Free Answer to to CounterClaim - District Court of California - California

Case 3:08-cv-00987-SC

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1 KASOWITZ, BENSON, TORRES & FRIEDMAN LLP Donald J. Putterman (SBN 90822) 2 E-Mail: [email protected] Christopher J. McNamara (SBN 209205) 3 E-Mail: [email protected] 101 California Street, Suite 2050 4 San Francisco, CA 94111 Telephone: (415) 421-6140 5 Facsimile: (415) 398-5030 6 TIMOTHY J. HOBAN - BAR NO. 192461 Regional Counsel 7 Toll Brothers, Inc. 725 Town & Country Road, Suite 500 8 Orange, CA 92688 Telephone: (714) 347-1300 9 10 Attorneys for Plaintiff and Counter-Defendant, TOLL BROTHERS, INC. 11 12 13 14 15 TOLL BROTHERS, INC. 16 17 vs. Plaintiff, UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA (SAN FRANCISCO DIVISION) Case No. 08-cv-00987 MMC REPLY OF TOLL BROTHERS, INC. TO COUNTER-CLAIM OF CHANG SU-O LIN, HONG LIEN LIN AND HONG YAO LIN

18 CHANG SU-O LIN; HONG LIEN LIN; HONG YAO LIN, 19 Defendants. 20 AND RELATED COUNTER-CLAIMS. 21 22 23 Counter-Defendant TOLL BROTHERS, INC ("Toll") hereby responds to the Counter-

24 Claim for Declaratory Relief, Damages and Quiet Title ("County-Claim") filed on June 9, 2008, 25 by Counter-Claimants Chang Su-O Lin, Hong Lien Lin and Hong Yao Lin (collectively the 26 "Lins") as follows: 27 28 1. PARTIES Answering the allegations contained in Paragraph 1, Toll admits on information 1
Reply of Toll Brothers, Inc. to Counter-Claim Case No. 08-cv-00987 MMC

Case 3:08-cv-00987-SC

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1 and belief said allegations. 2 2. Answering the allegations contained in Paragraph 2, Toll admits that it is a

3 Delaware corporation whose principal place of business is Horsham, Pennsylvania; that, through 4 subsidiaries and affiliates, Toll engages in the business of building and selling homes, the 5 acquisition of land, securing entitlements and approvals for development, land development 6 work, and employs a staff, which includes, among others, planning, engineering and legal 7 professionals. Except as specifically admitted herein, Toll denies the allegations contained in 8 Paragraph 2. 9 10 11 12 13 14 15 16 6. 5. 4. 3. JURISDICTION Answering the allegations contained in Paragraph 3, Toll admits said allegations. VENUE Answering the allegations contained in Paragraph 4, Toll admits said allegations. INTRA-DISTRICT ASSIGNMENT Answering the allegations contained in Paragraph 5, Toll admits said allegations. GENERAL ALLEGATIONS Answering the allegations contained in Paragraph 6, Toll admits said allegations,

17 except Toll avers that Toll and the Lins entered into the Contract on or about May 27, 2004, not 18 May 20, 2004. 19 7. Answering the allegations contained in Paragraph 7, Toll admits on information

20 and belief said allegations. 21 8. Answering the allegations contained in Paragraph 8, Toll admits that on or about

22 May 28, 2004, Toll recorded a Memorandum of Agreement with the Alameda County Recorder's 23 Office that made the existence of the Contract between the parties a matter of public record. The 24 allegation that the recording of the Memorandum of Understanding "constitutes a cloud on the 25 title of the Lins to Sub-Area 3," is argument and a legal conclusion to which no response is 26 required. In the event that a response is required, Toll denies the allegation. 27 9. Answering the allegations contained in Paragraph 9, Toll admits that in connection

28 with this action, Toll filed and recorded a Notice of Pendency of Action. The allegation that the 2
Reply of Toll Brothers, Inc. to Counter-Claim Case No. 08-cv-00987 MMC

Case 3:08-cv-00987-SC

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1 Notice of Pendency of Action "also creates a cloud on the title of the Lins to Sub-Area 3," is 2 argument and a legal conclusion to which no response is required. In the event that a response is 3 required, Toll denies the allegation. 4 5 10. 11. Answering the allegations contained in Paragraph 10, Toll admits said allegations. Answering the allegations contained in Paragraph 11, Toll admits that under the

6 terms of the Contract, Toll had certain obligations to the Lins, which are set forth in the Contract, 7 that formed a part of the consideration of the Contract. Except as specifically admitted herein, 8 Toll denies the allegations contained in Paragraph 11. 9 12. Answering the allegations contained in Paragraph 12, Toll admits that under the

10 terms of the Contract, the closing of Sub-Area 3 was scheduled for June 30, 2007. Except as 11 specifically admitted herein, Toll denies the allegations contained in Paragraph 12. 12 13 13. 14. Toll denies the allegations contained in Paragraph 13. Answering the allegations contained in Paragraph 14, Toll admits that when issues

14 arose over the pre-closing and closing conditions of Sub-Area 3, Toll met with representatives of 15 the Lins with regard to utility vaults and overhead power lines. Except as specifically admitted 16 herein, Toll denies the allegations contained in Paragraph 14. 17 15. Answering the allegations contained in Paragraph 15, Toll admits that it gave the

18 Lins notice of its termination and/or rescission of the Contract on December 7, 2007. Except as 19 specifically admitted herein, Toll denies the allegations contained in Paragraph 15. 20 16. Answering the allegations contained in Paragraph 16, Toll admits that it gave the

21 Lins notice of its termination and/or rescission of the Contract on December 7, 2007. Except as 22 specifically admitted herein, Toll denies the allegations contained in Paragraph 16. 23 17. Answering the allegations contained in Paragraph 17, Toll admits that on January

24 24, 2008, the Lins sent a letter in which the Lins claimed that Toll was in breach of the Contract 25 and demanded that Toll execute a quitclaim deed to remove the Memorandum of Agreement as a 26 cloud on the title to Sub-Area 3. Except as specifically admitted herein, Toll denies the 27 allegations contained in Paragraph 17. 28 3
Reply of Toll Brothers, Inc. to Counter-Claim Case No. 08-cv-00987 MMC

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18.

