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LAWRENCE M. ADELMAN, ESQ. SBN 59058


LAW OFFICES OF LAWRENCE M. ADELMAN
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LOS flNGELl'S SUPEJUOR COURT

MAY 0 t~ [UU{
2 5850 CANOGA AVENUE, SUITE, 400 JOH1)IA CLAHI\t: CLERiC
,I "
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WOODLAND HILLS, CA 91367-6554
Phone: 818-992-8005
.It J-
BY DAvt'N'lfc:E)(A~dff~~ DEPUTY
Fax: 818-710-3844
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Attorney for Defendant Wiseman Park, LLC, a California limited liability company, doing
5 business as Kung Pao Kitty

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SUPERIOR COURT OF CALIFORNIA, COUNTY OF LOS ANGELES
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LOS ANGELES CENTRAL DISTRICT
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11
CIRGADYNE, INCORPORATED, a California) CASE NO. 07K04873
12 corporation, individually and doing business as )
13
Liquor License Specialists and LLS, j
ANSWER TO COMPLAINT BY
DEFENDANT WISEMAN PARK, LLC
)
14 Plaintiff, )
) Limited Civil Action with Demand in
15 vs. ) Complaint over $10,000.00
)
16 )
WISEMAN PARK, LLC, a California limited ) Honorable Marlene Kristovich
17 liability company, individually and doing ) Department 80

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business as Kung Pao Kitty, and DOES 1
through 10, inclusive,
j
19 j
) Defendants.
20 -----------_.)
21

22 COMES NOW, defendant WISEMAN PARK, LLC, a Califor~lS":I~nlfteQ


"" ". 'f;
liabilit

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

24
25
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corporation, individually and doing business as LIQUOR LICENSE SPECIALJSTS aridiLLS
27

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

ANSWER TO COMPLAINT BY DEFENDANT WISEMAN ]'ARK, LLC



J

1 I

2 GENERAL DENIAL
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1. Pursuant to the provisions of Code of Civil Procedure 431.30(d) Defendan
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hereby denies, each and every allegation of the Complaint to the full extent that any allegation(s
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6 thereof, conjunctively and/or disjunctively, singularly and/or in the plural, allege(s) any act, failur

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

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


9
II
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AFFIRMATIVE DEFENSES
11

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

13 a first affirmative and separate defense to the Complaint and to each cause of action therei
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contained Defendant alleges that each and every allegation therein contained fails to state fact
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sufficient to constitute a cause of action against Defendant.
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3. Second Affirmative Defense - Failure of Consideration, As to All Causes 0
17

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

19 therein contained Defendant alleges that each and every allegation therein contained fails becaus
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there is a failure of consideration by Plaintiff to support any alleged contract, agreement
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acknowledgment, transaction and/or economic interest or advantage asserted by Plaintiff agains
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23 Defendant.

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

25 affirmative and separate defense to the Complaint and to each cause of action therein containe
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Defendant asserts that by virtue of Plaintiffs past actions and behavior with respect to the subjec
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matter of the Complaint and said causes of action, Plaintiff is now estopped to assert and/o
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ANSWER TO COMPLAINT BY DEFENDANT WISEMAN PARK, LLC


..

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prosecute the same against Defendants.

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

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Action. As a fourth affirmative and separate defense to the Complaint and to each cause of actio
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therein contained Defendant asserts that Plaintiff has failed to take reasonable and available step
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6 to avoid, reduce and/or mitigate its alleged damages and losses as alleged in the Complaint an

7 each of the causes of action therein contained, and should, therefore, be barred and restrained fro
8 recovering any and/or all of such otherwise avoidable damages from Defendant.
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6. Fifth Affirmative Defense - Unclean Hands, As to All Causes of Action. As
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fifth affirmative and separate defense to the Complaint and to each cause of action therei
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12 contained Defendant asserts that by virtue of its past actions and behavior with respect to th

13 subject matter of the Complaint and said causes of action Plaintiff is guilty of unclean hands wit
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respect to such subject matter and should, therefore, be barred from any and/or all recovery wit
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respect thereto from Defendant.
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7. Sixth Affirmative Defense - Waiver, As to All Causes of Action. As a sixt
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18 affirmative and separate defense to the Complaint and to each cause of action therein containe

