`
`ROBERT M. BODZIN (SBN: 201327)
`rbodzin@grsm.com
`KRISTIN A. LOCKWOOD (SBN: 270386)
`klockwood@grsm.com
`GORDON REES SCULLY MANSUKHANI, LLP
`275 Battery Street, Suite 2000
`San Francisco, CA 94111
`Telephone: (414) 986-5900
`Facsimile: (415) 986-8054
`
`Attorneys for Defendants
`ROBERT TAYAC AND ERIC PARTON
`
`
`ELECTRONICALLY
`F I L E D
`
`Superior Court of California,
`County of San Francisco
`04/09/2024
`Clerk of the Court
`BY: ANNIE PASCUAL
`Deputy Clerk
`
`SUPERIOR COURT FOR THE STATE OF CALIFORNIA
`
`FOR THE COUNTY OF SAN FRANCISCO
`
`
`PHILIP COOKE,
`
`
`Plaintiff,
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`
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`Case No. CGC-21-594052
`)
`
`)
`DEFENDANTS ERIC PARTON AND
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`ROBERT TAYAC’S ANSWER TO
`)
`PLAINTIFF’S FIRST AMENDED
`)
`COMPLAINT
`)
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`)
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`)
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`)
`Complaint: July 23, 2021
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`Amended Complaint: March 26, 2024
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`Trial Date: To be Determined
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`Defendants ERIC PARTON and ROBERT TAYAC (hereinafter “Defendants”),
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`vs.
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`ROBERT TAYAC, ERIC PARTON and
`DOES 1 through 10, inclusive,
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`Defendants.
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`answering the First Amended Complaint (“Amended Complaint”) of Plaintiff PHILIP
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`COOKE (“Plaintiff”) deny generally and specifically, each and every, all and singular, the
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`allegations of said Amended Complaint for damages and each cause of action thereof, and
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`deny that Plaintiff has been damaged in an sum or sums, or at all.
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`AFFIRMATIVE DEFENSES
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`As a first affirmative defense to each cause of action of the Amended Complaint,
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`the Amended Complaint fails to state facts sufficient to constitute a cause of action against
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`these answering Defendants.
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`///
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`///
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`DEFENDANTS ERIC PARTON AND ROBERT TAYAC’S ANSWER TO
`PLAINTIFF’S FIRST AMENDED COMPLAINT
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`San Francisco, CA 94111
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`275 Battery Street, Suite 2000
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`Gordon Rees Scully Mansukhani, LLP
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`As a second affirmative defense to each cause of action of the Amended Complaint,
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`Plaintiff has waived and/or is estopped from alleging the matters set forth against these
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`answering Defendants.
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`As a third affirmative defense to each cause of action of the Amended Complaint,
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`Plaintiff acknowledged, ratified, consented to and/or acquiesced in the alleged acts or
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`omissions, if any, of these Defendants, thereby barring Plaintiff’s recovery.
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`As a fourth affirmative defense to each cause of action of the Amended Complaint,
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`Plaintiff’s Amended Complaint, and each cause of action contained therein, is barred by the
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`doctrine of laches.
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`As a fifth affirmative defense to each cause of action of the Amended Complaint,
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`Plaintiff's Amended Complaint, and each cause of action contained therein, is barred
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`because Plaintiff prevented and/or refused to allow Defendants to complete their
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`performance, and this action is therefore barred by the provisions of California Civil Code
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`sections 1512, 1514, and 1515.
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`As a sixth affirmative defense to each cause of action of the Amended Complaint,
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`Plaintiff s Amended Complaint, and each cause of action contained therein, is barred by the
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`doctrine of equitable estoppel.
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`As a seventh affirmative defense to each cause of action of the Amended
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`Complaint, the damages allegedly sustained by Plaintiff, if any, were caused in whole or in
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`part by Plaintiff’s own willful misconduct for which these Defendants are neither
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`responsible nor liable.
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`As an eighth affirmative defense to each cause of action of the Amended Complaint
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`asserted against these answering Defendants, Plaintiff failed to mitigate his damages.
