cirgadyne incorporated v wiseman park llc - answer

8/9/2019 Cirgadyne Incorporated v Wiseman Park LLC - Answer

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J11 'J ... ! .!l.!J!YLOS flNGELl'S SUPEJUOR COURT

1 LAWRENCE M. ADELMAN, ESQ. SBN 59058LAW OFFICES OF LAWRENCE M. ADELMAN

2 5850 CANOGA AVENUE, SUITE, 400WOODLAND HILLS, CA 91367-6554

3 Phone: 818-992-8005Fax: 818-710-3844

MAY 0 t [UU{

JOH1)IA CLAHI\t: CLERiC, I "

.It J-BY D A v t ' N ' l f c : E ) ( A ~ d f f ~ ~ DEPUTY

4Attorney for Defendant Wiseman Park, LLC, a California limited liability company, doing

5 business as Kung Pao Kitty

(hereinafter referred to as "Plaintiff') as follows:

company, doing business as KUNG PAO KITTY (hereinafter referred to as "Defendapt"), .'Yho .f0!

corporation, individually and doing business as LIQUOR LICENSE SPECIALJSTS aridiLLS

COMES NOW, defendant WISEMAN PARK, LLC, a C a l i f o r ~ l S " : I ~ n l f t e Q liabilit"" ". 'f ;

Honorable Marlene KristovichDepartment 80

Limited Civil Action with Demand inComplaint over $10,000.00

CASE NO. 07K04873

ANSWER TO COMPLAINT BY

DEFENDANT WISEMAN PARK, LLC

Defendants.

Plaintiff,

vs.

WISEMAN PARK, LLC, a California limited

liability company, individually and doing

business as Kung Pao Kitty, and DOES 1

through 10, inclusive,

SUPERIOR COURT OF CALIFORNIA, COUNTY OF LOS ANGELES

LOS ANGELES CENTRAL DISTRICT

CIRGADYNE, INCORPORATED, a California)

corporation, individually and doing business as )

Liquor License Specialists and LLS, j))))))))

jj)

-----------_.)

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ANSWER TO COMPLAINT BY DEFENDANT WISEMAN ]'ARK, LLC



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IGENERAL DENIAL

1. Pursuant to the provisions of Code of Civil Procedure § 431.30(d) Defendan

hereby denies, each and every allegation of the Complaint to the full extent that any allegation(s

thereof, conjunctively and/or disjunctively, singularly and/or in the plural, allege(s) any act, failur

to act, fact, event, happening, occurrence, transaction, document, andlor any allegation, and/or an

assertion, whatsoever, or at all, concerning or relating to Defendant.

II

AFFIRMATIVE DEFENSES

2. First Affirmative Defense - General Demurrer, As to All Causes of Action. A

a first affirmative and separate defense to the Complaint and to each cause of action therei

contained Defendant alleges that each and every allegation therein contained fails to state fact

sufficient to constitute a cause of action against Defendant.

3. Second Affirmative Defense - Failure of Consideration, As to All Causes 0

Action. As a second affirmative and separate defense to the Complaint and to each cause of actiO!

therein contained Defendant alleges that each and every allegation therein contained fails becaus

there is a failure of consideration by Plaintiff to support any alleged contract, agreement

acknowledgment, transaction and/or economic interest or advantage asserted by Plaintiff agains

Defendant.

4. Third Affirmative Defense - Estoppel, As to All Causes of Action. As a thir

affirmative and separate defense to the Complaint and to each cause of action therein containe

Defendant asserts that by virtue of Plaintiffs past actions and behavior with respect to the subjec

matter of the Complaint and said causes of action, Plaintiff is now estopped to assert and/o

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ANSWER TOCOMPLAINT

BY DEFENDANTWISEMAN

PARK, LLC



..

•1 prosecute the same against Defendants.

Fourth Affirmative Defense - Failure to Mitigate Damages, As to All Causes 0

Sixth Affirmative Defense - Waiver, As to All Causes of Action. As a sixt

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7.

8. Seventh Affirmative Defense - Lack of Reasonable or Probable Cause

Action. As a fourth affirmative and separate defense to the Complaint and to each cause of actio

to avoid, reduce and/or mitigate its alleged damages and losses as alleged in the Complaint an

recovering any and/or all of such otherwise avoidable damages from Defendant.

