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1 Scott A. Lewis, Bar No. 149094
PERRY, JOHNSON, ANDERSON,
2 MILLER & MOSKOWITZ, LLP
438 1st Street, 4th Floor
3 Santa Rosa, California 95401
Telephone: (707) 525-8800
4 Facsimile: (707) 545-8242
5 Attorneys for Defendants
Charles Hough and Janice Tyler
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8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 COUNTY OF SONOMA
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11 ELIZABETH A. ZITRIN, TRUSTEE Case No. SCV 265450
OF THE ELIZABETH A. ZITRIN
12 TRUST ESTABLISHED APRIL 13,
1990, ANSWER TO FIRST AMENDED
PERRY, JOHNSON, ANDERSON,
MILLER & MOSKOWITZ LLP
13 COMPLAINT
Plaintiff,
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v.
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CHARLES HOUGH, JANICE
16 TYLER, and DOES 1 THROUGH 20,
INCLUSIVE
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Defendants.
18 /
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20 Defendants CHARLES HOUGH and JANICE TYLER, by and through
21 their undersigned counsel, hereby submits their Answer, Affirmative Defenses
22 and Demand for Jury Trial to the First Amended Complaint of Plaintiff
23 ELIZABETH A. ZITRIN, TRUSTEE OF THE ELIZABETH A. ZITRIN TRUST
24 ESTABLISHED APRIL 13, 1990, as follows:
25 GENERAL DENIAL
26 1. Pursuant to the provisions of Section 431.30 of the Code of Civil
27 Procedure, Defendants deny generally and specifically each and every allegation
28 contained in Plaintiff’s First Amended Complaint.
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ANSWER TO FIRST AMENDED COMPLAINT
1 2. Defendants further deny, generally and specifically, that Plaintiff is
2 entitled to the relief requested, or that Plaintiff has been or will be damaged in
3 any sum, or at all, by reason of any act, breach, or omission by Defendants, or on
4 the part of any of Defendants’ agents, representatives or employees.
5 AFFIRMATIVE DEFENSES
6 AS SEPARATE AND AFFIRMATIVE DEFENSES, these answering
7 Defendants allege as follows:
8 FIRST AFFIRMATIVE DEFENSE
9 (No Cause of Action)
10 The Complaint, in whole or in part, fails to state a cause of action upon
11 which relief may be granted as a matter of fact and/or law.
12 SECOND AFFIRMATIVE DEFENSE
PERRY, JOHNSON, ANDERSON,
MILLER & MOSKOWITZ LLP
13 (Statute of Limitations)
14 The Complaint and each purported cause of action therein, is barred by the
15 applicable statute of limitations of the California Code of Civil Procedure,
16 beginning with section 335 and continuing through section 349.4.
17 THIRD AFFIRMATIVE DEFENSE
18 (Statute of Frauds)
19 Plaintiff’s claims are barred in full or in part by the statute of frauds.
20 FOURTH AFFIRMATIVE DEFENSE
21 (Failure to Mitigate Damages)
22 Plaintiff’s claims are barred, in whole or in part, to the extent it failed to
23 reasonably mitigate its damages.
24 FIFTH AFFIRMATIVE DEFENSE
25 (Unclean Hands)
26 Plaintiff’s claims are barred to the extent that they have engaged in
27 misconduct or is otherwise subject to the doctrine of unclean hands.
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ANSWER TO FIRST AMENDED COMPLAINT
1 SIXTH AFFIRMATIVE DEFENSE
2 (Laches)
3 Plaintiff’s claims are barred by the doctrine of laches.
4 SEVENTH AFFIRMATIVE DEFENSE
5 (Good Faith)
6 Plaintiff’s claims are barred because all of Defendants’ actions were done in
7 good faith and/or in a manner consistent with business necessity.
8 EIGHTH AFFIRMATIVE DEFENSE
9 (Reasonable Care)
10 Plaintiff’s claims are barred because Defendants exercised reasonable care.
11 NINTH AFFIRMATIVE DEFENSE
12 (Consent)
PERRY, JOHNSON, ANDERSON,
MILLER & MOSKOWITZ LLP
13 Plaintiff consented to the acts complained of in the Complaint, and that
14 said consent was both express and implied.