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`As a ninth affirmative defense to each cause of action of the Amended Complaint,
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`Plaintiff s Amended Complaint, and each cause of action contained therein, is barred in all
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`and/or in part, because Plaintiff breached his contractual obligations to Defendants by
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`failing to perform in accordance with the terms thereof.
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`///
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`-2-
`DEFENDANTS ERIC PARTON AND ROBERT TAYAC’S ANSWER TO
`PLAINTIFF’S FIRST AMENDED COMPLAINT
`
`San Francisco, CA 94111
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`275 Battery Street, Suite 2000
`
`Gordon Rees Scully Mansukhani, LLP
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`As a tenth affirmative defense to each cause of action of the Amended Complaint,
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`Plaintiff s Amended Complaint, and each cause of action therein, is barred because these
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`Defendants owe no duty to Plaintiff.
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`As an eleventh affirmative defense to the Amended Complaint, Defendants allege
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`that any recovery by Plaintiff must be set off or reduced, abated, or apportioned to the
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`extent that any other party’s actions caused and/or contributed to damages, if any there
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`were.
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`As a twelfth affirmative defense to the Amended Complaint, Plaintiff would be
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`unjustly enriched if allowed to recovery on his Amended Complaint as against Defendants.
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`As a thirteenth affirmative defense to each cause of action of the Amended
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`Complaint, prior to the commencement of this action, Defendants duly performed, satisfied
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`and discharged all duties and obligation they may have owed to Plaintiff arising out of any
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`and all agreements, representations and/or contracts made by them or on behalf of
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`Defendants, and this action is therefore barred.
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`As a fourteenth affirmative defense to each cause of action of the Amended
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`Complaint, Plaintiff has failed to state a claim against Defendants upon which attorney fees
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`can be awarded.
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`As a fifteenth affirmative defense to each cause of action of the Amended
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`Complaint, Plaintiff’s Amended Complaint, and each cause of action contained therein, is
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`barred by the doctrines of unclean hands and/or in pari delicto.
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`As a sixteenth affirmative defense to each cause of action of the Amended
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`Complaint, Plaintiff’s Amended Complaint, and each cause of action contained therein, are
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`barred because the Promissory Notes attached to the Amended Complaint are unsigned and
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`therefore the allegations in the Amended Complaint based on these Promissory Notes
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`defective and void.
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`As an seventeenth affirmative defense to each cause of action of the Amended
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`Complaint, Plaintiff’s Amended Complaint, and each cause of action contained therein,
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`because it is barred by the doctrines of accord and satisfaction as defined by California
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`-3-
`DEFENDANTS ERIC PARTON AND ROBERT TAYAC’S ANSWER TO
`PLAINTIFF’S FIRST AMENDED COMPLAINT
`
`San Francisco, CA 94111
`
`275 Battery Street, Suite 2000
`
`Gordon Rees Scully Mansukhani, LLP
`
`

`

`
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`Civil Code sections 1521 and 1523.
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`As an eighteenth affirmative defense to each cause of action of the Amended
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`Complaint, Plaintiff’s Amended Complaint may be defective for failure to join
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`indispensable parties. There may be a non-joinder of one or more parties who are subject to
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`service of process, whose joinder will not deprive this Court of jurisdiction of the subject
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`matter of this action, and whose absence may result in incomplete relief or subject those
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`who are already parties subject to a risk of incurring double, multiple, or otherwise
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`inconsistent obligations and, for these reasons, the action should be abated and/or
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`dismissed.
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`As a nineteenth affirmative defense to each cause of action of the Amended
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`Complaint, Plaintiff’s Amended Complaint, and each cause of action contained therein, is
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`barred due to Plaintiff’s non-compliance with the Court’s Order dated March 19, 2024,
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`issued by the Honorable Ronald E. Quidachy.
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`As a twentieth affirmative defense to each cause of action of the Amended
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`Complaint, Plaintiff’s Amended Complaint, and each cause of action contained therein, is
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`barred by Plaintiff’s failure to comply with procedural rules governing amendment.
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`As a twenty-first affirmative defense to the first cause of action of the Amended
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`Complaint (Breach of Contract), this cause of action is barred by the applicable statute of
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`limitations and/or is otherwise untimely.
