07-RIC482762 Answer to Complaint From Ken Peters Lawyer 2007-11-06 | Affirmative Defense | Cause Of Action

CMC/rt 14148 11/02/07

1 LANAK &HANNA,P.C. 400 North Tustin Avenue, Suite 120 Santa Ana, CA 92705-3815 714/550-0418 3 4 By: CHRISTOPHER M. CULLEN, Bar No. 211166 cmcullen@lanak-hanna.com

-4MWSB-WW

5 Attorneys for Defendants KENNETH M. PETERS, JR.; ALAN R. SPITALNICK 6 7 8 9
10 SOUTHERN CALIFORNIA DISTRICT

SUPERIOR COURT FOR THE STATE OF CALIFORNIA COUNTY OF RIVERSIDE, RIVERSIDE BRANCH

•W

CASE NO. RIC 482762

COUNCIL OF THE ASSEMBLIES OF GOD, a 11 California Non-Profit Religious Corporation; and NEW HOPE FAMILY WORSHIP CENTER, a 12 California Non-Profit Religious Corporation 13 v. 14 15 16 17 18 19 20
21

Plaintiffs, KENNETH M. PETERS, JR.; ALAN R. SPITALNICK; ALL PERSONS UNKNOWN, CLAIMING ANY LEGAL OR EQUITABLE RIGHT, TITLE, ESTATE, LIEN, OR INTEREST IN THE PROPERTY DESCRIBED IN THE COMPLAINT ADVERSE TO PLAINTIFFS' TITLE, OR ANY CLOUD ON PLAINTIFFS' TITLE THERETO; and DOES 1 to 500, inclusive, Defendants.

KENNETH M. PETERS, JR. AND ALAN R. SPITALNICK'S ANSWER TO COMPLAINT

COME NOW Defendants KENNETH M. PETERS, JR. and ALAN R. SPITALNICK and

22 answer Plaintiffs' verified Complaint as follows: 23

1.

Pursuant to California Code of Civil Procedure § 431.30(d), Defendants deny,

24 generally and specifically, each and every allegation contained in the unverified Complaint and the

25 whole thereof, including each and every purported cause of action contained therein, and further deny 26 that Plaintiffs have been damaged in the sums alleged, or in any other sum, or at all. 27 /// 28 ///
Lanak & H a a n a , P. C. 400 N. Tustin Ave Suite 120 Santa Ar.a, CA 92705-3315 714/550-0418

L:\New Hope FWC\14148\Pleadings - AOG Case\071102 - Answer.wpd -

ANSWER TO COMPLAINT

CMC/rt 14148 " 11/02/07 1 2. Further answering the verified Complaint and the whole of it, Defendants deny that 2 Plaintiffs have sustained any injury, damage or loss by reason of any act or omission on the part of 3 these answering Defendants. 4 5 6 3. FIRST AFFIRMATIVE DEFENSE (Failure to State Cause of Action) Defendants are informed and believe, and on that basis allege, that Plaintiffs'

7 Complaint, and each cause of action thereof, fails to state facts sufficient to constitute a cause of 8 action against Defendants. 9 10 11 4. SECOND AFFIRMATIVE DEFENSE (Statute of Limitations) Defendants are informed and believe, and on that basis allege, that Plaintiffs'

12 Complaint, and each cause of action thereof, is barred by the applicable statute of limitations, CCP

13 § 335-349.4, including but not limited to CCP § 337.1, § 337.15, § 337(1), § 338, § 339 and § 340, 14 et seq. 15 16 17 5. THIRD AFFIRMATIVE DEFENSE (Failure To Mitigate Damages) Defendants are informed and believe, and on that basis allege, that Plaintiffs failed

18 to take proper and reasonable steps to avoid or to mitigate the damages alleged and, to the extent of 19 such failure to mitigate or to avoid damages, any recovery by Defendants and Plaintiffs should be 20 reduced accordingly. 21 22 23 6. FOURTH AFFIRMATIVE DEFENSE (Unclean Hands) Defendants are informed and believe, and on that basis allege, that if Plaintiffs