15 TENTH AFFIRMATIVE DEFENSE
16 (Waiver)
17 Plaintiff has engaged in conduct and activities sufficient to constitute a
18 waiver of any alleged breach of contract, negligence, or any other conduct, if any,
19 as set forth in the Complaint.
20 ELEVENTH AFFIRMATIVE DEFENSE
21 (Estoppel)
22 The Complaint is barred in whole or in part by the doctrine of estoppel.
23 TWELFTH AFFIRMATIVE DEFENSE
24 (Right to Assert Additional Defenses)
25 Defendants reserve the right to assert any additional defenses which are
26 discovered or ascertained after the date of this Answer.
27 THIRTEENTH AFFIRMATIVE DEFENSE
28 (No False Promise)
3
ANSWER TO FIRST AMENDED COMPLAINT
1 Answering Defendants made no false representations of past or existing
2 material fact to Plaintiff. Moreover, Defendants made no statements or promises,
3 made no false statements or promises with knowledge of their falsity, and made
4 no false statements or promises with intent to induce Plaintiff’s reliance on such
5 statements or promises.
6 FOURTEENTH AFFIRMATIVE DEFENSE
7 (Mistake, Fraud, Duress or Undue Influence)
8 The Complaint and each purported cause of action therein is barred by the
9 concept of mistake, fraud, duress or undue influence.
10 FIFTEENTH AFFIRMATIVE DEFENSE
11 (Setoff)
12 Any amount sought to be recovered in this action is barred in whole or in
PERRY, JOHNSON, ANDERSON,
MILLER & MOSKOWITZ LLP
13 part by the amount owing from Plaintiff to Defendants.
14 SIXTEENTH AFFIRMATIVE DEFENSE
15 (Unjust Enrichment)
16 Any amount sought to be recovered in this action is barred in whole or in
17 part by the doctrine of unjust enrichment.
18 SEVENTEENTH AFFIRMATIVE DEFENSE
19 (Fraud, Deceit or Misrepresentation)
20 The Complaint is barred in whole or in part by the fraud of Plaintiff.
21 EIGHTEENTH AFFIRMATIVE DEFENSE
22 (Fraud in the Inducement)
23 The Complaint is barred in whole or in part by the fraudulent actions of
24 Plaintiff in the inducement of any written agreement between the parties.
25 NINETEENTH AFFIRMATIVE DEFENSE
26 (Assumption of the Risk)
27 The Complaint is barred in whole or in part by the risk of Plaintiff.
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4
ANSWER TO FIRST AMENDED COMPLAINT
1 TWENTIETH AFFIRMATIVE DEFENSE
2 (Breach of Contract / Breach by Plaintiff)
3 The Complaint is the breach of Plaintiff’s breach of contract.
4 TWENTY-FIRST AFFIRMATIVE DEFENSE
5 (Duress)
6 The Complaint is barred in whole or in part by the fraudulent actions of
7 Plaintiff in duress resulting in the damages alleged by Plaintiff.
8 TWENTY-SECOND AFFIRMATIVE DEFENSE
9 (Breach / Hinderance of Contract)
10 The Complaint is barred in whole or in part by the breach of hindrance of
11 any written contract by Plaintiff.
12 TWENTY-THIRD AFFIRMATIVE DEFENSE
PERRY, JOHNSON, ANDERSON,
MILLER & MOSKOWITZ LLP
13 (Illegality)
14 Plaintiffs are barred in whole or in part by the illegality of their actions
15 resulting in damages alleged.
16 TWENTY-FOURTH AFFIRMATIVE DEFENSE
17 (BREACH OF CONTRACT—ATTORNEY FEES)
18 Plaintiffs are barred in the recovery of fees because they instituted this
19 action prior to conducting mediation as required by the Contract.
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22 REQUEST FOR JURY TRIAL
23 Defendants hereby demands a trial by jury in this matter.
24 WHEREFORE, Defendants prays as follows:
25 1. Judgment be entered in favor of Defendants and against Plaintiff;
26 2. Plaintiff takes nothing by their Complaint;
27 3. Defendants be awarded costs of suit incurred herein;
28 4. Defendants be awarded its attorneys’ fees incurred herein; and
5
ANSWER TO FIRST AMENDED COMPLAINT
1 5. Defendants be awarded such other further relief as the court may
2 deem necessary and proper.
