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JONATHAN O’DONNELL (#100051)
jodonnelllaw@gmail.com Electronically
LAW OFFICES OF JONATHAN O’?DONNELL by Superior Court of California, County of San Mateo
140 Lower Via Casitas #7 ON 5/8/2024
Greenbrae, CA 94904 By. /s/ Una Finau
(415) 722-5527 Deputy Clerk
Attorneys for Defendants
SHELTER CONSTRUCTION, INC., GARY RISTOW,
and JAMES LEUSCHNER
IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN MATEO
10 BURAK GUNDOGDU, an individual, Case No. 24-CIV-01675
ALICAN UCTEPE, an individual, and
11 OPAL OF BROADWAY d/b/a ANSWER TO COMPLAINT
PULPO RESTAURANT AND WINE BAR,
12 a California Corporation
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Plaintiffs
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Vv.
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SHELTER CONSTRUCTION, INC., a California
16 Corporation, GARY RISTOW, an individual, and
17 DOES | through 10
18 Defendants
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Comes now Defendants Shelter Construction, Inc. and Gary Ristow in reply to the
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unverified Complaint for Damages and Declaratory Relicf (the "Complaint"), filed
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in the above action respond as follows:
23 GENERAL DENIAL
24 Pursuant to Code of Civil Procedure Section 43 1.30(d), Defendants
25 hereby deny, generally and specifically, every express and implied
26 material allegation as set forth in the Complaint. Defendants further deny generally and
27 specifically every cause of action and request for relief, whether pursuant to statute, at law or
28 in equity, alleged or otherwise, as set forth in the Complaint. Defendants further denies that Plaintiffs
have any claim or right to declaratory relief, as to the Defendants, or that Plaintiffs have or will suffer
ANSWER TO COMPLAINT
any direct, consequential general or economic damages, in any amount, due to any act, omission,
conduct, obligation or duty, at law, pursuant to statute, or by way of agreement, as attributed to
Defendants, and, thus, they deny that Plaintiffs are entitled to any relief, at law or in equity.
In further answer to the Complaint, and as to every cause of action as
alleged therein, Defendants raise and allege the following affirmative defenses:
FIRST AFFIRMATIVE DEFNSE
Asa first, separate and affirmative defense, Defendants allege the Complaint fails to
state facts sufficient to constitute a cause of action against Defendants. This defense is
interposed as to the Complaint in its entirety, and specifically as to each individual cause
10 of action therein alleged, although not restated under separate heading as to each cause of
11 action.
12 SECOND AFFIRMATIVE DEFENSE
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Asa second, separate and affirmative defense, Defendants allege Plaintiffs failed to timely perform all
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terms and conditions on their part to be performed pursuant to the terms of the applicable agreements
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between Plaintiffs and Defendants.
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THIRD AFFIRMATIVE DEFENSE
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18 As a third, separate and affirmative defense, Defendants have failed and refused to tender their
19 performance of all terms and conditions on Plaintiffs’ part to be performed pursuant to the
20 applicable agreements between Defendants and Plaintiff.
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FOURTH AFFIRMATIVE DEFENSE
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As a fourth, separate and affirmative defense, Defendants allege that they are entitled to a setoff from
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Plaintiffs as against all claims for money or damages alleged in the Complaint for the reasons
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25 alleged in the Cross-Complaint filed and served herewith.
26 FIFTH AFFIRMATIVE DEFENSE
27 Asa fifth, separate and affirmative defense, Defendants allege they performed all conditions, covenants
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and/or obligations due under the terms of the applicable agreements between Defendants and Plaintiffto
ANSWER TO COMPLAINT
such that all such obligations or duties owed to Plaintiffs have been expressly or implicitly
waived or excused by Plaintiff.
SIXTH AFFIRMATIVE DEFENSE
Asa sixth, separate and affirmative defense, Defendants allege that, to the extent they owed Plaintiffs
any obligations or duties under the applicable agreements between Defendants and Plaintiff, Defendants
were as prevented from performing cach such obligation or duty duc to the acts and/or omissions of
Plaintiffs.
SEVENTH AFFIRMATIVE DEFENSE
10 As a seventh, separate and affirmative defense, Defendants allege that Plaintiffs
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failed, refused and/or neglected to take all reasonable actions to prevent, mitigate, reduce or otherwise
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eliminate, diminish, and terminate any of their alleged damages, if any, allegedly suffered due to any act,
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omission or breach by Defendants and, as a result, Plaintiffs’ damages have been caused or aggravated
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15 by such conduct and, as such, are not recoverable from Defendants.
