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FILE:ecumy
SAN MATEO
Peter N. Brewer. Esq. SLBMMI 8797!
Simon 0. Offord, Esq. swarm 267853
Law Office of Peter N. Brewer
2501 Park Blvd, 2“” Floor
Palo Alto, California 94306
Ph: 650/327-2900
Fax: 65079276959
Attomey Ior Defendants
\OOO'lAUi-FLUJN
Cross- Complainants and
Cross-Defendants Kevin Michael Wei] and I5 lizabeth Bailey Weil
SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN MATEO
O
I JOSHUA E. RAFFAELLI: Case N9: I7—CIV0250!
H Plaintiff, ANS WE R TO UNVERIFIED CROSS-
COMPLAINT OF NRT WEST, INC. dba
vs. COLDWELL BANKER RESIDENTIAL
BROKE) RAGE COMPANY
COLDWELL BANKER RESIDENTIAL
BROKERAGE COMPANY, a California
Corporation: et al., I3, 20I7
Action Filed: June
Trial Date: None Set
Defendants.
BY FAX
NR'I‘ WEST, INC. dba COLDWELL BANKER
RESIDENTIAL BROKERAGE COMPANY,
Cross~CompIainanL
vs. r 17— GIV— 02591
ANSNF
KEVIN MICHAEL WEIL and ELIZABETH I
Answer (No Fee)
BAILEY WEII., in their individual capacities ‘77?
and as Trustees of the Weil Family Trust
Agreement Dated October I9, 20l Land ZOES
lllIllll||||||||||||lllll|||l|lllll
l-SO, inclusive, .
l
Cross-Defendants.
AND REIA'I‘EI) CROSS-ACTION.
GENERAL DENIAL
Answering the unverified cross~complaim. cross-defendants Kevin Michael Weil and
Answer Io NRT West Cross Complaini (Well) «1:-
\[Elizabeth Bailey Weil. in their individual capacities and as Trustees ol‘thc Weil Family Trust
Agreement Dated October l9. 20l l, pursuant to Code ol'Civil Procedure § 43 l.30(d). deny each and:
every allegation.z in the cross-complaint, and deny that cross—complainant has been damaged by any
iact or omission of these answering cross-defendants.
,AFFI RMATIVE DEF ENS ES
Cross—defendants allege:
I. Cross-defendants deny each and every allegation of‘ the cross-complaint. and in particular
-
deny that cross-complainant was damaged in the sums alleged or in any sum as a result ofany act or '-
omission of cross‘dei‘endant.
2. The cross—complaint and each cause ol’ action fails to allegeFacts sufficient to constitutea
E
cause of act-ion.
3. The cross-complaint and each cause of action is barred by the doctrine oi'estoppcl.
:
4. The cross-complaint and each cause of action is barred by the application of the doctrine
of waiver to the acts. conduct and representations by cross-complainant.
5. Cross-complainant is guiltyof unclean hands. which bars its rightof recovery against
cross-defendants.
6. The cross-complaint and each cause of action is barred by the doctrine of lachcs.
7. The cross-complaint and each cause of action is barred by application of the doctrine of
unjust enrichment to the acts, conduct and representations by cross-complainant.
20: 8. The cross-complaint and each cause ot‘action is barred by application ol'the doctrine of
'7
21 assumption of risk to the acts. conduct and representations by cross-complainant.
22: 9. Cross—complainant failed to mitigate its damages. ifany, and any recovery awarded
i
23 should‘bc reduced by the amount of damages that could reasonably have been avoided by such
24 actions.
IO. Cross—complainant’s claims are barred by the applicable statute of frauds.
7
26 l I. The cross—complaint and each cause of action is barred by § 337. et seq., oi’the Code of
27 Civil Procedure.
28 l2. The cross-complaint and each cause ot‘action is barred by a material mistake of fact.
Answer to NET West Gross-Complaint (Wail) ~2-
13. The cross-complaint and each cause of action is barred by the application of the doctrine
-ot‘uncertainty and iadefiniteness of the agreement.
MN
14. The cross-complaint and each cause of action is barred by the failure of certain
#2 contingencies or conditions precedent to the obligation to convey.
wt
l5. Cross-complainant was careless and negligent and/or at fault in and about the matters
6., alleged in the cross-complaint, and said carelessness and negligence and/or fault on cross-
“
-
complainant‘s own part proximately contributed to the happening of the accident and to the injuries.
loss and damages, it‘any.
16. The damages sustained by cross-complainant were either wholly or in part negligently
.caused by and/or the fault of persons. firms. corporations. or entities other than these answering
cross—defendants. and said negligence and/or fault, comparatively reduces the percentage of
negligence and/or fault. it‘any, by these answering cross-defendants.
l7, Should cross-complainant recover damages from these answering cross-defendants, these
answering cross-defendants are entitled to indemnification, either in whole or in part, from all
persons or entities whose negligence and/or fault proximately contributed to cross-complainant‘s
damages. if any there are.