3
4 PERRY, JOHNSON, ANDERSON,
MILLER & MOSKOWITZ, LLP
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DATED: March 4, 2022 By:
7 SCOTT A. LEWIS
Attorneys for Defendants
8 CHARLES HOUGH AND JANICE
TYLER
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PERRY, JOHNSON, ANDERSON,
MILLER & MOSKOWITZ LLP
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ANSWER TO FIRST AMENDED COMPLAINT
1 PROOF OF SERVICE
Zitrin v. Hough, et al.
2 SCV-265450
3 STATE OF CALIFORNIA, COUNTY OF SONOMA
4
I, the undersigned declare:
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I am over the age of eighteen (18) years and not a party to the within action. I am an
6 employee of Perry, Johnson, Anderson, Miller, & Moskowitz, LLP’s and my address is 438 First
7 Street, 4th Floor, Santa Rosa, California 95401, which is located in the County of Sonoma.
8 On March 4, 2022, I served on the interested parties in this action the within documents
described as:
9 1. ANSWER TO FIRST AMENDED COMPLAINT
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SERVICE LIST:
11 Leonard P. Mastromonaco, Esq. Counsel for Plaintiff
12 Mastromonaco Real Property Law Group
336 Bon Air Center #487
13 Greenbrae, CA 94904-3017
Telephone: (415) 354-2702
14 Fax: (415) 732-7555
15 Email: len@mastrolawgroup.com
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17 _ X_ (BY MAIL) On March 4, 2022 I caused each envelope, with postage thereon fully prepaid,
to be placed in the United States mail at Santa Rosa, California. I am readily familiar with
18 the business practice for collection and processing of mail in this office; that in the
ordinary course of business said document would be deposited with the US Postal Service
19 in Santa Rosa on that same day. I understand that service shall be presumed invalid upon
motion of a party served if the postal cancellation date or postage meter date on the
20 envelope is more than one day after the date of deposit for mailing contained on this
declaration.
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(BY FAX) On March 4, 2022 by use of facsimile machine telephone number (707) 545-
22 8242, I served a copy of the within document on the interested parties at the facsimile
23 numbers listed. The transmission was reported as complete and without error.
24 __ (BY OVERNIGHT DELIVERY) On March 4, 2022 I caused each envelope, with
delivery fees provided for, to be deposited in a box regularly maintained by UPS or Federal
25 Express. I am readily familiar with Perry, Johnson, Anderson, Miller, & Moskowitz, LLP’s
practice for collection and processing of correspondence for overnight delivery and know
26 that in the ordinary course of Perry, Johnson, Anderson, Miller,& Moskowitz, LLP’s
business practice the document(s) described above will be deposited in a box or other
27 facility regularly maintained by UPS or Federal Express or delivered to an authorized
courier or driver authorized by UPS or Federal Express to receive documents on the same
28 date that it is placed at Perry, Johnson, Anderson, Miller, & Moskowitz, LLP for
collection.
1
PROOF OF SERVICE
1 (BY FEDERAL EXPRESS) On March 4, 2022 By placing for collection at the FedEx
Kinkos located at 650 Fourth Street, Santa Rosa, California, a true and correct copy
2
thereof enclosed in a sealed Federal Express envelope fully prepared and addressed as
3 noted on the above service list.
__ (BY HAND) On March 4, 2022 on the interested parties in the within action by personally
4 delivering a copy of said documents to the address noted above.
5 (BY ELECTRONIC SERVICE) On March 4, 2022 I caused such document to be
electronically served by filing said document electronically through Lexis Nexis File &
6 Serve in accordance with rules of electronically filing documents.
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X (BY ELECTRONIC SERVICE) CCP § 1010.6(a)(6)) On March 4, 2022 based on a
8 court order or an agreement of the parties to accept service by email or electronic
transmission, I caused such documents described herein to be sent to the persons at the
9 email addresses listed below. I did not receive, within a reasonable time after the
transmission, any electronic message or other indication that the transmission was
10 unsuccessful.
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12 I declare under penalty of perjury under the laws of the State of California that the above is
true and correct, and that this declaration was executed on March 4, 2022 at Santa Rosa, California.
