Preview
Paul N. Jacobs (Bar No. 95241)
JACOBS & DODDS
2 2151 Michelson Drive, Suite 168
Irvine, CA 92612
3
(949)645-7300
4 (949)645-7305 Fax
Attorneys for Cross-Defendant
5 J. Valencia Plastering, Inc.
6
SUPERIOR COURT OF THE STATE OF CALIFORNIA
7
COUNTY OF SAN MATEO
8
lSHADI KASHEFIZADEH, et al., Case No. 21-CIV-02266
9
Plaintiffs
10
vs.
11
12 DAVID FRAKES, et al.,
13 Defendants.
ANSWER OF CROSS-DEFENDANT J.
14 VALENCIA PLASTERING, INC. TO THE
HILLS CONSTRUCTION, INC., CROSS-COMPLAINT OF HILLS
15 CONSTRUCTION, INC.
Cross-Complainant,
16
vs.
17
18 DURO CONCRETE, INC., a California
corporation, DAVID FRAKES, an
19 individual, BRITTANY FRAKES, an
individual, NRT WEST, INC., a California
20 Corporation dba COLDWELL BANKER
REALTY, ALEX SEROFF, an individual,
21 SILICON VALLEY REAL ESTATE
CORPORATION dba KELLER
22 WILLIAMS PALO AL TO, a California
corporation, and ROES 1 through 50,
23
24 Cross-Defendants.
25
26
27
COMES NOW Cross Defendant J. VALENCIA PLASTERING, INC., (Roe 6)
28
- - - - - - - - - - - -- 1 -
Answer to Cross Complaint
(hereinafter "Cross-Defendant") and answers the Cross-Complaint (hereinafter "Cross-
2 Complaint") of HILLS CONSTRUCTION INC. as follows:
3
GENERAL DENIAL
4
1. Pursuant to Section 431.30(d) of the California Code of Civil Procedure, Cross-
5
Defendant denies, both generally and specifically, each and every allegation contained in the
6
Cross-Complaint, and further expressly denies that, as a direct and/or proximate result of any act
7
or omission on the part of the Cross-Defendant, Cross-Complainant was injured or damaged in
8
the sum or sums alleged, or in any sum, or at all. Cross-Defendant further denies, generally and
9
specifically, that Cross-Complainant is entitled to general, special, punitive or other damages, in
10
any amount, by reason of any act or omission to act on the part of Cross-Defendant, or on the part
11
of its agents, servants, employees or representatives.
12
AFFIRMATIVE DEFENSES
13
2. Cross-Defendant asserts the following separate and distinct affirmative defenses to
14
each and all causes of action asserted against them in the Cross-Complaint herein:
15
FIRST AFFIRMATIVE DEFENSE
16
(Jurisdiction)
17
3. Cross-Defendant is informed and believes and based thereon alleges that the Court
18
lacks jurisdiction over the subject matter of the Cross-Complaint and/or the subject matter of each
19
cause of action set forth in the Cross-Complaint.
20
SECOND AFFIRMATIVE DEFENSE
21
(Failure to State a Cause of Action)
22
4. Cross-Defendant is informed and believes and based thereon alleges that Cross-
23
Complainant's Cross-Complaint, and each and every cause of action contained therein, fails to
24
state facts sufficient to constitute a cause of action against Cross-Defendant
25
I I I
26
I I I
27
28
--------------
- 2 -
Answer to Cross Complaint
THIRD AFFIRMATIVE DEFENSE
2
(Statute of Limitations)
3
5. Cross-Defendant is informed and believes and based thereon alleges that the
4
Cross-Complaint, and each purported cause of action contained therein, is barred in whole or in
5
part by the applicable statutes of limitation, including without limitation Code of Civil Procedure
6
Sections 335.1, 337,337.1, 337.2, 317.15, 337, 337(1), 338, 338(c), 339,339.1, 339(3), 339.5,
7
340, 340(1), 340(3) and 343, Code of Civil Procedure§§ 335.1, 337,337.1, 337.2, 337.15,
8
338, 339, 340, 340.8, 343, 895, 896(g)(l); as well as California Commercial Code section
9
2725; and Civil Code Sections 905 - 932, and Civil Code§§ 941(a), 896, 896(a)(14), 896(g)(7),
10
896(g)(6), 896(g)(14), 896(g)(12), 896(g)(8), 896(f), 896(g)(l), 896(g)(9), 896(e ), 896(g)(l0)
11
FOURTH AFFIRMATIVE DEFENSE
12
(Contributory Negligence)
13
6. Cross-Defendant is informed and believes and based thereon alleges that Cross-
14
Complainant was careless and/or negligent in and about the matters alleged in the Cross-
15
Complaint and that said carelessness and/or negligence proximately caused and/or contributed to
16
the happening of the events alleged in the Complaint and/or the Cross-Complaint, the incident
17
alleged in the Complaint and/or Cross-Complaint, and the injuries, loss, and damages complained
18
of, if any there are or were, and therefore the damages, if any, recoverable by Cross-Complainant
19
shall be and must be barred and/or diminished in proportion to the amount of fault attributable to
20
Cross-Complainant.
21
FIFTH AFFIRMATIVE DEFENSE
22
(Assumption of the Risk)
23
7. Cross-Defendant is informed and believes and based thereon alleges that, at the
24
time and place of the incident alleged in the Complaint and the Cross-Complaint, Cross-
25
Complainant knew of the dangers and risks involved in Cross-Complainant's undertaking but,
26
despite such knowledge, Cross-Complainant freely and knowingly assumed the risk of the harm
27
which might occur, and therefore, Cross-Complainant is barred from recovering for injuries
28
- - - - - - - - - - - - -- 3 -
Answer to Cross Complaint
and/or damages, if any, which are alleged in Cross-Complainant's Cross-Complaint herein.
2
Cross-Complainant is barred from recovery under the Cross-Complaint herein and each purported
3
cause of action contained therein by the assumption of risk doctrine.
4
SIXTH AFFIRMATIVE DEFENSE
5
(Failure to Mitigate)
6
8. Cross-Defendant is informed and believes and based thereon alleges that Cross-
7
Complainant and/or Plaintiffs failed to take reasonable action to avoid or mitigate its or their
8
damages, if any there are or were, in that it or they failed to use reasonable diligence and/or failed
9
to act reasonably to mitigate said damages.
10
SEVENTH AFFIRMATIVE DEFENSE
11
(Waiver and/or Estoppel)
12
9. Cross-Defendant is informed and believes and based thereon alleges that Cross-
13
Complainant, by its conduct, has waived and/or is estopped from asserting or enforcing any claim
14
in the Cross-Complaint, and each purported cause of action contained therein.
15
EIGHTH AFFIRMATIVE DEFENSE
16
(Comparative Negligence and/or Fault of Others)
17
10. Cross-Defendant is informed and believes and based thereon alleges that the
18
damages and/or injuries, if any there are or were, which may have been sustained by Cross-
19
Complainant, were proximately caused and contributed to by the carelessness and negligent acts
20
and omissions of others.