18. These answering cross-defendants allege that said cross-complaint, and each and every
18. cause ot‘action alleged therein, fails to state facts sufficient to allow for cross-complainant‘s
recovery of attorney's fees.
l9. The cross-complaint and each cause of action Fails to state factssufficient to constitute a
cause of action for implied contractual indemnity.
20. The cross-complaint and each cause ot‘action fails to state Facts sufficient to constitute a
cause of action for indemnity or contribution based on an alleged breach of the express or implied
a4, warranty.
25‘ 21. The cross-complaint and each cause of action fails tostate facts sufficient to constitute a
26‘ cause oi‘action for total implied indemnity.
27’ 22. The cross-complaint and each cause of action fails to state factssufficient to constitute a
cause of action for indemnity or contribution based on strict liability.
hamlet . ma “my .ww.a............ ...
,.
~
Answer toNRTWést Cross£omplaint (Wail) ”.3-
23. These answering cross-defendants presently have insufficient knowledge or information
run.
upon which to form abelief as to whether they may have additional, as yet unstated. affirmative
‘
defenses available. Accordingly, these answering cross~defendants reserve the right to assert
sadditional affirmative defenses in the event discovery indicates that they would be appropriate.
PRAYER
WHEREFORE, cross-defendants pray for the following relief:
i. That cross-complainant take nothing by its cross-complaint;
2. That cross-defendants be awarded their costs and attorney f‘eesincurred in this action;
and
3. For such other relief as the Court deems proper.
Dated: October I8, 2017 The Law Offices of Peter N. Brewer
[\J
..a
94..
_. By w») i r .i
Simon Ottord
Attorney for Defendants. Cross-
Complainants and Cross—l.)efendants
Elizabeth and Kevin Weil
NMNNNNNMN—n-o—v—o—nu—
OOflOM-RWN—OOGOVQMQ
Answer lo NRT West Cress-Compigini‘EWeil) —4-
I
)—d
PROOF OF SERVICE
I, Marisa Chavez-Columbus, declare that:
‘
I am a resident of the County of Santa Clara. I am over the age of eighteen years and not
a party to the within entitled action; my business' 1s2501 Park Blvd., 2nd FL, Palo Alto, California.
(On October 18, 2017, I served the attached.
ti
ANSWER TO UNVE RIFIED CROSS— COMPLAINT OF NRT WEST, INC. dba COLDWELL
\OOOQONUl-QUJN
BANKER RESIDENTIAL BROKERAGE COMPANY
on the party(ies) below in said action:
,;
Raffaelli:
MV- 10! Piaintifi, Joshua
E. Atty. for Defendant & Cross Complainant, NRT West,
Inc. DBA Caldwell
Colette Thomason Banker Residential Brokerage Co, Ginny Kavanaugh, & Rebecca Johns'on.:
Ropers Majeski Kohn & Bentley PC
Mlchael Da_Vl_d§0n
The Law DWISIOH 0f NRT, LLC
1001 Marshall Street, Suite 500
b—I~r—-
Redwood City, CA 94063-2052
_.
1855 Gateway Blvd., Ste. 670
Concord, CA 94520
P: (650) 364-8200
P: (925) 771-5245
i—a F: (650) 780—1701
colette.thomason@rmkb.com F: (925) 771-5332
,
,._. mdav1d30n@nrtnorcal.com
y-d
BY US. MAILf By placing atrue copy thereof enclosed in a sealed envelope, with ,
" '
. postage thereon fully prepaid following ordinary business practices, for deposit .
H
with the United States Postal Service at my place of business as set forth above,
,_. .addressed to the person(s) listed above. I am readily familiar with this business
practice for collection and processing of correspondence for mailing within the
i—‘
United States Postal Service. In the ordinary course of business, such
r—-
correspondence would be deposited with the United States Postal Service that same
“day . _
1—t
BY FACSIMILE:
mflQm-PWNHOOOOQQUl-wh‘O
I transmitted a copy of such document(s) via FACSIMILE to:
[311”
FAX SENT T0 at fax numbers set forth above. fl
N
BY PERSONAL SERVICE: I delivered a true copy thereof by hand to the
[\D addressee(s). .
El BY FEDERAL EXPRESS: I caused such envelopes to be delivered to Federal
N Express for overnight courier service to the office(s) of the addressee(s)
N
I declare under penalty of perjury under the laws of the State
'
of California that the
N foregoing is true and correct and that this declaration was executed n obcr 18, 2017 at Palo
’ "
.
Alto, California. -
N
N
Mafia ‘gezécohtinljus;
N
N
’Proof of Service
San Mateo Co. Sup. Ct.