6. Fifth Affirmative Defense - Unclean Hands, As to All Causes of Action. As

fifth affirmative and separate defense to the Complaint and to each cause of action therei

therein contained Defendant asserts that Plaintiff has failed to take reasonable and available step

respect to such subject matter and should, therefore, be barred from any and/or all recovery wit

contained Defendant asserts that by virtue of its past actions and behavior with respect to th

each of the causes of action therein contained, and should, therefore, be barred and restrained fro

Defendant asserts that Plaintiff has heretofore waived and given up their right to assert the rights,

subject matter of the Complaint and said causes of action Plaintiff is guilty of unclean hands wit

respect thereto from Defendant.

affirmative and separate defense to the Complaint and to each cause of action therein containe

remedies, claims, allegations, damages and expenses therein contained against Defendant.

Name Defendants as Defendants under the Complaint , As to All Causes of Action. As

seventh separate and affmnative defense to the Complaint and to each cause of action therei

defendants therein, and for such reason, Defendant should be awarded judgment against Plaintiff

including costs and reasonable attorneys fees under Civil Code § 1717 by virtue of existin

contained Defendant asserts that Plaintifflacks reasonable or probable cause to name Defendant a

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ANSWER TO COMPLAINT BY DEFENDANTWISEMAN PARK, LLC



•attorneys fees provisions contained in various contracts, documents and/or statutes.

9. Eighth Affirmative Defense - Assumption of the Risk, As to All Causes 0

Action. As an eighth separate and affirmative defense to the Complaint and to all causes of actio

therein contained Defendant asserts that Plaintiff voluntarily, and with full knowledge of all ofth

attendant risks and dangers, assumed the risk of all claims, causes of action, injuries and damages

alleged and asserted against Defendant in the Complaint, thereby barring Plaintiff from any and/o

all recovery against Defendant.

10. Ninth Affirmative Defense - Comparative Negligence, As to the Third Caus

of Action. As a ninth separate and affirmative defense to the third cause of action of th

Complaint Defendant asserts that Plaintiff failed to exercise reasonable care in protecting itsel

from, guarding against and preventing itse lf from incurring, the injuries and damages mor

specifically mentioned and alleged in the Complaint and in said causes of action. To the full exten

that Plaintiff could have avoided andlor reduced the injuries and damages alleged to have bee

suffered and incurred by them/it in the Complaint and in said causes of action through the exercis

of reasonable care and diligence by it for its own benefit and protection, any judgment and/o

recovery by Plaintiff, if any, against Defendant should be proportionately reduced andlo

completely barred.

11. Tenth Affirmative Defense - Comparative Fault by Third Parties and Reques

to Apportion Fault, As to All Causes of Action. As a tenth separate and affirmative defense t

the Complaint and to each cause of action therein contained Defendant asserts that the injuries an

damages alleged in the Complaint and in said causes of action to have been suffered and incurre

by Plaintiff were the proximate result of the negligence, wrongful conduct andlor breach 0

contract by third parties with respect to the various matters, transactions and events therein

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ANSWER TO COMPLAINT BY DEFENDANT WISEMAN PARK, LLC



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alleged, and were not the proximate result of any negligence, wrongful conduct and/or breach 0

contract by Defendant. Therefore, any judgment and/or recovery by Plaintiff against Defendan

should be propOliionately reduced and/or completely barred to the full extent of the negligence,

wrongful conduct and/or breach of contract attributable to third parties. In the foregoing regard

Defendant hereby requests that the court apportion between Defendant and such third parties an

and all liability for the injuries and damages alleged in the Complaint and in each cause of actio

therein contained to have been suffered and incurred by Plaintiff and/or Plaintiffs assignor.

12. Eleventh Affirmative Defense - Justification or Privi lege, As to All Causes 0

Action. As an eleventh separate and affirmative defense to the Complaint and to all causes 0

action therein contained Defendant asserts that it was justified in taking, and/or privileged to take

all of the actions alleged to have been taken by Defendant with respect to the subject matter ofth

Complaint, and of each of the causes of action therein contained.

13. Twelfth Affirmative Defense - Fraud in the Inducement, As to All Causes 0

Action. As a twelfth separate and affirmative defense to the Complaint and to all causes of actio

therein contained Defendant asserts that the written acknowledgment specified in the Complain

and attached as Exhibit A thereto is unenforceable against Defendant, and void or voidable b

Defendant at is inception, because it was entered into by Defendant as the result of intentional 0

negligent fraudulent representations and/or misrepresentations by Plaintiff to defendant, and/o

resulted from Plaintiffs making of a promise to Defendant Plaintiff did not intend to perform or

keep, concerning some and/or all of the following facts: (i) Plaintiff had the unconditional right to

a finder's fee from the party to whom Defendant had made an offer to purchase an alcoholi

beverage license, (ii) Plaintiff had the unconditional right to keep the $8,000.00 deposit Defendan

remitted to Plaintiff to support an alcoholic beverage license purchase offer rejected by the part)

