Answer: SATOOSH, LLC VS. MATAROZZI / PELSINGER BUILDERS, INC. ET AL

• 
• 
• 
• 
• 
• 
• 
• 

						
                                
Preview
                                1 ELGUINDY, MEYER & KOEGEL, APC
   BENJAMIN D. KOEGEL, State Bar Number 266308
 2    bkoegel@emklawyers.com                                          ELECTRONICALLY
 3
   W. PATRICK CRONICAN, State Bar Number 300645                           FILED
      pcronican@emklawyers.com                                        Superior Court of California,
                                                                       County of San Francisco
 4 2990 Lava Ridge Court, Suite 205
   Roseville, CA 95661                                                    06/04/2020
                                                                       Clerk of the Court
 5 Telephone: (916) 778-3310                                             BY: EDWARD SANTOS
   Facsimile: (916) 330-4433                                                       Deputy Clerk
 6

 7 Attorneys for Cross-Defendant
   NORDBY WINE CAVES, INC.
 8

 9                   SUPERIOR COURT OF THE STATE OF CALIFORNIA

10                               COUNTY OF SAN FRANCISCO

11

12 SATOOSH, LLC, a California limited liability,    Case No.: CGC-19-578072

13                Plaintiffs,
                                                CROSS-DEFENDANT NORDBY WINE
14 vs.
                                                CAVE, INC.’S ANSWER TO CROSS-
15 MATAROZZI/PELSINGER BUILDERS, INC., COMPLAINANT BERKELEY ROOF
                                                SERVICES, INC.’s CROSS-COMPLAINT
16 a California corporation, and DOES 1 through
   100, inclusive,
17                                              FILED:   July 31, 2019
                   Defendants.
18                                              TRIAL:   Not Set
   MATAROZZI/PELSINGER BUILDERS, INC.,
19 a California corporation,
20               Cross-Complainant,
21
     vs.
22
     INNOVATIVE MECHANICAL, INC., a
23   California Corporation; PLUM BWORKS, INC.,
     a California Corporation; R&S ERECTION OF
24   SAN MATEO, INC., a California Corporation;
     QUANTUM WINDOWS & DOORS, INC., a
25   Washington corporation; KS CHANNI NG
26   ROAD ELECTRIC, INC., a California
     Corporation; ACME HOME ELEVATOR, INC.,
27   a California Corporation; BERKELEY ROOF
     SERVICES, INC., a California Corporation;
28   FIRST, LAST AND ALWAYS, a sole
     proprietorship; RA DONI CH ENTERPRISES,
                                                1
                                   ANSWER TO CROSS-COMPLAINT
 1 INC. DBA WILDCAT METALS, a California
   Corporation; WA LLCOVERI NG DESIGNS,
 2 INC., a California Corporation; SDI
   INSULATION, INC., a California Corporation;
 3
   BARCEVVSKI INC. DBA SUNSHINE
 4 CONSTRUCTION, a California Corporation;
   (VARY MANAGEMENT COMPANY dba
 5 RENAISSANCE STONE CARE &
   WATERPROOFING, a California Corporation;
 6 NORDBY WINE CAVES INC., a California

 7 Corporation; EBY CONSTRUCTION INC., a
   California Corporation; MOES 1 through 500,
 8 inclusive,

 9               Cross-Defendants.

10 BERKELEY ROOF SERVICES, INC., a
   California corporation,
11
                  Cross-Complaint,
12

13 vs.

14 MATAROZZI/PELSINGER BUILDERS, INC.;
   INNOVATIVE MECHANICAL, INC.;
15 PLUMBWORKS, INC.; KS CHANNING
   ROAD ELECTRIC, INC.; ACME HOME
16 ELEVATOR, INC.; FIRST LAST AND

17 ALWAYS; WALLCOVERING DESIGNS,
   INC.; RADONICH ENTERPRISES, INC. dba
18 WILDCAT METALS; BARCEWSKI, INC. dba
   SUNSHINE CONSTRUCTION, INC.; SDI
19 INSULATION INC.; NORDBY WINE CAVES,
   INC.; EBY CONSTRUCTION, INC.; IVARY
20 MANAGEMENT COMPANY dba