16 EIGHTH AFFIRMATIVE DEFENSE
17 As an eighth, separate and affirmative defense, Defendants allege that Plaintiffs engaged in intentional
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and unintentional acts, omissions and/or conduct that, as a matter of both law and equity,
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act as an estoppel of Plaintiff's right to recover any damages at law of any kind, or any form of equitable
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relief from Defendants.
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NINTH AFFIRMATIVE DEFENSE
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23 Asa ninth, separate and affirmative defense, Defendants allege Plaintiffs directed,
24 ordered, approved and, in all other respects, ratified the acts and performance of the Defendants,
25 by reason of which conduct Plaintiff is barred from any relief and/or the recovery from Defendants.
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28 TENTH AFFIRMATIVE DEFENSE
ANSWER TO COMPLAINT
Asa tenth, separate and affirmative defense, Defendants allege that through their express and/or implied
acts, omissions, actions and statements, Plaintiffs have waived all claims, causes of action, at
law or equity, alleged against Defendants.
ELEVENTH AFFIRMATIVE DEFENSE
As an eleventh, separate and affirmative defense, Defendants allege that Plaintiffs are barred, as a matter
of law and equity, from recovering any moncy damages, compensation, or penaltics from Defendants due
to the acts and/or omissions of Plaintiffs.
TWELTH AFFIRMATIVE DEFENSE
10 As a twelfth, separate and affirmative defense, Defendants allege that Plaintiffs were negligent and
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careless regarding the matters alleged in the Complaint and that such negligence and carelessness caused,
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in whole or in part, the damages and injuries alleged in the Complaint and that such negligence or
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carelessness completely bars or reduces any reliefto which Plaintiffs may be entitled.
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1S THIRTEENH AFFIRMATIVE DEFENSE
16 Asa thirteenth, separate and affirmative defense, Defendants allege that Plaintiffs arc barred from
17 recovering any damages or other relicf from Defendants because of Plaintiffs’ unclean hands.
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FOURTEENH AFFIRMATIVE DEFENSE
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As a fourteenth, separate and affirmative defense, Defendants allege that every cause of action alleges in
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the Complaint is barred by the doctrine of laches.
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FIFTEENTH AFFIRMATIVE DEFENSE
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23 Asa fifteenth, separate and affirmative defense, Defendants allege that every cause of action alleged in
24 the Complaint is barred by the applicable statute of limitations, including without limitation, Civil
25 Procedure Sections 337, 338, 339,340, 343, 344, and 1060.
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27 SIXTEENTH AFFIRMATIVE DEFENSE
28 As a sixteenth, separate and affirmative defense, Defendants allege that Plaintiffs are barred from
ANSWER TO COMPLAINT
recovering any relief from Defendants because Plaintifis failed to perform all conditions precedent to
their right to relief.
Defendants reserve their right to allege and prove further Affirmative Defenses as discovery
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proceeds in this action.
WHEREFORE, Defendants pray for judgment as follows:
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1 That Plaintiffs take nothing from Defendants by way of the Complaint.
2 That a judgment of dismissal be entered in favor of Defendants.
3 For such other and further relief as may be warranted by the facts and the law.
10 DATED: May 8, 2024 LA OFFICES OF JONATHAN O'DONNELL
i
12 onathan O*Donnell
Attorneys for Defendants
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ANSWER TO COMPLAINT
PROOF OF SERVICE BY EMAIL
Tam over the age of 18 and not a party to this action.
My business address is:
140 Lower Via Casitas #7, Greenbrae, California 94904
6 On May 8, 2024 1, served the following document(s):
ANSWER TO COMPLAINT
CROSS-COMPLAINT
9 on the following person:
10 Nanci Nishimura
11 Cotchett, Pitre & McCarthy
840 Malcolm Road
12 Burlingame, California 94010
nnishimura@cpmlegal.con
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[] (By U.S. Mail) I deposited such envelope in the mail at San Rafael, California with postage
15 thereon fully prepaid on the date this proof of Service was signed. | am aware that on motion of
the party served. s ice is presumed invalid if postal cancellation date or postage meter date is
16 more than one day after date of deposit for mailing in affidavit.
Le [ | (By Personal Service) | caused such envelope to be delivered by hand via messenger
service to the address above:
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19 [| | (By Facsimile) I served a true and correct copy by facsimile during regular business hours
to the number(s) listed above. Said transmission was reported complete and without error.
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[ x | (By Email) I served true and correct copies by email addressed to Nanci Nishimura at
21 nnishimura@cpmlegal.com which is the email address for plaintiffs’ counsel.
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I declare under penalty of perjury under the laws of the State of California that the foregoing is true
23 and correct.