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ANSWER TO COMI>LAINT BY DEFENDANT WISEMAN J>ARK, LLC



• "'e'

to whom Defendant's offer was made, (iii) Plaintiff had an exclusive finder agreement with th

Defendant, knew, or should have known, Plaintiffhad no unconditional right to a finder's fee, ha

no unconditional right to keep Defendant's $8,000.00 deposit, had no exclusive finder agreemen(

Plaint iff never intended to immediately and uncondit ional ly return to Defendant its $8,000.0

party to whom Defendant made an offer to purchase an alcoholic beverage license and submitte

an $8,000.00 support ing deposit , (iv) Plaintiff would immediate ly and uncondit ionally return t

Defendant its $8,000.00 deposit if the party to whom Defendant made an offer to purchase a

alcoholic beverage license rejected Defendant's offer, and (v) Defendant , in order to have the righ

to receive its $8,000.00 deposit back from Plaintiff, had to sign the written acknowledgmen

attached as Exhibit A to the Complaint. The foregoing representation(s) and/o

misrepresentation(s) made to Defendant by Plaintiff were/was, to Plaintiffs knowledge, false,

and/or Plaintiffs promise to immediate ly and unconditionally return to Defendant its $8,000.0

deposit was made without any intention on Plaintiffs part to perform such promise, in tha

Plaintiff, at the t ime said representat ion(s ) and/or misrepresentat ion(s) were/was made t

deposit upon the rejection of its purchase offer, and/or Defendant was entit led to the return of it

attached as Exhibit A to the Complaint at a time when Plaintiff knew, or should have known, i

$8 ,000.00 depos it immediate ly upon the rejection of its subject purchase offer and withou

Defendant having to first sign the written acknowledgment attached as

Complaint. Pla in ti ff made the foregoing representation(s) and/or misrepresentation(s) t

Defendant for the sole purpose of obtaining Defendant's signature on the acknowledgmen

Defendant's purchase offer $8,000.00 deposit. Plaintiff made the foregoing promise to Defendan

had no right to demand Defendant 's foregoing signature as a condition to the return 0

without any intention of performing the same for the sole purpose of gaining possession an

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6




•control over Defendant's $8,000.00 deposit so that Plaintiff could either make unauthorized use a

said deposit for Plaintiffs benefit and/or use such deposit for the wrongful and unlawful purpos

of forcing Defendant to s ign the written acknowledgment attached as Exhibi t A to the Complain

against Defendant's will and better judgment. At the time Defendant signed the foregoing writte

acknowledgment it did not know and had no reason to know of Defendant's above fraudulen

intent and entered into such written acknowledgment in justifiable reliance on Plaintiff

fraudulent representations, misrepresentations and/or promises made without any intention 0

performing same. Had Defendant known the true facts and Plaintiffs true intent Defendant waul

not have entered into the subject written acknowledgment.

14. Thirteenth Affirmative Defense - Duress, Menace and Undue Influence, As t

An Causes of Action. As a thirteenth separate and affirmative defense to the Complaint and to all

causes of action therein contained Defendant asserts that the written acknowledgment specified it

the Complaint as Exhibit A thereto is unenforceable against Defendant, and void or voidable b

Defendant at is inception, because it was entered into by Defendant as the result of unreasonabl

duress, menace and undue influence exerted against Defendant by Plaintiff in that Defendant ha

requested Plaintiff to present an $80,000.00 purchase offer to the seller of an alcoholic beverag

license in a bona fide and fiduciary capacity on Defendant's behalf. In conjunction with suc

offer, Plaintiff had previously advised Defendant its $8,000.00 deposit in support of its purchas

offer was and would be immediately refundable to Defendant in the event its purchase offer wa

not accepted by the seller of the subject alcoholic beverage license. At the time Defendant remitted

the deposit to Plaintiff to support Defendant 's offer Plaintiff knew, or should have known,

Defendant was in the process of upgrading and remodeling the restaurant for which the ne

alcoholic beverage l icense was being sought and was in need of cash to complete such upgrade

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•

FouJ1eenth Affirmative and Separate Defense - Violation of Public Policy, A

Fifteenth Affirmative and Separate Defense - Illegality, As to All Causes 0

IS.

16.

