Preview
1 FREEMAN MATHIS & GARY, LLP
Joseph J. De Hope, Jr. (SBN 79271)
2 jdehope@fmglaw.com
3 Kendal C. Mitchell (SBN 335091)
kmitchell@fmglaw.com
4 44 Montgomery Street, Suite 3580
San Francisco, CA 94104
5 Telephone: (415) 627-9000
Facsimile: (213) 615-7100 6/16/2021
6
7 Attorneys for Defendants
ALEX SEROFF and SILICON VALLEY
8 REAL ESTATE CORPORATION dba
KELLER WILLIAMS PALO ALTO
9
10
11 SUPERIOR COURT OF THE STATE OF CALIFORNIA
12 COUNTY OF SAN MATEO - UNLIMITED CIVIL JURISDICTION
13
14 Case No. 21-CIV-02266
SHADI KASHEFIZADEH an individual and
15 PHILIP SHIRVANI, an individual;
DEFENDANTS ALEX SEROFF and
16 Plaintiffs, SILICON VALLEY REAL ESTATE
CORPORATION dba KELLER
17 v. WILLIAMS PALO ALTO’S ANSWER TO
COMPLAINT
18 DAVID FRAKES, an individual, BRITTANY
FRAKES, an individual, HILLS
19 CONSTRUCTION, INC. a California
Corporation, DURO CONCRETE, INC., a
20 California Corporation, ALEX SEROFF, an
individual, SILICON VALLEY REAL ESTATE
21 CORPORATION, a California Corporation dba
KELLER WILLIAMS PALO ALTO, Mary
22 Ellen Wetlesen, and individual, NRT WEST,
INC., a California Corporation dba COLDWELL
23 BANKER REALTY and DOES 1 through 40, Complaint Filed: April 20, 2021
Inclusive; Trial Date: None Set
24
Defendants.
25
26
27
28
-1-
DEFENDANTS ALEX SEROFF and SILICON VALLEY REAL ESTATE CORPORATION dba KELLER
WILLIAMS PALO ALTO’S ANSWER TO COMPLAINT
1 Pursuant to sections 431.10, et seq., of the California Code of Civil Procedure, Defendants
2 ALEX SEROFF, an individual, and SILICON VALLEY REAL ESTATE CORPORATION, a
3 California corporation dba KELLER WILLIAMS PALO ALTO (“Answering Defendants”) hereby
4 answer the Complaint of Plaintiffs SHADI KASHEFIZADEH and PHILIP SHIRVANI
5 (“Plaintiffs”). Answering Defendants individually and collectively deny, both generally and
6 specifically, each and every allegation of the Complaint and deny that Plaintiffs are entitled to the
7 relief sought in the Complaint or to any relief whatsoever.
8 AFFIRMATIVE DEFENSES
9 Answering Defendants plead the following separate defenses. Answering Defendants
10 reserve the right to assert additional affirmative defenses that discovery indicates are proper.
11 FIRSTAFFIRMATIVE DEFENSE
12 (Failure to State a Claim)
13 1. As a separate and first affirmative defense to the Complaint, and to the purported
14 causes of action set forth therein, Answering Defendants allege that the Complaint fails to state
15 facts sufficient to constitute a cause of action.
16 SECOND AFFIRMATIVE DEFENSE
17 (All Obligations Performed)
18 2. As separate and second affirmative defense to the Complaint and each purported
19 cause of action contained therein, Answering Defendants allege that each defendant fully and/or
20 substantially performed any and all obligations he/it may have had to Plaintiffs.
21 THIRD AFFIRMATIVE DEFENSE
22 (Failure to Conduct)
23 3. As a separate and third affirmative defense to the Complaint and each purported
24 cause of action contained therein, Answering Defendants allege that by virtue of the acts of the
25 Plaintiffs, and/or the persons and/or entities acting on their behalf, Plaintiffs are barred from
26 prosecuting purported causes of action set forth in the Complaint because Plaintiffs failed to
27 conduct due diligence.
28 ////
-2-
DEFENDANTS ALEX SEROFF and SILICON VALLEY REAL ESTATE CORPORATION dba KELLER
WILLIAMS PALO ALTO’S ANSWER TO COMPLAINT
1 FOURTH AFFIRMATIVE DEFENSE
2 (Lack of Duty)
3 4. As a separate and four affirmative defense to the Complaint, and to the purported
4 causes of action set forth therein, Answering Defendants allege that the Complaint fails to aver the
5 circumstances constituting the existence of any duty Answering Defendants owed to Plaintiffs, and
6 all such allegations should accordingly be dismissed with prejudice.
7 FIFTH AFFIRMATIVE DEFENSE
8 (Consent)
9 5. As a separate and fifth affirmative defense to the Complaint and each purported
10 cause of action contained therein, Answering Defendants allege that Plaintiffs are barred from
11 prosecuting the purported causes of action set forth in the Complaint because Plaintiffs, and/or the
12 persons and/or entities acting on their behalf, consented to and acquiesced in the subject conduct.
