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  • Zaida Pacheco vs. 5198 Fowler, LP / COMPLEX10 Unlimited - Construction Defect document preview
  • Zaida Pacheco vs. 5198 Fowler, LP / COMPLEX10 Unlimited - Construction Defect document preview
  • Zaida Pacheco vs. 5198 Fowler, LP / COMPLEX10 Unlimited - Construction Defect document preview
  • Zaida Pacheco vs. 5198 Fowler, LP / COMPLEX10 Unlimited - Construction Defect document preview
  • Zaida Pacheco vs. 5198 Fowler, LP / COMPLEX10 Unlimited - Construction Defect document preview
  • Zaida Pacheco vs. 5198 Fowler, LP / COMPLEX10 Unlimited - Construction Defect document preview
  • Zaida Pacheco vs. 5198 Fowler, LP / COMPLEX10 Unlimited - Construction Defect document preview
  • Zaida Pacheco vs. 5198 Fowler, LP / COMPLEX10 Unlimited - Construction Defect document preview
						
                                

Preview

E-FILED Robert N. Paige (SBN 104768) 5/13/2020 3:30 PM LAW OFFICE OF PATRICKJ. CAMPBELL Superior Court of California 3880 Atherton Road County of Fresno Rocklin, CA 95765 By: M. Douangkham, Deputy Telephone: (916) 630-3803 Fax: (916) 630-3848 Email: bpaige@unitedfiregroup.com Attol for Cross-Defendants FRESNO SHOWER DOOR, INC.; R.F.M.C., INC. dba THE PATIO KINGS; TRI-VALLEY PLASTERING, INC.; ROBERT ELIA, JR. dba ELIA PAINTING; VALLEY EXCAVATION, INC.; B-F GLASS, INC. dba FRESNO SHOWER DOOR & MIRROR; CENTRAL VALLEY OVERHEAD DOOR, INC.; MV STYLE ELECTRIC, INC. SUPERIOR COURT OF CALIFORNIA. IN AND FOR THE COUNTY OF FRESNO 10 ZAIDA PACHECO; ELENA JUAREZ; LUIS CASE NO. 19CECG01330 SALDANA; ISAC ALDANA; STEVEN 11 LEWIS; KATIE LEWIS; STEVEN LOPEZ; hee Hon. Rosemary T. McGuire MICHELLE MACIAS; GLENN MARTIN; 12 MARK PRY OR; LUZ ELENA RAMIREZ; ALFRED RODRIGUEZ; INEZ RODRIGUEA; 13 SANTOSH SANGHERA; KULWINDER SINGH; RAJWINDER SINGH; JOSE LOPEZ; CENTRAL VALLEY OVERHEAD 14 REY NA LOPEZ; YVEITE ROBERTS, DOOR, INC.’S ANSWER TO 5198 FOWLER, LP’S CROSS-COMPLAINT 15 Plaintiffs, 16 Vv. 17 5198 FOWLER, LP, A CALIFORNIA LIMITED PARTNERSHIP, AND DOES 1- 18 1000, INCLUSIVE, 19 Defendants. 20 File Dates: April 18, 2019 5198 FOWLER, L.P., Trial Date: NA 21 Cross-Complainant, 22 Vv. 23 84 LUMBER COMPANY; et al. AND ROES 1 24 5 25 Cross- Defendants. 26 27 28 1 CENTRAL VALLEY OVERHEAD DOOR, INC.’S ANSWER TO 5198 FOWLER, LP’S CROSS-COMPLAINT Cross-defendant CENTRAL VALLEY OVERHEAD DOOR, INC. hereby answers the cross- complaint on file herein, and admits, denies, and alleges as follows: GENERAL DENIAL Cross-defendant denies each and every, all and singular, generally and specifically, all of the allegations contained in said cross-complaint insofar as they pertain to this answering cross- defendant, denies liability under the theories alleged or in any manner set forth in said cross- complaint, or at all, and denies that cross-complainants have suffered any injury or incurred any damage as a result of the alleged conduct of this answering cross-defendant, or at all. AFFIRMATIVE DEFENSES 10 AS AND FOR AFFIRMATIVE DEFENSES to the cross-complaint herein, this answering 11 cross-defendant alleges as follows: 12 FIRST AFFIRMATIVE DEFENSE 13 The cross-complaint, and each cause of action thereof, fails to state facts sufficient to 14 constitute a cause of action against this answering cross-defendant. 15 SECOND AFFIRMATIVE DEFENSE 16 The cross-complaint, and each cause of action thereof, is barred by the statutes of limitation 17 set forth in the Califomia Code of Civil Procedure, commencing with Section 335 and continuing 18 through 349.4, more particularly, but not limited to, the following: Section 337, Section 337.1, 19 Section 337.15, Section 338, Section 338(d), Section 339, Section 340, and Section 343; and by 20 Sections 2607(3)(a) and 2725(1) and (2) of the Uniform Commercial Code of the State of Califomia; 21 and by Section 900 and Section 941 of the Civil Code. 22 In addition to Statutes of Limitations stated herein, this party also asserts that statutory limitations for 23 specific claims made by plaintiffs are limited as described and set out under Civil Code Sections 895- 24 945.5.” 25 THIRD AFFIRMATIVE DEFENSE 26 Cross-complainant has unreasonably delayed in bringing this action to the prejudice of this 27 answering cross-defendant and is therefore barred from bringing this action by the doctrine of laches. 