Preview
1 Michael Shklovsky, Esq. (Bar No. 255893)
ANDERSON ZEIGLER
2 A Professional Corporation
50 Old Courthouse Square, 5th Floor
3 Santa Rosa, CA 95404
Telephone: 707/545-4910
4 Facsimile: 707/544-0260
Email: mshklovsky@andersonzeigler.com
5
Attorneys for Defendant Kelly Moffat
6
7 SUPERIOR COURT, SONOMA COUNTY, CALIFORNIA
8
Case No. SCV-268905
9 SEAN DUGGAN, an individual, on
his own behalf and derivatively on NOMINAL DEFENDANT KELLY
A PROFESSIONAL CORPORATION, ATTORNEYS AT LAW
P.O. BOX 1498, SANTA ROSA, CALIFORNIA 95402-1498
10 behalf of The Duggan Family MOFFAT’S ANSWER TO FIRST
Limited Partnership; AMENDED COMPLAINT
11
FAX (707) 544-0260
ANDERSON ZEIGLER
Plaintiff,
12 vs. [UNLIMITED CIVIL]
13 LYNN DUGGAN, an individual; Jury Trial Demanded
and DOES 1 through 25, inclusive,
TEL (707) 545-4910
14 ASSIGNED FOR ALL PURPOSES:
Defendants,
15 Judge: Arthur A. Wick
- and – Department: 17
16
THE DUGGAN FAMILY LIMITED
17 PARTNERSHIP, a California
Limited Partnership; and KELLY
18 MOFFAT, an individual,
19 Nominal Defendants.
20
21
22 GENERAL DENIAL
23 Under the provisions of Code of Civil Procedure section 431.30(d), nominal defendant
24 Kelly Moffat (“Defendant”) generally and specifically denies each and every allegation
25 contained in the First Amended Complaint (“FAC”), and further denies that plaintiff Sean
26 Duggan (“Plaintiff”) and nominal defendant The Duggan Family Limited Partnership
27 (“DFLP”) have been damaged in any manner, sum, or at all, by reason of any act, breach, or
28 omission on the part of the Defendant.
1
MOFFAT’S ANSWER TO FIRST AMENDED COMPLAINT
1 AFFIRMATIVE DEFENSES
2 As a first affirmative defense to Plaintiff’s FAC and to each cause of action alleged
3 therein, Defendant alleges that the FAC fails to state facts sufficient to constitute a cause of
4 action upon which any of the relief sought by Plaintiff can be granted in law or equity,
5 including, without limitation, compensatory or punitive damages, attorneys’ fees or costs.
6 As a second affirmative defense to Plaintiff’s FAC and to each cause of action alleged
7 therein, Defendant alleges that Plaintiff’s claims are barred by the doctrine of estoppel, due to
8 Plaintiff’s own acts and omissions.
9 As a third affirmative defense to Plaintiff’s FAC and to each cause of action alleged
10 therein, Defendant alleges that Plaintiff’s claims are barred by the doctrine of waiver, due to
11 Plaintiff’s own acts and omissions.
12 As a fourth affirmative defense to Plaintiff’s FAC and to each cause of action alleged
13 therein, Defendant alleges that Plaintiff’s claims are barred by the doctrine of laches, due to
14 Plaintiff’s own acts and omissions.
15 As a fifth affirmative defense to Plaintiff’s FAC and to each cause of action alleged
16 therein, Defendant alleges that Plaintiff’s claims are barred in whole or in part because
17 Plaintiff is guilty of unclean hands.
18 As a sixth affirmative defense to Plaintiff’s FAC and to each cause of action alleged
19 therein, Defendant alleges that Plaintiff has failed to take reasonable steps to mitigate the
20 amount of Plaintiff’s and DFLP’s damages, if any.
21 As a seventh affirmative defense to Plaintiff’s FAC and to each cause of action alleged
22 therein, Defendant alleges that if Plaintiff or DFLP are entitled to recover any damages or
23 relief under the FAC, said recovery must be set off against the damages which Defendant is
24 entitled to recover because of Plaintiff’s breaches of duty and other wrongful acts.
25 As an eighth affirmative defense to Plaintiff’s FAC and to each cause of action alleged
26 therein, Defendant alleges that Plaintiff has failed to satisfy the terms, conditions and
27 covenants in the partnership agreement and its amendment, and is in material breach of the
28
2
MOFFAT’S ANSWER TO FIRST AMENDED COMPLAINT
1 partnership agreement and its amendment alleged in the FAC, and such material failures and
2 breaches relieve Defendant of any liability.
