JAY L. POMERANTZ (CSB No. ) jpomerantz@fenwick.com ILANA RUBEL (CSB No. ) irubel@fenwick.com MATTHEW MEYERHOFER (CSB NO. ) mmeyerhofer@fenwick.com Silicon Valley Center 0 California Street Mountain View, CA 0 Telephone: 0..00 Facsimile: 0..0 KEVIN P. MUCK (CSB No. 0) kmuck@fenwick.com JAMES J. VARELLAS III (CSB No. ) jvarellas@fenwick.com California Street, th Floor San Francisco, CA Telephone:..0 Facsimile:.. Attorneys for Defendant Greenberg Traurig, LLP SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF ALAMEDA GORDON NOBLE and ARLENE DEA DEELEY, individually and on behalf of all others similarly situated, v. Plaintiffs, B- PARTNERS, LLC, a California limited liability company, BAR-K, INC., a California corporation, THE MORTGAGE FUND, LLC, a California limited liability company, BRUCE HORWITZ, M.D., an individual, KELLY NG, an individual, GREENBERG TRAURIG, LLP, a New York limited liability partnership, WELLS FARGO CAPITAL FINANCE, INC., f/k/a WELLS FARGO FOOTHILL, LLC, a California corporation, and DOES - 0, Defendants. Case No.: RG - GREENBERG TRAURIG, LLP S ANSWER TO SECOND CONSOLIDATED AND AMENDED Dept: Judge: The Honorable Steven Brick Action Filed: August, CASE NOS. RG; RG0 AND RG
FREDRIC C. MENDES, on behalf of himself and those similarly situated, v. Plaintiff, B- PARTNERS, LLC; BAR-K, INC.; BRUCE HORWITZ; BARNEY NG; KELLY WILLIAM NG; GREENBERG TRAURIG LLP; WELLS FARGO CAPITAL FINANCE, INC.; DEVELOPMENT SPECIALISTS, INC.; ARMANINO McKENNA, LLP; and DOES Through 00, Inclusive, Defendants. DAVID D. NOLAN, on behalf of himself and all others similarly situated, v. Plaintiff, WELLS FARGO CAPITAL FINANCE, INC. a California corporation formerly known and doing business as WELLS FARGO FOOTHILL, LLC, GREENBERG TRAURIG, LLP, a New York limited liability partnership, and DOES -0, Defendants. Case No.: RG0 Complaint Filed: November, Case No.: RG Complaint Filed: January 0, Defendant Greenberg Traurig, LLP ( Greenberg ) answers the unverified Second Consolidated and Amended Complaint ( Complaint ) of Gordon Noble, Arlene Dea Deeley, Fredric C. Mendes, Nancy Rapp, Phillip Cantor, John Emanuele, and David Nolan (collectively, Plaintiffs ) as follows: GENERAL DENIAL. Pursuant to California Code of Civil Procedure.0(d), Greenberg denies each and every material allegation in the Complaint.. In addition to the foregoing general denial, Greenberg denies that Plaintiffs have sustained any injury, damages or loss by reason of any act or omission on the part of Greenberg, and further deny that Plaintiffs or any alleged class members are entitled to any legal or equitable relief whatsoever from Greenberg. CASE NOS. RG; RG0 AND RG
AFFIRMATIVE DEFENSES Pursuant to California Code of Civil Procedure.0(b)(), as separate and distinct affirmative defenses to all claims and causes of action alleged in Plaintiffs Complaint, the Greenberg Defendants allege as follows: FIRST AFFIRMATIVE DEFENSE (Failure to State a Claim for Relief) The Complaint fails to state a claim upon which relief may be granted. SECOND AFFIRMATIVE DEFENSE (Statute of Limitations) The claims asserted by Plaintiffs (both individually and on behalf of any alleged class) against Greenberg are barred in whole or in part by the controlling statutes of limitations, including without limitation those set forth in Code of Civ. Proc.,,, 0 and 0.. THIRD AFFIRMATIVE DEFENSE (Waiver) whole or in part by the doctrine of waiver. FOURTH AFFIRMATIVE DEFENSE (Estoppel) whole or in part by the doctrine of estoppel. FIFTH AFFIRMATIVE DEFENSE (Unjust Enrichment) Plaintiffs and members of any alleged class will be unjustly enriched if they are allowed to recover from Greenberg any portion of the damages alleged in the Complaint. SIXTH AFFIRMATIVE DEFENSE (Laches) CASE NOS. RG; RG0 AND RG
whole or in part by the doctrine of laches. SEVENTH AFFIRMATIVE DEFENSE (Failure to Mitigate) Plaintiffs and members of any alleged class unjustifiably failed to take reasonable steps to mitigate their damages and that any such failure was a proximate cause of any alleged damages. EIGHTH AFFIRMATIVE DEFENSE (Unclean Hands) whole or in part by the doctrine of unclean hands. NINTH AFFIRMATIVE DEFENSE (Contributory Fault) Plaintiffs and any alleged class members are at fault in and about the matters alleged in the Complaint; that such fault proximately contributed to any injury, loss or damages complained of; and that, in the event damages are recovered from Greenberg (which damages are denied), Greenberg is entitled to have the amount of any such damages abated, reduced or eliminated to the extent that the fault of Plaintiffs and/or any alleged class members caused or contributed to any such injury, loss or damages. TENTH AFFIRMATIVE DEFENSE (Fault of Others) Any recovery in this action must be reduced and/or eliminated in proportion to the extent that any alleged injury was caused by the negligence or other fault of persons other than Greenberg. ELEVENTH AFFIRMATIVE DEFENSE (Ratification) whole or in part by the doctrine of ratification. TWELFTH AFFIRMATIVE DEFENSE (Consent) CASE NOS. RG; RG0 AND RG