21
NINTH AFFIRMATIVE DEFENSE
22
(Contributory Negligence)
23
11. Cross-Defendant is informed and believes and based thereon alleges that if Cross-
24
Defendant did commit any tortuous act entitling Cross-Complainant to recover for any loss
25
suffered or sustained at the time alleged, although such is not admitted hereby or herein, then the
26
total amount of damages to which Cross-Complainant would otherwise be entitled shall be
27
reduced in proportion to the amount of negligence attributable to Cross-Complainant and which
28
- - - - - - - - - - - - - -- 4 -
Answer to Cross Complaint
negligence directly and proximately caused and/or contributed to Cross-Complainant's injury,
2
loss or damages as alleged.
3
TENTH AFFIRMATIVE DEFENSE
4
(Good Faith, Probable Cause, and/or Justification)
5
12. Cross-Defendant is informed and believes and based thereon alleges that any acts
6
alleged to have been committed by Cross-Defendant or any of its agents or employees were
7
committed in the exercise of good faith and with probable cause, and were reasonable and
8
justified under the circumstances then apparent.
9
ELEVENTH AFFIRMATIVE DEFENSE
10
(Laches)
11
13. Cross-Defendant is informed and believes and based thereon alleges that the Cross-
12
Complaint and each purported cause of action contained therein, is barred in whole or in part by
13
the doctrine of laches.
14
TWELFTH AFFIRMATIVE DEFENSE
15
(Unclean hands)
16
14. Cross-Defendant is informed and believes and based thereon alleges that the
17
Cross-Complaint and each and every purported cause of action alleged therein against Cross-
18
Defendant, is barred in whole or in part to the extent that Cross-Complainant has unclean hands.
19
THIRTEENTH AFFIRMATIVE DEFENSE
20
(Intervening and Superseding Cause)
21
15. Cross-Defendant is informed and believes and based thereon alleges that if Cross-
22
Defendant should be found liable in any way, which this answering Cross-Defendant expressly
23
denies, then Cross-Defendant was one of many concurrent and/or successive tortfeasors. The
24
negligence of said other tortfeasors was an intervening and superseding cause of any and all
25
damages alleged by Cross-Complainant.
26
I I I
27
I I I
28
- - - - - - - - - - - - - -- 5 -
Answer to Cross Complaint
FOURTEENTH AFFIRMATIVE DEFENSE
2
(Natural Forces Acts of God)
3
16. Cross-Defendant is informed and believes and based thereon alleges that if Cross-
4
Complainant and/or Plaintiff suffered or sustained any loss, damage, or injury as alleged in the
5
Cross-Complaint, such loss, damage, or injury was proximately caused by natural physical forces
6
and/or an act of God, and not by any action or inaction of this answering Cross-Defendant.
7
FIFTEENTH AFFIRMATIVE DEFENSE
8
(Several and Not Joint)
9
17. Cross-Defendant is informed and believes and based thereon alleges that if Cross-
10
Defendant should be found liable in any way, which this answering Cross-Defendant expressly
11
denies, the liability of Cross-Defendant for non-economic damages shall be several only and shall
12
not be joint. This answering Cross-Defendant shall be liable for the amount of non-economic
13
damages allocated to Cross-Defendant only in direct proportion to this Cross-Defendant's
14
percentage of fault, if any.
15
SIXTEENTH AFFIRMATIVE DEFENSE
16
(Failure to Exercise Ordinary Care)
17
18. Cross-Defendant is informed and believes and based thereon alleges that Cross-
18
Complainant and/or Plaintiff did not exercise ordinary care, caution or prudence, at the time and
19
place of the alleged incident, to avoid the alleged damages, if any sustained by Cross-
20
Complainant and/or Plaintiff. Further, Cross-Complainant and/or Plaintiff was unreasonable in
21
and about the matters alleged in the Complaint and/or the Cross-Complaint in that it did not take
22
reasonable precautions to avoid or reduce any actual or potential injury.
23
SEVENTEENTH AFFIRMATIVE DEFENSE
24
(Destruction of Evidence)
25
19. Cross-Defendant is informed and believes and based thereon alleges that Cross-
26
Complainant's causes of action are barred because Plaintiffs and/or Cross-Defendant failed
27
to preserve evidence by proceeding with alleged "repairs" without allowing Cross-Defendant
28
- - - - - - - - - - - - - -- 6 -
Answer to Cross Complaint
the ability to preserve and collect critical evidence crucial to Defendant's case and
2
construction litigation, (See SB 800, RS. Creative, Inc. v. Creative Cotton Ltd., 75 Cal. App.
3
4th 486, 499 (1999); Cedars-Sinai Med. Ctr. v. Superior Court, 18 Cal. 4th 1 (1998)
4
EIGHTEENTH AFFIRMATIVE DEFENSE
5
(Civil Code§ 1473)
6
20. Cross-Defendant is informed and believes and based thereon alleges that Cross-
7
Complainant's causes of action are barred because, prior to the commencement of this
8
action, Cross-Defendant duly performed, satisfied, and/or discharged all duties and
9
obligations he may have owed to Plaintiffs and/or Cross-Complainant arising out of any
10
and all agreements, representations, warranties, or contracts made by it or on its behalf,
11
and this action is therefore barred, including by the provisions of Civil Code§ 14 73.
12
NINTEENTH AFFIRMATIVE DEFENSE
13
(Non-Existent Obligations)
14
21. Cross-Defendant is informed and believes and based thereon alleges that the
15
Cross-Complaint, and each cause of action contained therein, alleges obligations as to Cross-
16
Defendant which were at all relevant times non-existent, not contracted for, and outside the
17
agreement of the parties, or any of them, or the responsibilities of Cross-Defendant. Said actions
18
work as a complete bar to any recovery herein.
19
TWENTIETH AFFIRMATIVE DEFENSE
20
(Reduction of Percentage of Fault)
21
22. Cross-Defendant is informed and believes and based thereon alleges that the right of
22
Cross-Complainant to recover herein, if any right exists, is reduced or limited to the percentage of
23
negligence attributable to Cross-Defendant pursuant to section 1431.1, 1431.2 et seq. of the
24
California Civil Code. Cross-Defendant shall be liable, if at all, only for the amount of non-
25
economic damages allocated to Cross-Defendant, and each of them, and only in direct proportion
26
to each Cross-Defendant's respective percentage of fault.
27
I I I I I
28
- - - - - - - - - - - - - -- 7 -
Answer to Cross Complaint
TWENTY-FIRST AFFIRMATIVE DEFENSE
2
(Superseding Cause)
3
23. Cross-Defendant is informed and believes and based thereon alleges that none of the
4
acts attributed to Cross-Defendant proximately caused the injuries and/or damages alleged in the
5
Complaint and/or the Cross-Complaint in that any such causation was superseded by an
6
intentional, criminal, negligent and/or fraudulent act of a third party and/or Cross-Complainant,
7
and/or Plaintiffs, thus barring or diminishing Plaintiffs' and/or Cross-Complainant's recovery
8
herein.