24 DATED: May 8, 2024
Jonathan O'Donnell
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PROOF OF SERVICE
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JONATHAN O’DONNELL (#100051) jodonnelllaw@gmail.com Electronically LAW OFFICES OF JONATHAN O’?DONNELL by Superior Court of California, County of San Mateo 140 Lower Via Casitas #7 ON 5/8/2024 Greenbrae, CA 94904 By. /s/ Una Finau (415) 722-5527 Deputy Clerk Attorneys for Defendants SHELTER CONSTRUCTION, INC., GARY RISTOW, and JAMES LEUSCHNER IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN MATEO 10 BURAK GUNDOGDU, an individual, Case No. 24-CIV-01675 ALICAN UCTEPE, an individual, and 11 OPAL OF BROADWAY d/b/a ANSWER TO COMPLAINT PULPO RESTAURANT AND WINE BAR, 12 a California Corporation 13 Plaintiffs 14 Vv. 15 SHELTER CONSTRUCTION, INC., a California 16 Corporation, GARY RISTOW, an individual, and 17 DOES | through 10 18 Defendants 19 20 Comes now Defendants Shelter Construction, Inc. and Gary Ristow in reply to the 21 unverified Complaint for Damages and Declaratory Relicf (the "Complaint"), filed 22 in the above action respond as follows: 23 GENERAL DENIAL 24 Pursuant to Code of Civil Procedure Section 43 1.30(d), Defendants 25 hereby deny, generally and specifically, every express and implied 26 material allegation as set forth in the Complaint. Defendants further deny generally and 27 specifically every cause of action and request for relief, whether pursuant to statute, at law or 28 in equity, alleged or otherwise, as set forth in the Complaint. Defendants further denies that Plaintiffs have any claim or right to declaratory relief, as to the Defendants, or that Plaintiffs have or will suffer ANSWER TO COMPLAINT any direct, consequential general or economic damages, in any amount, due to any act, omission, conduct, obligation or duty, at law, pursuant to statute, or by way of agreement, as attributed to Defendants, and, thus, they deny that Plaintiffs are entitled to any relief, at law or in equity. In further answer to the Complaint, and as to every cause of action as alleged therein, Defendants raise and allege the following affirmative defenses: FIRST AFFIRMATIVE DEFNSE Asa first, separate and affirmative defense, Defendants allege the Complaint fails to state facts sufficient to constitute a cause of action against Defendants. This defense is interposed as to the Complaint in its entirety, and specifically as to each individual cause 10 of action therein alleged, although not restated under separate heading as to each cause of 11 action. 12 SECOND AFFIRMATIVE DEFENSE 13 Asa second, separate and affirmative defense, Defendants allege Plaintiffs failed to timely perform all 14 terms and conditions on their part to be performed pursuant to the terms of the applicable agreements 1S between Plaintiffs and Defendants. 16 THIRD AFFIRMATIVE DEFENSE 17 18 As a third, separate and affirmative defense, Defendants have failed and refused to tender their 19 performance of all terms and conditions on Plaintiffs’ part to be performed pursuant to the 20 applicable agreements between Defendants and Plaintiff. 21 FOURTH AFFIRMATIVE DEFENSE 22 As a fourth, separate and affirmative defense, Defendants allege that they are entitled to a setoff from 23 Plaintiffs as against all claims for money or damages alleged in the Complaint for the reasons 24 25 alleged in the Cross-Complaint filed and served herewith. 26 FIFTH AFFIRMATIVE DEFENSE 27 Asa fifth, separate and affirmative defense, Defendants allege they performed all conditions, covenants 28 and/or obligations due under the terms of the applicable agreements between Defendants and Plaintiffto ANSWER TO COMPLAINT such that all such obligations or duties owed to Plaintiffs have been expressly or implicitly waived or excused by Plaintiff. SIXTH AFFIRMATIVE DEFENSE Asa sixth, separate and affirmative defense, Defendants allege that, to the extent they owed Plaintiffs any obligations or duties under the applicable agreements between Defendants and Plaintiff, Defendants were as prevented from performing cach such obligation or duty duc to the acts and/or omissions of Plaintiffs. SEVENTH AFFIRMATIVE DEFENSE 10 As a seventh, separate and affirmative defense, Defendants allege that Plaintiffs 11 failed, refused and/or neglected to take all reasonable actions to prevent, mitigate, reduce or otherwise 12 eliminate, diminish, and terminate any of their alleged damages, if any, allegedly suffered due to any act, 13 omission or breach by Defendants and, as a result, Plaintiffs’ damages have been caused or aggravated 14 15 by such conduct and, as such, are not recoverable from Defendants. 