3 As a ninth affirmative defense to Plaintiff’s FAC and to each cause of action alleged
4 therein, Defendant alleges that the acts and conduct alleged therein were privileged and
5 justified.
6 As a tenth affirmative defense to Plaintiff’s FAC and to each cause of action alleged
7 therein, Defendant alleges that the claims are barred by the applicable statutes of limitations.
8 As an eleventh affirmative defense to Plaintiff’s FAC and to each cause of action
9 alleged therein, Defendant alleges that this Court lacks jurisdiction over some or all of the
10 claims and causes of action pled in the FAC.
11 As a twelfth affirmative defense to Plaintiff’s FAC and to each cause of action alleged
12 therein, Defendant denies damages complained of by Plaintiff, if any, were due to or caused
13 by any act or omission on the part of Defendant.
14 As a thirteenth affirmative defense to Plaintiff’s FAC and to each cause of action
15 alleged therein, Defendant is informed and believes and upon that basis alleges that
16 Plaintiff’s FAC is barred by the doctrine of consent.
17 As a fourteenth affirmative defense to Plaintiff’s FAC and to each cause of action
18 alleged therein, Defendant alleges that an award of punitive damages against Defendant
19 under the circumstances of this case would constitute an excessive fine and otherwise be in
20 violation of Defendant’s due process and other rights under the United State and California
21 Constitutions.
22 As a fifteenth affirmative defense to Plaintiff’s FAC and to each cause of action
23 alleged therein, Defendant alleges that Plaintiff directed, ordered, approved and/or ratified
24 the conduct set forth within the FAC and Plaintiff is therefore estopped from asserting any
25 claims based thereon.
26 As a sixteenth affirmative defense to Plaintiff’s FAC and to each cause of action
27 alleged therein, Defendant alleges that Plaintiff did not rely on any act or omission of
28 Defendant.
3
MOFFAT’S ANSWER TO FIRST AMENDED COMPLAINT
1 As a seventeenth affirmative defense to Plaintiff’s FAC and to each cause of action
2 alleged therein, Defendant alleges that Plaintiff’s causes of action are barred by the equitable
3 doctrine of changed circumstances.
4 As an eighteenth affirmative defense to Plaintiff’s FAC and to each cause of action
5 alleged therein, Defendant alleges that Defendant has at all times material herein acted
6 reasonably, in good faith, without malice and justifiably based on all the relevant facts and
7 circumstances known by Defendant at the time Defendant so acted, without any intent to
8 cause, or reasonably disregard, potentially deleterious consequences to Plaintiff.
9 As a nineteenth affirmative defense to Plaintiff’s FAC and to each cause of action
10 alleged therein, Defendant alleges that Plaintiff’s claims are barred because Plaintiff would
11 be unjustly enriched if Plaintiff prevailed.
12 Defendant alleges that Plaintiff has stated the FAC in conclusory terms and therefore
13 Defendant cannot fully anticipate all affirmative defenses that may be applicable to this
14 action. Further, Defendant alleges that Defendant has not completed discovery and more
15 affirmative defenses may present themselves based upon facts learned through discovery.
16 Accordingly, Defendant reserves the right to add additional affirmative defenses, if and to the
17 extent such affirmative defenses are applicable in this action.
18 PRAYER FOR RELIEF
19 Wherefore, Defendant prays for the following relief:
20 1. Judgment entered in favor of Defendant and Plaintiff take nothing by way of FAC;
21 2. For attorneys’ fees and costs of suit incurred herein; and
22 3. For further relief as the Court may deem just and proper.
23
ANDERSON ZEIGLER
24
A Professional Corporation
DocuSigned by:
25
Dated: ________________ By: V
faiduul
_______________________________
26 371A6 CBOAB 72rt 1E
Michael Shklovsky
27
28
4
MOFFAT’S ANSWER TO FIRST AMENDED COMPLAINT
PROOF OF SERVICE
I am a citizen of the United States and a resident of Sonoma County, California. I
am over the age of 18 years and not a party to the within action. My business address is 50
Old Courthouse Sq., 5th Fl., Santa Rosa, CA 95404. My electronic service address is
jcook@andersonzeigler.com.
On March 11, 2022, I served the within NOMINAL DEFENDANT KELLY MOFFAT’S
ANSWER TO FIRST AMENDED COMPLAINT as follows:
BY MAIL I served the above-referenced documents by sending said
document(s) by U.S. Postal Service to the address set forth herein.
