Preview
Larry G. Lushanko, Esq. (SB¹69143)
office@lushankolaw.corn
Brittney L. Lushanko, Esq. (SB¹272959) 2/17/2021
2 brittnev/Rlushankolaw.corn
LAW OFFICES OF LARRY G. LUSHANKO
3 1241 East Mission Road
Fallbrook, California 92028
4 Telephone: (760) 728-9899
Facsimile: (760) 728-9499
5
Attorneys for Cross-Defendant LAURENCE PATTERSON
6
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF BUTTE, NORTH BUTTE COUNTY COURTHOUSE
10
WAYNE A. COOK, Trustee of the Wayne A. Case No.: 20CV00905
Cook 1998 Family Trust Dated 12/29/98,
ANSWER TO FIRST AMENDED CROSS-
13 COMPLAINT OF CROSS-DEFENDANT
Plaintiff, LAURENCE PATTERSON
14
Assigned for All Purposes to:
V. Hon. Tamara L. Mosbarger
Judge:
15 Dept: I
EDWARD F. NIDEROST, individually; and
as Trustee of THE EDWARD F. NIDEROST Complaint Filed: April 22, 2020
REVOCABLE LIVING TRUST Dated
November 8, 1998; DOES I through 10,
18
Defendants.
EDWARD F. NIDEROST, INDIVIDUALLY;
20 AND AS TRUSTEE OF THE EDWARD F
NIDEROST REVOCABLE LIVING TRUST
21 DATED NOVEMBER 8, 1998;
22 Cross-Complainant,
WAYNE A. COOK, INDIVIDUALLY AND
24 AS TRUSTEE OF THE WAYNE A. COOK
1998 FAMILY TRUST DATED 12/29/98;
25 LAWRENCEPATTERSON; GENE
CULLEY; MID VALLEY TITLE AND
26 ESCROW COMPANY; and ROES I through
25, inclusive,
27
28 Cross-Defendants.
-I-
ANSWER TO FIRST AMENDED CROSS-COMPLAINT
I Cross-Defendant LAURENCE PATTERSON (sued herein as Lawrence Patterson)
2 answers EDWARD F. NIDEROST, individually, and as Trustee of THE EDWARD F.
3 NIDEROST REVOCABLE LIVING TRUST's ("hereinafier called "Cross-Complainant")
4 unverified First Amended Cross-Complaint (hereinafter called "Cross-Complaint" ) as follows:
ANSWER
6 Under the provisions of Section 431.30 of the California Code of Civil Procedure,
7 LAURENCE PATTERSON (hereinafier called "Cross-Defendant" ) denies, generally and
8 specifically, in the conjunctive and disjunctive, each and every allegation contained in the Cross-
9 Complaint filed herein by Cross-Complainant, and the whole thereof, and each and every alleged
10 cause of action therein.
AFFIRMATIVE DEFENSES
12 FIRST AFFIRMATIVE DEFENSE
13 (Failure To State A Claim)
14 As to each and every cause of action stated in the Cross-Complaint, this answering Cross-
15 Defendant alleges that the Cross-Complaint fails to state a claim for which relief can be granted
16 against this answering Cross-Defendant.
17 SECOND AFFIRMATIVE DEFENSE
18 (Statute of Limitations)
19 As to each and every cause of action stated in the Cross-Complaint, this answering Cross-
20 Defendant alleges that this action is barred by the applicable statutes of limitations, including,
21 but not limited to any and/or all of the provisions of California Code of Civil Procedure tjtj337,
22 337 I, 337 15, 338, 339, 340, 340.3 aild 343.
23 THIRD AFFIRMATIVE DEFENSE
24 (Estoppel)
25 As to each and every cause of action stated in the Cross-Complaint, this answering Cross-
26 Defendant alleges that Cross-Complainant is engaged in conduct and activities with respect to
27 the contracts and incidents which are the subject of this Cross-Complaint, and by reason of said
28
-2-
ANSWER TO FIRST AMENDED CROSS-COMPLAINT
I activities and conduct is estopped from asserting any claims for damages or seeking any other
2 relief against this answering Cross-Defendant.