Answering the allegations contained in Paragraph 18, Toll admits that section 4.4

2 of the Contract states that the Lins are allowed to keep Toll's deposit in the event that Toll 3 defaults under the Contract. Except as specifically admitted herein, Toll denies the allegations 4 contained in Paragraph 18, and specifically denies that Toll has defaulted. 5 6 7 20. 19. Toll denies the allegations contained in Paragraph 19. FIRST CAUSE OF ACTION Answering the allegations contained in Paragraph 20, which incorporates

8 paragraphs 1-19, Toll refers to its answers to those same paragraphs and by such reference 9 incorporates them herein to have the same force and effect as if set forth fully at length. 10 11 21. 22. Answering the allegations contained in Paragraph 21, Toll admits said allegations. Answering the allegations contained in Paragraph 22, Toll admits on information

12 and belief that the allegations of paragraph 22 are a statement of the Lins' request to the Court. 13 14 23. SECOND CAUSE OF ACTION Answering the allegations contained in Paragraph 23, which incorporates

15 paragraphs 1-19, Toll refers to its answers to those same paragraphs and by such reference 16 incorporates them herein to have the same force and effect as if set forth fully at length. 17 18 19 24. 25. 26. Toll denies the allegations contained in Paragraph 24. Toll denies the allegations contained in Paragraph 25. Answering the allegations contained in Paragraph 26, Toll admits that section 4.4

20 of the Contract states that the Lins are allowed to keep Toll's deposit in the event that Toll 21 defaults under the Contract and that section 18.1 of the Contract provides for the prevailing party 22 to recover attorney's fees and costs. Except as specifically admitted herein, Toll denies the 23 allegations contained in Paragraph 26, and specifically denies that Toll has defaulted. 24 25 26 28. 27. Toll denies the allegations contained in Paragraph 27. THIRD CAUSE OF ACTION Answering the allegations contained in Paragraph 28, which incorporates

27 paragraphs 1-26, Toll refers to its answers to those same paragraphs and by such reference 28 incorporates them herein to have the same force and effect as if set forth fully at length. 4
Reply of Toll Brothers, Inc. to Counter-Claim Case No. 08-cv-00987 MMC

Case 3:08-cv-00987-SC

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29.

Answering the allegations contained in Paragraph 29, Toll admits on information

2 and belief said allegations. 3 30. Answering the allegations contained in Paragraph 30, toll admits that the Lins seek

4 to quiet title against Toll and the Memorandum of Agreement, which was recorded against the 5 Property on May 28, 2004, and the Notice of Pendency of Action. Except as specifically 6 admitted herein, Toll denies the allegations contained in Paragraph 30. 7 8 9 10 AFFIRMATIVE DEFENCES FIRST AFFIRMATIVE DEFENSE (Prior Material Breach) Toll alleges that the Lins prior breach of the contact, including a breach of the covenant of

11 good faith and fair dealing, excused Toll from performance under the contact. 12 13 14 SECOND AFFIRMATIVE DEFENSE (Laches) Toll alleges on information and belief that the Counter-Claim and each purported cause of

15 action contained therein is barred by the doctrine of laches. 16 17 18 THIRD AFFIRMATIVE DEFENSE (Waiver) Toll alleges on information and belief that the Counter-Claim and each purported cause of

19 action contained therein is barred by the doctrine of waiver. 20 21 22 FOURTH AFFIRMATIVE DEFENSE (Estoppel/Ratification) Toll alleges on information and belief that the Counter-Claim and each purported cause of

23 action contained therein is barred by the approval and ratification of Toll's conduct by the Lins, 24 and the Lins are therefore estopped from asserting any claim based thereon. 25 26 27 28 5
Reply of Toll Brothers, Inc. to Counter-Claim Case No. 08-cv-00987 MMC

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FIFTH AFFIRMATIVE DEFENSE (Failure to Mitigate Damages) Toll alleges on information and belief that the Lins, by the exercise of reasonable effort,

4 could have mitigated the amount of any damages allegedly suffered by them, and any recovery by 5 the Lins is therefore barred. 6 7 PRAYER WHEREFORE, Toll prays for judgment against Counter-Claimants, and that Counter-

8 Claimants take nothing on their counter-claim, for costs of suit incurred herein, and for such other 9 and further relief as the Court deems just and proper. 10 11 DATED: June 19, 2008 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6
Reply of Toll Brothers, Inc. to Counter-Claim Case No. 08-cv-00987 MMC

KASOWITZ, BENSON, TORRES & FRIEDMAN LLP

By:

/S/ Christopher J. McNamara_______ Christopher J. McNamara Attorneys for Plaintiff and Counter-Defendant TOLL BROTHERS, INC.