24 suffered any damage, said damage occurred as a proximate result of Plaintiffs' own acts, and not as 25 a result of any acts, omissions or conduct of this answering Defendants. By reason thereof, Plaintiffs 26 is barred from asserting any or all claims set forth in the Complaint by the doctrines of in pari delicto 27 and "unclean hands." 28 ///
Lanak & Hanna, P . C . 400 N. T u s t i n Ave S u i t e 12 0 Santa Ana, CA 92705-3S15 714/550-041S

L:\NewHope FWC\14]48\Pleadings - AOG Case\071102 - Answer.wp<£ -

ANSWER TO COMPLAINT

CMC/rt 14148 ' 11/02/07 1 2 3 7. FIFTH AFFIRMATIVE DEFENSE (Estoppel, Waiver and Failure to Notify) Defendants are informed and believe, and on that basis allege, that Plaintiffs'

4 allegations in its Complaint are barred by estoppel and waiver, due to the failure to give this 5 answering Defendants notice of defects, if any, and a reasonable opportunity to cure any alleged 6 defects. 7 8 9 8. SIXTH AFFIRMATIVE DEFENSE (Indemnity) Defendants are informed and believe, and on that basis allege, that Plaintiffs'

10 damages, if any, were caused by the negligence, tortious and wrongful conduct of third parties. 11 Defendants are therefore entitled to an allocation of damages according to the percentage of fault of 12 each such third party.
13

SEVENTH AFFIRMATIVE DEFENSE (Comparative Negligence) 9. Defendants are informed and believe, and on that basis allege, that Plaintiffs'

14 15

16 damages, if any, were caused by the negligence, tortious and wrongful conduct of Plaintiffs. 17 Defendants are therefore entitled to an allocation of damages according to the percentage of fault of 18 each party. 19 20
21

EIGHTH AFFIRMATIVE DEFENSE (Assumption of Risk) 10. Defendants are informed and believe, and on that basis allege, that Plaintiffs'

22 Complaint is barred by the assumption of risk. 23 24 25

NINTH AFFIRMATIVE DEFENSE (Consent) 11. Defendants are informed and believe, and on that basis allege, that Plaintiffs'

26 Complaint is barred because Plaintiffs consented to Plaintiffs and Defendants' acts or omissions, if 27 any. 28 ///
Lanak k H a n n a , P . C . 400 N. Tustin Ave Suite 120 Santa Ana, CA 92705-JE15 714/550-0418

L:\New Hope FWC\14148\Pleadings - AOG Case\071102 - Answer.wpcB -

ANSWER TO COMPLAINT

CMC/rt 14148 11/02/07 1 2 3 12. TENTH AFFIRMATIVE DEFENSE (Failure of Consideration) Defendants are informed and believe, and on that basis allege, that the Complaint, and

4 each cause of action thereof, is barred by reason of the failure of consideration of the formation and 5 performance of the alleged contracts. 6 7 8 13. ELEVENTH AFFIRMATIVE DEFENSE (Failure of Performance Caused by Plaintiffs) Defendants are informed and believe, and on that basis allege, that if Defendants has

9 failed to perform any oral or written promise, covenant or condition, its failure of performance was 10 caused, and continues to be caused, by Plaintiffs' acts and omissions, and that Plaintiffs is 11 respectively estopped to deny otherwise. 12 13 14 14. TWELFTH AFFIRMATIVE DEFENSE (Plaintiffs' Negligence) Defendants are informed and believe, and on that basis allege, that, to the extent

15 Plaintiffs suffered any loss by reason of any of the matters alleged in the Complaint, or in any of the 16 purported causes of action contained therein, that any such loss was the result of Plaintiffs' own 17 negligence and Plaintiffs may therefore not recover damages from this Defendants. 18 19 20 15. THIRTEENTH AFFIRMATIVE DEFENSE (Satisfaction) Defendants are informed and believe, and on that basis allege, that the debts alleged

21 in the Complaint, and each cause of action thereof, have been satisfied, either in whole or in part. 22 23 24 16. FOURTEENTH AFFIRMATIVE DEFENSE (Prevention of Performance) Defendants are informed and believe, and on that basis allege, that as a result of the

25 acts of Plaintiffs, Defendants was prevented from performing the obligations of which Plaintiffs
26 complains in its Complaint. Therefore, Plaintiffs should be barred in whole or in part due to its 27 express prevention of performance on the part of this answering Defendants.