3 FOURTH AFFIRMATIVE DEFENSE
(Full Performance of Contract)
5 As to each and every cause of action stated in the Cross-Complaint, this answering Cross-
6 Defendant alleges that it performed each and every condition of the contract agreement between
7 the parties. Said actions work as a complete bar to any recovery herein.
FIFTH AFFIRMATIVE DEFENSE
(Performance Excused)
10 As to each and every cause of action stated in the Cross-Complaint, this answering Cross-
11 Defendant alleges that to the extent that this answering Cross-Defendant has not performed any
12 act required by it by any agreement with Cross-Complainant as so alleged, the conduct of this
13 answering Cross-Defendant is excused as a result of Cross-Complainant's failure to perform its
14 obligations pursuant to the alleged agreement.
15 SIXTH AFFIRMATIVE DEFENSE
16 (Unclean Hands)
17 As to each and every cause of action stated in the Cross-Complaint, this answering Cross-
18 Defendant alleges that Cross-Complainant is barred by the equitable doctrine of unclean hands
19 from obtaining the relief requested.
20 SEVENTH AFFIRMATIVE DEFENSE
21 (Laches)
22 As to each and every cause of action stated in the Cross-Complaint, this answering Cross-
23 Defendant alleges that this action is barred by the doctrine of laches.
24 EIGHTH AFFIRMATIVE DEFENSE
25 (Carelessness in Conduct of Business Affairs)
26 As to each and every cause of action stated in the Cross-Complaint, this answering Cross-
27 Defendant alleges that if any damages were sustained by Cross-Complainant herein, that such
28 damages in whole thereof, or in part, were and are the result of the negligence, recklessness,
-3-
ANSWER TO FIRST AMENDED CROSS-COMPLAINT
I fraud, carelessness and/or disregard of Cross-Complainant in its conduct in actions or business
2 affairs in connection with the activities and transactions alleged in the Cross-Complaint at such
3 times and places as therein alleged and/or at all relevant times thereto. Said negligence,
4 recklessness, carelessness fraud, and/or disregard by Cross-Complainant directly, proximately
5 and concurrently contributed to and/or brought about (caused), in whole or in part, whatever
6 damages, if any, Cross-Complainant has sustained or will sustain in the future and should be
7 offset against any damages claimed against Cross-Defendant, up to the whole thereof.
NINTH AFFIRMATIVE DEFENSE
(Justification)
10 As to each and every cause of action stated in the Cross-Complaint, this answering Cross-
11 Defendant alleges that any purported action on the part of Cross-Defendant with relation to the
12 events described in the Cross-Complaint were justified and reasonable under the circumstances
13 and in no way constitute any actionable conduct on the part of Cross-Defendant.
14 TENTH AFFIRMATIVE DEFENSE
15 (No Unjust Enrichment)
16 As to each and every cause of action stated in the Cross-Complaint, this answering Cross-
17 Defendant alleges that no unjust enrichment has been received by this answering Cross-
18 Defendant.
19 ELEVENTH AFFIRMATIVE DEFENSE
20 (Indemnification by Others)
2] As to each and every cause of action stated in the Cross-Complaint, this answering Cross-
22 Defendant alleges that it is entitled to be indemnified and held harmless and/or subject to
23 equitable apportionment, by reason of the conduct of each and every other Cross-Defendant
24 named herein, and/or by reason of the conduct of other third persons and/or entities.
25 TWELFTH AFFIRMATIVE DEFENSE
26 (Failure to Mitigate Damages)
27 As to each and every cause of action stated in the Cross-Complaint, this answering Cross-
28 Defendant alleges that Cross-Complainant has failed to take adequate steps to mitigate, alter,
-4-
ANSWER TO FIRST AMENDED CROSS-COMPLAINT
I reduce or otherwise diminish the damages, if any, with respect to the matters alleged in the
2 Cross-Complaint on file herein, and by reason of the foregoing, Cross-Complainant is barred
3 from the recovery thereon.
