Free Answer to Complaint - District Court of Arizona - Arizona

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David L. Kagel (Calif. Bar No. 58961) John Torbett (Calif. State Bar No. 165615) Law Offices of David Kagel, PLC 1801 Century Park East, 25th Floor Los Angeles, CA 90067 Telephone: (310) 553-9009 Fax: (310) 553-9693 Attorneys Admitted Pro Hac Vice for Defendant PAUL PICHIE

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UNITED STATES DISTRICT COURT
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FOR THE DISTRICT OF ARIZONA

LAWRENCE J. WARFIELD, Receiver Plaintiff,

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and

MICHAEL ALANIZ., et al. , Defendants.

) CASE NO.: CV 03-2390 PHX JAT ) ) ) ) ) ) DEFENDANT PAUL PICHIE'S ANSWER ) TO COMPLAINT ) ) ) ) ) ) )

COMES NOW Defendant PAUL PICHIE ("Defendant") to answer the complaint (hereinafter "Complaint") of Plaintiff LAWRENCE J. WARFIELD (hereinafter "Plaintiff) as ANSWER 1. Defendant is without knowledge or information sufficient to form a belief as to the

truth of the allegations in paragraphs 1 through 10 of the Complaint and, on this ground, denies the allegations thereof. 2. Defendant denies the allegations in paragraphs 11, 12 and 13 of the Complaint.

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3.

Defendant is without knowledge or information sufficient to form a belief as to the

truth of the allegations in paragraphs 14, 15 and 16 of the Complaint and, on this ground, denies the allegations thereof. 4. 5. Defendant admits the allegations in paragraphs 17 through 22 of the Complaint. Defendant denies the allegations in paragraph 23 of the Complaint as they pertain to

him and he is without knowledge or information sufficient to form a belief as to the truth of the allegations in regard to the other defendants named in this matter and, on this ground, denies the allegations in regard to all other defendants herein. 6. Defendant is without knowledge or information sufficient to form a belief as to the

truth of the allegations in paragraphs 24 through 65 of the Complaint and, on this ground, denies the allegations thereof. 7. 8. Defendant denies the allegations in paragraph 66 of the Complaint. Defendant is without knowledge or information sufficient to form a belief as to the

truth of the allegations in paragraphs 67 through 106 of the Complaint and, on this ground, denies the allegations thereof. 9. Defendant denies the allegations in paragraphs 107 through 148 of the Complaint.

10. Defendant denies that Plaintiff has been damaged in the sums or amounts alleged, or any sum or amount whatsoever. FIRST AFFIRMATIVE DEFENSE (Consent) 11. Plaintiff's Complaint and every cause of action alleged therein is barred because

the Plaintiff consented to Defendant's acts or omissions, if any.

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SECOND AFFIRMATIVE DEFENSE (Waiver) 12. Plaintiff's Complaint and every cause of action alleged therein is barred by the

doctrine of waiver. THIRD AFFIRMATIVE DEFENSE (Unclean Hands) 13. Plaintiff's Complaint and every cause of action alleged therein is barred by the doctrine of unclean hands. FOURTH AFFIRMATIVE DEFENSE (Lack of Standing) 14. Plaintiff is barred from recovery from Defendant because he lacks standing to assert the causes of action alleged in his Complaint. FIFTH AFFIRMATIVE DEFENSE (Indispensable Parties) 15. Plaintiff has failed to join all indispensable parties to this action. SIXTH AFFIRMATIVE DEFENSE (Fraud of Third Parties) 16. Whatever injuries or damage, if any, Plaintiff has suffered as a result of the causes of action alleged in its Complaint were proximately caused, in whole or in part, and contributed to by the negligence or intentional misconduct of third parties. By reason thereof, Plaintiff's damages, if any, are barred and/or subject to reduction in proportion to those third parties negligence or misconduct. SEVENTH AFFIRMATIVE DEFENSE (Comparative or Contributory Fault) 17. Plaintiff's damages, if any, are barred and/or subject to reduction based upon

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Plaintiff's comparative or contributory fault. EIGHTH AFFIRMATIVE DEFENSE (Failure to Mitigate) 18. Plaintiff's damages, if any, are barred or subject to reduction based upon Plaintiff's failure to take reasonable steps to mitigate its losses. NINTH AFFIRMATIVE DEFENSE (Justification) 19. This answering Defendant's acts, omissions or failures to perform, if any, were justified. TENTH AFFIRMATIVE DEFENSE (Undiscovered Affirmative Defenses) 20. This answering Defendant has insufficient knowledge or information upon which to

form a belief as to whether he may have additional as yet undiscovered affirmative defenses available, and Defendant reserves the right to plead any additional affirmative defenses if discovery, investigation, or analysis indicates that they are appropriate. ELEVENTH AFFIRMATIVE DEFENSE (Prior Breach) 21. Plaintiff's Complaint and every cause of action alleged therein is barred by its prior material breach of the implied covenant of good faith and fair dealing. TWELFTH AFFIRMATIVE DEFENSE (Proximate Cause) 22. Plaintiff's Complaint and every cause of action alleged therein is barred because Plaintiff was the sole proximate cause of its damages, if any.

