CMC/rt 1 LANAK &HANNA,P.C.

14148 400 North Tustin Avenue, Suite 120

Santa Ana, CA 92705-3815
11/02/07 714/550-0418
3
By: CHRISTOPHER M. CULLEN, Bar No. 211166
-4MWSB-WW
4 cmcullen@lanak-hanna.com

5 Attorneys for Defendants

KENNETH M. PETERS, JR.; ALAN R. SPITALNICK
6
•W
7 SUPERIOR COURT FOR THE STATE OF CALIFORNIA

8 COUNTY OF RIVERSIDE, RIVERSIDE BRANCH

9
10 SOUTHERN CALIFORNIA DISTRICT 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 KENNETH M. PETERS, JR. AND
ALAN R. SPITALNICK'S ANSWER
13 Plaintiffs, TO COMPLAINT
v.
14
KENNETH M. PETERS, JR.; ALAN R.
15 SPITALNICK; ALL PERSONS UNKNOWN,
CLAIMING ANY LEGAL OR EQUITABLE
16 RIGHT, TITLE, ESTATE, LIEN, OR
INTEREST IN THE PROPERTY DESCRIBED
17 IN THE COMPLAINT ADVERSE TO
PLAINTIFFS' TITLE, OR ANY CLOUD ON
18 PLAINTIFFS' TITLE THERETO; and DOES 1
to 500, inclusive,
19 Defendants.

20
21 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.
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Lanak & H a a n a , P. C.
400 N. Tustin Ave
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Santa Ar.a, CA
92705-3315
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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 FIRST AFFIRMATIVE DEFENSE

5 (Failure to State Cause of Action)

6 3. 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 SECOND AFFIRMATIVE DEFENSE

10 (Statute of Limitations)

11 4. 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 THIRD AFFIRMATIVE DEFENSE

16 (Failure To Mitigate Damages)

17 5. 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 FOURTH AFFIRMATIVE DEFENSE

22 (Unclean Hands)

23 6. 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."

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400 N. T u s t i n Ave
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Santa Ana, CA
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1 FIFTH AFFIRMATIVE DEFENSE

2 (Estoppel, Waiver and Failure to Notify)

3 7. 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 SIXTH AFFIRMATIVE DEFENSE

8 (Indemnity)

9 8. 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

14 (Comparative Negligence)

15 9. Defendants are informed and believe, and on that basis allege, that Plaintiffs'

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 EIGHTH AFFIRMATIVE DEFENSE

20 (Assumption of Risk)

21 10. Defendants are informed and believe, and on that basis allege, that Plaintiffs'

22 Complaint is barred by the assumption of risk.

23 NINTH AFFIRMATIVE DEFENSE

24 (Consent)

25 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.
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1 TENTH AFFIRMATIVE DEFENSE

2 (Failure of Consideration)

3 12. 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 ELEVENTH AFFIRMATIVE DEFENSE

7 (Failure of Performance Caused by Plaintiffs)

8 13. 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 TWELFTH AFFIRMATIVE DEFENSE

13 (Plaintiffs' Negligence)

14 14. 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 THIRTEENTH AFFIRMATIVE DEFENSE

19 (Satisfaction)

20 15. 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 FOURTEENTH AFFIRMATIVE DEFENSE

23 (Prevention of Performance)

24 16. 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.

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Lanak S H a n n a , P . C .
400 M, Tustin Ave
Suite 12 0 L:\New Hope FWC\14148\Pleadings - AOG Case\071102 - Answer. wpc4 -
Santa Ana. CA
92705-3815
V14/550-041B ANSWER TO COMPLAINT
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1 FIFTEENTH AFFIRMATIVE DEFENSE

2 (Excuse)

3 17. 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 SIXTEENTH AFFIRMATIVE DEFENSE

6 (Plaintiffs' Breach)

7 18. 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 SEVENTEENTH AFFIRMATIVE DEFENSE

12 (Non-Joinder of Indispensable Parties)

13 19. 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 EIGHTEENTH AFFIRMATIVE DEFENSE
16 (Failure of Consideration and Performance)
17 20. 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 NINETEENTH AFFIRMATIVE DEFENSE
20 (Failure to Prevent Damages)
21 21. 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 TWENTIETH AFFIRMATIVE DEFENSE
24 (Set Off)
25 22. 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.
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Lanak & H a o n a , P. C.
400 N. T u s t i n Ave
S i ; i t e 120 L:\New Hope FWCM4I48\Pleadings - AOG Case\07l 102 - Answer.wpdS -
Santa Ana, CA
92705-3815
714/550-0413 ANSWER TO COMPLAINT
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1 TWENTY-FIRST AFFIRMATIVE DEFENSE

2 (Lack of Standing)

3 23. Defendants are informed and believe, and on that basis allege, that Plaintiffs' claims

4 are barred by Plaintiffs' lack of standing.