THIRTEENTH AFFIRMATIVE DEFENSE
(Apportionment of Fault)
6 As to each and every cause of action stated in the Cross-Complaint, this answering Cross-
7 Defendant are informed and believe and based upon such information and belief alleges that the
8 injuries and losses, if any, sustained by Cross-Complainant were proximately caused by the fault
9 of others, and, therefore, Cross-Complainant may recover &om this Cross-Defendant only that
10 portion of damages, if any, directly attributable to the wrongful conduct of this answering Cross-
11 Defendant (which allegation is being made solely for the purposes of this pleading without
12 admitting such to be a fact).
13 FOURTEENTH AFFIRMATIVE DEFENSE
14 (Justification and Without Malice)
15 As to each and every cause of action stated in the Cross-Complaint, this answering Cross-
16 Defendant alleges that its actions, if any, as alleged herein, were justified under the
17 circumstances, and were reasonably taken without malice, oppression, fraud, or any of said
18 things, and by virtue thereof Cross-Complainant cannot maintain the within proceedings or any
19 actions thereunder for damages as against this answering Cross-Defendant.
20 FIFTEENTH AFFIRMATIVE DEFENSE
21 (Failure of Condition Precedent)
22 As to each and every cause of action stated in the Cross-Complaint, this answering Cross-
23 Defendant alleges that this action is barred because of the breach of one or more condifions
24 precedent.
25 ///
26 ///
27 ///
28 ///
-5-
ANSWER TO FIRST AMENDED CROSS-COMPLAINT
SIXTEENTH AFFIRMATIVE DEFENSE
(Failure of Condition Subsequent)
3 As to each and every cause of action stated in the Cross-Complaint, this answering Cross-
4 Defendant alleges that this action is barred for breach of one or more conditions subsequent or
5 concurrent.
SEVENTEENTH AFFIRMATIVE DEFENSE
(Comparative Negligence)
8 As to each and every cause of action stated in the Cross-Complaint, this answering Cross-
9 Defendant alleges that the proximate cause of any purported damage to Cross-Complainant, if
10 any there be, was the wrongful conduct and/or negligence of the Cross-Complainant itself.
EIGHTEENTH AFFIRMATIVE DEFENSE
12 (Waiver)
13 As to each and every cause of action stated in the Cross-Complaint, this answering Cross-
14 Defendant alleges that the Cross-Complainant has engaged in conduct and activities sufficient to
15 constitute a waiver of any alleged breach of duty, negligence, act, omission, or any other
16 conduct, if any, as set forth in the Cross-Complaint.
17 NINETEENTH AFFIRMATIVE DEFENSE
18 (Contribution)
Ig As to each and every cause of action stated in the Cross-Complaint, this answering Cross-
20 Defendant alleges that if Cross-Complainant has suffered or claimed any damage, then that
21 damage was proximately caused and contributed to by persons and/or entities other than this
22 answering Cross-Defendant. The liability of all such parties, named or unnamed, should be
23 apportioned according to the relative degree of fault, and the liability of this answering Cross-
24 Defendant, if any such liability exists, and the same is expressly herein denied, should be
25 reduced accordingly.
26 ///
27 ///
28 ///
-6-
ANSWER TO FIRST AMENDED CROSS-COMPLAINT
I TWENTIETH AFFIRMATIVE DEFENSE
(Good Faith/Business Justification)
3 As to each and every cause of action stated in the Cross-Complaint, this answering Cross-
Defendant alleges that the Cross-Complaint fails because this answering Cross-Defendant acted
5 in good faith and did not directly or indirectly induce any acts on which any claim for relief is, or
6 could be, based.