21 RENAISSANCE STONE CARE &
   WATERPROOFING; and ROES 1 through 25,
22 inclusive,

23 Cross-Defendants.

24

25         COMES NOW, Cross-Defendant NORDBY WINE CAVES, INC. (hereinafter

26 “NORDBY”), and responds to Cross-Complainant BERKELEY ROOF SERVICES, INC.’s

27 (“BERKELEY”) Cross-Complaint (hereinafter the “Cross-Complaint”) as follows:

28
     ///

                                                 2
                                  ANSWER TO CROSS-COMPLAINT
 1                                         GENERAL DENIAL

 2          1.      Pursuant to California Code of Civil Procedure § 431.30, NORDBY denies,

 3 generally and specifically, each and every allegation contained in the Cross-Complaint, and the

 4 whole thereof, and each and every alleged cause of action therein, and denies that BERKELEY

 5 sustained damages as alleged by reason of any alleged act, breach or omission on the part of

 6 NORDBY.

 7                                     AFFIRMATIVE DEFENSES

 8                                 FIRST AFFIRMATIVE DEFENSE

 9          2.      Failure to State a Claim. The Cross-Complaint, and each and every purported
10 count and cause of action therein, fails to state a claim for which relief can be granted against

11 NORDBY.

12                                SECOND AFFIRMATIVE DEFENSE

13          3.      Statute of Limitations. NORDBY alleges that the causes of action set forth in the

14 Cross-Complaint are barred by the applicable statute of limitations, including but not limited to,

15 Code of Civil Procedure §§ 337(1), 337(2), 337(3), 337.1(a), 337.1(b), 337.15, 338(a), 338(b),

16 338(c), 338(d), 338(g), 338(h), 338(i), 338(j), 338(k), 338(l), 338(m), 339(1), 339(2), 339(3),

17 340(1), 340(2), 340(3), 340(5), 343 and California Civil Code §§ 896, et seq.

18                                 THIRD AFFIRMATIVE DEFENSE

19          4.      Failure to Mitigate. BERKELEY, though under a duty to do so, has failed and
20 neglected to mitigate its alleged damages, and therefore, cannot recover against NORDBY,

21 whether as alleged or otherwise.

22                                FOURTH AFFIRMATIVE DEFENSE

23          5.      Contribution. NORDBY alleges that the damages suffered by BERKELEY, if any,

24 were the direct and proximate result of the negligence of parties, persons, corporations and/or

25 entities other than NORDBY, and that the liability of NORDBY, if any, is limited in direct

26 proportion to the percentage of fault actually attributable to NORDBY.

27 / / /

28 / / /

                                                      3
                                      ANSWER TO CROSS-COMPLAINT
 1                                 FIFTH AFFIRMATIVE DEFENSE

 2          6.      Contributory Negligence. NORDBY is informed and believes and based thereon

 3 alleges that at all times mentioned herein BERKELEY was negligent, careless, reckless and

 4 unlawfully conducted themselves so as to directly and proximately contribute to the happening of

 5 the incident and the occurrence of the alleged damages, all of which said negligence bars either

 6 completely or partially the recovery sought by MATAROZZI.

 7                                 SIXTH AFFIRMATIVE DEFENSE

 8          7.      Estoppel. NORDBY is informed and believes and based thereon alleges that

 9 BERKELEY engaged in conduct and activities with respect to the subject of this litigation, and by
10 reason of said activities and conduct is estopped from asserting any claims for damages or seeking

11 any other relief against NORDBY.

12                               SEVENTH AFFIRMATIVE DEFENSE

13          8.      Waiver. NORDBY is informed and believes and based thereon alleges that

14 BERKELEY engaged in conduct and activities sufficient to constitute a waiver of any alleged

15 breach of duty, negligence, act, omission, or any other conduct, if any, as set forth in the Cross-

16 Complaint.

17                                EIGHTH AFFIRMATIVE DEFENSE

18          9.      Intervening/Superseding Causes. NORDBY is informed and believes and based

19 thereon alleges that the injuries and damages of which BERKELEY complains were proximately
20 caused by or contributed to by the acts of other Defendants, Cross-Defendants, persons, and/or

21 entities, and that said acts were an intervening and superseding cause of the injuries and damages,

22 if any, of which BERKELEY complains, thus barring BERKELEY from any recovery against

23 NORDBY.

24                                 NINTH AFFIRMATIVE DEFENSE

25          10.     Assumption of the Risk. NORDBY alleges that BERKELEY expressly,

26 voluntarily, and knowingly assumed all risks about which it complains in its Cross-Complaint, and

27 therefore, is barred either totally or to the extent of said assumption from recovering any damages.