9
TWENTY-SECOND AFFIRMATIVE DEFENSE
10
(Consent/Assumption of the Risk)
11
24. Cross-Defendant is informed and believes and based thereon alleges that Plaintiffs
12
and/or Cross-Complainant had full knowledge, at the time of events thereon alleged, and with full
13
knowledge, Plaintiffs and/or Cross-Complainant consented to said acts and voluntarily invited
14
and assumed the risks of the same. Plaintiffs and/or Cross-Complainant are therefore barred from
15
any recovery thereon.
16
TWENTY-THIRD AFFIRMATIVE DEFENSE
17
(No Warranties)
18
25. Cross-Defendant is informed and believes and based thereon alleges that Cross-
19
Defendant did not make any warranties or guarantees, expressed, implied, or apparent, upon
20
which Plaintiffs, Cross-Complainant, or any other person may rely.
21
TWENTY-FOURTH AFFIRMATIVE DEFENSE
22
(Failure to Notify)
23
26. Cross-Defendant is informed and believes and based thereon alleges that the
24
Cross-Complaint, and each cause of action alleged therein, is absolutely barred by the failure of
25
Plaintiffs and/or Cross-Complainant to give Cross-Defendant reasonable notice of any and all
26
alleged breaches of contract, breaches of warranty, defects, alleged negligence, and/or other
27
wrongful conduct alleged, and to permit Cross-Defendant to remedy the same.
28
--------------
- 8 -
Answer to Cross Complaint
TWENTY-FIFTH AFFIRMATIVE DEFENSE
2
(Good Faith)
3
27. Cross-Defendant is informed and believes and based thereon alleges that any acts
4
alleged to have been committed by Cross-Defendant or any of its agents or employees were
5
committed in the exercise of good faith and with probable cause, and were reasonable and
6
justified under the circumstances then apparent.
7
TWENTY-SIXTH AFFIRMATIVE DEFENSE
8
(No Attorney's Fees)
9
28. Cross-Defendant is informed and believes and based thereon alleges the prayer or
10
any request for an award of attorney's fees must fail and no attorney's fees should be granted
11
against Cross-Defendant as Cross-Complainant has not alleged any facts which are legally
12
sufficient to warrant an award of attorney's fees.
13
TWENTY -SEVENTH AFFIRMATIVE DEFENSE
14
(Custom and Standard of Work)
15
29. Cross-Defendant is informed and believes and based thereon alleges that at all
16
times relevant herein, Cross-Defendant performed its work in a workmanlike manner and within
17
the custom and standards of the relevant industry.
18
TWENTY-EIGHTH AFFIRMATIVE DEFENSE
19
(Modification of Work)
20
30. Cross-Defendant is informed and believes and based thereon alleges that Cross-
21
Complainant, Plaintiffs and/or other firms, persons, corporations, or entities retained by them,
22
have made changes, alterations and/or modifications to the alleged work performed by Cross-
23
Defendant, which conduct discharges Cross-Defendant from any liability.
24
TWENTY-NINTH AFFIRMATIVE DEFENSE
25
(Abnormal Use)
26
31. Cross-Defendant is informed and believes and based thereon alleges that the
27
property which is the subject of this action may have been used in a non-intended or abnormal
28
- - - - - - - - - - - - - -- 9 -
Answer to Cross Complaint
manner and thus any such damages are not as a result of any defects in, or failure of, any work
2
done by Cross-Defendant.
3
THIRTIETH AFFIRMATIVE DEFENSE
4
(Failure to Comply with Right to Repair)
5
32. Cross-Defendant is informed and believes and thereon alleges that Plaintiffs and/or
6
Cross-Complainant failed to comply with the requirements of the Right to Repair Act, including
7
Plaintiffs' and/or Cross-Complainant's failure to provide notice and opportunity to repair. This
8
answering Cross-Defendant is informed and believes and based thereon alleges that the Cross-
9
Complaint, and each alleged cause of action therein, is absolutely barred by the failure of
10
Plaintiffs and/or Cross-Complainant to comply with the requirements of the Right to Repair Act
11
including failure to give Cross-Defendant reasonable notice of any and all alleged breaches of
12
contract, breaches of warranty, defects, and/or other wrongful conduct alleged therein.
13
THIRTY-FIRST AFFIRMATIVE DEFENSE
14
(Right to Repair Defenses)
15
33. Pursuant to the Right to Repair Act Cross-Defendant states as additional
16
affirmative defenses under the Act: (a) Any and all unforeseen acts of nature in excess of the
17
design criteria expressed by the applicable building codes; (b) Homeowner's unreasonable failure
18
to minimize or prevent damages; (c) Homeowner's, or his/her agent's or employee's, failure to
19
follow recommended or commonly accepted maintenance obligations; ( d) defects caused by
20
alterations, ordinary wear and tear, misuse, abuse, or neglect; (e) defects barred by the statute of
21
limitations; (t) defects subject to a valid release; and (g) the extent that Builder's repair was
22
successful in correcting the defects.
23
THIRTY-SECOND AFFIRMATIVE DEFENSE
24
(NON-EXISTENT OBLIGATIONS)
25
34. Cross-Defendant is informed and believes and based thereon alleges that the
26
Cross-Complaint alleges obligations non-existent, not contracted for, and outside the agreement
27
of the parties, or any of them. Said actions work as a complete bar to any recovery herein.
28
--------------
- 10 -
Answer to Cross Complaint
2 THIRTY-THIRD AFFIRMATIVE DEFENSE
3 (PERFORMANCE OF OBLIGATIONS)
4
35. Cross-Defendants is informed and believes and based thereon alleges that prior to
5
the commencement of this action, Cross-Defendants duly performed, satisfied, and discharged all
6
duties and obligations alleged in the Cross-Complaint arising out of any and all agreements,
7
representations, warranties or contracts made by or on behalf of Cross-Defendants, or any of
8
9 them.
10 THIRYT-FOURTH AFFIRMATIVE DEFENSE
11 (NO WARRANTIES)
12
36. Cross-Defendant is informed and believes and based thereon alleges that Cross-
13
Defendants did not make any warranties or guarantees, expressed, implied, or apparent, upon
14
which Cross-Complainant or any other person may rely.
15
THIRTY-FIFTH AFFIRMATIVE DEFENSE
16
17 (RATIFICATION)
18 37. Cross-Defendant is informed and believes and based thereon alleges that Cross-
19 Complainant approved the acts and/or omissions, if any, of Cross-Defendants and ratified the
20
same; consequently, Cross-Complainant is barred from recovery herein as against Cross-
21
Defendants.
22
THIRTY-SIXTH AFFIRMATIVE DEFENSE
23
24 (PERFORMANCE EXCUSED)
25 38. Cross-Defendant is informed and believes and based thereon alleges that any
26 failure on the part of Cross-Defendants, or any of them, to perform the obligations described in
27
the Cross-Complaint, if any, is excused by Cross-Complainant's own breach of the contract
28
--------------
- 11 -
Answer to Cross Complaint
and/or by reason of impossibility of performance, prevention by Cross-Complainant, frustration
2 of purpose and/or acceptance by Cross-Complainant.