Rafiaelli v. Coldwell Banker Residential Brokerage Co. at al.
Case No.: 17-ClV-02591
Preview
FILE:ecumy SAN MATEO Peter N. Brewer. Esq. SLBMMI 8797! Simon 0. Offord, Esq. swarm 267853 Law Office of Peter N. Brewer 2501 Park Blvd, 2“” Floor Palo Alto, California 94306 Ph: 650/327-2900 Fax: 65079276959 Attomey Ior Defendants \OOO'lAUi-FLUJN Cross- Complainants and Cross-Defendants Kevin Michael Wei] and I5 lizabeth Bailey Weil SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN MATEO O I JOSHUA E. RAFFAELLI: Case N9: I7—CIV0250! H Plaintiff, ANS WE R TO UNVERIFIED CROSS- COMPLAINT OF NRT WEST, INC. dba vs. COLDWELL BANKER RESIDENTIAL BROKE) RAGE COMPANY COLDWELL BANKER RESIDENTIAL BROKERAGE COMPANY, a California Corporation: et al., I3, 20I7 Action Filed: June Trial Date: None Set Defendants. BY FAX NR'I‘ WEST, INC. dba COLDWELL BANKER RESIDENTIAL BROKERAGE COMPANY, Cross~CompIainanL vs. r 17— GIV— 02591 ANSNF KEVIN MICHAEL WEIL and ELIZABETH I Answer (No Fee) BAILEY WEII., in their individual capacities ‘77? and as Trustees of the Weil Family Trust Agreement Dated October I9, 20l Land ZOES lllIllll||||||||||||lllll|||l|lllll l-SO, inclusive, . l Cross-Defendants. AND REIA'I‘EI) CROSS-ACTION. GENERAL DENIAL Answering the unverified cross~complaim. cross-defendants Kevin Michael Weil and Answer Io NRT West Cross Complaini (Well) «1:- \[Elizabeth Bailey Weil. in their individual capacities and as Trustees ol‘thc Weil Family Trust Agreement Dated October l9. 20l l, pursuant to Code ol'Civil Procedure § 43 l.30(d). deny each and: every allegation.z in the cross-complaint, and deny that cross—complainant has been damaged by any iact or omission of these answering cross-defendants. ,AFFI RMATIVE DEF ENS ES Cross—defendants allege: I. Cross-defendants deny each and every allegation of‘ the cross-complaint. and in particular - deny that cross-complainant was damaged in the sums alleged or in any sum as a result ofany act or '- omission of cross‘dei‘endant. 2. The cross—complaint and each cause ol’ action fails to allegeFacts sufficient to constitutea E cause of act-ion. 3. The cross-complaint and each cause of action is barred by the doctrine oi'estoppcl. : 4. The cross-complaint and each cause of action is barred by the application of the doctrine of waiver to the acts. conduct and representations by cross-complainant. 5. Cross-complainant is guiltyof unclean hands. which bars its rightof recovery against cross-defendants. 6. The cross-complaint and each cause of action is barred by the doctrine of lachcs. 7. The cross-complaint and each cause of action is barred by application of the doctrine of unjust enrichment to the acts, conduct and representations by cross-complainant. 20: 8. The cross-complaint and each cause ot‘action is barred by application ol'the doctrine of '7 21 assumption of risk to the acts. conduct and representations by cross-complainant. 22: 9. Cross—complainant failed to mitigate its damages. ifany, and any recovery awarded i 23 should‘bc reduced by the amount of damages that could reasonably have been avoided by such 24 actions. IO. Cross—complainant’s claims are barred by the applicable statute of frauds. 7 26 l I. The cross—complaint and each cause of action is barred by § 337. et seq., oi’the Code of 27 Civil Procedure. 28 l2. The cross-complaint and each cause ot‘action is barred by a material mistake of fact. Answer to NET West Gross-Complaint (Wail) ~2- 13. The cross-complaint and each cause of action is barred by the application of the doctrine -ot‘uncertainty and iadefiniteness of the agreement. MN 14. The cross-complaint and each cause of action is barred by the failure of certain #2 contingencies or conditions precedent to the obligation to convey. wt l5. Cross-complainant was careless and negligent and/or at fault in and about the matters 6., alleged in the cross-complaint, and said carelessness and negligence and/or fault on cross- “ - complainant‘s own part proximately contributed to the happening of the accident and to the injuries. loss and damages, it‘any. 16. The damages sustained by cross-complainant were either wholly or in part negligently .caused by and/or the fault of persons. firms. corporations. or entities other than these answering cross—defendants. and said negligence and/or fault, comparatively reduces the percentage of negligence and/or fault. it‘any, by these answering cross-defendants. l7, Should cross-complainant recover damages from these answering cross-defendants, these answering cross-defendants are entitled to indemnification, either in whole or in part, from all persons or entities whose negligence and/or fault proximately contributed to cross-complainant‘s damages. if any there are. 18. These answering cross-defendants allege that said cross-complaint, and each and every 18. cause ot‘action alleged therein, fails to state facts sufficient to allow for cross-complainant‘s recovery of attorney's fees. l9. The cross-complaint and each cause of action Fails to state factssufficient to constitute a cause of action for implied contractual indemnity. 