13 SIXTH AFFIRMATIVE DEFENSE
14 (Justification/Excuse)
15 6. As a separate and sixth affirmative defense to the Complaint and each purported
16 cause of action contained therein, Answering Defendants allege that by virtue of the acts of the
17 Plaintiffs, and/or the persons and/or entities acting on its behalf, Plaintiffs are barred from
18 prosecuting the purported causes of action set forth in the Complaint because the acts and/or
19 omissions alleged in the Complaint were justified and/or excused.
20 SEVENTH AFFIRMATIVE DEFENSE
21 (Mistake)
22 7. As a separate and seventh affirmative defense to the Complaint and each purported
23 cause of action contained therein, Answering Defendants allege that Plaintiffs are barred from
24 recovering on the claims in its Complaint on the grounds of mistake.
25 EIGHTH AFFIRMATIVE DEFENSE
26 (Lack of Specificity)
27 8. As a separate and eighth affirmative defense to the Complaint, and to the purported
28 causes of action set forth therein, Answering Defendants allege that the Complaint fails to aver the
-3-
DEFENDANTS ALEX SEROFF and SILICON VALLEY REAL ESTATE CORPORATION dba KELLER
WILLIAMS PALO ALTO’S ANSWER TO COMPLAINT
1 circumstances constituting fraud with specificity, and all such allegations should accordingly be
2 dismissed with prejudice. (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645.)
3 NINTH AFFIRMATIVE DEFENSE
4 (Apportionment of Fault)
5 9. As a separate and ninth affirmative defense to the Complaint and each purported
6 cause of action contained therein, Answering Defendants allege that Plaintiffs’ damages, if any,
7 were caused by the negligence and/or acts or omissions of parties other than the Answering
8 Defendants, whether or not parties to this action. By reason thereof, Plaintiffs’ damages, if any, as
9 against the Answering Defendants, must be reduced by the proportion of fault attributable to such
10 other parties, and to the extent that this is necessary, Answering Defendants may be entitled to
11 partial indemnity from others on a comparative fault basis.
12 TENTH AFFIRMATIVE DEFENSE
13 (Contributory / Comparative Fault)
14 10. As a separate and tenth affirmative defense to the Complaint and each purported
15 cause of action contained therein, Answering Defendants allege that Plaintiffs’ damages, if any,
16 were caused by the primary negligence and/or acquiescence in the acts and omissions alleged in the
17 Complaint by the Plaintiffs, and Plaintiffs’ agents, employees, representatives, relatives, heirs,
18 assigns, attorneys, and/or any others acting on Plaintiffs’ behalf. By reason thereof, Plaintiffs are
19 not entitled to damages or any other relief whatsoever as against Answering Defendants.
20 ELEVENTH AFFIRMATIVE DEFENSE
21 (Assumption of Risk)
22 11. As a separate and eleventh affirmative defense to the Complaint and each purported
23 cause of action contained therein, Answering Defendants allege that Plaintiffs, and/or the persons
24 and/or entities acting on Plaintiffs’ behalf, assumed the risk of all conduct of the Plaintiffs or their
25 agents.
26 ////
27 ////
28 ////
-4-
DEFENDANTS ALEX SEROFF and SILICON VALLEY REAL ESTATE CORPORATION dba KELLER
WILLIAMS PALO ALTO’S ANSWER TO COMPLAINT
1 TWELFTH AFFIRMATIVE DEFENSE
2 (Speculative Damages)
3 12. As a separate and twelfth affirmative defense to the Complaint and each purported
4 cause of action contained therein, Answering Defendants allege that Plaintiffs are barred from
5 prosecuting the purported causes of action set forth in the Complaint because such damages are
6 speculative, uncertain, and not capable of determination by any trier of fact.
7 THIRTEENTH AFFIRMATIVE DEFENSE
8 (Reasonableness)
9 13. As a separate and thirteenth affirmative defense to the Complaint and each purported
10 cause of action contained therein, Answering Defendants allege that Plaintiffs are barred from
11 prosecuting the purported causes of action set forth in the Complaint because Answering
12 Defendants acted in good faith and reasonably.
13 FOURTEENTH AFFIRMATIVE DEFENSE
14 (Failure to Mitigate)
15 14. As a separate and fourteenth affirmative defense to the Complaint and each
16 purported cause of action contained therein, Answering Defendants allege that Plaintiffs’ claims, if
17 any, are barred for their failure, and/or the failure of the persons and/or entities acting on their
18 behalf, to mitigate any purported damages.
19 FIFTEENTH AFFIRMATIVE DEFENSE
20 (Attorneys’ Fees Barred)
21 15. As a separate and fifteenth affirmative defense to the Complaint and each purported
22 cause of action contained therein, Answering Defendants allege that Plaintiffs’ claim for attorneys’
23 fees are barred by the provisions of California Code of Civil Procedure § 1021, or by any other
24 legal provision.