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14 _____________________________________
15 Shadia De La O
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PROOF OF SERVICE
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1 Scott A. Lewis, Bar No. 149094 PERRY, JOHNSON, ANDERSON, 2 MILLER & MOSKOWITZ, LLP 438 1st Street, 4th Floor 3 Santa Rosa, California 95401 Telephone: (707) 525-8800 4 Facsimile: (707) 545-8242 5 Attorneys for Defendants Charles Hough and Janice Tyler 6 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 COUNTY OF SONOMA 10 11 ELIZABETH A. ZITRIN, TRUSTEE Case No. SCV 265450 OF THE ELIZABETH A. ZITRIN 12 TRUST ESTABLISHED APRIL 13, 1990, ANSWER TO FIRST AMENDED PERRY, JOHNSON, ANDERSON, MILLER & MOSKOWITZ LLP 13 COMPLAINT Plaintiff, 14 v. 15 CHARLES HOUGH, JANICE 16 TYLER, and DOES 1 THROUGH 20, INCLUSIVE 17 Defendants. 18 / 19 20 Defendants CHARLES HOUGH and JANICE TYLER, by and through 21 their undersigned counsel, hereby submits their Answer, Affirmative Defenses 22 and Demand for Jury Trial to the First Amended Complaint of Plaintiff 23 ELIZABETH A. ZITRIN, TRUSTEE OF THE ELIZABETH A. ZITRIN TRUST 24 ESTABLISHED APRIL 13, 1990, as follows: 25 GENERAL DENIAL 26 1. Pursuant to the provisions of Section 431.30 of the Code of Civil 27 Procedure, Defendants deny generally and specifically each and every allegation 28 contained in Plaintiff’s First Amended Complaint. 1 ANSWER TO FIRST AMENDED COMPLAINT 1 2. Defendants further deny, generally and specifically, that Plaintiff is 2 entitled to the relief requested, or that Plaintiff has been or will be damaged in 3 any sum, or at all, by reason of any act, breach, or omission by Defendants, or on 4 the part of any of Defendants’ agents, representatives or employees. 5 AFFIRMATIVE DEFENSES 6 AS SEPARATE AND AFFIRMATIVE DEFENSES, these answering 7 Defendants allege as follows: 8 FIRST AFFIRMATIVE DEFENSE 9 (No Cause of Action) 10 The Complaint, in whole or in part, fails to state a cause of action upon 11 which relief may be granted as a matter of fact and/or law. 12 SECOND AFFIRMATIVE DEFENSE PERRY, JOHNSON, ANDERSON, MILLER & MOSKOWITZ LLP 13 (Statute of Limitations) 14 The Complaint and each purported cause of action therein, is barred by the 15 applicable statute of limitations of the California Code of Civil Procedure, 16 beginning with section 335 and continuing through section 349.4. 17 THIRD AFFIRMATIVE DEFENSE 18 (Statute of Frauds) 19 Plaintiff’s claims are barred in full or in part by the statute of frauds. 20 FOURTH AFFIRMATIVE DEFENSE 21 (Failure to Mitigate Damages) 22 Plaintiff’s claims are barred, in whole or in part, to the extent it failed to 23 reasonably mitigate its damages. 24 FIFTH AFFIRMATIVE DEFENSE 25 (Unclean Hands) 26 Plaintiff’s claims are barred to the extent that they have engaged in 27 misconduct or is otherwise subject to the doctrine of unclean hands. 28 2 ANSWER TO FIRST AMENDED COMPLAINT 1 SIXTH AFFIRMATIVE DEFENSE 2 (Laches) 3 Plaintiff’s claims are barred by the doctrine of laches. 4 SEVENTH AFFIRMATIVE DEFENSE 5 (Good Faith) 6 Plaintiff’s claims are barred because all of Defendants’ actions were done in 7 good faith and/or in a manner consistent with business necessity. 8 EIGHTH AFFIRMATIVE DEFENSE 9 (Reasonable Care) 10 Plaintiff’s claims are barred because Defendants exercised reasonable care. 11 NINTH AFFIRMATIVE DEFENSE 12 (Consent) PERRY, JOHNSON, ANDERSON, MILLER & MOSKOWITZ LLP 13 Plaintiff consented to the acts complained of in the Complaint, and that 14 said consent was both express and implied. 15 TENTH AFFIRMATIVE DEFENSE 16 (Waiver) 17 Plaintiff has engaged in conduct and activities sufficient to constitute a 18 waiver of any alleged breach of contract, negligence, or any other conduct, if any, 19 as set forth in the Complaint. 