TWENTY-FIRST AFFIRMATIVE DEFENSE
(Frivolous and Bad Faith Action)
9 As to each and every cause of action stated in the Cross-Complaint, this answering Cross-
10 Defendant alleges that the Cross-Complaint fails because said action as alleged is frivolous and a
11 bad faith action totally without merit as to this answering Cross-Defendant and this answering
12 Cross-Defendant should be entitled to recover from Cross-Complainant and/or its attorney of
13 record, the reasonable expenses, including attorneys'ees and costs, incurred by this answering
14 Cross-Defendant in defending this action.
15 TWENTY-SECOND AFFIRMATIVE DEFENSE
16 (Superseding and Intervening Cause)
17 As to each and every cause of action stated in the Cross-Complaint, this answering Cross-
I8 Defendant is informed and believes and based upon such information and belief alleges that the
19 Cross-Complainant's damages, if any, were proximately caused and contributed to by the acts
20 and/or omissions of parties other than this answering Cross-Defendant, and such act or omissions
21 was the proximate cause of Cross-Complainant's damages, if any, and is a superseding and
22 intervening cause of such damages.
23 TWENTY-THIRD AFFIRMATIVE DEFENSE
(Assumption of Risk)
25 As to each and every cause of action stated in the Cross-Complaint, this answering Cross-
26 Defendant alleges that at all times herein mentioned, Cross-Complainant, with full knowledge of
27 all risks attendant thereto, voluntarily and knowingly assumed any and all risk attendant upon
28 said conduct and all purported damages alleged to be related thereto and proximately caused
-7-
ANSWER TO FIRST AMENDED CROSS-COMPLAINT
I thereby. Said assumption of the risk by Cross-Complainant is imputed by law to Cross-
2 Complainant so as to bar any recovery on Cross-Complainant's part.
TWENTY-FOURTH AFFIRMATIVE DEFENSE
(Accord and Satisfaction)
5 As to each and every cause of action stated in the Cross-Complaint, this answering Cross-
6 Defendant alleges that this action is barred by the doctrine of accord and satisfaction.
TWENTY-FIFTH AFFIRMATIVE DEFENSE
(Non-Joinder and Misjoinder of Parties)
9 As to each and every cause of action stated in the Cross-Complaint, this answering Cross-
10 Defendant alleges that Cross-Complainant is barred from any recovery on its Cross-Complaint
11 in that Cross-Complainant has failed to join all necessary parties.
12 TWENTY-SIXTH AFFIRMATIVE DEFENSE
13 (Passive Acts)
14 As to each and every cause of action stated in the Cross-Complaint, this answering Cross-
15 Defendant alleges that the acts or failure to act on the part of Cross-Complainant were active,
16 whereas the alleged acts or failure to act of this answering Cross-Defendant were passive,
17 secondary and indirect. If any such actions were a proximate cause of any damages or injury
18 herein, as such, Cross-Complainant is barred from any recovery against this answering Cross-
19 Defendant.
20 TWENTY-SEVENTH AFFIRMATIVE DEFENSE
21 (Oral Modification)
22 As to each and every cause of action stated in the Cross-Complaint, this answering Cross-
23 Defendant alleges that afier the execution of the contract alleged in the Cross-Complaint, that
24 contract was modified orally between Cross-Complainant and this answering Cross-Defendant.
25 The oral agreement has been executed in that Cross-Defendant has fully performed pursuant to
26 said oral modification.
27 ///
28 ///
-8-
ANSWER TO FIRST AMENDED CROSS-COMPLAINT
TWENTY-EIGHTH AFFIRMATIVE DEFENSE
(No Justifiable Reliance)
3 As to each and every cause of action stated in the Cross-Complaint, this answering Cross-
4 Defendant alleges that Cross-Complainant was mentally competent without justifiable reliance
5 on any representations made by Cross-Defendant.