BY FEDERAL EXPRESS
By placing said document(s) in a sealed envelope with postage thereon (or
Federal Express charges) fully prepaid, for collection and mailing, addressed
as follows:
SEE ATTACHED SERVICE LIST
BY PERSONAL SERVICE
By causing said document(s) to be delivered to the offices of the addressee as
set forth herein.
^ BY EMAIL TRANSMISSION
I electronically served the above-referenced documents by sending said
document(s) by email transmission to the email address set forth herein.
BY FACSIMILE TRANSMISSION
By sending said document(s) by facsimile transmission to the facsimile
number set forth herein.
COURTESY COPY BY EMAIL
By sending a courtesy copy of said document(s) to the email address set forth
herein.
I am readily familiar with this firm’s practice of collection and processing
correspondence for mailing/Federal Express. It is deposited with the U.S. Postal Service
or Federal Express depository on that same day in the ordinary course of business. I am
aware that on motion of a party served, service is presumed invalid if postal cancellation
date or postage meter date is more than one day after date of deposit for mailing.
I declare under penalty of perjury under the laws of the State of California and the
United States that the foregoing is true and correct. Executed on March 11, 2022, at Santa
Rosa, California.
Jenna Cook
SERVICE LIST
BY EMAIL:
Attorney for Plaintiff Sean Duggan
Lisa C. McCurdy, Esq.
Joy Chen, Esq.
Greenberg Traurig
1840 Century Park East, Suite 1900
Los Angeles, CA 90067-2121
Tel: 310-586-6512
mccurdyl@gtlaw.com
chenjoy@gtlaw.com
Attorney for Lynn Duggan
Anne Frassetto Olsen
NOLAND, HAMERLY. ETIENNE & HOSS
A Professional Corporation
333 Salinas Street
P.O. Box 2510
Salinas, CA 93902
Tel: 831 424-1414 ext. 210
aolsen@nheh.com
Attorneys for The Duggan Family Limited Partnership
Marshall E. Bluestone, Esq.
BLUESTONE ZUNINO & HAMILTON, LLP
50 Old Courthouse Square, Suite 401
Santa Rosa, CA 95404
Tel: 707 526-4250
marshall@bzhlegal.com
Preview
1 Michael Shklovsky, Esq. (Bar No. 255893) ANDERSON ZEIGLER 2 A Professional Corporation 50 Old Courthouse Square, 5th Floor 3 Santa Rosa, CA 95404 Telephone: 707/545-4910 4 Facsimile: 707/544-0260 Email: mshklovsky@andersonzeigler.com 5 Attorneys for Defendant Kelly Moffat 6 7 SUPERIOR COURT, SONOMA COUNTY, CALIFORNIA 8 Case No. SCV-268905 9 SEAN DUGGAN, an individual, on his own behalf and derivatively on NOMINAL DEFENDANT KELLY A PROFESSIONAL CORPORATION, ATTORNEYS AT LAW P.O. BOX 1498, SANTA ROSA, CALIFORNIA 95402-1498 10 behalf of The Duggan Family MOFFAT’S ANSWER TO FIRST Limited Partnership; AMENDED COMPLAINT 11 FAX (707) 544-0260 ANDERSON ZEIGLER Plaintiff, 12 vs. [UNLIMITED CIVIL] 13 LYNN DUGGAN, an individual; Jury Trial Demanded and DOES 1 through 25, inclusive, TEL (707) 545-4910 14 ASSIGNED FOR ALL PURPOSES: Defendants, 15 Judge: Arthur A. Wick - and – Department: 17 16 THE DUGGAN FAMILY LIMITED 17 PARTNERSHIP, a California Limited Partnership; and KELLY 18 MOFFAT, an individual, 19 Nominal Defendants. 20 21 22 GENERAL DENIAL 23 Under the provisions of Code of Civil Procedure section 431.30(d), nominal defendant 24 Kelly Moffat (“Defendant”) generally and specifically denies each and every allegation 25 contained in the First Amended Complaint (“FAC”), and further denies that plaintiff Sean 26 Duggan (“Plaintiff”) and nominal defendant The Duggan Family Limited Partnership 27 (“DFLP”) have been damaged in any manner, sum, or at all, by reason of any act, breach, or 28 omission on the part of the Defendant. 1 MOFFAT’S ANSWER TO FIRST AMENDED COMPLAINT 1 AFFIRMATIVE DEFENSES 2 As a first affirmative defense to Plaintiff’s FAC and to each cause of action alleged 3 therein, Defendant alleges that the FAC fails to state facts sufficient to constitute a cause of 4 action upon which any of the relief sought by Plaintiff can be granted in law or equity, 5 including, without limitation, compensatory or punitive damages, attorneys’ fees or costs. 6 As a second affirmative defense to Plaintiff’s FAC and to each cause of action alleged 7 therein, Defendant alleges that Plaintiff’s claims are barred by the doctrine of estoppel, due to 8 Plaintiff’s own acts and omissions. 