28 / / /

                                                      4
                                      ANSWER TO CROSS-COMPLAINT
 1                                 TENTH AFFIRMATIVE DEFENSE

 2          11.     Laches. BERKELEY waited an unreasonable period of time before asserting its

 3 claims, if any, against NORDBY and are thereby barred from now asserting such claims under the

 4 doctrine of laches.

 5                              ELEVENTH AFFIRMATIVE DEFENSE

 6          12.     Unclean Hands. BERKELEY is barred by the equitable doctrine of unclean hands

 7 from obtaining the relief requested.

 8                               TWELFTH AFFIRMATIVE DEFENSE

 9          13.     Conduct was Justified. The conduct of NORDBY in regard to the matters alleged
10 in the Cross-Complaint were justified, and by reason of the foregoing, BERKELEY is barred from

11 any recovery against NORDBY.

12                             THIRTEENTH AFFIRMATIVE DEFENSE

13          14.     Complete Performance. NORDBY has appropriately, completely and fully

14 performed and discharged any and all obligations and legal duties arising out of the matters

15 alleged in the Cross-Complaint.

16                            FOURTEENTH AFFIRMATIVE DEFENSE

17          15.     Comparative Fault of Third Parties. NORDBY is informed and believes and based

18 thereon alleges that the incident and injuries, if any, suffered by BERKELEY was proximately

19 caused and contributed to by the negligence of third parties and that said third parties failed to
20 exercise reasonable care at and prior to the time of said damages, and by reason thereof any

21 recovery by BERKELEY against NORDBY must be reduced by an amount equal to the

22 proportionate fault of said third parties.

23                              FIFTEENTH AFFIRMATIVE DEFENSE

24          16.     Lack of Equity. As between NORDBY and BERKELEY, the equities do not

25 preponderate in favor of MATAROZZI so as to allow recovery.

26                              SIXTEENTH AFFIRMATIVE DEFENSE

27          17.     Acts of God. NORDBY is informed and believes and based thereon alleges that

28 any and all injuries, losses or damages, if any, were the direct and proximate result of an

                                                      5
                                       ANSWER TO CROSS-COMPLAINT
 1 unavoidable incident or condition, and as such, were an act of God, without fault or liability on the

 2 part of NORDBY.

 3                            SEVENTEENTH AFFIRMATIVE DEFENSE

 4          18.     Standard of Care. NORDBY is informed and believes and based thereon alleges

 5 that BERKELEY is barred and precluded from any recovery in this action because NORDBY at

 6 all times complied with the applicable standard of care required at the applicable time and

 7 location.

 8                             EIGHTEENTH AFFIRMATIVE DEFENSE

 9          19.     Failure to Notify. NORDBY is informed and believes and based thereon alleges
10 that if any defects or inadequacies exist in the work performed by it or on its behalf, which it

11 denies, then BERKELEY failed to timely notify NORDBY of such condition and failed to give

12 NORDBY timely opportunity to cure such conditions. Furthermore, NORDBY is informed and

13 believes and based thereon alleges that at no time prior to the filing of this action, did

14 BERKELEY or any agent, member, representative or employee(s) thereof, notify NORDBY of

15 any breach of any contract, warranty or duty to BERKELEY. By reason of said failure to notify,

16 BERKELEY is barred from any alleged right of recovery from NORDBY.

17                             NINETEENTH AFFIRMATIVE DEFENSE

18          20.     Standing. NORDBY is informed and believes and based thereon alleges that

19 BERKELEY has no standing to assert its Cross-Complaint, or any causes of action therein, against
20 NORDBY.

21                              TWENTIETH AFFIRMATIVE DEFENSE

22          21.     No Privity. NORDBY is informed and believes and based thereon alleges that

23 BERKELEY lacks privity to assert its Cross-Complaint, or any causes of action therein, against

24 NORDBY.

25                            TWENTY-FIRST AFFIRMATIVE DEFENSE

26          22.     Lack of Consideration. NORDBY is informed and believes and based thereon

27 alleges that the Cross-Complaint and separate causes of action therein are barred for lack of

28 consideration.

                                                       6
                                       ANSWER TO CROSS-COMPLAINT
 1                         TWENTY-SECOND AFFIRMATIVE DEFENSE

 2          23.    State of the Art. NORDBY is informed and believes that the subject property

 3 conformed to generally accepted industry standards and was safe for its intended use. At all

 4 relevant times, the subject property conformed to the “state of the art” in the industry, and

 5 NORDBY should not be held liable for any unknown and undiscoverable dangers allegedly

 6 associated with the property.