25 ////
26 ////
27 ////
28 ////
-5-
DEFENDANTS ALEX SEROFF and SILICON VALLEY REAL ESTATE CORPORATION dba KELLER
WILLIAMS PALO ALTO’S ANSWER TO COMPLAINT
1 SIXTEENTH AFFIRMATIVE DEFENSE
2 (Business and/or Professional Judgment)
3 16. As a separate and sixteenth affirmative defense to the Complaint and each purported
4 cause of action contained therein, Answering Defendants allege that the actions taken by
5 Answering Defendants were the exercise of reasonable business and/or professional judgment.
6 SEVENTEENTH AFFIRMATIVE DEFENSE
7 (In pari delicto)
8 17. As a separate and seventeenth affirmative defense to the Complaint and each
9 purported cause of action contained therein, Answering Defendants allege that the claims therein
10 are barred by the doctrine of in pari delicto.
11 EIGHTEENTH AFFIRMATIVE DEFENSE
12 (Intervening and Superseding Cause)
13 18. As a separate and eighteenth affirmative defense to the Complaint and each
14 purported cause of action contained therein, Answering Defendants allege that if Plaintiffs suffered
15 or sustained any loss, damage or injury as alleged in the Complaint, such loss, damage or injury
16 was legally caused or contributed to by the negligence or wrongful conduct of other parties, persons
17 or entities, and that their negligence or wrongful conduct was an intervening and superseding cause
18 of the loss, damage or injury of which Plaintiffs complain.
19 NINETEENTH AFFIRMATIVE DEFENSE
20 (Proximate Cause – Other Persons)
21 19. As a separate and nineteenth affirmative defense to the Complaint and each
22 purported cause of action contained therein, Answering Defendants allege that the damages alleged
23 to have been suffered by Plaintiffs in the Complaint were proximately caused or contributed to by
24 acts or failures to act of persons other than these Answering Defendants, which acts or failures to
25 act constitute an intervening and superseding cause of the damages alleged in the Complaint.
26 ////
27 ////
28 ////
-6-
DEFENDANTS ALEX SEROFF and SILICON VALLEY REAL ESTATE CORPORATION dba KELLER
WILLIAMS PALO ALTO’S ANSWER TO COMPLAINT
1 TWENTIETH AFFIRMATIVE DEFENSE
2 (Proximate Cause – Plaintiff)
3 20. As a separate and twentieth affirmative defense to the Complaint and each purported
4 cause of action contained therein, Answering Defendants allege that the injuries and damages
5 alleged in the Complaint by Plaintiffs occurred, were proximately caused by and/or were
6 contributed to by Plaintiffs’ own acts or failures to act and that Plaintiffs’ recovery, if any, should
7 be reduced by an amount proportionate to the amount by which said acts caused or contributed to
8 said alleged injury or damages.
9 TWENTY-FIRST AFFIRMATIVE DEFENSE
10 (No Injury or Damage)
11 21. As a separate and twenty-first affirmative defense to the Complaint and each
12 purported cause of action contained therein, Answering Defendants allege that Plaintiffs have not
13 been injured or damaged as a proximate result of any act or omission for which Answering
14 Defendants are responsible.
15 TWENTY-SECOND AFFIRMATIVE DEFENSE
16 (Privilege)
17 22. As a separate and twenty-second affirmative defense to the Complaint and each
18 purported cause of action contained therein, Answering Defendants allege that in each act or
19 statement done or made by Answering Defendants, their officers, employees and/or agents, with
20 reference to Plaintiffs were and continue to be made in good faith and are proper assertions of
21 Answering Defendants’ legal rights and obligations and, therefore, were and are privileged.
22 TWENTY-THIRD AFFIRMATIVE DEFENSE
23 (Waiver and Estoppel)
24 23. As a separate and twenty-third affirmative defense to the Complaint and each
25 purported cause of action contained therein, Answering Defendants allege that as a result of their
26 own acts and/or omissions, Plaintiffs have waived any right which it may have had to recover,
27 and/or is estopped from recovering, any relief sought against Answering Defendants.
28 ////
-7-
DEFENDANTS ALEX SEROFF and SILICON VALLEY REAL ESTATE CORPORATION dba KELLER
WILLIAMS PALO ALTO’S ANSWER TO COMPLAINT
1 TWENTY-FOURTH AFFIRMATIVE DEFENSE
2 (Statute of Limitations)
3 24. As a separate and twenty-fourth affirmative defense to the Complaint and each
4 purported cause of action contained therein, Answering Defendants allege that the purported causes
5 of action asserted in the Complaint are barred by such statutes of limitation as may be applicable.
6 TWENTY-FIFTH AFFIRMATIVE DEFENSE
7 (Laches and Unclean Hands)
8 25. As a separate and twenty-fifth affirmative defense to the Complaint and each
9 purported cause of action contained therein, Answering Defendants allege that Plaintiffs are barred
10 in whole or in part from prosecuting the purported causes of action set forth in the Complaint by the
11 doctrines of laches and/or unclean hands.
12 TWENTY-SIXTH AFFIRMATIVE DEFENSE
13 (Failure of Performance)
14 26. As a separate and twenty-sixth affirmative defense to the Complaint and each
15 purported cause of action contained therein, Answering Defendants allege Plaintiffs’ claims are
16 barred from recovery of damages or other relief of the extent that either Plaintiff or others failed to
17 perform conditions precedent concurrent or subsequent under pertinent agreements.