TWENTY-NINTH AFFIRMATIVE DEFENSE
(Written Modification)
8 As to each and every cause of action stated in the Cross-Complaint, this answering Cross-
9 Defendant alleges that after the execution of the contract alleged in the Cross-Complaint, that
10 contract was modified in writing between Cross-Complainant and this answering Cross-
11 Defendant.
12 THIRTIETH AFFIRMATIVE DEFENSE
13 (Lack of Notice)
14 As to each and every cause of action stated in the Cross-Complaint, this answering Cross-
15 Defendant alleges that Cross-Complainant has failed to give reasonable, timely, sufficient, or
16 adequate notice of the alleged claim, liability and/or damages as required by the contract
17 documents or according to the applicable California law. As a result, Cross-Complainant is
18 barred from recovering any damages suffered, if any, from this answering Cross-Defendant.
THIRTY-FIRST AFFIRMATIVE DEFENSE
20 (Lack of Standing)
21 As to each and every cause of action stated in the Cross-Complaint, this answering Cross-
22 Defendant alleges that Cross-Complainant lacks standing to bring this suit, and/or is not the real
23 party in interest.
24 THIRTY-SECOND AFFIRMATIVE DEFENSE
25 (Consent)
26 As to each and every cause of action stated in the Cross-Complaint, this answering Cross-
27 Defendant alleges that Cross-Complainant was mentally competent and of sound mind to give
28
-9-
ANSWER TO FIRST AMENDED CROSS-COMPLAINT
I his consent to the terms of the subject transactions and was not subject to any undue influence or
2 fraud on the part of Cross-Defendant.
THIRTY-THIRD AFFIRMATIVE DEFENSE
(Offset)
5 As to each and every cause of action stated in the Cross-Complaint, this answering Cross-
6 Defendant alleges that Cross-Defendant has incurred expenses, lost income, and other costs
7 arising from the transaction or series of transactions which are the subject of Cross-
8 Complainant's Cross-Complaint, which Cross-Defendant is entitled to offset any sums claimed
9 by Cross-Complainant.
10 THIRTY-FOURTH AFFIRMATIVE DEFENSE
(Absence of Duty)
12 As to each and every cause of action stated in the Cross-Complaint, this answering Cross-
13 Defendant alleges that he owes Cross-Complainant no duty of care,
14 THIRTY-FIFTH AFFIRMATIVE DEFENSE
15 (Ratification)
16 As to each and every cause of action stated in the Cross-Complaint, this answering Cross-
17 Defendant alleges that Cross-Complainant directed, ordered, approved and/or ratified Cross-
18 Defendant's conduct and Cross-Complainant is therefore estopped from asserting any claims
19 based thereon.
20 THIRTY-SIXTH AFFIRMATIVE DEFENSE
21 (Failure to Support Punitive Damages)
22 As to each and every cause of action stated in the Cross-Complaint, this answering Cross-
23 Defendant alleges that Cross-Complainant fails to state facts sufficient to enable Cross-
24 Complainant to recover punitive or exemplary damages against him.
25 THIRTY-SEVENTH AFFIRMATIVE DEFENSE
26 (Right to Assert Additional Defenses)
27 As to each and every cause of action stated in the Cross-Complaint, this answering Cross-
28 Defendant presently has insufficient knowledge or information on which to form a belief as to
-10-
ANSWER TO FIRST AMENDED CROSS-COMPLAINT
I whether it may have additional, as yet unstated affirmative defenses available. Cross-Defendant
2 reserves the right to assert additional defenses in the event that discovery indicates that they
3 would be appropriate.
4 THIRTY-EIGHTH AFFIRMATIVE DEFENSE
(Failure to Support Punitive Damages)
6 As to each and every cause of action stated in the Complaint, this answering Defendant alleges
7 that Plaintiff fails to state facts sufficient to enable Plaintiff to recover punitive or exemplary
8 damages against him.
9 WHEREFORE, Cross-Defendant prays as follows:
10 1. That Cross-Complainant take nothing by reason of his Complaint;
11 2. That judgment on the Cross-Complaint and each purported cause of action therein
12 be entered in favor of Cross-Defendant and against Cross-Complainant;
13 3. That Cross-Defendant be awarded his costs and attorney's fees incurred in
14 defense of this action;
15 4. For such other relief as the Court deems proper.