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THIRTEENTH AFFIRMATIVE DEFENSE (Undue Influence) 23. The allegations Plaintiff makes in its Complaint against this answering Defendant are made by Plaintiff knowing such allegations are false, fraudulent and made only to defraud, damage, harass and injure this answering Defendant, in an attempt to obtain improper advantage over this answering Defendant. FOURTEENTH AFFIRMATIVE DEFENSE (Breach of Covenant of Good Faith and Fair Dealing) 24. Plaintiff's Complaint and every cause of action alleged therein is barred by Plaintiff's prior material breach of the implied covenant of good faith and fair dealing. FIFTEENTH AFFIRMATIVE DEFENSE (Proximate Cause) 25. Plaintiff's Complaint and every cause of action alleged therein is barred because Plaintiff was the sole proximate cause of its damages, if any. SIXTEENTH AFFIRMATIVE DEFENSE (Wrong Defendant) 26. Plaintiff's Complaint and every cause of action alleged therein is barred because Plaintiff has named the incorrect Defendant and Plaintiff's damages, if any, were caused by individual(s) or entities other than the Defendant.

SEVENTEENTH AFFIRMATIVE DEFENSE (Assumption of the Risk) 27. Plaintiff's Complaint and every cause of action alleged therein is barred by the doctrine of assumption of the risk. ///

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EIGHTEENTH AFFIRMATIVE DEFENSE (Laches) 28. Plaintiff's Complaint and every cause of action alleged therein is barred by the doctrine of Laches. NINETEENTH AFFIRMATIVE DEFENSE (Estoppel) 29. Plaintiff's Complaint and every cause of action alleged therein is barred by the doctrine of Estoppel. TWENTIETH AFFIRMATIVE DEFENSE (Failure to State a Cause of Action) 30. granted. Plaintiff's Complaint fails to state a cause of action upon which relief may be

WHEREFORE, answering Defendant prays: 1. 2. 3. 4. That Plaintiff takes nothing by way of its Complaint; That Plaintiff's Complaint be dismissed with prejudice; That Defendant be awarded reasonable attorney's fees incurred herein; For such other and further relief as the Court deems just and proper.

RESPECTFULLY SUBMITTED,

DATED: August 1, 2005

The Law Offices of David Kagel. P.C.

__________________________ John Torbett Attorneys for Defendant PAUL PICHIE

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PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF LOS ANGELES: The Undersigned hereby declares: I am employed in the county of Los Angeles, State of California. I am over the age of 18 and not a party to the within action; my business address is 1801 Century Park East, 25th Floor, Los Angeles, California, 90067. On August 2, 2005, I served the foregoing document described as: DEFENDANT PAUL PICHIE'S ANSWER TO COMPLAINT on the interested parties in this action by placing ___ the original, X a true copy thereof, enclosed in a sealed envelope addressed as follows: Ryan W. Anderson Gutilla & Murphy, PC 4150 West Northern Ave. Phoenix, AZ 85051 [] (BY COURIER) I personally caused the envelope to be delivered to the address indicated, and handed it to a person apparently employed there and reasonably believed to be trusted with delivering it to the addressee. [ ] (BY FACSIMILE) The above-referenced document was transmitted by facsimile transmission and the transmission was reported as completed and without error. Pursuant to C.R.C. 2009(I), I either caused, or had someone cause, the transmitting machine to properly transmit the attached documents to the facsimile numbers shown on the service list. [ ] (BY FEDERAL EXPRESS) I am readily familiar with the firm's practice of collection and processing of documents for overnight delivery and know that the document(s) described herein will be deposited in a box or other facility regularly maintained by Federal Express Parcel Service for overnight delivery. [ X ] (BY MAIL) The above mentioned document was placed for collection and mailing on this date. I am "readily familiar" with the firm's practice of collection and processing correspondence for mailing. Under that practice it would be deposited with the U.S. Postal Service on that same day with postage thereon fully prepaid at Los Angeles, California in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if the postal cancellation date or postage meter date is more than one day after the date of deposit for mailing in affidavit.

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I declare under penalty of perjury under the laws of the State of California and of the United States of America that the above is true and correct. I declare that I am employed in the office of a member of the bar of this Court at whose direction the service was made. Executed on August 2, 2005, at Los Angeles, California.

_______________________ JOHN TORBETT

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