3
THIRTY-SEVENTH AFFIRMATIVE DEFENSE
4
(UNCONSCIONABILITY)
5
39. Cross-Defendant is informed and believes and based thereon alleges that Cross-
6
Complainant should be prohibited from obtaining relief on its Cross-Complaint on the basis that
7
8 the terms of any contract or agreement which may have existed between Cross-Complainant and
9 Cross-Defendant and/or Cross-Complainant's acts and/or claims with respect to any such
10 contracts which may have existed, are unconscionable.
11
THIRTY-EIGHTH AFFIRMATIVE DEFENSE
12
(UNCERTAINTY)
13
40. Cross-Defendant is informed and believes and based thereon alleges that the causes
14
of action in the Cross-Complaint fail for uncertainty.
15
16 THIRTY-NINTH AFFIRMATIVE DEFENSE
17 (PREVENTION OF PERFORMANCE/INDUCEMENT OF NON-PERFORMANCE)
18 41. Cross-Defendant is informed and believes and based thereon alleges that Cross-
19
Complainant breached any and all contracts that may be found to exist with Cross-Defendants in
20
that Cross-Complainant did not timely, fully and/or adequately comply with all of the terms,
21
conditions and covenants of any such contracts that may have existed, thereby preventing Cross-
22
23 Defendant from performing and discharging any obligations on the part of Cross-Defendant.
24 FORTIETH AFFIRMATIVE DEFENSE
25 (FAILURE OF PERFORMANCE)
26
42. Cross-Defendant is informed and believes and based thereon alleges that each and
27
every cause of action in Cross-Complainant's Cross-Complaint is barred, in whole or in part, as a
28
--------------
- 12 -
Answer to Cross Complaint
result of Cross-Complainant's own failure to perform.
2 FORTY FIRST AFFIRMATIVE DEFENSE
3
(IMPOSSIBILITY OF PERFORMANCE)
4
43. Cross-Defendant is informed and believes and based thereon alleges that each and
5
every cause of action in Cross-Complainant's Cross-Complaint is barred, in whole or in part,
6
because performance under any contract or agreement that may have existed between Cross-
7
8 Complaint and Cross-Defendant became or has become impossible or totally impracticable
9 through no fault of these answering Cross-Defendant.
10
FORTY-SECOND AFFIRMATIVE DEFENSE
11
(ACCEPTANCE OF PERFORMANCE)
12
44. Cross-Defendant is informed and believes and based thereon alleges that each and
13
every cause of action in Cross-Complainant's Cross-Complaint is barred, in whole or in part,
14
because Cross-Complainant accepted Cross-Defendants' performance under any such contract or
15
agreement that may have existed between Cross-Complainant and Cross-Defendant.
16
FORTY-THIRD AFFIRMATIVE DEFENSE
17
(LACK OF CONSIDERATION)
18
45. Cross-Defendant is informed and believes and based thereon alleges that each and
19
every cause of action in Cross-Complainant's Cross-Complaint is barred, in whole or in part, due
20
to a lack of consideration and/or failure of consideration. Further, the contract upon which Cross-
21
Complainant bases his causes of action lacked proper consideration.
22
FORTY-FOURTH AFFIRMATIVE DEFENSE
23
(ACCORD & SATISFACTION)
Z4
46. Cross-Defendant is informed and believes and based thereon alleges that each and
25
every cause of action in Cross-Complainant's Cross-Complaint is barred, in whole or in part, in
26
that there was an accord and satisfaction with regard to material terms of the alleged contracts and
27
agreements. As such, the terms of the original alleged contracts and agreements, if any, between
28
--------------
- 13 -
Answer to Cross Complaint
Cross-Complainant and Cross-Defendant cannot form the basis ofliability.
2
FORTY-FIFTH AFFIRMATIVE DEFENSE
3
(NOVATION)
4
47. Cross-Defendant is informed and believes and based thereon alleges that each and
5
every cause of action in Cross-Complainant's Cross-Complaint is barred, in whole or in part, in
6
that Cross-Complainant and Cross-Defendant entered into an agreement( s) which constituted a
7
novation of the alleged original contract( s), if any ever existed. As such, the terms of the original
8
alleged contract( s), if any ever existed, between Cross-Complainant and Cross-Defendant cannot
9
form the basis of liability.
10
FORTY-SIXTH AFFIRMATIVE DEFENSE
11
(AMBIGUITY AND OVERBROAD)
12
48. Cross-Defendant is informed and believes and based thereon alleges that each and
13
every cause of action in Cross-Complainant's Cross-Complaint is barred, in whole or in part,
14
because any contract that may have existed between Cross-Complainant and Cross-Defendant
15
was and is ambiguous and/or the language was so overbroad as to make the contract unintelligible
16
and/or in violation of the law.
17
FORTY-SEVENTH AFFIRMATIVE DEFENSE
18
(UNCONSCIONABILITY)
19
49. Cross-Defendant is informed and believes and based thereon alleges that Cross-
20
Complainant should be prohibited from obtaining relief on its Cross-Complaint on the basis that
21
the terms of any contract which allegedly existed between Cross-Complainant and Cross-
22
Defendant, and/or Plaintiffs' acts and claims with respect to any such contracts which allegedly
23
existed, are unconscionable.
24
FORTY-EIGHTH AFFIRMATIVE DEFENSE
25
(Additional Affirmative Defenses)
26
50. Cross-Defendant is informed and believes and based thereon alleges that because
27
the Cross-Complaint is couched in conclusory terms, Cross-Defendant cannot fully anticipate
28
- - - - - - - - - - - - - -- 14 -
Answer to Cross Complaint
all affirmative defenses which may be applicable to the within action. Accordingly, the right
2
to assert additional affirmative defenses, if and to the extent that such affirmative defenses
3
are applicable, is hereby reserved.
4
5
WHEREFORE, Cross-Defendant prays for judgment as follows:
6
1. That Cross-Complainant's Cross-Complaint and each cause of action thereof be
7
dismissed with prejudice;
8
2. That Cross-Complainant takes nothing by reason of its Cross-Complaint;
9
3. For costs of suit incurred herein, including reasonable attorneys' fees; and
10
4. For such other and further relief as the Court may deem proper.
11
12
13 DATED: July 15, 2022 JACOBS & DODDS
14
15 By: /
Paul N. Jacobs
16 Debra A. Dodds Attorneys for Cross-
Defendant Macerris Incorporated
17
18
19
20
21
22
23
24
25
26
27
28
--------------
- 15 -
Answer to Cross Complaint
PROOF OF SERVICE BY ELECTRONIC MAIL
STATE OF CALIFORNIA ) .
ss.:
)
COUNTY OF ORANGE )
I am employed in the County of Orange, State of California. I am over the age of 18 and not a
party to the within action; my business address is 2151 Michelson Drive, Suite 168, Irvine,
California.