 7                           TWENTY-THIRD AFFIRMATIVE DEFENSE

 8          24.    Investigation Fees. NORDBY is informed and believes and based thereon alleges

 9 that BERKELEY has failed to allege facts sufficient for recovery of investigative expenses and are
10 therefore not entitled to recover said expenses in prosecuting any cause of action contained in the

11 Cross-Complaint.

12                         TWENTY-FOURTH AFFIRMATIVE DEFENSE

13          25.    Unjust Enrichment. NORDBY is informed and believes and based thereon alleges

14 that the Cross-Complaint, and each cause of action contained therein, is barred by the doctrine of

15 unjust enrichment, and that BERKELEY would be unjustly enriched by the requested relief.

16                           TWENTY-FIFTH AFFIRMATIVE DEFENSE

17          26.    Misuse of Product. NORDBY is informed and believes and based thereon alleges

18 that BERKELEY’s damages arising from the incident sued upon herein resulted from misuse of

19 the subject construction and products incorporated therein. The misuse was not reasonably
20 foreseeable to NORDBY before the time of construction of the improvements at issue or at any

21 time prior to the manifestation of the alleged defects. Said misuse totally bars and proportionately

22 reduces any ultimate recovery against NORDBY.

23                           TWENTY-SIXTH AFFIRMATIVE DEFENSE

24          27.     Rescission. NORDBY is informed and believes and based thereon alleges that any

25 and all contracts to which BERKELEY and NORDBY were parties were mutually rescinded,

26 thereby precluding any breach thereof.

27 / / /

28 / / /

                                                      7
                                      ANSWER TO CROSS-COMPLAINT
 1                        TWENTY-SEVENTH AFFIRMATIVE DEFENSE

 2          28.    Failure of Performance. NORDBY is informed and believes and based thereon

 3 alleges that at all times alleged in the Cross-Complaint, BERKELEY failed to perform its duties

 4 and obligations under any agreement, oral or written, with NORDBY, and such acts or omissions

 5 bar BERKELEY’s recovery herein.

 6                         TWENTY-EIGHTH AFFIRMATIVE DEFENSE

 7          29.    Discharged Duties. NORDBY is informed and believes and based thereon alleges

 8 that prior to the commencement of this action, NORDBY duly paid, satisfied and discharged all

 9 duties and obligations they owed to BERKELEY arising out of any and all agreements,
10 representations or contracts made by or on behalf of NORDBY.

11                          TWENTY-NINTH AFFIRMATIVE DEFENSE

12          30.    Modification of Properties. NORDBY is informed and believes and based thereon

13 alleges that BERKELEY, and others, modified, altered and changed the property and that such

14 changes proximately caused the injuries, losses and damages complained of, if any.

15                             THIRTIETH AFFIRMATIVE DEFENSE

16          31.    Failure to Name Indispensable Parties. NORDBY is informed and believes and

17 based thereon alleges that BERKELEY has failed to name indispensable parties in its Cross-

18 Complaint and have further split causes of action, in that BERKELEY has been reimbursed for a

19 portion of its claimed damages by a third party and have subrogated that third party to a portion of
20 BERKELEY’s damages claimed herein, and by reason of which BERKELEY is barred from

21 recovery herein.

22                           THIRTY-FIRST AFFIRMATIVE DEFENSE

23          32.    Lack of Justifiable Controversy. NORDBY is informed and believes and based

24 thereon alleges that the Cross-Complaint was brought without reasonable care and without a good

25 faith belief that there is a justifiable controversy against NORDBY, and that BERKELEY is

26 therefore responsible for NORDBY’s necessary and reasonable defense costs, including attorneys’

27 fees, as more particularly set forth in California Code of Civil Procedure § 1038.

28 / / /

                                                     8
                                      ANSWER TO CROSS-COMPLAINT
 1                          THIRTY-SECOND AFFIRMATIVE DEFENSE

 2          33.    Accord and Satisfaction. NORDBY is informed and believes and based thereon

 3 alleges that BERKELEY and/or other parties or individuals have engaged in conduct and actions

 4 to constitute an accord and satisfaction concerning the obligations, conduct or acts at issue in the

 5 Cross-Complaint, barring recovery from NORDBY.

 6                           THIRTY-THIRD AFFIRMATIVE DEFENSE

 7          34.    Novation. NORDBY is informed and believes and based thereon alleges that

 8 BERKELEY and/or other parties or individuals have engaged in conduct and actions to constitute

 9 a novation concerning the obligations, conduct or acts as set forth in the Cross-Complaint, barring
10 recovery from NORDBY.

