. DEPT. 23 FOR ALL PURPOSES EILAND, an individual; DAVID ALAN 19 BENNETT, an individual; ETH ENTERPRISES, Complaint Filed: October 19, 2020 INC., a California Corporation; ERIC TRAVIS Trial Date: None Set 20 HAZER, an individual; SHARON E. GARCIA HAZER, an individual; BARBARA ANN 21 NEVILLE, an individual; and DOES 1 through 22 15, inclusive, 23 Defendants. 24 25 Defendants ETH ENTERPRISES, INC (dba CALIFORNIA HOMES DIRECT), DALE 26 ROBERT BOUCHER, TIMOTHY S. EILAND, DAVID ALAN BENNETT, ERIC TRAVIS 27 HAZER, and SHARON E. GARCIA HAZER (hereafter “Defendants”) answer Plaintiff BARBARA 28 J. BARTEL’S (hereafter “Plaintiff”) Unverified Complaint on file and deny and allege as follows: DEFENDANT ETH ENTERPRISES, INC. ET AL’S ANSWER TO COMPLAINT 1 GENERAL DENIAL 2 1. Defendant ETH Enterprises, Inc (dba California Homes Direct) is a California 3 corporation with its principal place of business in Stanislaus County, California. Defendant ETH 4 Enterprises, Inc. did business in Salida, California. Defendant ETH Enterprises, Inc. operated under 5 Occupational License DL 1094484, issues by the Business, Consumer Services and Housing Agency, 6 Department of Housing and Community Development, Division of Codes and Standards, 7 Occupational Licensing Program. 8 2. Except as admitted above, by virtue of and pursuant to the provisions of California 9 Code of Civil Procedure section 431.30, these Answering Defendants deny, generally and 10 specifically, each and every allegation contained in each and every cause of action of Plaintiff's 11 Complaint, and the whole thereof, and further deny that Plaintiff has been damaged as alleged or in 12 any manner whatsoever as a result of any wrongful conduct on the part of these Answering 13 Defendants. 14 AFFIRMATIVE DEFENSES 15 2. The following affirmative defenses are alleged on information and belief by 16 Defendants as to Plaintiff so as not to be waived at trial. Defendants reserves the right to amend or 17 withdraw any or all defenses or to raise additional defenses as or after they may become known 18 during the course of investigation and discovery. 19 FIRST AFFIRMATIVE DEFENSE 20 (Failure to State a Claim) 21 3. As a first affirmative defense to each cause of action of the Complaint, Plaintiff’s 22 Complaint and the purported causes of action asserted against Defendants therein fail to state facts 23 sufficient to constitute a claim against Defendants. 24 SECOND AFFIRMATIVE DEFENSE 25 (Laches) 26 4. As a second affirmative defense to each cause of action of the Complaint, Defendants 27 have been prejudiced because of Plaintiff’s unreasonable delay in filing and prosecuting this action. 28 Therefore, Plaintiff’s claims are barred by the doctrine of laches. -2- DEFENDANT ETH ENTERPRISES, INC. ET AL’S ANSWER TO COMPLAINT 1 THIRD AFFIRMATIVE DEFENSE 2 (Waiver) 3 5. As a third affirmative defense to each cause of action of the Complaint, Plaintiff, by 4 her conduct and pursuant to the contract terms, has waived her purported claims against Defendants. 5 FOURTH AFFIRMATIVE DEFENSE 6 (Privilege) 7 6. As a fourth affirmative defense to each cause of action of the Complaint, Defendants 8 were privileged in doing the things upon which Plaintiff erroneously bases her claims. 9 FIFTH AFFIRMATIVE DEFENSE 10 (Estoppel) 11 7. As a fifth affirmative defense to each cause of action of the Complaint, Plaintiff is 12 estopped to obtain the relief sought by the Complaint by reason of her conduct and/or omissions and 13 Defendants’ reliance thereon and/or pursuant to the terms of the contract at issue in this action. 14 SIXTH AFFIRMATIVE DEFENSE 15 (Statute of Limitations) 16 8. As a sixth affirmative defense to each cause of action of the Complaint, Plaintiff’s 17 claims against Defendants are barred by the applicable statutes of limitation including, but not limited 18 to sections 335.1, 337, 337.1, 338, 339, 340 of the Code of Civil Procedure and section 2725 of the 19 Uniform Commercial Code. 20 SEVENTH AFFIRMATIVE DEFENSE 21 (Plaintiff’s Conduct Bars Recovery) 22 9. As a seventh affirmative defense to each cause of action of the Complaint, Plaintiff is 23 not entitled to any relief or recovery from Defendants by virtue of the conduct of the Plaintiff. 