16 DATED: February 17, 2021 Law Off Lushanko
17
18 ~arry G. Lushanko, Esq.
Brittney L. Lushanko, Esq.
Attorneys for Cross-Defendant LAURENCE
PATTERSON
20
21
22
23
24
25
26
27
28
-11-
ANSWER TO FIRST AMENDED CROSS-COMPLAINT
Cook v, Niderost, and Related Cross-Actions
Superior Court of California, County of Butte
Case No.: 20CV00905
3 PROOF OF SERVICE
I declare that I am over the age of eighteen years and not a party to the within action. I
am employed in, or am a resident of, the County of San Diego, California; my business address
is 1241 E. Mission Road, Fallbrook, California 92028.
I further declare that on this date I served a copy of the following document(s):
1. ANSWER TO FIRST AMENDED CROSS-COMPLAINT OF CROSS-
DEFENDANT LAURENCE PATTERSON
on the following in the manner described below:
10 Raymond L. Sandelman Sara M. Knowles
Attorney at Law Leland, Morrissey & Knowles, LLP
196 Cohasset Road, Suite 225 1660 Humboldt Road, Ste. 6
12 Chico, CA 95926-2284 Chico, CA 95928
(530) 343-5090 (530) 342-4500
13 Attorney for Plaintiff/Cross-Defendant Attorney for Defendant/Cross-Complainant
Cook Niderost
14
David Griffith Erwin Williams
15 106
Griffith, Hom & Sheehan, LLP 55 Independence Circle, Ste.
16 1530 Humboldt Road, Ste. 3 Chico, CA 95973
Chico, CA 95928 (530) 877-4961
17 (530) 812-1000 Guardian Ad Litem for Edward Niderost
Attorney for Cross-Defendant Culley 1awo ffice@mlbwla.org
18
[ X] BY MAIL. I caused such envelope to be placed for collection and mailing following this
19
firm's ordinary business practices. I am readily familiar with the firm's practice of collection and
20 processing correspondence for mailing. Under that practice, on the same day that
correspondence is placed for collection and mailing, it is deposited with the U.S. Postal Service
21 in a sealed envelope with postage fully prepaid. Iam aware that on motion of party served,
service is presumed invalid if postal cancellation date or postage meter date is more that (I) day
22 afier date of deposit for mailing in affidavit.
23
[ ] BY CERTIFIED MAIL. I caused such envelope with postage thereon fully prepaid for
24 Certified Mail Return Receipt Requested to be placed in the United States Mail in Fallbrook,
CA.
25
[ ] BY EXPRESS MAIL OR ANOTHER METHOD OF DELIVER PROVIDING FOR
26 OVERNIGHT DELIVERY.
27
[ ] BY ELECTRONIC FILING AND/OR SERVICE. I served a true copy electronically
28 with all exhibits via Onelegal
-12-
ANSWER TO FIRST AMENDED CROSS-COMPLAINT
[ ] BY FEDERAL EXPRESS. I deposited the Federal Express envelope containing the
aforementioned documents in the Federal Express depository located in Fallbrook, California.
2
[ ] BY PERSONAL SERVICE. I delivered such documents personally.
3
[ ] BY FACSIMILE SERVICE. I transmitted the foregoing document by facsimile to the
4 party(s) identified above using the facsimile number(s) indicated and the activity report
generated by said facsimile machine indicated all pages were nansmitted without error.
5
I declare that I am employed in the office of a member of the bar of this court at whose
direction the service was made and under penalty of perjury under the laws of the State of
7 California that the foregoing is true and correct.
Executed on February 17, 2021
I
G»an. K 'f
/if
10
12
13
14
15
16
17
18
19
20
21
22
23
24
25
27
28
-13-
ANSWER TO FIRST AMENDED CROSS-COMPLAINT