5 TWENTY-SECOND AFFIRMATIVE DEFENSE

6 (Lack of Capacity)

7 24. Defendants are informed and believe, and on that basis allege, that Plaintiffs lacks

8 capacity to maintain the action.

9 TWENTY-THIRD AFFIRMATIVE DEFENSE

10 (Laches)

11 25. 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 TWENTY-FOURTH AFFIRMATIVE DEFENSE

14 (Unjust Enrichment)

15 26. 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 TWENTY-FIFTH AFFIRMATIVE DEFENSE

19 (Allocation of Fault)

20 27. 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 TWENTY-SIXTH AFFIRMATIVE DEFENSE

26 (Misuse and Improper Maintenance)

27 28. 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
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1 which is the subject of the Complaint, thereby causing or contributing to the damages, if any,

2 alleged in the Complaint.

3 TWENTY-SEVENTH AFFIRMATIVE DEFENSE

4 (Alteration)

5 29. 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 TWENTY-EIGHTH AFFIRMATIVE DEFENSE

10 (Ratification of Work)

11 30. 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 TWENTY-NINTH AFFIRMATIVE DEFENSE

16 (Accord and Satisfaction)

17 31. 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 THIRTIETH AFFIRMATIVE DEFENSE

20 (Unconscionable Contract)

21 32. 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 THIRTY-FIRST AFFIRMATIVE DEFENSE

25 (Intervening Acts)

26 33. 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.
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400 N. T u s t i n Ave
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1 THIRTY-SECOND AFFIRMATIVE DEFENSE

2 (Non-Negotiated Terms and Conditions)

3 34. 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 non-

5 negotiated terms and conditions which exclusively benefitted Plaintiffs to the detriment of
6 Defendants at the time the alleged contract was made.

7 THIRTY-THIRD AFFIRMATIVE DEFENSE

8 (Uncertain Terms)

9 35. 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 THIRTY-FOURTH AFFIRMATIVE DEFENSE

13 (Full or Partial Performance)

14 36. 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 THIRTY-FIFTH AFFIRMATIVE DEFENSE

18 (Adhesion)

19 37. 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 THIRTY-SIXTH AFFIRMATIVE DEFENSE

24 (Act of God)

25 38. 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
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1 shifting of land mass, abnormal rainfall or preexisting ancient landslide.

2 THIRTY-SEVENTH AFFIRMATIVE DEFENSE

3 (Economic Loss)

4 39. 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 THIRTY-EIGHTH AFFIRMATIVE DEFENSE

8 (Speculation)

9 40. 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 WHEREFORE, this answering Defendants prays:

12 1. That the Plaintiffs take nothing by way of its Complaint;

13 2. That judgment be entered in favor of the Defendants;

14 3. That Defendants be dismissed herefrom with costs of suit incurred; and including

15 attorney fees; and

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

17

18 DATED: November
z , 2007 LANAK & HANNA, P.C.

19
20 By:_
CHRISTOPHER M. CULLEN
21 Attorneys for Defendants
KENNETH M. PETERS, JR. and
22 ALAN R. SPITALNICK

23
24

25

26

27

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Lonak & Hanna, P . C .
400 N. Tustin five
Suite 120 L:\New Hope FWC\14148\Pleadings - AOG Case\071102 - Answer.wp<9 -
Santa Ana, CA
92705-3B15
714/550 0418 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 Julian B. Bellenghi Attorneys for Plaintiffs and Cross-
Collins &Bellenghi LLP Defendant
9
1201 Dove Street, Suite 570
Newport Beach CA 92660
10
11 X (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,
12 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
13 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
14 prepaid.

15 (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
16 the envelope or package for collection and overnight delivery at an office or a regularly
utilized drop box of the overnight delivery carrier.
17
(By Facsimile Transmission) Based on an agreement of the parties to accept service by fax
18 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
19 I printed out, is attached.

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,
21 California.

22 7

23 R. TRETHEWAY

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