On July
Preview
Paul N. Jacobs (Bar No. 95241) JACOBS & DODDS 2 2151 Michelson Drive, Suite 168 Irvine, CA 92612 3 (949)645-7300 4 (949)645-7305 Fax Attorneys for Cross-Defendant 5 J. Valencia Plastering, Inc. 6 SUPERIOR COURT OF THE STATE OF CALIFORNIA 7 COUNTY OF SAN MATEO 8 lSHADI KASHEFIZADEH, et al., Case No. 21-CIV-02266 9 Plaintiffs 10 vs. 11 12 DAVID FRAKES, et al., 13 Defendants. ANSWER OF CROSS-DEFENDANT J. 14 VALENCIA PLASTERING, INC. TO THE HILLS CONSTRUCTION, INC., CROSS-COMPLAINT OF HILLS 15 CONSTRUCTION, INC. Cross-Complainant, 16 vs. 17 18 DURO CONCRETE, INC., a California corporation, DAVID FRAKES, an 19 individual, BRITTANY FRAKES, an individual, NRT WEST, INC., a California 20 Corporation dba COLDWELL BANKER REALTY, ALEX SEROFF, an individual, 21 SILICON VALLEY REAL ESTATE CORPORATION dba KELLER 22 WILLIAMS PALO AL TO, a California corporation, and ROES 1 through 50, 23 24 Cross-Defendants. 25 26 27 COMES NOW Cross Defendant J. VALENCIA PLASTERING, INC., (Roe 6) 28 - - - - - - - - - - - -- 1 - Answer to Cross Complaint (hereinafter "Cross-Defendant") and answers the Cross-Complaint (hereinafter "Cross- 2 Complaint") of HILLS CONSTRUCTION INC. as follows: 3 GENERAL DENIAL 4 1. Pursuant to Section 431.30(d) of the California Code of Civil Procedure, Cross- 5 Defendant denies, both generally and specifically, each and every allegation contained in the 6 Cross-Complaint, and further expressly denies that, as a direct and/or proximate result of any act 7 or omission on the part of the Cross-Defendant, Cross-Complainant was injured or damaged in 8 the sum or sums alleged, or in any sum, or at all. Cross-Defendant further denies, generally and 9 specifically, that Cross-Complainant is entitled to general, special, punitive or other damages, in 10 any amount, by reason of any act or omission to act on the part of Cross-Defendant, or on the part 11 of its agents, servants, employees or representatives. 12 AFFIRMATIVE DEFENSES 13 2. Cross-Defendant asserts the following separate and distinct affirmative defenses to 14 each and all causes of action asserted against them in the Cross-Complaint herein: 15 FIRST AFFIRMATIVE DEFENSE 16 (Jurisdiction) 17 3. Cross-Defendant is informed and believes and based thereon alleges that the Court 18 lacks jurisdiction over the subject matter of the Cross-Complaint and/or the subject matter of each 19 cause of action set forth in the Cross-Complaint. 20 SECOND AFFIRMATIVE DEFENSE 21 (Failure to State a Cause of Action) 22 4. Cross-Defendant is informed and believes and based thereon alleges that Cross- 23 Complainant's Cross-Complaint, and each and every cause of action contained therein, fails to 24 state facts sufficient to constitute a cause of action against Cross-Defendant 25 I I I 26 I I I 27 28 -------------- - 2 - Answer to Cross Complaint THIRD AFFIRMATIVE DEFENSE 2 (Statute of Limitations) 3 5. Cross-Defendant is informed and believes and based thereon alleges that the 4 Cross-Complaint, and each purported cause of action contained therein, is barred in whole or in 5 part by the applicable statutes of limitation, including without limitation Code of Civil Procedure 6 Sections 335.1, 337,337.1, 337.2, 317.15, 337, 337(1), 338, 338(c), 339,339.1, 339(3), 339.5, 7 340, 340(1), 340(3) and 343, Code of Civil Procedure§§ 335.1, 337,337.1, 337.2, 337.15, 8 338, 339, 340, 340.8, 343, 895, 896(g)(l); as well as California Commercial Code section 9 2725; and Civil Code Sections 905 - 932, and Civil Code§§ 941(a), 896, 896(a)(14), 896(g)(7), 10 896(g)(6), 896(g)(14), 896(g)(12), 896(g)(8), 896(f), 896(g)(l), 896(g)(9), 896(e ), 896(g)(l0) 11 FOURTH AFFIRMATIVE DEFENSE 12 (Contributory Negligence) 13 6. Cross-Defendant is informed and believes and based thereon alleges that Cross- 14 Complainant was careless and/or negligent in and about the matters alleged in the Cross- 15 Complaint and that said carelessness and/or negligence proximately caused and/or contributed to 16 the happening of the events alleged in the Complaint and/or the Cross-Complaint, the incident 17 alleged in the Complaint and/or Cross-Complaint, and the injuries, loss, and damages complained 18 of, if any there are or were, and therefore the damages, if any, recoverable by Cross-Complainant 19 shall be and must be barred and/or diminished in proportion to the amount of fault attributable to 20 Cross-Complainant. 21 FIFTH AFFIRMATIVE DEFENSE 22 (Assumption of the Risk) 23 7. Cross-Defendant is informed and believes and based thereon alleges that, at the 24 time and place of the incident alleged in the Complaint and the Cross-Complaint, Cross- 25 Complainant knew of the dangers and risks involved in Cross-Complainant's undertaking but, 26 despite such knowledge, Cross-Complainant freely and knowingly assumed the risk of the harm 27 which might occur, and therefore, Cross-Complainant is barred from recovering for injuries 28 - - - - - - - - - - - - -- 3 - Answer to Cross Complaint and/or damages, if any, which are alleged in Cross-Complainant's Cross-Complaint herein. 2 Cross-Complainant is barred from recovery under the Cross-Complaint herein and each purported 3 cause of action contained therein by the assumption of risk doctrine. 4 SIXTH AFFIRMATIVE DEFENSE 5 (Failure to Mitigate) 6 8. Cross-Defendant is informed and believes and based thereon alleges that Cross- 7 Complainant and/or Plaintiffs failed to take reasonable action to avoid or mitigate its or their 8 damages, if any there are or were, in that it or they failed to use reasonable diligence and/or failed 9 to act reasonably to mitigate said damages. 10 SEVENTH AFFIRMATIVE DEFENSE 11 (Waiver and/or Estoppel) 12 9. Cross-Defendant is informed and believes and based thereon alleges that Cross- 13 Complainant, by its conduct, has waived and/or is estopped from asserting or enforcing any claim 14 in the Cross-Complaint, and each purported cause of action contained therein. 15 EIGHTH AFFIRMATIVE DEFENSE 16 (Comparative Negligence and/or Fault of Others) 17 10. Cross-Defendant is informed and believes and based thereon alleges that the 18 damages and/or injuries, if any there are or were, which may have been sustained by Cross- 19 Complainant, were proximately caused and contributed to by the carelessness and negligent acts 20 and omissions of others. 