16 EIGHTH AFFIRMATIVE DEFENSE 17 As an eighth, separate and affirmative defense, Defendants allege that Plaintiffs engaged in intentional 18 and unintentional acts, omissions and/or conduct that, as a matter of both law and equity, 19 act as an estoppel of Plaintiff's right to recover any damages at law of any kind, or any form of equitable 20 relief from Defendants. 21 NINTH AFFIRMATIVE DEFENSE 22 23 Asa ninth, separate and affirmative defense, Defendants allege Plaintiffs directed, 24 ordered, approved and, in all other respects, ratified the acts and performance of the Defendants, 25 by reason of which conduct Plaintiff is barred from any relief and/or the recovery from Defendants. 26 27 28 TENTH AFFIRMATIVE DEFENSE ANSWER TO COMPLAINT Asa tenth, separate and affirmative defense, Defendants allege that through their express and/or implied acts, omissions, actions and statements, Plaintiffs have waived all claims, causes of action, at law or equity, alleged against Defendants. ELEVENTH AFFIRMATIVE DEFENSE As an eleventh, separate and affirmative defense, Defendants allege that Plaintiffs are barred, as a matter of law and equity, from recovering any moncy damages, compensation, or penaltics from Defendants due to the acts and/or omissions of Plaintiffs. TWELTH AFFIRMATIVE DEFENSE 10 As a twelfth, separate and affirmative defense, Defendants allege that Plaintiffs were negligent and 11 careless regarding the matters alleged in the Complaint and that such negligence and carelessness caused, 12 in whole or in part, the damages and injuries alleged in the Complaint and that such negligence or 13 carelessness completely bars or reduces any reliefto which Plaintiffs may be entitled. 14 1S THIRTEENH AFFIRMATIVE DEFENSE 16 Asa thirteenth, separate and affirmative defense, Defendants allege that Plaintiffs arc barred from 17 recovering any damages or other relicf from Defendants because of Plaintiffs’ unclean hands. 18 FOURTEENH AFFIRMATIVE DEFENSE 19 As a fourteenth, separate and affirmative defense, Defendants allege that every cause of action alleges in 20 the Complaint is barred by the doctrine of laches. 21 FIFTEENTH AFFIRMATIVE DEFENSE 22 23 Asa fifteenth, separate and affirmative defense, Defendants allege that every cause of action alleged in 24 the Complaint is barred by the applicable statute of limitations, including without limitation, Civil 25 Procedure Sections 337, 338, 339,340, 343, 344, and 1060. 26 27 SIXTEENTH AFFIRMATIVE DEFENSE 28 As a sixteenth, separate and affirmative defense, Defendants allege that Plaintiffs are barred from ANSWER TO COMPLAINT recovering any relief from Defendants because Plaintifis failed to perform all conditions precedent to their right to relief. Defendants reserve their right to allege and prove further Affirmative Defenses as discovery 4 proceeds in this action. WHEREFORE, Defendants pray for judgment as follows: 6 1 That Plaintiffs take nothing from Defendants by way of the Complaint. 2 That a judgment of dismissal be entered in favor of Defendants. 3 For such other and further relief as may be warranted by the facts and the law. 10 DATED: May 8, 2024 LA OFFICES OF JONATHAN O'DONNELL i 12 onathan O*Donnell Attorneys for Defendants 13 14 15 16 17 18 19 20 21 22 24 25 26 27 28 ANSWER TO COMPLAINT PROOF OF SERVICE BY EMAIL Tam over the age of 18 and not a party to this action. My business address is: 140 Lower Via Casitas #7, Greenbrae, California 94904 6 On May 8, 2024 1, served the following document(s): ANSWER TO COMPLAINT CROSS-COMPLAINT 9 on the following person: 10 Nanci Nishimura 11 Cotchett, Pitre & McCarthy 840 Malcolm Road 12 Burlingame, California 94010 nnishimura@cpmlegal.con 13 14 [] (By U.S. Mail) I deposited such envelope in the mail at San Rafael, California with postage 15 thereon fully prepaid on the date this proof of Service was signed. | am aware that on motion of the party served. s ice is presumed invalid if postal cancellation date or postage meter date is 16 more than one day after date of deposit for mailing in affidavit. Le [ | (By Personal Service) | caused such envelope to be delivered by hand via messenger service to the address above: 18 19 [| | (By Facsimile) I served a true and correct copy by facsimile during regular business hours to the number(s) listed above. Said transmission was reported complete and without error. 20 [ x | (By Email) I served true and correct copies by email addressed to Nanci Nishimura at 21 nnishimura@cpmlegal.com which is the email address for plaintiffs’ counsel. 22 I declare under penalty of perjury under the laws of the State of California that the foregoing is true 23 and correct. 24 DATED: May 8, 2024 Jonathan O'Donnell 25 26 27 28 PROOF OF SERVICE