24 EIGHTH AFFIRMATIVE DEFENSE 25 (Unclean Hands) 26 10. As an eighth affirmative defense to each cause of action of the Complaint, Plaintiff’s 27 claims for relief should be denied because of Plaintiff’s unclean hands. 28 /// -3- DEFENDANT ETH ENTERPRISES, INC. ET AL’S ANSWER TO COMPLAINT 1 NINTH AFFIRMATIVE DEFENSE 2 (Third Party Responsibility) 3 11. As a ninth affirmative defense to each cause of action of the Complaint, if it is found 4 that Defendants are in any matter liable for any injuries or damages alleged in the Complaint, which 5 liability is generally and specifically denied, such liability was proximately cause for contributed to 6 by the acts or omissions of other persons or entities. Defendants’ liability, if any, should therefore 7 be reduced to the extent that the acts or omissions of other persons or entities causes Plaintiff’s 8 alleged loss. 9 TENTH AFFIRMATIVE DEFENSE 10 (Third Party Liability) 11 12. As a tenth affirmative defense to each cause of action of the Complaint, if Plaintiff is 12 entitled to any recovery or any other relief sought in the Complaint, third parties are solely liable for 13 the alleged recovery or relief to which Plaintiff is, if at all, entitled. 14 ELEVENTH AFFIRMATIVE DEFENSE 15 (No Proximate Cause) 16 13. As an eleventh affirmative defense to each cause of action of the Complaint, to the 17 extent that Plaintiff has suffered any damages, the purported damages were not proximately caused 18 by or foreseeable as a result of conduct of Defendants. 19 TWELFTH AFFIRMATIVE DEFENSE 20 (Unjust Enrichment) 21 14. As a twelfth affirmative defense to each cause of action of the Complaint, Plaintiff is 22 not entitled to any of the relief sought against Defendants because Plaintiff would be unjustly 23 enriched if permitted to recover on any of the purported claims alleged in the Complaint. 24 THIRTEENTH AFFIRMATIVE DEFENSE 25 (Good Faith) 26 15. As a thirteenth affirmative defense to each cause of action of the Complaint, any and 27 all of Defendants’ purported acts of which Plaintiff complains were undertaken in good faith. 28 -4- DEFENDANT ETH ENTERPRISES, INC. ET AL’S ANSWER TO COMPLAINT 1 FOURTEENTH AFFIRMATIVE DEFENSE 2 (Failure to Mitigate) 3 16. As a fourteenth affirmative defense to each cause of action of the Complaint, Plaintiff 4 has failed to mitigate her alleged damages. 5 FIFTEENTH AFFIRMATIVE DEFENSE 6 (Set-off/off-set) 7 17. As a fifteenth affirmative defense to each cause of action of the Complaint, 8 Defendants allege that Plaintiff’s claims are subject to set-off in an amount subject to proof at trial. 9 SIXTEENTH AFFIRMATIVE DEFENSE 10 (Intervening Acts) 11 18. As a sixteenth affirmative defense to each cause of action of the Complaint, 12 Defendants allege that Plaintiff’s claims are barred due to the intervening acts or superseding acts of 13 third parties. 14 SEVENTEENTH AFFIRMATIVE DEFENSE 15 (Ratification) 16 19. As a seventeenth affirmative defense to each cause of action of the Complaint, 17 Defendants allege that Plaintiff has ratified the alleged acts of Defendants by conduct which is 18 inconsistent on its part with any position other than that Plaintiff intended to and did approve, adopt 19 and ratify the acts of Defendants. 20 EIGHTEENTH AFFIRMATIVE DEFENSE 21 (Plaintiff’s Conduct Prevented Performance; Excuse) 22 20. As an eighteenth affirmative defense to each cause of action of the Complaint, 23 Defendants have performed any and all things required of them under the contract alleged in the 24 Complaint. To the extent Defendants did not perform any and all things required of them, Defendants 25 were excused from performance by virtue of, among other things, Plaintiff’s conduct which 26 prevented and/or excused from any further obligation to perform. 27 /// 28 /// -5- DEFENDANT ETH ENTERPRISES, INC. ET AL’S ANSWER TO COMPLAINT 1 NINETEENTH AFFIRMATIVE DEFENSE 2 (Right to Arbitrate Under Contract) 3 21. As a nineteenth separate affirmative defense to the Complaint, and to every cause of 4 action contained therein, Defendant alleges that the Complaint should be abated pursuant to an 5 arbitration agreement agreed to by the parties. Defendants do not waive their right to arbitrate and 6 reserve their right to compel arbitration in the event the parties do not voluntarily agree to arbitrate, 7 or a petition to compel is otherwise necessary. 