21 NINTH AFFIRMATIVE DEFENSE 22 (Contributory Negligence) 23 11. Cross-Defendant is informed and believes and based thereon alleges that if Cross- 24 Defendant did commit any tortuous act entitling Cross-Complainant to recover for any loss 25 suffered or sustained at the time alleged, although such is not admitted hereby or herein, then the 26 total amount of damages to which Cross-Complainant would otherwise be entitled shall be 27 reduced in proportion to the amount of negligence attributable to Cross-Complainant and which 28 - - - - - - - - - - - - - -- 4 - Answer to Cross Complaint negligence directly and proximately caused and/or contributed to Cross-Complainant's injury, 2 loss or damages as alleged. 3 TENTH AFFIRMATIVE DEFENSE 4 (Good Faith, Probable Cause, and/or Justification) 5 12. Cross-Defendant is informed and believes and based thereon alleges that any acts 6 alleged to have been committed by Cross-Defendant or any of its agents or employees were 7 committed in the exercise of good faith and with probable cause, and were reasonable and 8 justified under the circumstances then apparent. 9 ELEVENTH AFFIRMATIVE DEFENSE 10 (Laches) 11 13. Cross-Defendant is informed and believes and based thereon alleges that the Cross- 12 Complaint and each purported cause of action contained therein, is barred in whole or in part by 13 the doctrine of laches. 14 TWELFTH AFFIRMATIVE DEFENSE 15 (Unclean hands) 16 14. Cross-Defendant is informed and believes and based thereon alleges that the 17 Cross-Complaint and each and every purported cause of action alleged therein against Cross- 18 Defendant, is barred in whole or in part to the extent that Cross-Complainant has unclean hands. 19 THIRTEENTH AFFIRMATIVE DEFENSE 20 (Intervening and Superseding Cause) 21 15. Cross-Defendant is informed and believes and based thereon alleges that if Cross- 22 Defendant should be found liable in any way, which this answering Cross-Defendant expressly 23 denies, then Cross-Defendant was one of many concurrent and/or successive tortfeasors. The 24 negligence of said other tortfeasors was an intervening and superseding cause of any and all 25 damages alleged by Cross-Complainant. 26 I I I 27 I I I 28 - - - - - - - - - - - - - -- 5 - Answer to Cross Complaint FOURTEENTH AFFIRMATIVE DEFENSE 2 (Natural Forces Acts of God) 3 16. Cross-Defendant is informed and believes and based thereon alleges that if Cross- 4 Complainant and/or Plaintiff suffered or sustained any loss, damage, or injury as alleged in the 5 Cross-Complaint, such loss, damage, or injury was proximately caused by natural physical forces 6 and/or an act of God, and not by any action or inaction of this answering Cross-Defendant. 7 FIFTEENTH AFFIRMATIVE DEFENSE 8 (Several and Not Joint) 9 17. Cross-Defendant is informed and believes and based thereon alleges that if Cross- 10 Defendant should be found liable in any way, which this answering Cross-Defendant expressly 11 denies, the liability of Cross-Defendant for non-economic damages shall be several only and shall 12 not be joint. This answering Cross-Defendant shall be liable for the amount of non-economic 13 damages allocated to Cross-Defendant only in direct proportion to this Cross-Defendant's 14 percentage of fault, if any. 15 SIXTEENTH AFFIRMATIVE DEFENSE 16 (Failure to Exercise Ordinary Care) 17 18. Cross-Defendant is informed and believes and based thereon alleges that Cross- 18 Complainant and/or Plaintiff did not exercise ordinary care, caution or prudence, at the time and 19 place of the alleged incident, to avoid the alleged damages, if any sustained by Cross- 20 Complainant and/or Plaintiff. Further, Cross-Complainant and/or Plaintiff was unreasonable in 21 and about the matters alleged in the Complaint and/or the Cross-Complaint in that it did not take 22 reasonable precautions to avoid or reduce any actual or potential injury. 23 SEVENTEENTH AFFIRMATIVE DEFENSE 24 (Destruction of Evidence) 25 19. Cross-Defendant is informed and believes and based thereon alleges that Cross- 26 Complainant's causes of action are barred because Plaintiffs and/or Cross-Defendant failed 27 to preserve evidence by proceeding with alleged "repairs" without allowing Cross-Defendant 28 - - - - - - - - - - - - - -- 6 - Answer to Cross Complaint the ability to preserve and collect critical evidence crucial to Defendant's case and 2 construction litigation, (See SB 800, RS. Creative, Inc. v. Creative Cotton Ltd., 75 Cal. App. 3 4th 486, 499 (1999); Cedars-Sinai Med. Ctr. v. Superior Court, 18 Cal. 4th 1 (1998) 4 EIGHTEENTH AFFIRMATIVE DEFENSE 5 (Civil Code§ 1473) 6 20. Cross-Defendant is informed and believes and based thereon alleges that Cross- 7 Complainant's causes of action are barred because, prior to the commencement of this 8 action, Cross-Defendant duly performed, satisfied, and/or discharged all duties and 9 obligations he may have owed to Plaintiffs and/or Cross-Complainant arising out of any 10 and all agreements, representations, warranties, or contracts made by it or on its behalf, 11 and this action is therefore barred, including by the provisions of Civil Code§ 14 73. 12 NINTEENTH AFFIRMATIVE DEFENSE 13 (Non-Existent Obligations) 14 21. Cross-Defendant is informed and believes and based thereon alleges that the 15 Cross-Complaint, and each cause of action contained therein, alleges obligations as to Cross- 16 Defendant which were at all relevant times non-existent, not contracted for, and outside the 17 agreement of the parties, or any of them, or the responsibilities of Cross-Defendant. Said actions 18 work as a complete bar to any recovery herein. 19 TWENTIETH AFFIRMATIVE DEFENSE 20 (Reduction of Percentage of Fault) 21 22. Cross-Defendant is informed and believes and based thereon alleges that the right of 22 Cross-Complainant to recover herein, if any right exists, is reduced or limited to the percentage of 23 negligence attributable to Cross-Defendant pursuant to section 1431.1, 1431.2 et seq. of the 24 California Civil Code. Cross-Defendant shall be liable, if at all, only for the amount of non- 25 economic damages allocated to Cross-Defendant, and each of them, and only in direct proportion 26 to each Cross-Defendant's respective percentage of fault. 27 I I I I I 28 - - - - - - - - - - - - - -- 7 - Answer to Cross Complaint TWENTY-FIRST AFFIRMATIVE DEFENSE 2 (Superseding Cause) 3 23. Cross-Defendant is informed and believes and based thereon alleges that none of the 4 acts attributed to Cross-Defendant proximately caused the injuries and/or damages alleged in the 5 Complaint and/or the Cross-Complaint in that any such causation was superseded by an 6 intentional, criminal, negligent and/or fraudulent act of a third party and/or Cross-Complainant, 7 and/or Plaintiffs, thus barring or diminishing Plaintiffs' and/or Cross-Complainant's recovery 8 herein. 