19 Defendant asserts that Plaintiff has heretofore waived and given up their right to assert the rights,
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remedies, claims, allegations, damages and expenses therein contained against Defendant.
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8. Seventh Affirmative Defense - Lack of Reasonable or Probable Cause
22
23 Name Defendants as Defendants under the Complaint, As to All Causes of Action. As

24 seventh separate and affmnative defense to the Complaint and to each cause of action therei
25 contained Defendant asserts that Plaintiff lacks reasonable or probable cause to name Defendant a
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defendants therein, and for such reason, Defendant should be awarded judgment against Plaintiff
27
including costs and reasonable attorneys fees under Civil Code 1717 by virtue of existin
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ANSWER TO COMPLAINT BY DEFENDANT WISEMAN PARK, LLC


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

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

3
Action. As an eighth separate and affirmative defense to the Complaint and to all causes of actio
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therein contained Defendant asserts that Plaintiff voluntarily, and with full knowledge of all ofth
5

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

7 alleged and asserted against Defendant in the Complaint, thereby barring Plaintiff from any and/o
8 all recovery against Defendant.
9
10. Ninth Affirmative Defense - Comparative Negligence, As to the Third Caus
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of Action. As a ninth separate and affirmative defense to the third cause of action of th
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12 Complaint Defendant asserts that Plaintiff failed to exercise reasonable care in protecting itsel

13 from, guarding against and preventing itself from incurring, the injuries and damages mor
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specifically mentioned and alleged in the Complaint and in said causes of action. To the full exten
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that Plaintiff could have avoided andlor reduced the injuries and damages alleged to have bee
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suffered and incurred by them/it in the Complaint and in said causes of action through the exercis
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18 of reasonable care and diligence by it for its own benefit and protection, any judgment and/o

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


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completely barred.
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11. Tenth Affirmative Defense - Comparative Fault by Third Parties and Reques
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23 to Apportion Fault, As to All Causes of Action. As a tenth separate and affirmative defense t

24 the Complaint and to each cause of action therein contained Defendant asserts that the injuries an
25 damages alleged in the Complaint and in said causes of action to have been suffered and incurre
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by Plaintiff were the proximate result of the negligence, wrongful conduct andlor breach 0
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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

2 contract by Defendant. Therefore, any judgment and/or recovery by Plaintiff against Defendan
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should be propOliionately reduced and/or completely barred to the full extent of the negligence,
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wrongful conduct and/or breach of contract attributable to third parties. In the foregoing regard
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6 Defendant hereby requests that the court apportion between Defendant and such third parties an

7 and all liability for the injuries and damages alleged in the Complaint and in each cause of actio
8 therein contained to have been suffered and incurred by Plaintiff and/or Plaintiffs assignor.
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12. Eleventh Affirmative Defense - Justification or Privilege, As to All Causes 0
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Action. As an eleventh separate and affirmative defense to the Complaint and to all causes 0
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12 action therein contained Defendant asserts that it was justified in taking, and/or privileged to take

13 all of the actions alleged to have been taken by Defendant with respect to the subject matter ofth
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Complaint, and of each of the causes of action therein contained.
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13. Twelfth Affirmative Defense - Fraud in the Inducement, As to All Causes 0
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Action. As a twelfth separate and affirmative defense to the Complaint and to all causes of actio
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18 therein contained Defendant asserts that the written acknowledgment specified in the Complain

19 and attached as Exhibit A thereto is unenforceable against Defendant, and void or voidable b
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Defendant at is inception, because it was entered into by Defendant as the result of intentional 0
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negligent fraudulent representations and/or misrepresentations by Plaintiff to defendant, and/o
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23 resulted from Plaintiffs making of a promise to Defendant Plaintiff did not intend to perform or

24 keep, concerning some and/or all of the following facts: (i) Plaintiff had the unconditional right to
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a finder's fee from the party to whom Defendant had made an offer to purchase an alcoholi
26
beverage license, (ii) Plaintiff had the unconditional right to keep the $8,000.00 deposit Defendan
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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


1
"'e/'