9 As a third affirmative defense to Plaintiff’s FAC and to each cause of action alleged 10 therein, Defendant alleges that Plaintiff’s claims are barred by the doctrine of waiver, due to 11 Plaintiff’s own acts and omissions. 12 As a fourth affirmative defense to Plaintiff’s FAC and to each cause of action alleged 13 therein, Defendant alleges that Plaintiff’s claims are barred by the doctrine of laches, due to 14 Plaintiff’s own acts and omissions. 15 As a fifth affirmative defense to Plaintiff’s FAC and to each cause of action alleged 16 therein, Defendant alleges that Plaintiff’s claims are barred in whole or in part because 17 Plaintiff is guilty of unclean hands. 18 As a sixth affirmative defense to Plaintiff’s FAC and to each cause of action alleged 19 therein, Defendant alleges that Plaintiff has failed to take reasonable steps to mitigate the 20 amount of Plaintiff’s and DFLP’s damages, if any. 21 As a seventh affirmative defense to Plaintiff’s FAC and to each cause of action alleged 22 therein, Defendant alleges that if Plaintiff or DFLP are entitled to recover any damages or 23 relief under the FAC, said recovery must be set off against the damages which Defendant is 24 entitled to recover because of Plaintiff’s breaches of duty and other wrongful acts. 25 As an eighth affirmative defense to Plaintiff’s FAC and to each cause of action alleged 26 therein, Defendant alleges that Plaintiff has failed to satisfy the terms, conditions and 27 covenants in the partnership agreement and its amendment, and is in material breach of the 28 2 MOFFAT’S ANSWER TO FIRST AMENDED COMPLAINT 1 partnership agreement and its amendment alleged in the FAC, and such material failures and 2 breaches relieve Defendant of any liability. 3 As a ninth affirmative defense to Plaintiff’s FAC and to each cause of action alleged 4 therein, Defendant alleges that the acts and conduct alleged therein were privileged and 5 justified. 6 As a tenth affirmative defense to Plaintiff’s FAC and to each cause of action alleged 7 therein, Defendant alleges that the claims are barred by the applicable statutes of limitations. 8 As an eleventh affirmative defense to Plaintiff’s FAC and to each cause of action 9 alleged therein, Defendant alleges that this Court lacks jurisdiction over some or all of the 10 claims and causes of action pled in the FAC. 11 As a twelfth affirmative defense to Plaintiff’s FAC and to each cause of action alleged 12 therein, Defendant denies damages complained of by Plaintiff, if any, were due to or caused 13 by any act or omission on the part of Defendant. 14 As a thirteenth affirmative defense to Plaintiff’s FAC and to each cause of action 15 alleged therein, Defendant is informed and believes and upon that basis alleges that 16 Plaintiff’s FAC is barred by the doctrine of consent. 17 As a fourteenth affirmative defense to Plaintiff’s FAC and to each cause of action 18 alleged therein, Defendant alleges that an award of punitive damages against Defendant 19 under the circumstances of this case would constitute an excessive fine and otherwise be in 20 violation of Defendant’s due process and other rights under the United State and California 21 Constitutions. 22 As a fifteenth affirmative defense to Plaintiff’s FAC and to each cause of action 23 alleged therein, Defendant alleges that Plaintiff directed, ordered, approved and/or ratified 24 the conduct set forth within the FAC and Plaintiff is therefore estopped from asserting any 25 claims based thereon. 26 As a sixteenth affirmative defense to Plaintiff’s FAC and to each cause of action 27 alleged therein, Defendant alleges that Plaintiff did not rely on any act or omission of 28 Defendant. 3 MOFFAT’S ANSWER TO FIRST AMENDED COMPLAINT 1 As a seventeenth affirmative defense to Plaintiff’s FAC and to each cause of action 2 alleged therein, Defendant alleges that Plaintiff’s causes of action are barred by the equitable 3 doctrine of changed circumstances. 