9 TWENTY-SECOND AFFIRMATIVE DEFENSE 10 (Consent/Assumption of the Risk) 11 24. Cross-Defendant is informed and believes and based thereon alleges that Plaintiffs 12 and/or Cross-Complainant had full knowledge, at the time of events thereon alleged, and with full 13 knowledge, Plaintiffs and/or Cross-Complainant consented to said acts and voluntarily invited 14 and assumed the risks of the same. Plaintiffs and/or Cross-Complainant are therefore barred from 15 any recovery thereon. 16 TWENTY-THIRD AFFIRMATIVE DEFENSE 17 (No Warranties) 18 25. Cross-Defendant is informed and believes and based thereon alleges that Cross- 19 Defendant did not make any warranties or guarantees, expressed, implied, or apparent, upon 20 which Plaintiffs, Cross-Complainant, or any other person may rely. 21 TWENTY-FOURTH AFFIRMATIVE DEFENSE 22 (Failure to Notify) 23 26. Cross-Defendant is informed and believes and based thereon alleges that the 24 Cross-Complaint, and each cause of action alleged therein, is absolutely barred by the failure of 25 Plaintiffs and/or Cross-Complainant to give Cross-Defendant reasonable notice of any and all 26 alleged breaches of contract, breaches of warranty, defects, alleged negligence, and/or other 27 wrongful conduct alleged, and to permit Cross-Defendant to remedy the same. 28 -------------- - 8 - Answer to Cross Complaint TWENTY-FIFTH AFFIRMATIVE DEFENSE 2 (Good Faith) 3 27. Cross-Defendant is informed and believes and based thereon alleges that any acts 4 alleged to have been committed by Cross-Defendant or any of its agents or employees were 5 committed in the exercise of good faith and with probable cause, and were reasonable and 6 justified under the circumstances then apparent. 7 TWENTY-SIXTH AFFIRMATIVE DEFENSE 8 (No Attorney's Fees) 9 28. Cross-Defendant is informed and believes and based thereon alleges the prayer or 10 any request for an award of attorney's fees must fail and no attorney's fees should be granted 11 against Cross-Defendant as Cross-Complainant has not alleged any facts which are legally 12 sufficient to warrant an award of attorney's fees. 13 TWENTY -SEVENTH AFFIRMATIVE DEFENSE 14 (Custom and Standard of Work) 15 29. Cross-Defendant is informed and believes and based thereon alleges that at all 16 times relevant herein, Cross-Defendant performed its work in a workmanlike manner and within 17 the custom and standards of the relevant industry. 18 TWENTY-EIGHTH AFFIRMATIVE DEFENSE 19 (Modification of Work) 20 30. Cross-Defendant is informed and believes and based thereon alleges that Cross- 21 Complainant, Plaintiffs and/or other firms, persons, corporations, or entities retained by them, 22 have made changes, alterations and/or modifications to the alleged work performed by Cross- 23 Defendant, which conduct discharges Cross-Defendant from any liability. 24 TWENTY-NINTH AFFIRMATIVE DEFENSE 25 (Abnormal Use) 26 31. Cross-Defendant is informed and believes and based thereon alleges that the 27 property which is the subject of this action may have been used in a non-intended or abnormal 28 - - - - - - - - - - - - - -- 9 - Answer to Cross Complaint manner and thus any such damages are not as a result of any defects in, or failure of, any work 2 done by Cross-Defendant. 3 THIRTIETH AFFIRMATIVE DEFENSE 4 (Failure to Comply with Right to Repair) 5 32. Cross-Defendant is informed and believes and thereon alleges that Plaintiffs and/or 6 Cross-Complainant failed to comply with the requirements of the Right to Repair Act, including 7 Plaintiffs' and/or Cross-Complainant's failure to provide notice and opportunity to repair. This 8 answering Cross-Defendant is informed and believes and based thereon alleges that the Cross- 9 Complaint, and each alleged cause of action therein, is absolutely barred by the failure of 10 Plaintiffs and/or Cross-Complainant to comply with the requirements of the Right to Repair Act 11 including failure to give Cross-Defendant reasonable notice of any and all alleged breaches of 12 contract, breaches of warranty, defects, and/or other wrongful conduct alleged therein. 13 THIRTY-FIRST AFFIRMATIVE DEFENSE 14 (Right to Repair Defenses) 15 33. Pursuant to the Right to Repair Act Cross-Defendant states as additional 16 affirmative defenses under the Act: (a) Any and all unforeseen acts of nature in excess of the 17 design criteria expressed by the applicable building codes; (b) Homeowner's unreasonable failure 18 to minimize or prevent damages; (c) Homeowner's, or his/her agent's or employee's, failure to 19 follow recommended or commonly accepted maintenance obligations; ( d) defects caused by 20 alterations, ordinary wear and tear, misuse, abuse, or neglect; (e) defects barred by the statute of 21 limitations; (t) defects subject to a valid release; and (g) the extent that Builder's repair was 22 successful in correcting the defects. 23 THIRTY-SECOND AFFIRMATIVE DEFENSE 24 (NON-EXISTENT OBLIGATIONS) 25 34. Cross-Defendant is informed and believes and based thereon alleges that the 26 Cross-Complaint alleges obligations non-existent, not contracted for, and outside the agreement 27 of the parties, or any of them. Said actions work as a complete bar to any recovery herein. 28 -------------- - 10 - Answer to Cross Complaint 2 THIRTY-THIRD AFFIRMATIVE DEFENSE 3 (PERFORMANCE OF OBLIGATIONS) 4 35. Cross-Defendants is informed and believes and based thereon alleges that prior to 5 the commencement of this action, Cross-Defendants duly performed, satisfied, and discharged all 6 duties and obligations alleged in the Cross-Complaint arising out of any and all agreements, 7 representations, warranties or contracts made by or on behalf of Cross-Defendants, or any of 8 9 them. 10 THIRYT-FOURTH AFFIRMATIVE DEFENSE 11 (NO WARRANTIES) 12 36. Cross-Defendant is informed and believes and based thereon alleges that Cross- 13 Defendants did not make any warranties or guarantees, expressed, implied, or apparent, upon 14 which Cross-Complainant or any other person may rely. 15 THIRTY-FIFTH AFFIRMATIVE DEFENSE 16 17 (RATIFICATION) 18 37. Cross-Defendant is informed and believes and based thereon alleges that Cross- 19 Complainant approved the acts and/or omissions, if any, of Cross-Defendants and ratified the 20 same; consequently, Cross-Complainant is barred from recovery herein as against Cross- 21 Defendants. 22 THIRTY-SIXTH AFFIRMATIVE DEFENSE 23 24 (PERFORMANCE EXCUSED) 25 38. Cross-Defendant is informed and believes and based thereon alleges that any 26 failure on the part of Cross-Defendants, or any of them, to perform the obligations described in 27 the Cross-Complaint, if any, is excused by Cross-Complainant's own breach of the contract 28 -------------- - 11 - Answer to Cross Complaint and/or by reason of impossibility of performance, prevention by Cross-Complainant, frustration 2 of purpose and/or acceptance by Cross-Complainant. 