18 TWENTY-SEVENTH AFFIRMATIVE DEFENSE
19 (Unjust Enrichment)
20 27. As a separate and twenty-seventh affirmative defense to the Complaint and each
21 purported cause of action contained therein, Answering Defendants allege Plaintiffs would be
22 unjustly enriched if awarded the relief sought, and such relief is therefore barred.
23 TWENTY-EIGHTH AFFIRMATIVE DEFENSE
24 (Reservation of Additional Affirmative Defenses)
25 28. Answering Defendants reserve the right to assert other applicable affirmative
26 defenses as may become available or apparent during discovery proceedings. Each Defendant
27 further reserves the right to amend this Answer and/or the affirmative defenses accordingly and/or
28 ////
-8-
DEFENDANTS ALEX SEROFF and SILICON VALLEY REAL ESTATE CORPORATION dba KELLER
WILLIAMS PALO ALTO’S ANSWER TO COMPLAINT
1 delete affirmative defenses that he/it may determine are not applicable during the course of
2 subsequent discovery.
3 WHEREFORE, Answering Defendants pray for relief as follows:
4 1. That the Complaint be dismissed, with prejudice in its entirety against Answering
5 Defendants;
6 2. That Plaintiffs take nothing by reason of this Complaint and that judgment be
7 entered against Plaintiff and in favor of Answering Defendants;
8 3. That Answering Defendants be awarded their attorney’s fees and costs incurred in
9 defending this action;
10 4. That Answering Defendants be granted such other and further relief as the Court
11 may deem just and proper.
12
13
Dated: June 16, 2021 FREEMAN MATHIS & GARY, LLP
14
15
By:
16 Joseph J. De Hope, Jr.
Kendal Mitchell
17 Attorneys for Defendants
ALEX SEROFF and SILICON VALLEY
18
REAL ESTATE CORPORATION dba
19 KELLER WILLIAMS PALO ALTO
20
21
22
23
24
25
26
27
28
-9-
DEFENDANTS ALEX SEROFF and SILICON VALLEY REAL ESTATE CORPORATION dba KELLER
WILLIAMS PALO ALTO’S ANSWER TO COMPLAINT
1 PROOF OF SERVICE
2 I declare that I am employed in the City and County of San Francisco, State of California. I
am over the age of eighteen years at the time of service and not a party to the within cause. My
3
employment address is 44 Montgomery Street Suite 3580, San Francisco, CA 94104.
4
On June 16, 2021, I served copies of the attached document(s) entitled:
5
DEFENDANTS ALEX SEROFF and SILICON VALLEY REAL ESTATE CORPORATION
6 dba KELLER WILLIAMS PALO ALTO’S ANSWER TO COMPLAINT
7 on the interested parties in this action as follows:
8 PLEASE SEE ATTACHED SERVICE LIST
9
10 BY ELECTRONIC MAIL. I transmitted such document(s) via electronic mail
to the electronic mail addresses of the addressee(s) pursuant to Appendix I of the
California Rules of Court, Emergency Rules Related to COVID-19, Emergency
11 Rule 12.
12
13
BY ELECTRONIC MAIL.
parties to accept electronic
Based on a court order and/or an agreement of the
service, I caused the document(s) to be sent from
email address tcarrillo@fmglaw.com to the persons at the email addresses listed
14 in the Service List.
15
BY ONE
through One
LEGAL:
Legal to
I electronically
the parties or
served
their
the
counsel
above-referenced
as listed on the
document(s)
Service List
16
attached herewith. This service complies with CCP 1013(a) and California Rules
17 of Court, Rule 2.251(i)(1).
18 STATE. I declare under penalty of perjury under the laws of the State of
California that the above is true and correct.
19
Executed on June 16, 2021, at San Francisco, California.
20
21
22
Teresa Chavez Carrillo
23
24
25
26
27
28
PROOF OF SERVICE
1 SERVICE LIST
2 Attorneys for Plaintiffs
3 E. David Marks
Kathryn C. Curry
4 CGA LAW PARTNERS LLP
2570 W. El Camino Real, Suite 400
5 Mountain View, CA 94040
Telephone: (650) 428-3900
6
Facsimile: (650) 428-3901
7 Email: dmarks@gcalaw.com
kcurry@gcalaw.com
8
Attorneys for Defendants
9 NRT West, Inc. dba COLDWELL BANKER REALTY
Robert S. Luther, Esq.