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

2 party to whom Defendant made an offer to purchase an alcoholic beverage license and submitte
3
an $8,000.00 supporting deposit, (iv) Plaintiff would immediately and unconditionally return t
4
Defendant its $8,000.00 deposit if the party to whom Defendant made an offer to purchase a
5
6 alcoholic beverage license rejected Defendant's offer, and (v) Defendant, in order to have the righ

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

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attached as Exhibit A to the Complaint. The foregoing representation(s) and/o
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misrepresentation(s) made to Defendant by Plaintiff were/was, to Plaintiffs knowledge, false,
10
and/or Plaintiffs promise to immediately and unconditionally return to Defendant its $8,000.0
11
12 deposit was made without any intention on Plaintiff s part to perform such promise, in tha

13 Plaintiff, at the time said representation(s) and/or misrepresentation(s) were/was made t


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Defendant, knew, or should have known, Plaintiff had no unconditional right to a finder's fee, ha
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no unconditional right to keep Defendant's $8,000.00 deposit, had no exclusive finder agreemen(
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Plaintiff never intended to immediately and unconditionally return to Defendant its $8,000.0
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18 deposit upon the rejection of its purchase offer, and/or Defendant was entitled to the return of it

19 $8,000.00 deposit immediately upon the rejection of its subject purchase offer and withou
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Defendant having to first sign the written acknowledgment attached as
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Complaint. Plaintiff made the foregoing representation(s) and/or misrepresentation(s) t
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23 Defendant for the sole purpose of obtaining Defendant's signature on the acknowledgmen

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

25
had no right to demand Defendant's foregoing signature as a condition to the return 0

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Defendant's purchase offer $8,000.00 deposit. Plaintiff made the foregoing promise to Defendan
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without any intention of performing the same for the sole purpose of gaining possession an
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ANSWER TO COMPLAINT BY DEFENDANT WISEMAN PARK, LLC



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

2 said deposit for Plaintiffs benefit and/or use such deposit for the wrongful and unlawful purpos
3
of forcing Defendant to sign the written acknowledgment attached as Exhibit A to the Complain
4
against Defendant's will and better judgment. At the time Defendant signed the foregoing writte
5
6 acknowledgment it did not know and had no reason to know of Defendant's above fraudulen

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

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

9
performing same. Had Defendant known the true facts and Plaintiffs true intent Defendant waul
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not have entered into the subject written acknowledgment.
1I
12 14. Thirteenth Affirmative Defense - Duress, Menace and Undue Influence, As t

13 An Causes of Action. As a thirteenth separate and affirmative defense to the Complaint and to all
14
causes of action therein contained Defendant asserts that the written acknowledgment specified it
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the Complaint as Exhibit A thereto is unenforceable against Defendant, and void or voidable b
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Defendant at is inception, because it was entered into by Defendant as the result of unreasonabl
17

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

19 requested Plaintiff to present an $80,000.00 purchase offer to the seller of an alcoholic beverag
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license in a bona fide and fiduciary capacity on Defendant's behalf. In conjunction with suc
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offer, Plaintiff had previously advised Defendant its $8,000.00 deposit in support of its purchas
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23 offer was and would be immediately refundable to Defendant in the event its purchase offer wa

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

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the deposit to Plaintiff to support Defendant's offer Plaintiff knew, or should have known,
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Defendant was in the process of upgrading and remodeling the restaurant for which the ne
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alcoholic beverage license was being sought and was in need of cash to complete such upgrade
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ANSWER TO COMPLAINT BY DEFENDANT WISEMAN PARK, LLC


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

2 With the foregoing knowledge in mind, and while Plaintiff was acting in a fiduciary capacity fo
3
Defendant, Plaintiff unreasonably and unjustifiably refused to immediately and unconditionall
4
refund Defendant's $8,000.00 deposit to Defendant upon the non-acceptance of Defendant'
5
6 $80,000.00 purchase offer unless and until Defendant first signed the written acknowledgmen

7 attached as Exhibit A to the Complaint. Because Plaintiff unjustifiably and unreasonably refuse

8 to refund Defendant's $8,000.00 deposit without Defendant first signing the writte
9
acknowledgment attached as Exhibit A to the Complaint, and because, with Plaintiffs knowledge,
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Defendant required the deposit money for upgrading, remodeling and/or further alcoholi
II
12 beverage license purchase offers and purchases, Defendant signed the subject written agreemen