8 TWENTIETH AFFIRMATIVE DEFENSE 9 (Comparative Fault of Plaintiff) 10 22. As a twentieth separate affirmative defense to the Complaint, and to every cause of 11 action contained therein, Defendants allege that Plaintiff is entitled to no recovery, or her recovery 12 should be proportionally decreased, due to Plaintiff’s total or partial comparative fault. 13 TWENTY-FIRST AFFIRMATIVE DEFENSE 14 (Representations were true) 15 23. Plaintiff’s claims and causes of action are barred, in whole or in part, because any 16 statements made by Defendants were true, or if not true, were reasonably believed to be true at the 17 time they were made. 18 TWENTY-SECOND AFFIRMATIVE DEFENSE 19 (Materiality and Reliance) 20 24. Plaintiff’s claims and causes of action are barred, in whole or in part, because any 21 misrepresentation, omission, or concealment alleged in the Complaint was immaterial and not 22 reasonable or actually relied upon by Plaintiff. 23 TWENTY-THIRD AFFIRMATIVE DEFENSE 24 (No Misrepresentations, Omissions, or Concealment) 25 25. Plaintiff’s claims and causes of action are barred, in whole or in part, because 26 Defendants allege that they did not make any of the misrepresentations, omissions, or concealments 27 alleged in the Complaint. 28 /// -6- DEFENDANT ETH ENTERPRISES, INC. ET AL’S ANSWER TO COMPLAINT 1 TWENTY-FOURTH AFFIRMATIVE DEFENSE 2 (Speculative Damages) 3 26. Plaintiff’s claims are barred because her damages are speculative. 4 TWENTY-FIFTH AFFIRMATIVE DEFENSE 5 (Reservation of Defenses) 6 27. As a twenty-first affirmative defense to each cause of action of the Complaint, 7 Defendants expressly and specifically reserves the right to assert further affirmative defenses as the 8 discovery, investigation and litigation of this action develops. 9 WHEREFORE, Defendants pray for judgment against Plaintiff as follows: 10 1. That Plaintiff takes nothing by way of her Complaint; 11 2. That judgment be entered in favor of Defendants and against Plaintiff; 12 3. That Defendants have judgment for costs of suit incurred herein; and 13 4. For such other and further relief as the Court may deem just and 14 proper. 15 16 Dated: February 1, 2021 FREEMAN MATHIS & GARY, LLP 17 18 By: GREGORY T. FAYARD 19 Attorneys for Defendants ETH ENTERPRISES, INC. dba CALIFORNIA 20 HOMES DIRECT; DALE ROBERT BOUCHER; TIMOTHY S. EILAND; DAVID 21 ALAN BENNETT;ERIC TRAVIS HAZER; and SHARON E. GARCIA HAZER 22 23 24 25 26 27 28 -7- DEFENDANT ETH ENTERPRISES, INC. ET AL’S ANSWER TO COMPLAINT 1 PROOF OF SERVICE 2 I am employed in the County of Placer, State of California. I am over the age of 18 and not 3 a party to the within action. My business address is 1013 Galleria Boulevard, Suite 250, Roseville, 4 California 95678-1363. 5 On January 26, 2021, I served the within document(s) described as: 6 DEFENDANTS ETH ENTERPRISES, INC. dba CALIFORNIA HOMES DIRECT; DALE ROBERT BOUCHER; TIMOTHY S. EILAND; DAVID ALAN BENNETT; ERIC 7 TRAVIS HAZER AND SHARON E. GARCIA HAZER’S ANSWER TO COMPLAINT 8 on the interested parties in this action as follows: 9 10 Attorney for Plaintiff Michael R. Germain, Esq. 11 GERMAIN LAW 945 Morning Star Drive 12 Sonora, CA 95370 Email: germainlaw@mlode.com 13 14 X (BY MAIL) By placing a true copy of the foregoing document(s) in a sealed envelope addressed as set forth above. I placed each such envelope for collection and mailing 15 following ordinary business practices. I am readily familiar with this Firm's practice for collection and processing of correspondence for mailing. Under that practice, the 16 correspondence would be deposited with the United States Postal Service on that same day, with postage thereon fully prepaid at Roseville, California, in the ordinary course of 17 business. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for 18 mailing in affidavit. 19 20 X (BY E-MAIL) By transmitting a true copy of the foregoing document(s) to the e-mail addresses set forth above which are being served by electronic means pursuant to 21 Emergency Rule 12, 22 I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. 23 Executed on January 26, 2021, at Roseville, California. 24 25 SANDRA ANDRADE (Type or print name) (Signature) 26 27 28 DEFENDANT ETH ENTERPRISES, INC.’S ANSWER TO COMPLAINT