10
LAW DIVISION OF REALOGY BROKERAGE
11 GROUP LLC WESTERN REGION
1855 Gateway Blvd, Suite 670
12 Concord, CA 94520
Telephone: (925) 771-5245
13 Facsimile: (925) 771-5332
Email: bob.luther@westrsc.com
14
15 Attorneys for Defendants
DAVID FRAKES and BRITTANY FRAKES
16 Craig Miller
WEISBERG & MILLER
17 665 Chestnut Street, Third Floor
18 San Francisco, CA 94133
Telephone: (415) 296-7070
19 Facsimile: (415) 296-7060
Email: cmiller@wmlawfirm.com
20
John L. Fitzgerald
21 LAW OFFICES OF JOHN L. FITZGERALD
22 177 Bovet Road, Suite 600
San Mateo, CA 94402
23 Telephone: (650) 638-2386
Email: john@jlfitzgeraldlaw.com
24
25
26
27
28
PROOF OF SERVICE
Preview
1 FREEMAN MATHIS & GARY, LLP Joseph J. De Hope, Jr. (SBN 79271) 2 jdehope@fmglaw.com 3 Kendal C. Mitchell (SBN 335091) kmitchell@fmglaw.com 4 44 Montgomery Street, Suite 3580 San Francisco, CA 94104 5 Telephone: (415) 627-9000 Facsimile: (213) 615-7100 6/16/2021 6 7 Attorneys for Defendants ALEX SEROFF and SILICON VALLEY 8 REAL ESTATE CORPORATION dba KELLER WILLIAMS PALO ALTO 9 10 11 SUPERIOR COURT OF THE STATE OF CALIFORNIA 12 COUNTY OF SAN MATEO - UNLIMITED CIVIL JURISDICTION 13 14 Case No. 21-CIV-02266 SHADI KASHEFIZADEH an individual and 15 PHILIP SHIRVANI, an individual; DEFENDANTS ALEX SEROFF and 16 Plaintiffs, SILICON VALLEY REAL ESTATE CORPORATION dba KELLER 17 v. WILLIAMS PALO ALTO’S ANSWER TO COMPLAINT 18 DAVID FRAKES, an individual, BRITTANY FRAKES, an individual, HILLS 19 CONSTRUCTION, INC. a California Corporation, DURO CONCRETE, INC., a 20 California Corporation, ALEX SEROFF, an individual, SILICON VALLEY REAL ESTATE 21 CORPORATION, a California Corporation dba KELLER WILLIAMS PALO ALTO, Mary 22 Ellen Wetlesen, and individual, NRT WEST, INC., a California Corporation dba COLDWELL 23 BANKER REALTY and DOES 1 through 40, Complaint Filed: April 20, 2021 Inclusive; Trial Date: None Set 24 Defendants. 25 26 27 28 -1- DEFENDANTS ALEX SEROFF and SILICON VALLEY REAL ESTATE CORPORATION dba KELLER WILLIAMS PALO ALTO’S ANSWER TO COMPLAINT 1 Pursuant to sections 431.10, et seq., of the California Code of Civil Procedure, Defendants 2 ALEX SEROFF, an individual, and SILICON VALLEY REAL ESTATE CORPORATION, a 3 California corporation dba KELLER WILLIAMS PALO ALTO (“Answering Defendants”) hereby 4 answer the Complaint of Plaintiffs SHADI KASHEFIZADEH and PHILIP SHIRVANI 5 (“Plaintiffs”). Answering Defendants individually and collectively deny, both generally and 6 specifically, each and every allegation of the Complaint and deny that Plaintiffs are entitled to the 7 relief sought in the Complaint or to any relief whatsoever. 8 AFFIRMATIVE DEFENSES 9 Answering Defendants plead the following separate defenses. Answering Defendants 10 reserve the right to assert additional affirmative defenses that discovery indicates are proper. 11 FIRSTAFFIRMATIVE DEFENSE 12 (Failure to State a Claim) 13 1. As a separate and first affirmative defense to the Complaint, and to the purported 14 causes of action set forth therein, Answering Defendants allege that the Complaint fails to state 15 facts sufficient to constitute a cause of action. 16 SECOND AFFIRMATIVE DEFENSE 17 (All Obligations Performed) 18 2. As separate and second affirmative defense to the Complaint and each purported 19 cause of action contained therein, Answering Defendants allege that each defendant fully and/or 20 substantially performed any and all obligations he/it may have had to Plaintiffs. 21 THIRD AFFIRMATIVE DEFENSE 22 (Failure to Conduct) 23 3. As a separate and third affirmative defense to the Complaint and each purported 24 cause of action contained therein, Answering Defendants allege that by virtue of the acts of the 25 Plaintiffs, and/or the persons and/or entities acting on their behalf, Plaintiffs are barred from 26 prosecuting purported causes of action set forth in the Complaint because Plaintiffs failed to 27 conduct due diligence. 28 //// -2- DEFENDANTS ALEX SEROFF and SILICON VALLEY REAL ESTATE CORPORATION dba KELLER WILLIAMS PALO ALTO’S ANSWER TO COMPLAINT 1 FOURTH AFFIRMATIVE DEFENSE 2 (Lack of Duty) 3 4. As a separate and four affirmative defense to the Complaint, and to the purported 4 causes of action set forth therein, Answering Defendants allege that the Complaint fails to aver the 5 circumstances constituting the existence of any duty Answering Defendants owed to Plaintiffs, and 6 all such allegations should accordingly be dismissed with prejudice. 7 FIFTH AFFIRMATIVE DEFENSE 8 (Consent) 9 5. As a separate and fifth affirmative defense to the Complaint and each purported 10 cause of action contained therein, Answering Defendants allege that Plaintiffs are barred from 11 prosecuting the purported causes of action set forth in the Complaint because Plaintiffs, and/or the 12 persons and/or entities acting on their behalf, consented to and acquiesced in the subject conduct. 