4 As an eighteenth affirmative defense to Plaintiff’s FAC and to each cause of action 5 alleged therein, Defendant alleges that Defendant has at all times material herein acted 6 reasonably, in good faith, without malice and justifiably based on all the relevant facts and 7 circumstances known by Defendant at the time Defendant so acted, without any intent to 8 cause, or reasonably disregard, potentially deleterious consequences to Plaintiff. 9 As a nineteenth affirmative defense to Plaintiff’s FAC and to each cause of action 10 alleged therein, Defendant alleges that Plaintiff’s claims are barred because Plaintiff would 11 be unjustly enriched if Plaintiff prevailed. 12 Defendant alleges that Plaintiff has stated the FAC in conclusory terms and therefore 13 Defendant cannot fully anticipate all affirmative defenses that may be applicable to this 14 action. Further, Defendant alleges that Defendant has not completed discovery and more 15 affirmative defenses may present themselves based upon facts learned through discovery. 16 Accordingly, Defendant reserves the right to add additional affirmative defenses, if and to the 17 extent such affirmative defenses are applicable in this action. 18 PRAYER FOR RELIEF 19 Wherefore, Defendant prays for the following relief: 20 1. Judgment entered in favor of Defendant and Plaintiff take nothing by way of FAC; 21 2. For attorneys’ fees and costs of suit incurred herein; and 22 3. For further relief as the Court may deem just and proper. 23 ANDERSON ZEIGLER 24 A Professional Corporation DocuSigned by: 25 Dated: ________________ By: V faiduul _______________________________ 26 371A6 CBOAB 72rt 1E Michael Shklovsky 27 28 4 MOFFAT’S ANSWER TO FIRST AMENDED COMPLAINT PROOF OF SERVICE I am a citizen of the United States and a resident of Sonoma County, California. I am over the age of 18 years and not a party to the within action. My business address is 50 Old Courthouse Sq., 5th Fl., Santa Rosa, CA 95404. My electronic service address is jcook@andersonzeigler.com. On March 11, 2022, I served the within NOMINAL DEFENDANT KELLY MOFFAT’S ANSWER TO FIRST AMENDED COMPLAINT as follows: BY MAIL I served the above-referenced documents by sending said document(s) by U.S. Postal Service to the address set forth herein. BY FEDERAL EXPRESS By placing said document(s) in a sealed envelope with postage thereon (or Federal Express charges) fully prepaid, for collection and mailing, addressed as follows: SEE ATTACHED SERVICE LIST BY PERSONAL SERVICE By causing said document(s) to be delivered to the offices of the addressee as set forth herein. ^ BY EMAIL TRANSMISSION I electronically served the above-referenced documents by sending said document(s) by email transmission to the email address set forth herein. BY FACSIMILE TRANSMISSION By sending said document(s) by facsimile transmission to the facsimile number set forth herein. COURTESY COPY BY EMAIL By sending a courtesy copy of said document(s) to the email address set forth herein. I am readily familiar with this firm’s practice of collection and processing correspondence for mailing/Federal Express. It is deposited with the U.S. Postal Service or Federal Express depository on that same day in the ordinary course of business. I am aware that on motion of a party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing. I declare under penalty of perjury under the laws of the State of California and the United States that the foregoing is true and correct. Executed on March 11, 2022, at Santa Rosa, California. Jenna Cook SERVICE LIST BY EMAIL: Attorney for Plaintiff Sean Duggan Lisa C. McCurdy, Esq. Joy Chen, Esq. Greenberg Traurig 1840 Century Park East, Suite 1900 Los Angeles, CA 90067-2121 Tel: 310-586-6512 mccurdyl@gtlaw.com chenjoy@gtlaw.com Attorney for Lynn Duggan Anne Frassetto Olsen NOLAND, HAMERLY. ETIENNE & HOSS A Professional Corporation 333 Salinas Street P.O. Box 2510 Salinas, CA 93902 Tel: 831 424-1414 ext. 210 aolsen@nheh.com Attorneys for The Duggan Family Limited Partnership Marshall E. Bluestone, Esq. BLUESTONE ZUNINO & HAMILTON, LLP 50 Old Courthouse Square, Suite 401 Santa Rosa, CA 95404 Tel: 707 526-4250 marshall@bzhlegal.com