28 ///
Lanak S H a n n a , P . C . 400 M, Tustin Ave Suite 12 0 Santa Ana. CA 92705-3815 V14/550-041B

L:\New Hope FWC\14148\Pleadings - AOG Case\071102 - Answer. wpc4 -

ANSWER TO COMPLAINT

CMC/rt 14148 11/02/07 1 2 3 17. FIFTEENTH AFFIRMATIVE DEFENSE (Excuse) Defendants are informed and believe, and on that basis allege, that each of Plaintiffs'

4 causes of action is barred by Plaintiffs' own prior breach of the agreement between the parties. 5 6 7 18. SIXTEENTH AFFIRMATIVE DEFENSE (Plaintiffs' Breach) Defendants are informed and believe, and on that basis allege, that to the extent that

8 Plaintiffs has any valid claim against Defendants, its claim is diminished, reduced and set off by the 9 amount of Defendants' claim for damages arising out of Plaintiffs' breach of contract and tortious

10 conduct. 11 12 13
19. SEVENTEENTH AFFIRMATIVE DEFENSE (Non-Joinder of Indispensable Parties) Defendants are informed and believe, and on that basis allege, that Plaintiffs has

14 failed to join all indispensable parties to Defendants in its action herein. 15 16 17
20. EIGHTEENTH AFFIRMATIVE DEFENSE (Failure of Consideration and Performance) Defendants are informed and believe, and on that basis allege, that Plaintiffs' claim

18 is barred by a failure of consideration and failure of performance. 19 20 21
21. NINETEENTH AFFIRMATIVE DEFENSE (Failure to Prevent Damages) Defendants are informed and believe, and on that basis allege, that Plaintiffs'

22 Complaint is barred by Plaintiffs' failure to prevent its own damages. 23 24 25
22. TWENTIETH AFFIRMATIVE DEFENSE (Set Off) Defendants are informed and believe, and on that basis allege, that Plaintiffs' claim

26 is totally or partially subject to set off in an amount to be proven at trial. 27 28
Lanak & H a o n a , P. C. 400 N. T u s t i n Ave S i ; i t e 120 Santa Ana, CA 92705-3815 714/550-0413

/// ///

L:\New Hope FWCM4I48\Pleadings - AOG Case\07l 102 - Answer.wpdS ANSWER TO COMPLAINT

CMC/rt 14148 11/02/07 1 2 3 23. TWENTY-FIRST AFFIRMATIVE DEFENSE (Lack of Standing) Defendants are informed and believe, and on that basis allege, that Plaintiffs' claims

4 are barred by Plaintiffs' lack of standing. 5 6 7 24. TWENTY-SECOND AFFIRMATIVE DEFENSE (Lack of Capacity) Defendants are informed and believe, and on that basis allege, that Plaintiffs lacks

8 capacity to maintain the action. 9 10 11 25. TWENTY-THIRD AFFIRMATIVE DEFENSE (Laches) Defendants are informed and believe, and on that basis allege, that Plaintiffs is

12 barred from pursuing the causes of action set forth in the Complaint due to laches. 13 14 15 26. TWENTY-FOURTH AFFIRMATIVE DEFENSE (Unjust Enrichment) Defendants are informed and believe, and on that basis allege, that any recovery

16 by Plaintiffs against Defendants would be unjust and inequitable, as all performance required of 17 Defendants was properly performed. 18 19 20 27. TWENTY-FIFTH AFFIRMATIVE DEFENSE (Allocation of Fault) Defendants are informed and believe, and on that basis allege, that it is proper for

21 the Court to determine the rights and liabilities of the parties and determine the proportionate 22 share of fault with respect to each party, and all persons or entities not a party to the action, in 23 order that proportionate shares or liability, if any, can be allocated. It is requested that the Court 24 make such a determination. 25 26 27 28. TWENTY-SIXTH AFFIRMATIVE DEFENSE (Misuse and Improper Maintenance) Defendants are informed and believe, and on that basis allege, that persons or