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`As a twenty-second affirmative defense to the first cause of action of the Amended
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`Complaint (Breach of Contract), this cause of action fails for lack of consideration.
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`As a twenty-third affirmative defense to the first cause of action of the Amended
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`Complaint (Breach of Contract), this cause of action is barred by the doctrine of judicial
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`275 Battery Street, Suite 2000
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`Gordon Rees Scully Mansukhani, LLP
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`As a twenty-fourth affirmative defense to the first cause of action of the Amended
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`Complaint (Breach of Contract), this cause of action is barred in that it is based on
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`allegations that are in direct conflict with Plaintiff’s original Complaint and/or which
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`contradict admission(s) made in Plaintiff’s original Complaint.
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`-4-
`DEFENDANTS ERIC PARTON AND ROBERT TAYAC’S ANSWER TO
`PLAINTIFF’S FIRST AMENDED COMPLAINT
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`As a twenty-fifth affirmative defense to the fifth cause of action of the Amended
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`Complaint (Usury), fails to state a cause of action Defendant Robert Tayac.
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`As a twenty-sixth affirmative defense to the fifth cause of action of the Amended
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`Complaint (Usury) is void as to Defendant Robert Tayac because Plaintiff lacks standing o
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`assert this claim against Defendant Robert Tayac.
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`As a twenty-seventh affirmative defense to the first cause of action of the Amended
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`Complaint (Breach of Contract), because Plaintiff failed to comply with all of the material
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`obligations he was required to perform as per the alleged oral contract.
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`As a twenty-eighth affirmative defense to the third cause of action of the Amended
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`Complaint (Fraud), this cause of action is defective and void because the allegations within
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`this cause of action lack the required specificity and do not plead facts which show the
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`specifics of the alleged fraud.
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`As a twenty-ninth affirmative defense to the third cause of action of the Amended
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`Complaint (Fraud), this cause of action fails for lack of allegations sufficient to establish
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`any alleged reliance.
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`As a thirtieth affirmative defense to the fourth cause of action of the Amended
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`Complaint (Conversion), this cause of action fails because no money was wrongfully taken
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`and/or such attorney fees were valid and reasonable.
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`As a thirty-first affirmative defense to the first and second causes of action of the
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`Amended Complaint (Breach of Contract and Rescission), Plaintiff failed to mitigate his
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`damages and any judgment and/or verdict in his favor should be reduced based on his
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`failure to mitigate his damages.
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`As a thirty-second affirmative defense to the fifth cause of action of the Amended
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`Complaint (Usury), this cause of action fails for lack of willful intent.
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`As a thirty-third affirmative defense to the fifth cause of action of the Amended
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`Complaint (Usury), Plaintiff cannot recover principal on this cause of action and/or for
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`amounts not actually received by Defendants.
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`///
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`-5-
`DEFENDANTS ERIC PARTON AND ROBERT TAYAC’S ANSWER TO
`PLAINTIFF’S FIRST AMENDED COMPLAINT
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`San Francisco, CA 94111
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`275 Battery Street, Suite 2000
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`Gordon Rees Scully Mansukhani, LLP
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`As a thirty-fourth affirmative defense to the fifth cause of action of the Amended
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`Complaint (Usury), Plaintiff cannot recover on amounts that are not interest, such as the
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`alleged attorney fee payment.
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`As a thirty-fifth affirmative defense to the fifth cause of action of the Amended
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`Complaint (Usury), Plaintiff is estopped from seeking treble damages on interest.
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`As a thirty-sixth affirmative defense to the Amended Complaint, Plaintiff’s claims
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`for punitive damages against Defendants are void.
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`As a thirty-seventh affirmative defense to the first and second causes of action of
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`the Amended Complaint (Breach of Contract and Rescission), these causes of action are
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`barred because Plaintiff prevented and/or refused to allow Defendant Eric Parton to
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`complete his performance under the alleged oral agreement, and this action is therefore
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`barred by the provisions of California Civil Code sections 1512, 1514 and 1515.