13 SIXTH AFFIRMATIVE DEFENSE 14 (Justification/Excuse) 15 6. As a separate and sixth affirmative defense to the Complaint and each purported 16 cause of action contained therein, Answering Defendants allege that by virtue of the acts of the 17 Plaintiffs, and/or the persons and/or entities acting on its behalf, Plaintiffs are barred from 18 prosecuting the purported causes of action set forth in the Complaint because the acts and/or 19 omissions alleged in the Complaint were justified and/or excused. 20 SEVENTH AFFIRMATIVE DEFENSE 21 (Mistake) 22 7. As a separate and seventh affirmative defense to the Complaint and each purported 23 cause of action contained therein, Answering Defendants allege that Plaintiffs are barred from 24 recovering on the claims in its Complaint on the grounds of mistake. 25 EIGHTH AFFIRMATIVE DEFENSE 26 (Lack of Specificity) 27 8. As a separate and eighth affirmative defense to the Complaint, and to the purported 28 causes of action set forth therein, Answering Defendants allege that the Complaint fails to aver the -3- DEFENDANTS ALEX SEROFF and SILICON VALLEY REAL ESTATE CORPORATION dba KELLER WILLIAMS PALO ALTO’S ANSWER TO COMPLAINT 1 circumstances constituting fraud with specificity, and all such allegations should accordingly be 2 dismissed with prejudice. (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645.) 3 NINTH AFFIRMATIVE DEFENSE 4 (Apportionment of Fault) 5 9. As a separate and ninth affirmative defense to the Complaint and each purported 6 cause of action contained therein, Answering Defendants allege that Plaintiffs’ damages, if any, 7 were caused by the negligence and/or acts or omissions of parties other than the Answering 8 Defendants, whether or not parties to this action. By reason thereof, Plaintiffs’ damages, if any, as 9 against the Answering Defendants, must be reduced by the proportion of fault attributable to such 10 other parties, and to the extent that this is necessary, Answering Defendants may be entitled to 11 partial indemnity from others on a comparative fault basis. 12 TENTH AFFIRMATIVE DEFENSE 13 (Contributory / Comparative Fault) 14 10. As a separate and tenth affirmative defense to the Complaint and each purported 15 cause of action contained therein, Answering Defendants allege that Plaintiffs’ damages, if any, 16 were caused by the primary negligence and/or acquiescence in the acts and omissions alleged in the 17 Complaint by the Plaintiffs, and Plaintiffs’ agents, employees, representatives, relatives, heirs, 18 assigns, attorneys, and/or any others acting on Plaintiffs’ behalf. By reason thereof, Plaintiffs are 19 not entitled to damages or any other relief whatsoever as against Answering Defendants. 20 ELEVENTH AFFIRMATIVE DEFENSE 21 (Assumption of Risk) 22 11. As a separate and eleventh affirmative defense to the Complaint and each purported 23 cause of action contained therein, Answering Defendants allege that Plaintiffs, and/or the persons 24 and/or entities acting on Plaintiffs’ behalf, assumed the risk of all conduct of the Plaintiffs or their 25 agents. 26 //// 27 //// 28 //// -4- DEFENDANTS ALEX SEROFF and SILICON VALLEY REAL ESTATE CORPORATION dba KELLER WILLIAMS PALO ALTO’S ANSWER TO COMPLAINT 1 TWELFTH AFFIRMATIVE DEFENSE 2 (Speculative Damages) 3 12. As a separate and twelfth affirmative defense to the Complaint and each purported 4 cause of action contained therein, Answering Defendants allege that Plaintiffs are barred from 5 prosecuting the purported causes of action set forth in the Complaint because such damages are 6 speculative, uncertain, and not capable of determination by any trier of fact. 7 THIRTEENTH AFFIRMATIVE DEFENSE 8 (Reasonableness) 9 13. As a separate and thirteenth affirmative defense to the Complaint and each purported 10 cause of action contained therein, Answering Defendants allege that Plaintiffs are barred from 11 prosecuting the purported causes of action set forth in the Complaint because Answering 12 Defendants acted in good faith and reasonably. 13 FOURTEENTH AFFIRMATIVE DEFENSE 14 (Failure to Mitigate) 15 14. As a separate and fourteenth affirmative defense to the Complaint and each 16 purported cause of action contained therein, Answering Defendants allege that Plaintiffs’ claims, if 17 any, are barred for their failure, and/or the failure of the persons and/or entities acting on their 18 behalf, to mitigate any purported damages. 19 FIFTEENTH AFFIRMATIVE DEFENSE 20 (Attorneys’ Fees Barred) 21 15. As a separate and fifteenth affirmative defense to the Complaint and each purported 22 cause of action contained therein, Answering Defendants allege that Plaintiffs’ claim for attorneys’ 23 fees are barred by the provisions of California Code of Civil Procedure § 1021, or by any other 24 legal provision. 