13 under duress, menace and undue influence from Plaintiff and solely for the purpose of regainin
14
the rightful control, possession and use of Defendant's $8,000.00 deposit.
IS
IS. FouJ1eenth Affirmative and Separate Defense - Violation of Public Policy, A
16
to All Causes of Action. As a fOUl1eenth separate and affirmative defense to the Complaint an
17
18 to all causes of action therein contained Defendant asserts, for the reasons more specificall

19 articulated in the twelfth and thirteenth affirmative defenses, the contents of which ar
20
incorporated herein by reference, enforcement against Defendant of the acknowledgment attache
21
as Exhibit A to the Complaint would violate public policy in that such enforcement would aHo
22

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

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

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exerted against Plaintiff in obtaining Defendant's signature on the subject acknowledgment and/o
26
in initially obtaining possession and control over said deposit from Defendant.
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16. Fifteenth Affirmative and Separate Defense - Illegality, As to All Causes 0
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ANSWER TO COMPLAINT BY DEFENDANT WISEMAN PARK, LLC


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

2 action therein contained Defendant asserts, for the reasons more specifically articulated in th
3
twelfth and thirteenth affirmative defenses, the contents of which are incorporated herein b
4
reference, enforcement against Defendant of the acknowledgment attached as Exhibit A to th
5
Complaint would be illegal in that such enforcement would allow Plaintiff to financially benefi
6

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

8 and unlawful duress, menace and undue influence Plaintiff exerted against Plaintiff in obtainin
9
Defendant's signature on the subject acknowledgment and/or in initially obtaining possession an
10
control over said deposit from Defendant.
11

12 WHEREFORE, Defendant prays judgment against Plaintiff as follows:

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

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

15
Plaintiff and against Defendant be reduced to the full extent of the negligence, wrongful conduct
16
breach of contract, fraud, duress, failure of consideration and/or undue influence by Plaintiff
17

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

19 B. That Defendant be awarded reasonable attorney's fees under Civil Code 171
20
under each written contract or document asserted against Defendants in the Complaint whic
21
contains an attorney's fees provision in favor of the prevailing party.
22
23 c. That Defendant be awarded its costs of suit herein incuned.

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

25 proper.
26
27 awrence M. Adelman, Attorney for Defendant
Wiseman Park, LLC, a California limited liability
28 company, doing business as Kung Pao Kitty

ANSWER TO COMI>LAINT BY DEFENDANT WISEMAN PARK, LLC


J

PROOF OF SERVICE BY MAIL (CCP 405.22, 405.23,1013 (a), 2015.5)

2 STATE OF CALIFORNIA )

3 COUNTY OF LOS ANGELES)


4 I am a citizen of the United States and a resident of Los Angeles County, California. I

~,l
5 over the age of eighteen years and I am not a party to this action. My business address is 585
~f'.,1~::

6
51iti'alloga Avenue, Suite 400, Woodland Hills, California 91367-6554.
7
On May ~, 2007, I served the within document(s) entitled ANSWER T
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COMPLAINT BY DEFENDANT WISEMAN PARK, LLC on the interested parties in this action
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by placing a true copy thereof enclosed in a sealed envelope, with postage thereon fully prepaid
10
addressed as follows:
11
Steven H. Gardner, Esq.
12 Law Offices of Steven H. Gardner
13 9595 Wilshire Boulevard, Suite 610
Beverly Hills, CA 90212
14
I am readily familiar with the practice of this office for collecting and
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correspondence for mailing. Under that practice, the above-described document(s) would b
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deposited with the U.S. Postal Service on the same day as the document(s) were enclosed in thei
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envelope(s). I am aware that on motion of the party served, service is presumed invalid if th
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postal collection date or postage meter date is more than one day after the date of mailing set fort
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in this declaration.
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I declare under penalty of peljury under the laws of the State of California that th
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foregoing is true and correct.
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Executed on this~ay of May, 2007, at Los Angeles, California.
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~Adelma;-
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ANSWER TO COMPLAINT BY DEFENDANT WISEMAN PARK, LLC

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