20 ELEVENTH AFFIRMATIVE DEFENSE 21 (Estoppel) 22 The Complaint is barred in whole or in part by the doctrine of estoppel. 23 TWELFTH AFFIRMATIVE DEFENSE 24 (Right to Assert Additional Defenses) 25 Defendants reserve the right to assert any additional defenses which are 26 discovered or ascertained after the date of this Answer. 27 THIRTEENTH AFFIRMATIVE DEFENSE 28 (No False Promise) 3 ANSWER TO FIRST AMENDED COMPLAINT 1 Answering Defendants made no false representations of past or existing 2 material fact to Plaintiff. Moreover, Defendants made no statements or promises, 3 made no false statements or promises with knowledge of their falsity, and made 4 no false statements or promises with intent to induce Plaintiff’s reliance on such 5 statements or promises. 6 FOURTEENTH AFFIRMATIVE DEFENSE 7 (Mistake, Fraud, Duress or Undue Influence) 8 The Complaint and each purported cause of action therein is barred by the 9 concept of mistake, fraud, duress or undue influence. 10 FIFTEENTH AFFIRMATIVE DEFENSE 11 (Setoff) 12 Any amount sought to be recovered in this action is barred in whole or in PERRY, JOHNSON, ANDERSON, MILLER & MOSKOWITZ LLP 13 part by the amount owing from Plaintiff to Defendants. 14 SIXTEENTH AFFIRMATIVE DEFENSE 15 (Unjust Enrichment) 16 Any amount sought to be recovered in this action is barred in whole or in 17 part by the doctrine of unjust enrichment. 18 SEVENTEENTH AFFIRMATIVE DEFENSE 19 (Fraud, Deceit or Misrepresentation) 20 The Complaint is barred in whole or in part by the fraud of Plaintiff. 21 EIGHTEENTH AFFIRMATIVE DEFENSE 22 (Fraud in the Inducement) 23 The Complaint is barred in whole or in part by the fraudulent actions of 24 Plaintiff in the inducement of any written agreement between the parties. 25 NINETEENTH AFFIRMATIVE DEFENSE 26 (Assumption of the Risk) 27 The Complaint is barred in whole or in part by the risk of Plaintiff. 28 4 ANSWER TO FIRST AMENDED COMPLAINT 1 TWENTIETH AFFIRMATIVE DEFENSE 2 (Breach of Contract / Breach by Plaintiff) 3 The Complaint is the breach of Plaintiff’s breach of contract. 4 TWENTY-FIRST AFFIRMATIVE DEFENSE 5 (Duress) 6 The Complaint is barred in whole or in part by the fraudulent actions of 7 Plaintiff in duress resulting in the damages alleged by Plaintiff. 8 TWENTY-SECOND AFFIRMATIVE DEFENSE 9 (Breach / Hinderance of Contract) 10 The Complaint is barred in whole or in part by the breach of hindrance of 11 any written contract by Plaintiff. 12 TWENTY-THIRD AFFIRMATIVE DEFENSE PERRY, JOHNSON, ANDERSON, MILLER & MOSKOWITZ LLP 13 (Illegality) 14 Plaintiffs are barred in whole or in part by the illegality of their actions 15 resulting in damages alleged. 16 TWENTY-FOURTH AFFIRMATIVE DEFENSE 17 (BREACH OF CONTRACT—ATTORNEY FEES) 18 Plaintiffs are barred in the recovery of fees because they instituted this 19 action prior to conducting mediation as required by the Contract. 20 21 22 REQUEST FOR JURY TRIAL 23 Defendants hereby demands a trial by jury in this matter. 24 WHEREFORE, Defendants prays as follows: 25 1. Judgment be entered in favor of Defendants and against Plaintiff; 26 2. Plaintiff takes nothing by their Complaint; 27 3. Defendants be awarded costs of suit incurred herein; 28 4. Defendants be awarded its attorneys’ fees incurred herein; and 5 ANSWER TO FIRST AMENDED COMPLAINT 1 5. Defendants be awarded such other further relief as the court may 2 deem necessary and proper. 3 4 PERRY, JOHNSON, ANDERSON, MILLER & MOSKOWITZ, LLP 5 6 DATED: March 4, 2022 By: 7 SCOTT A. LEWIS Attorneys for Defendants 8 CHARLES HOUGH AND JANICE TYLER 9 10 11 12 PERRY, JOHNSON, ANDERSON, MILLER & MOSKOWITZ LLP 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6 ANSWER TO FIRST AMENDED COMPLAINT 1 PROOF OF SERVICE Zitrin v. Hough, et al. 2 SCV-265450 3 STATE OF CALIFORNIA, COUNTY OF SONOMA 4 I, the undersigned declare: 5 I am over the age of eighteen (18) years and not a party to the within action. I am an 6 employee of Perry, Johnson, Anderson, Miller, & Moskowitz, LLP’s and my address is 438 First 7 Street, 4th Floor, Santa Rosa, California 95401, which is located in the County of Sonoma. 