25 //// 26 //// 27 //// 28 //// -5- DEFENDANTS ALEX SEROFF and SILICON VALLEY REAL ESTATE CORPORATION dba KELLER WILLIAMS PALO ALTO’S ANSWER TO COMPLAINT 1 SIXTEENTH AFFIRMATIVE DEFENSE 2 (Business and/or Professional Judgment) 3 16. As a separate and sixteenth affirmative defense to the Complaint and each purported 4 cause of action contained therein, Answering Defendants allege that the actions taken by 5 Answering Defendants were the exercise of reasonable business and/or professional judgment. 6 SEVENTEENTH AFFIRMATIVE DEFENSE 7 (In pari delicto) 8 17. As a separate and seventeenth affirmative defense to the Complaint and each 9 purported cause of action contained therein, Answering Defendants allege that the claims therein 10 are barred by the doctrine of in pari delicto. 11 EIGHTEENTH AFFIRMATIVE DEFENSE 12 (Intervening and Superseding Cause) 13 18. As a separate and eighteenth affirmative defense to the Complaint and each 14 purported cause of action contained therein, Answering Defendants allege that if Plaintiffs suffered 15 or sustained any loss, damage or injury as alleged in the Complaint, such loss, damage or injury 16 was legally caused or contributed to by the negligence or wrongful conduct of other parties, persons 17 or entities, and that their negligence or wrongful conduct was an intervening and superseding cause 18 of the loss, damage or injury of which Plaintiffs complain. 19 NINETEENTH AFFIRMATIVE DEFENSE 20 (Proximate Cause – Other Persons) 21 19. As a separate and nineteenth affirmative defense to the Complaint and each 22 purported cause of action contained therein, Answering Defendants allege that the damages alleged 23 to have been suffered by Plaintiffs in the Complaint were proximately caused or contributed to by 24 acts or failures to act of persons other than these Answering Defendants, which acts or failures to 25 act constitute an intervening and superseding cause of the damages alleged in the Complaint. 26 //// 27 //// 28 //// -6- DEFENDANTS ALEX SEROFF and SILICON VALLEY REAL ESTATE CORPORATION dba KELLER WILLIAMS PALO ALTO’S ANSWER TO COMPLAINT 1 TWENTIETH AFFIRMATIVE DEFENSE 2 (Proximate Cause – Plaintiff) 3 20. As a separate and twentieth affirmative defense to the Complaint and each purported 4 cause of action contained therein, Answering Defendants allege that the injuries and damages 5 alleged in the Complaint by Plaintiffs occurred, were proximately caused by and/or were 6 contributed to by Plaintiffs’ own acts or failures to act and that Plaintiffs’ recovery, if any, should 7 be reduced by an amount proportionate to the amount by which said acts caused or contributed to 8 said alleged injury or damages. 9 TWENTY-FIRST AFFIRMATIVE DEFENSE 10 (No Injury or Damage) 11 21. As a separate and twenty-first affirmative defense to the Complaint and each 12 purported cause of action contained therein, Answering Defendants allege that Plaintiffs have not 13 been injured or damaged as a proximate result of any act or omission for which Answering 14 Defendants are responsible. 15 TWENTY-SECOND AFFIRMATIVE DEFENSE 16 (Privilege) 17 22. As a separate and twenty-second affirmative defense to the Complaint and each 18 purported cause of action contained therein, Answering Defendants allege that in each act or 19 statement done or made by Answering Defendants, their officers, employees and/or agents, with 20 reference to Plaintiffs were and continue to be made in good faith and are proper assertions of 21 Answering Defendants’ legal rights and obligations and, therefore, were and are privileged. 22 TWENTY-THIRD AFFIRMATIVE DEFENSE 23 (Waiver and Estoppel) 24 23. As a separate and twenty-third affirmative defense to the Complaint and each 25 purported cause of action contained therein, Answering Defendants allege that as a result of their 26 own acts and/or omissions, Plaintiffs have waived any right which it may have had to recover, 27 and/or is estopped from recovering, any relief sought against Answering Defendants. 28 //// -7- DEFENDANTS ALEX SEROFF and SILICON VALLEY REAL ESTATE CORPORATION dba KELLER WILLIAMS PALO ALTO’S ANSWER TO COMPLAINT 1 TWENTY-FOURTH AFFIRMATIVE DEFENSE 2 (Statute of Limitations) 3 24. As a separate and twenty-fourth affirmative defense to the Complaint and each 4 purported cause of action contained therein, Answering Defendants allege that the purported causes 5 of action asserted in the Complaint are barred by such statutes of limitation as may be applicable. 6 TWENTY-FIFTH AFFIRMATIVE DEFENSE 7 (Laches and Unclean Hands) 8 25. As a separate and twenty-fifth affirmative defense to the Complaint and each 9 purported cause of action contained therein, Answering Defendants allege that Plaintiffs are barred 10 in whole or in part from prosecuting the purported causes of action set forth in the Complaint by the 11 doctrines of laches and/or unclean hands. 