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`As a thirty-eighth affirmative defense to the second cause of action of the Amended
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`Complaint (Breach of Contract), the cause of action alleged by Plaintiff in the Amended
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`Complaint against Defendant Eric Parton is barred by statutes of limitations, including but
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`not limited to the limitations periods stated in Code of Civil Procedure §§ 337, 338, 339,
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`As a thirty-ninth affirmative defense to each cause of action of the Amended
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`Complaint, these Defendants presently have insufficient knowledge or information on
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`which to form a belief as to whether there may be additional, as-yet unstated defenses
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`available, and Defendants therefore reserve the right herein to assert additional defenses in
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`the event discovery indicates that they would be appropriate.
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`WHEREFORE, these answering Defendants pray for judgment as follows:
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`1. That Plaintiff take nothing by reason of his Amended Complaint on file herein;
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`2. For reasonable costs and expenses of suit and to enforce the Agreement with
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`Plaintiff and prevailing party attorneys’ fees and costs;
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`3. For such other and further relief as the Court deems just and proper.
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`DEFENDANTS ERIC PARTON AND ROBERT TAYAC’S ANSWER TO
`PLAINTIFF’S FIRST AMENDED COMPLAINT
`
`San Francisco, CA 94111
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`275 Battery Street, Suite 2000
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`Gordon Rees Scully Mansukhani, LLP
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`

`

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`DATED: April 9, 2024
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`GORDON REES SCULLY MANSUKHANI, LLP
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`____________________________
`ROBERT M. BODZIN
`KRISTIN A. LOCKWOOD
`Attorneys for Defendants
`ROBERT TAYAC and ERIC PARTON
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`DEFENDANTS ERIC PARTON AND ROBERT TAYAC’S ANSWER TO
`PLAINTIFF’S FIRST AMENDED COMPLAINT
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`San Francisco, CA 94111
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`275 Battery Street, Suite 2000
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`Gordon Rees Scully Mansukhani, LLP
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`

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`PROOF OF SERVICE
`Cooke v. Tayac
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`I am a resident of the State of California, over the age of 18 years, and not a party to
`the within action. My business address is Gordon Rees Scully Mansukhani, LLP, 275 Battery
`Street, Suite 2000, San Francisco, California 94111. On the date below, I served the within
`document(s):
`
`DEFENDANTS ERIC PARTON AND ROBERT TAYAC’S ANSWER TO
`PLAINTIFF’S FIRST AMENDED COMPLAINT
`
`
`  BY U.S. MAIL: by placing the document(s) listed above in a sealed envelope with
`postage thereon fully prepaid, in United States mail in the State of California at San
`Francisco, addressed as set forth below.
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` BY OVERNIGHT DELIVERY: by placing a true copy thereof enclosed in a sealed
`envelope, at a station designated for collection and processing of envelopes and
`packages for overnight delivery by FedEx as part of the ordinary business practices of
`Gordon & Rees described below, addressed as follows:
` BY EMAIL: Only by e-mailing the document(s) to the persons at the e-mail
`address(es) listed based on notice provided on March 16, 2020 that, during the
`Coronavirus (Covid-19) pandemic, this office will be working remotely, not able to
`send physical mail as usual, and is therefore using only electronic mail. No electronic
`message or other indication that the transmission was unsuccessful was received
`within a reasonable time after the transmission.
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`Martin Glickfeld
`Law Offices Of Martin Glickfeld
`100 Pine Street, Suite 1250
`San Francisco, CA 94111
`Tel: 415-441-7491
`Fax: 415-441-7493
`E-mail: mglickfeld@gmail.com
`Attorney for Plaintiff Philip Cooke
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`Robert Tayac
`Law Offices of Robert Tayac
`POB 411505
`San Francisco CA 94141
`P: 415-552-6000
`F: 415-552-6099
`Rtayac@aol.com
`Attorney for Plaintiff
`Eric Parton
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`I declare under penalty of perjury under the laws of the State of California that the
`above is true and correct. Executed on April 9, 2024 at San Francisco, California.
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`Marilee Barlow
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`San Francisco, CA 94111
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`275 Battery Street, Suite 2000
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`Gordon Rees Scully Mansukhani, LLP
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`PROOF OF SERVICE
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