20. The cross-complaint and each cause ot‘action fails to state Facts sufficient to constitute a cause of action for indemnity or contribution based on an alleged breach of the express or implied a4, warranty. 25‘ 21. The cross-complaint and each cause of action fails tostate facts sufficient to constitute a 26‘ cause oi‘action for total implied indemnity. 27’ 22. The cross-complaint and each cause of action fails to state factssufficient to constitute a cause of action for indemnity or contribution based on strict liability. hamlet . ma “my .ww.a............ ... ,. ~ Answer toNRTWést Cross£omplaint (Wail) ”.3- 23. These answering cross-defendants presently have insufficient knowledge or information run. upon which to form abelief as to whether they may have additional, as yet unstated. affirmative ‘ defenses available. Accordingly, these answering cross~defendants reserve the right to assert sadditional affirmative defenses in the event discovery indicates that they would be appropriate. PRAYER WHEREFORE, cross-defendants pray for the following relief: i. That cross-complainant take nothing by its cross-complaint; 2. That cross-defendants be awarded their costs and attorney f‘eesincurred in this action; and 3. For such other relief as the Court deems proper. Dated: October I8, 2017 The Law Offices of Peter N. Brewer [\J ..a 94.. _. By w») i r .i Simon Ottord Attorney for Defendants. Cross- Complainants and Cross—l.)efendants Elizabeth and Kevin Weil NMNNNNNMN—n-o—v—o—nu— OOflOM-RWN—OOGOVQMQ Answer lo NRT West Cress-Compigini‘EWeil) —4- I )—d PROOF OF SERVICE I, Marisa Chavez-Columbus, declare that: ‘ I am a resident of the County of Santa Clara. I am over the age of eighteen years and not a party to the within entitled action; my business' 1s2501 Park Blvd., 2nd FL, Palo Alto, California. (On October 18, 2017, I served the attached. ti ANSWER TO UNVE RIFIED CROSS— COMPLAINT OF NRT WEST, INC. dba COLDWELL \OOOQONUl-QUJN BANKER RESIDENTIAL BROKERAGE COMPANY on the party(ies) below in said action: ,; Raffaelli: MV- 10! Piaintifi, Joshua E. Atty. for Defendant & Cross Complainant, NRT West, Inc. DBA Caldwell Colette Thomason Banker Residential Brokerage Co, Ginny Kavanaugh, & Rebecca Johns'on.: Ropers Majeski Kohn & Bentley PC Mlchael Da_Vl_d§0n The Law DWISIOH 0f NRT, LLC 1001 Marshall Street, Suite 500 b—I~r—- Redwood City, CA 94063-2052 _. 1855 Gateway Blvd., Ste. 670 Concord, CA 94520 P: (650) 364-8200 P: (925) 771-5245 i—a F: (650) 780—1701 colette.thomason@rmkb.com F: (925) 771-5332 , ,._. mdav1d30n@nrtnorcal.com y-d BY US. MAILf By placing atrue copy thereof enclosed in a sealed envelope, with , " ' . postage thereon fully prepaid following ordinary business practices, for deposit . H with the United States Postal Service at my place of business as set forth above, ,_. .addressed to the person(s) listed above. I am readily familiar with this business practice for collection and processing of correspondence for mailing within the i—‘ United States Postal Service. In the ordinary course of business, such r—- correspondence would be deposited with the United States Postal Service that same “day . _ 1—t BY FACSIMILE: mflQm-PWNHOOOOQQUl-wh‘O I transmitted a copy of such document(s) via FACSIMILE to: [311” FAX SENT T0 at fax numbers set forth above. fl N BY PERSONAL SERVICE: I delivered a true copy thereof by hand to the [\D addressee(s). . El BY FEDERAL EXPRESS: I caused such envelopes to be delivered to Federal N Express for overnight courier service to the office(s) of the addressee(s) N I declare under penalty of perjury under the laws of the State ' of California that the N foregoing is true and correct and that this declaration was executed n obcr 18, 2017 at Palo ’ " . Alto, California. - N N Mafia ‘gezécohtinljus; N N ’Proof of Service San Mateo Co. Sup. Ct. Rafiaelli v. Coldwell Banker Residential Brokerage Co. at al. Case No.: 17-ClV-02591