11                          THIRTY-FOURTH AFFIRMATIVE DEFENSE

12          35.    Impracticality. NORDBY is informed and believes and based thereon alleges that

13 BERKELEY and/or other parties or individuals have engaged in conduct and actions to render the

14 obligations, conduct or acts set forth in the Cross-Complaint impracticable by NORDBY, barring

15 recovery from NORDBY.

16                           THIRTY-FIFTH AFFIRMATIVE DEFENSE

17          36.    Offset. NORDBY is informed and believes and based thereon alleges that

18 BERKELEY’s recovery, if any, must be offset to the extent NORDBY expended money

19 conducting repairs to address the obligations, conduct or acts at issue in the Cross-Complaint.
20                           THIRTY-SIXTH AFFIRMATIVE DEFENSE

21          37.    Other Actions Pending. NORDBY is informed and believes and based thereon

22 alleges that BERKELEY may not pursue this action because there is another action pending

23 between the same parties and involving the same issues.

24                         THIRTY-SEVENTH AFFIRMATIVE DEFENSE

25          38.    Economic Loss Doctrine. NORDBY is informed and believes and based thereon

26 alleges that BERKELEY is precluded from recovery of some, if not all, of the alleged damages

27 based upon the Economic Loss Doctrine.

28 / / /

                                                      9
                                      ANSWER TO CROSS-COMPLAINT
 1                         THIRTY-EIGHTH AFFIRMATIVE DEFENSE

 2          39.    Reservation. NORDBY presently has insufficient knowledge or information upon

 3 which to form a belief as to whether they may have additional, as yet unstated affirmative defenses

 4 available. NORDBY reserves herein the right to assert additional defenses in the event that

 5 discovery indicates that they would be appropriate.

 6          WHEREFORE, NORDBY prays as follows:

 7          1.     That BERKELEY take nothing by way of its Cross-Complaint;

 8          2.     NORDBY be awarded its costs of suit incurred herein;

 9          3.     If liability is assessed upon NORDBY, then the liability attributed to NORDBY be
10 limited in direct proportion to the percentage of fault actually attributable to NORDBY; and

11          4.     For such other and further relief as the Court deems just and proper.

12

13 Dated: June 4, 2020                      Respectfully submitted,

14                                          ELGUINDY, MEYER & KOEGEL, APC
15

16
                                            By:
17                                               Benjamin D. Koegel, Esq.
                                                 W. Patrick Cronican, Esq.
18                                          Attorneys for Cross-Defendant NORDBY WINE
19                                          CAVES, INC.

20

21

22

23

24

25

26

27

28

                                                    10
                                     ANSWER TO CROSS-COMPLAINT
 1                                        PROOF OF SERVICE

 2        I am employed in the County of Placer, State of California. I am over the age of 18 and
   am not a party to the within action. My business address is 2990 Lava Ridge Court, Suite 205,
 3 Roseville, CA 95661.

 4
            On June 4, 2020, I served the within document(s) described as:
 5
       CROSS-DEFENDANT NORDBY WINE CAVE, INC.’S ANSWER TO CROSS-
 6 COMPLAINANT BERKELEY ROOF SERVICES, INC.’s CROSS-COMPLAINT

 7          On each interest party in this action as state below:
 8                                  SEE ATTACHED SERVICE LIST
 9         BY ELECTRONIC TRANSMISSION: I caused all of the above-entitled document(s)
10 to be served through File & ServeXpress addressed to all parties appear on the File & ServeXpress
   electronic service list by selection the individual recipients on the File & ServeXpress website on
11 the date executed below. The file transmission was reported as complete and a copy of the filing
   receipt page will be maintained with the original document(s) in our office.
12
           I declare under penalty of perjury under the laws of the State of California that the
13 foregoing is true and correct.

14
            Executed on June 4, 2020, at Roseville, California.
15

16
                                                     ________________________________________
17                                                   Judith Maranski
18

19
20

21

22

23

24

25

26

27

28
                                                       1
                                             PROOF OF SERVICE