3 THIRTY-SEVENTH AFFIRMATIVE DEFENSE 4 (UNCONSCIONABILITY) 5 39. Cross-Defendant is informed and believes and based thereon alleges that Cross- 6 Complainant should be prohibited from obtaining relief on its Cross-Complaint on the basis that 7 8 the terms of any contract or agreement which may have existed between Cross-Complainant and 9 Cross-Defendant and/or Cross-Complainant's acts and/or claims with respect to any such 10 contracts which may have existed, are unconscionable. 11 THIRTY-EIGHTH AFFIRMATIVE DEFENSE 12 (UNCERTAINTY) 13 40. Cross-Defendant is informed and believes and based thereon alleges that the causes 14 of action in the Cross-Complaint fail for uncertainty. 15 16 THIRTY-NINTH AFFIRMATIVE DEFENSE 17 (PREVENTION OF PERFORMANCE/INDUCEMENT OF NON-PERFORMANCE) 18 41. Cross-Defendant is informed and believes and based thereon alleges that Cross- 19 Complainant breached any and all contracts that may be found to exist with Cross-Defendants in 20 that Cross-Complainant did not timely, fully and/or adequately comply with all of the terms, 21 conditions and covenants of any such contracts that may have existed, thereby preventing Cross- 22 23 Defendant from performing and discharging any obligations on the part of Cross-Defendant. 24 FORTIETH AFFIRMATIVE DEFENSE 25 (FAILURE OF PERFORMANCE) 26 42. Cross-Defendant is informed and believes and based thereon alleges that each and 27 every cause of action in Cross-Complainant's Cross-Complaint is barred, in whole or in part, as a 28 -------------- - 12 - Answer to Cross Complaint result of Cross-Complainant's own failure to perform. 2 FORTY FIRST AFFIRMATIVE DEFENSE 3 (IMPOSSIBILITY OF PERFORMANCE) 4 43. Cross-Defendant is informed and believes and based thereon alleges that each and 5 every cause of action in Cross-Complainant's Cross-Complaint is barred, in whole or in part, 6 because performance under any contract or agreement that may have existed between Cross- 7 8 Complaint and Cross-Defendant became or has become impossible or totally impracticable 9 through no fault of these answering Cross-Defendant. 10 FORTY-SECOND AFFIRMATIVE DEFENSE 11 (ACCEPTANCE OF PERFORMANCE) 12 44. Cross-Defendant is informed and believes and based thereon alleges that each and 13 every cause of action in Cross-Complainant's Cross-Complaint is barred, in whole or in part, 14 because Cross-Complainant accepted Cross-Defendants' performance under any such contract or 15 agreement that may have existed between Cross-Complainant and Cross-Defendant. 16 FORTY-THIRD AFFIRMATIVE DEFENSE 17 (LACK OF CONSIDERATION) 18 45. Cross-Defendant is informed and believes and based thereon alleges that each and 19 every cause of action in Cross-Complainant's Cross-Complaint is barred, in whole or in part, due 20 to a lack of consideration and/or failure of consideration. Further, the contract upon which Cross- 21 Complainant bases his causes of action lacked proper consideration. 22 FORTY-FOURTH AFFIRMATIVE DEFENSE 23 (ACCORD & SATISFACTION) Z4 46. Cross-Defendant is informed and believes and based thereon alleges that each and 25 every cause of action in Cross-Complainant's Cross-Complaint is barred, in whole or in part, in 26 that there was an accord and satisfaction with regard to material terms of the alleged contracts and 27 agreements. As such, the terms of the original alleged contracts and agreements, if any, between 28 -------------- - 13 - Answer to Cross Complaint Cross-Complainant and Cross-Defendant cannot form the basis ofliability. 2 FORTY-FIFTH AFFIRMATIVE DEFENSE 3 (NOVATION) 4 47. Cross-Defendant is informed and believes and based thereon alleges that each and 5 every cause of action in Cross-Complainant's Cross-Complaint is barred, in whole or in part, in 6 that Cross-Complainant and Cross-Defendant entered into an agreement( s) which constituted a 7 novation of the alleged original contract( s), if any ever existed. As such, the terms of the original 8 alleged contract( s), if any ever existed, between Cross-Complainant and Cross-Defendant cannot 9 form the basis of liability. 10 FORTY-SIXTH AFFIRMATIVE DEFENSE 11 (AMBIGUITY AND OVERBROAD) 12 48. Cross-Defendant is informed and believes and based thereon alleges that each and 13 every cause of action in Cross-Complainant's Cross-Complaint is barred, in whole or in part, 14 because any contract that may have existed between Cross-Complainant and Cross-Defendant 15 was and is ambiguous and/or the language was so overbroad as to make the contract unintelligible 16 and/or in violation of the law. 17 FORTY-SEVENTH AFFIRMATIVE DEFENSE 18 (UNCONSCIONABILITY) 19 49. Cross-Defendant is informed and believes and based thereon alleges that Cross- 20 Complainant should be prohibited from obtaining relief on its Cross-Complaint on the basis that 21 the terms of any contract which allegedly existed between Cross-Complainant and Cross- 22 Defendant, and/or Plaintiffs' acts and claims with respect to any such contracts which allegedly 23 existed, are unconscionable. 24 FORTY-EIGHTH AFFIRMATIVE DEFENSE 25 (Additional Affirmative Defenses) 26 50. Cross-Defendant is informed and believes and based thereon alleges that because 27 the Cross-Complaint is couched in conclusory terms, Cross-Defendant cannot fully anticipate 28 - - - - - - - - - - - - - -- 14 - Answer to Cross Complaint all affirmative defenses which may be applicable to the within action. Accordingly, the right 2 to assert additional affirmative defenses, if and to the extent that such affirmative defenses 3 are applicable, is hereby reserved. 4 5 WHEREFORE, Cross-Defendant prays for judgment as follows: 6 1. That Cross-Complainant's Cross-Complaint and each cause of action thereof be 7 dismissed with prejudice; 8 2. That Cross-Complainant takes nothing by reason of its Cross-Complaint; 9 3. For costs of suit incurred herein, including reasonable attorneys' fees; and 10 4. For such other and further relief as the Court may deem proper. 11 12 13 DATED: July 15, 2022 JACOBS & DODDS 14 15 By: / Paul N. Jacobs 16 Debra A. Dodds Attorneys for Cross- Defendant Macerris Incorporated 17 18 19 20 21 22 23 24 25 26 27 28 -------------- - 15 - Answer to Cross Complaint PROOF OF SERVICE BY ELECTRONIC MAIL STATE OF CALIFORNIA ) . ss.: ) COUNTY OF ORANGE ) I am employed in the County of Orange, State of California. I am over the age of 18 and not a party to the within action; my business address is 2151 Michelson Drive, Suite 168, Irvine, California. On July