Defendant, Plaintiff unreasonably and unjustifiably refused to immediately and unconditionall

With the foregoing knowledge in mind, and while Plaintiff was acting in a f iduciary capacity fo

$80,000.00 purchase offe r unless and until Defendant first signed the written acknowledgmen

attached as Exhibi t A to the Complaint. Because Plaintiff unjustifiably and unreasonably refuse

Defendant required the deposit money for upgrading, remodeling and/or further alcoholi

acknowledgment attached as Exhibit A to the Complaint, and because, with Plaintiffs knowledge,

refund Defendant's $8,000.00 deposit to Defendant upon the non-acceptance of Defendant'

to refund Defendant's $8,000.00 deposit without Defendant first signing the writte

beverage license purchase offers and purchases, Defendant signed the subject written agreemen

under duress, menace and undue influence from Plaintiff and solely for the purpose of regainin

and remodeling, and/or to SUpp0l1 other alcoholic beverage license purchase offers and purchases.

the rightful control, possession and use ofDefendant's $8,000.00 deposit.

to All Causes of Action. As a fOUl1eenth separate and affirmative defense to the Complaint an

incorporated herein by reference, enforcement against Defendant of the acknowledgment attache

to all causes of action therein contained Defendant asserts, for the reasons more specificall

ar ticulated in the twelfth and thirteenth affirmative defenses, the contents of which ar

Plaintiff to financially benefit from Defendant for Plaintiff's wrongful and unlawful fraudulen

as Exhibi t A to the Complaint would violate public policy in that such enforcement would aHo

actions and/or from the wrongful and unlawful duress, menace and undue influence Plaintif

in initially obtaining possession and control over said deposit from Defendant.

exerted against Plaintiff in obtaining Defendant's signature on the subject acknowledgment and/o

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ANSWER TO

COMPLAINT BYDEFENDANT

WISEMAN PARK, LLC



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breach of contract, fraud, duress, failure of consideration and/or undue influence by Plaintiff

Action. As a fifteenth aff irmative and separate defense to the Complaint and to all causes 0

awrence M. Adelman, Attorney for Defendant

Wiseman Park, LLC, a California limited liability

company, doing business as Kung Pao Kitty

That Defendant be awarded such other and further relief as the court deems just an

That Defendant be awarded its costs of suit herein incuned.

That Defendant be awarded reasonable attorney's fees under Civil Code § 171

That Plaintiff take nothing against Defendant by way of the Complaint and/or b

D.

B.

A.

c.

and/or of any third party(ties), as applicable.

Plaintiff and against Defendant be reduced to the full extent of the negligence, wrongful conduct

proper.

Defendant's signature on the subject acknowledgment and/or in initially obtaining possession an

from Defendant for Plaintiffs wrongful and unlawful fraudulent actions and/or from the wrongfu

under each written contract or document asserted against Defendants in the Complaint whic

WHEREFORE, Defendant prays judgment against Plaintiffas follows:

way of any cause of action therein contained, and/or that any judgment or recovery in favor 0

Complaint would be illegal in that such enforcement would allow Plaintiff to financially benefi

action therein contained Defendant asserts, for the reasons more specifically articulated in th

reference, enforcement against Defendant of the acknowledgment attached as Exhibit A to th

and unlawful duress, menace and undue influence Plaintiff exerted against Plaintiff in obtainin

control over said deposit from Defendant.

twelfth and thir teenth aff irmative defenses, the contents of which are incorporated herein b

contains an attorney's fees provision in favor of the prevailing party.

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ANSWER TO COMI>LAINT BY DEFENDANTWISEMAN PARK, LLC



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over the age of eighteen years and I am not a party to this action. My business address is 585

Steven H. Gardner, Esq.Law Offices of Steven H. Gardner

9595 Wilshire Boulevard, Suite 610

Beverly Hills, CA 90212

PROOF OF SERVICE BYMAIL (CCP §§ 405.22, 405.23,1013 (a), 2015.5)

STATE OF CALIFORNIA )

COUNTY OF LOS ANGELES)

I am readily familiar with the practice of this office for collecting and

correspondence for mailing. Under that practice, the above-described document(s) would b

deposited with the U.S. Postal Service on the same day as the document(s) were enclosed in thei

envelope(s). I am aware that on motion of the party served, service is presumed invalid if th

postal collection date or postage meter date is more than one day after the date of mailing set fort

in this declaration.

I am a citizenof

the United States and a residentof

Los Angeles County, California. I

I declare under penalty of peljury under the laws of the State of California that th

foregoing is true and correct.

Executed on t h i s ~ a y ofMay, 2007, at Los Angeles, California.

~ A d e l m a ; -

51iti'alloga Avenue, Suite 400, Woodland Hills, California 91367-6554.

On May ~ 2007, I served the within document(s) entitled ANSWER T

COMPLAINT BY DEFENDANTWISEMAN PARK, LLC on the interested parties in this action

by placing a true copy thereof enclosed in a sealed envelope, with postage thereon fully prepaid

addressed as follows:

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cirgadyne incorporated v wiseman park llc - answer

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