8 On March 4, 2022, I served on the interested parties in this action the within documents described as: 9 1. ANSWER TO FIRST AMENDED COMPLAINT 10 SERVICE LIST: 11 Leonard P. Mastromonaco, Esq. Counsel for Plaintiff 12 Mastromonaco Real Property Law Group 336 Bon Air Center #487 13 Greenbrae, CA 94904-3017 Telephone: (415) 354-2702 14 Fax: (415) 732-7555 15 Email: len@mastrolawgroup.com 16 17 _ X_ (BY MAIL) On March 4, 2022 I caused each envelope, with postage thereon fully prepaid, to be placed in the United States mail at Santa Rosa, California. I am readily familiar with 18 the business practice for collection and processing of mail in this office; that in the ordinary course of business said document would be deposited with the US Postal Service 19 in Santa Rosa on that same day. I understand that service shall be presumed invalid upon motion of a party served if the postal cancellation date or postage meter date on the 20 envelope is more than one day after the date of deposit for mailing contained on this declaration. 21 (BY FAX) On March 4, 2022 by use of facsimile machine telephone number (707) 545- 22 8242, I served a copy of the within document on the interested parties at the facsimile 23 numbers listed. The transmission was reported as complete and without error. 24 __ (BY OVERNIGHT DELIVERY) On March 4, 2022 I caused each envelope, with delivery fees provided for, to be deposited in a box regularly maintained by UPS or Federal 25 Express. I am readily familiar with Perry, Johnson, Anderson, Miller, & Moskowitz, LLP’s practice for collection and processing of correspondence for overnight delivery and know 26 that in the ordinary course of Perry, Johnson, Anderson, Miller,& Moskowitz, LLP’s business practice the document(s) described above will be deposited in a box or other 27 facility regularly maintained by UPS or Federal Express or delivered to an authorized courier or driver authorized by UPS or Federal Express to receive documents on the same 28 date that it is placed at Perry, Johnson, Anderson, Miller, & Moskowitz, LLP for collection. 1 PROOF OF SERVICE 1 (BY FEDERAL EXPRESS) On March 4, 2022 By placing for collection at the FedEx Kinkos located at 650 Fourth Street, Santa Rosa, California, a true and correct copy 2 thereof enclosed in a sealed Federal Express envelope fully prepared and addressed as 3 noted on the above service list. __ (BY HAND) On March 4, 2022 on the interested parties in the within action by personally 4 delivering a copy of said documents to the address noted above. 5 (BY ELECTRONIC SERVICE) On March 4, 2022 I caused such document to be electronically served by filing said document electronically through Lexis Nexis File & 6 Serve in accordance with rules of electronically filing documents. 7 X (BY ELECTRONIC SERVICE) CCP § 1010.6(a)(6)) On March 4, 2022 based on a 8 court order or an agreement of the parties to accept service by email or electronic transmission, I caused such documents described herein to be sent to the persons at the 9 email addresses listed below. I did not receive, within a reasonable time after the transmission, any electronic message or other indication that the transmission was 10 unsuccessful. 11 12 I declare under penalty of perjury under the laws of the State of California that the above is true and correct, and that this declaration was executed on March 4, 2022 at Santa Rosa, California. 13 14 _____________________________________ 15 Shadia De La O 16 17 18 19 20 21 22 23 24 25 26 27 28 2 PROOF OF SERVICE