28 entities other than Defendants misused and failed to properly maintain or repair the property
Lanak & H a n n a , P . C . 400 N. Tustin Ave Suite 120 Santa Ana, CA 92705-3815 714/550-0418

L:\New Hope FWC\l4148\Pleadings - AOG Case\07i 102 - Answer.wptfi -

ANSWER To

COMPLAINT

CMC/rt14148 11/02/07 1 which is the subject of the Complaint, thereby causing or contributing to the damages, if any, 2 alleged in the Complaint. 3 4 5 29. TWENTY-SEVENTH AFFIRMATIVE DEFENSE (Alteration) Defendants are informed and believe, and on that basis allege, that persons or

6 entities other than Defendants, without the knowledge or consent of Defendants, altered the 7 subject property to the extent that any alleged damages were solely and proximately caused by 8 such alteration. 9 10 11 30. TWENTY-EIGHTH AFFIRMATIVE DEFENSE (Ratification of Work) Defendants are informed and believe, and on that basis allege, that Plaintiffs

12 expressly or impliedly approved and/or ratified any and all work performed by Defendants at the 13 property which is the subject of the Complaint and, therefore, Plaintiffs has waived and is 14 estopped from asserting any claims arising our of such matter. 15 16 17 31. TWENTY-NINTH AFFIRMATIVE DEFENSE (Accord and Satisfaction) Defendants are informed and believe, and on that basis allege, that Plaintiffs'

18 Complaint is barred as a result of an accord and satisfaction between Plaintiffs and Defendants. 19 20 21 32. THIRTIETH AFFIRMATIVE DEFENSE (Unconscionable Contract) Defendants are informed and believe, and on that basis allege, that the contract

22 alleged to exist between Defendants and Plaintiffs was drafted by Plaintiffs and was 23 unconscionable at the time it was made, therefore rendering it unenforceable. 24 25 26 33. THIRTY-FIRST AFFIRMATIVE DEFENSE (Intervening Acts) Defendants are informed and believe, and on that basis allege, that each cause of

27 action alleged in the Complaint are barred by the independent, intervening, and superseding acts 28 of other parties.
Lanalt & H a n n s , P . C . 400 N. T u s t i n Ave S u i t e 120 Santa Ana, CA 92705-3815 714/553-0418

L:\New Hope FWC\l4l48\P1eadings - AOG Case\071102 - Answer.wpd? -

ANSWER TO COMPLAINT

CMC/rt14148 11/02/07 1 2 3 34. THIRTY-SECOND AFFIRMATIVE DEFENSE (Non-Negotiated Terms and Conditions) Defendants are informed and believe, and on that basis allege, that the contract

4 alleged to exist between Defendants and Plaintiffs was drafted by Plaintiffs and contained non5 negotiated terms and conditions which exclusively benefitted Plaintiffs to the detriment of 6 Defendants at the time the alleged contract was made. 7 8 9 35. THIRTY-THIRD AFFIRMATIVE DEFENSE (Uncertain Terms) Defendants are informed and believe, and on that basis allege, that the contract

10 alleged to exist between Defendants and Plaintiffs was drafted by Plaintiffs and contained 11 uncertain terms, conditions and language which must be interpreted against Plaintiffs. 12 13 14 36. THIRTY-FOURTH AFFIRMATIVE DEFENSE (Full or Partial Performance) Defendants are informed and believe, and on that basis allege, that all duties owed

15 to Plaintiffs by Defendants, if any, have been extinguished by this answering Defendants' full or 16 partial performance. 17 18 19 37. THIRTY-FIFTH AFFIRMATIVE DEFENSE (Adhesion) Defendants are informed and believe, and on that basis allege, that the contract

20 alleged to exist between Defendants and Plaintiffs was drafted by Plaintiffs and is a contract of 21 adhesion. As such, any ambiguities in terms and conditions of the alleged contract must be 22 resolved against Plaintiffs. 23 24 25 38. THIRTY-SIXTH AFFIRMATIVE DEFENSE (Act of God) Defendants are informed and believe, and on that basis allege, that any and all