Each of Plaintiffs claims, and the claims of any alleged class members, are barred to the extent that the alleged acts or omissions about which Plaintiffs now complain have been consented to, acquiesced in or approved of by Plaintiffs. THIRTEENTH AFFIRMATIVE DEFENSE (Lack of Standing) Plaintiffs lack standing and/or capacity to assert some or all of the claims alleged in the Complaint, including (but not limited to) any alleged class claims. FOURTEENTH AFFIRMATIVE DEFENSE (Offset) Plaintiffs and any alleged class members damages, if any, are offset (in whole or in part) by amounts owed by Plaintiffs and any alleged class members to Greenberg. FIFTEENTH AFFIRMATIVE DEFENSE (Disclosure) The matters now claimed by the Complaints to be the subject of misrepresentations and omissions (which Greenberg denies) were, in fact, disclosed or were in the public domain and, as such, were available to Plaintiffs and any alleged class members. SIXTEENTH AFFIRMATIVE DEFENSE (Lack of Knowledge) Even if the misstatements and omissions alleged in the Complaint had been made, which Greenberg denies, Greenberg did not know, and in the exercise of reasonable care could not have known, of any such misrepresentations or omissions. SEVENTEENTH AFFIRMATIVE DEFENSE (Additional Affirmative Defenses) Greenberg adopts and incorporates by reference any and all other affirmative defenses that might be asserted by any other defendant in this action to the extent that it may share in such affirmative defense. PRAYER FOR RELIEF WHEREFORE, Greenberg prays for judgment as follows: CASE NOS. RG; RG0 AND RG
. That Plaintiffs takes nothing by this action;. That Plaintiffs' Complaint be dismissed in its entirety, with prejudice, and that judgment be entered in favor of Greenberg on all claims;. That Greenberg recover all costs of suit, including reasonable attorneys' fees incurred in defending this action; and. For such other and further relief as this Court may deem proper. Dated: June, Respectfully submitted, n rantz t{j:ouj.eys for Defendant GREENBERG TRAURIG, LLP GREENBERG TRAlJRIG, LLP's ANSWE R TO COMI'I.AINT CASE NOS. RG; RGl0 AND RGX0
PROOF OF SERVICE The undersigned declares as follows: I am a citizen of the United States and employed in Santa Clara County, State of California. I am over the age of eighteen years and not a party to the within-entitled action. My business address is Fenwick & West LLP, Silicon Valley Center, 0 California Street, Mountain View, California 0. On the date set forth below, I served a copy of the following documents: SECOND CONSOLIDATED AND AMENDED on the interested party in the subject action by placing a true copy thereof as indicated below, addressed as follows: Mark A. Chavez Nance F. Becker CHAVEZ & GERTLER LLP Miller Avenue Mill Valley, CA Tel: -- Fax: -- E-mail: mark@chavezgertler.com E-mail: nance@chavezgertler.com E-mail: amanda@chavezgertler.com BARRACK, RODOS & BACINE Stephen R. Basser 00 West Broadway, Suite 00 San Diego, CA Tel: --000 E-mail: Sbasser@barrack.com; E-mail: mstrong@mindspring.com E-mail: reedmarch@sbcglobal.net William G. Fairbourn Andrew Friedman Kathryn A. Honecker William F. King BONNETT, FAIRBOURN, FRIEDMAN & BALINT, P.C. N. Central Ave. Suite 00 Phoenix, AZ. 0 Tel: 0--0 Fax: 0-- E-mail: afriedman@bffb.com E-mail: wharrison@bffb.com E-mail: rereech@bffb.com; Carey James AIMAN-SMITH & MARCY Randall Aiman-Smith Carey James Oakport St., suite Oakland, CA Tel: --00 E-mail: ras@asmlawyers.com E-mail: cajl.asm@gmail.com E-mail: hallievonrock@yahoo.com PROOF OF SERVICE CASE NOS. RG; RG0 AND RG
Richard E. Brown Law Office of Richard E. Brown P.O. Box Alamo, CA 0 Tel: --000 E-mail: rebrown law(m,ao Lcom K&L GATES LLP John Garda David Weitman Danny Ashby Sara Fletcher David Monteiro Main Street, Suite 0 Dallas, TX Tel: --00 E-mail: Matthew.Ball@klgates.com E-mail: David.Weitman@klgates.com E-mail: Johl.Garda@klgates.com E-mail: danny.ashhy@klgates.com E-mail: sara.fetcher({l)klgates.com E-mail: david.monteiro@klgatcs.com Counsel for Wells Fargo Capital Fillcallce, LLC ~ BY E-MAIL: by causing to be transmitted via e-mail the document(s) listed above to the addressec(s) at the e-mail addressees) listed above. I declare under penalty of perjury under the laws of the State of Calif ami a and the United States that the above is true and correct. Date: June,,!~O /\,f,l\ = S PROOF OF SERVICE CASE NOS. RG ; RG 0 A [) RG 0