12 TWENTY-SIXTH AFFIRMATIVE DEFENSE 13 (Failure of Performance) 14 26. As a separate and twenty-sixth affirmative defense to the Complaint and each 15 purported cause of action contained therein, Answering Defendants allege Plaintiffs’ claims are 16 barred from recovery of damages or other relief of the extent that either Plaintiff or others failed to 17 perform conditions precedent concurrent or subsequent under pertinent agreements. 18 TWENTY-SEVENTH AFFIRMATIVE DEFENSE 19 (Unjust Enrichment) 20 27. As a separate and twenty-seventh affirmative defense to the Complaint and each 21 purported cause of action contained therein, Answering Defendants allege Plaintiffs would be 22 unjustly enriched if awarded the relief sought, and such relief is therefore barred. 23 TWENTY-EIGHTH AFFIRMATIVE DEFENSE 24 (Reservation of Additional Affirmative Defenses) 25 28. Answering Defendants reserve the right to assert other applicable affirmative 26 defenses as may become available or apparent during discovery proceedings. Each Defendant 27 further reserves the right to amend this Answer and/or the affirmative defenses accordingly and/or 28 //// -8- DEFENDANTS ALEX SEROFF and SILICON VALLEY REAL ESTATE CORPORATION dba KELLER WILLIAMS PALO ALTO’S ANSWER TO COMPLAINT 1 delete affirmative defenses that he/it may determine are not applicable during the course of 2 subsequent discovery. 3 WHEREFORE, Answering Defendants pray for relief as follows: 4 1. That the Complaint be dismissed, with prejudice in its entirety against Answering 5 Defendants; 6 2. That Plaintiffs take nothing by reason of this Complaint and that judgment be 7 entered against Plaintiff and in favor of Answering Defendants; 8 3. That Answering Defendants be awarded their attorney’s fees and costs incurred in 9 defending this action; 10 4. That Answering Defendants be granted such other and further relief as the Court 11 may deem just and proper. 12 13 Dated: June 16, 2021 FREEMAN MATHIS & GARY, LLP 14 15 By: 16 Joseph J. De Hope, Jr. Kendal Mitchell 17 Attorneys for Defendants ALEX SEROFF and SILICON VALLEY 18 REAL ESTATE CORPORATION dba 19 KELLER WILLIAMS PALO ALTO 20 21 22 23 24 25 26 27 28 -9- DEFENDANTS ALEX SEROFF and SILICON VALLEY REAL ESTATE CORPORATION dba KELLER WILLIAMS PALO ALTO’S ANSWER TO COMPLAINT 1 PROOF OF SERVICE 2 I declare that I am employed in the City and County of San Francisco, State of California. I am over the age of eighteen years at the time of service and not a party to the within cause. My 3 employment address is 44 Montgomery Street Suite 3580, San Francisco, CA 94104. 4 On June 16, 2021, I served copies of the attached document(s) entitled: 5 DEFENDANTS ALEX SEROFF and SILICON VALLEY REAL ESTATE CORPORATION 6 dba KELLER WILLIAMS PALO ALTO’S ANSWER TO COMPLAINT 7 on the interested parties in this action as follows: 8 PLEASE SEE ATTACHED SERVICE LIST 9 10 BY ELECTRONIC MAIL. I transmitted such document(s) via electronic mail to the electronic mail addresses of the addressee(s) pursuant to Appendix I of the California Rules of Court, Emergency Rules Related to COVID-19, Emergency 11 Rule 12. 12 13 BY ELECTRONIC MAIL. parties to accept electronic Based on a court order and/or an agreement of the service, I caused the document(s) to be sent from email address tcarrillo@fmglaw.com to the persons at the email addresses listed 14 in the Service List. 15 BY ONE through One LEGAL: Legal to I electronically the parties or served their the counsel above-referenced as listed on the document(s) Service List 16 attached herewith. This service complies with CCP 1013(a) and California Rules 17 of Court, Rule 2.251(i)(1). 18 STATE. I declare under penalty of perjury under the laws of the State of California that the above is true and correct. 19 Executed on June 16, 2021, at San Francisco, California. 20 21 22 Teresa Chavez Carrillo 23 24 25 26 27 28 PROOF OF SERVICE 1 SERVICE LIST 2 Attorneys for Plaintiffs 3 E. David Marks Kathryn C. Curry 4 CGA LAW PARTNERS LLP 2570 W. El Camino Real, Suite 400 5 Mountain View, CA 94040 Telephone: (650) 428-3900 6 Facsimile: (650) 428-3901 7 Email: dmarks@gcalaw.com kcurry@gcalaw.com 8 Attorneys for Defendants 9 NRT West, Inc. dba COLDWELL BANKER REALTY Robert S. Luther, Esq. 10 LAW DIVISION OF REALOGY BROKERAGE 11 GROUP LLC WESTERN REGION 1855 Gateway Blvd, Suite 670 12 Concord, CA 94520 Telephone: (925) 771-5245 13 Facsimile: (925) 771-5332 Email: bob.luther@westrsc.com 14 15 Attorneys for Defendants DAVID FRAKES and BRITTANY FRAKES 16 Craig Miller WEISBERG & MILLER 17 665 Chestnut Street, Third Floor 18 San Francisco, CA 94133 Telephone: (415) 296-7070 19 Facsimile: (415) 296-7060 Email: cmiller@wmlawfirm.com 20 John L. Fitzgerald 21 LAW OFFICES OF JOHN L. FITZGERALD 22 177 Bovet Road, Suite 600 San Mateo, CA 94402 23 Telephone: (650) 638-2386 Email: john@jlfitzgeraldlaw.com 24 25 26 27 28 PROOF OF SERVICE