26 injuries, losses or damages alleged in the Complaint, if any exist, were the direct and proximate 27 result of unavoidable incidents or conditions and, as such, were acts of God, without fault or 28 liability on the part of this answering Defendants, including but not limited to unforeseeable
Lanak & Hanna, F . C . 400 ti. TusEin Ave Suite 120 Santa Ana, Cfl 92705-3B15

L:\New Hope FWC\14148VPleadings - AOG CaseWl 102 - Answer.wpig -

714/5S0-041B

ANSWER TO COMPLAINT

CMC/rt14148 11/02/07 1 shifting of land mass, abnormal rainfall or preexisting ancient landslide. 2 3 4 39. THIRTY-SEVENTH AFFIRMATIVE DEFENSE (Economic Loss) Defendants are informed and believe, and on that basis allege, that any and all

5 damages sought by Plaintiffs in its Complaint are non-compensable, economic losses, which 6 cannot be recovered from this answering Defendants. 7 8 9 40. THIRTY-EIGHTH AFFIRMATIVE DEFENSE (Speculation) Defendants are informed and believe, and on that basis allege, that Plaintiffs'

10 claim is barred as it seeks recovery for damages which are based on speculation. 11 12 13 14 WHEREFORE, this answering Defendants prays: 1. 2. 3. That the Plaintiffs take nothing by way of its Complaint; That judgment be entered in favor of the Defendants; That Defendants be dismissed herefrom with costs of suit incurred; and including

15 attorney fees; and 16 17 18 DATED: November 19 20 21 22 23 24 25
26 27

4.

For such other and further relief as the Court may deem just and proper.

z

, 2007

LANAK & HANNA, P.C.

By:_ CHRISTOPHER M. CULLEN Attorneys for Defendants KENNETH M. PETERS, JR. and ALAN R. SPITALNICK

28
Lonak & Hanna, P . C . 400 N. Tustin five Suite 120 Santa Ana, CA 92705-3B15 714/550 0418

L:\New Hope FWC\14148\Pleadings - AOG Case\071102 - Answer.wp<9 -

ANSWER TO COMPLAINT

PROOF OF SERVICE 2 STATE OF CALIFORNIA 3 COUNTY OF ORANGE ) )

4 I am employed in the County of Orange, State of California. I am over the age of 18 years and not a party to this action. My business address is 400 North Tustin Avenue, Suite 120, Santa Ana, 5 California 92705-3815. 6 On November c^~ , 2007,1 served the foregoing document described as KENNETH M. PETERS, JR. AND ALAN R. SPITALNICK'S ANSWER TO COMPLAINT on the persons listed below 7 as follows: 8 9 10 11 X 12 13 14 15 16
17

Julian B. Bellenghi Collins &Bellenghi LLP 1201 Dove Street, Suite 570 Newport Beach CA 92660

Attorneys for Plaintiffs and CrossDefendant

(By U.S. Mail) I enclosed the document(s) listed above in a sealed envelope or package addressed to the persons listed above and placed the envelope for collection and mailing, following ordinary business practices of Lanak & Hanna, P.C. I am readily familiar with the firm's practice for collecting and processing correspondence for mailing. On the same day that correspondence is placed for collection and mailing, it is deposited in the ordinary course of business with the United States Postal Service, in a sealed envelope with postage fully prepaid. (By Express/Overnight Mail Service) I enclosed the documents in an envelope or package provided by an overnight delivery carrier and addressed to the persons listed above. I placed the envelope or package for collection and overnight delivery at an office or a regularly utilized drop box of the overnight delivery carrier. (By Facsimile Transmission) Based on an agreement of the parties to accept service by fax transmission, I faxed the documents to the persons at the fax numbers listed above. No error was reported by the fax machine I used. A copy of the record of the fax transmission, which I printed out, is attached.

18 19

20 I declare under penalty of perjury under the laws of the State of California that the above is true and correct, and that this Proof of Service was executed on November ^ , 2007, at Santa Ana, California. 21 22 23 24 25
26 27 7

R. TRETHEWAY

28
LaaaJc & Harm a., p . C . 400 N, Tustin Ave Suite 120 Santa Ana. CA 92705-3815 714/550 04IS

Sign up to vote on this title
UsefulNot useful