28 /// 2 CENTRAL VALLEY OVERHEAD DOOR, INC.’S ANSWER TO 5198 FOWLER, LP’S CROSS-COMPLAINT FOURTH AFFIRMATIVE DEFENSE Cross-complainant is at fault in and about the matters referred to in the cross-complaint, and such fault on the part of the cross-complainant is proximately caused and contributed to the damages complained of, if there were any. This answering cross-defendant further alleges that any fault not attributable to said cross-complainant were a result of fault on the part of persons and/or entities other than this answering cross-defendant. Such fault bars and/or proportionately reduces any recovery by cross-complainant against this answering cross-defendant. FIFTH AFFIRMATIVE DEFENSE Should cross-complainant recover damages from this answering cross-defendant, this 10 answering cross-defendant is entitled to indemmification, eitherin whole or in part, from all persons 11 or entities whose negligence and/or fault proximately contributed to cross-complainant’s damages, if 12 there were any. 13 SIXTH AFFIRMATIVE DEFENSE 14 Cross-complainant directed, ordered, approved and/or ratified cross-defendant’s conduct, and 15 cross-complainant is therefore estopped from asserting any claim based thereon. 16 SEVENTH AFFIRMATIVE DEFENSE 17 Cross-complainant has failed and neglected to use reasonable care to minimize and mitigate 18 the losses, injuries and damages complained of, if there were any. 19 EIGHTH AFFIRMATIVE DEFENSE 20 Prior to commencement of this action, this answering cross-defendant duly performed, 21 satisfied, and discharged all duties and obligations it may have owed to cross-complainant arising out 22 of any and all agreements, representations, or contracts made by it or on behalf of this answering 23 cross-defendant, and this action is therefore barred by the provisions of Califomia Civil Code Section. 24 1473. 25 NINTH AFFIRMATIVE DEFENSE 26 The cross-complaint, and each cause of action thereof, is barred by the following provisions 27 of the Uniform Commercial Code: Sections 1201(25(c), 2601, 2602(1), 2513(1) and (3), 2510(1), 28 2605(1)(a) and (b), 2607, 2715(2)(a) and 2719(3). 3 CENTRAL VALLEY OVERHEAD DOOR, INC.’S ANSWER TO 5198 FOWLER, LP’S CROSS-COMPLAINT TENTH AFFIRMATIVE DEFENSE The cross-complaint, and each cause of action thereof, fails to state a cause of action against this answering cross-defendant as there is no privity between cross-complainant and this answering cross-defendant. ELEVENTH AFFIRMATIVE DEFENSE Cross-complainant acted with full knowledge of all of the facts and circumstances sumounding its alleged injuries and damages, and thus assumed the risk of its injuries and damages, if there were any. TWELFTH AFFIRMATIVE DEFENSE 10 The cross-complaint, and each alleged cause of action appearing therein, fails to state facts, or 11 to allege claims, which would impose joint and several liability for any of the damages claimed by 12 any party against this answering cross-defendant. Any liability of this answering cross-defendant, 13 which liability is expressly denied, would therefore be limited to those injuries, losses or damages, if 14 there were any, was a primary contributing factor. 15 THIRTEENTH AFFIRMATIVE DEFENSE 16 The cross-complaint, and each alleged cause of action therein, is absolutely barred by the 17 provisions of Civil Code Sections 1474, 1475, 1476, 1477 and each of them. 18 FOURTEENTH AFFIRMATIVE DEFENSE 19 The cross-complaint, and each alleged cause of action therein, fails to state facts sufficient to 20 constitute a cause of action for indemnity or contribution based on strict liability. 21 FIFTEENTH AFFIRMATIVE DEFENSE 22 The cross-complaint, and each alleged cause of action therein, fails to state facts sufficient to 23 constitute a cause of action for breach of implied warranty against this answering cross-defendant. 24 SIXTEENTH AFFIRMATIVE DEFENSE 25 The cross-complaint, and each alleged cause of action therein, is barred by the equitable 26 principle of waiver, in that cross-complainants, by virtue of its conduct and its agents’ conduct 27 toward this cross-defendant and its predecessors-in-interest and others, undertaken with full 28 4 CENTRAL VALLEY OVERHEAD DOOR, INC.’S ANSWER TO 5198 FOWLER, LP’S CROSS-COMPLAINT knowledge of the action complained of in the subject pleadings, has relinquished and waived any Tight to assert any of the claims upon which cross-complainant now seek. SEVENTEENTH AFFIRMATIVE DEFENSE The cross-complaint, and each alleged cause of action therein, is barred by the equitable puinciple of estoppel, in that cross-complainants, by the acts and omissions of itself and its agents, which were justifiably relied on by cross-defendants and its predecessors-in-interest, is estopped from asserting any of the claims upon which it now seeks relief. EIGHTEENTH AFFIRMATIVE DEFENSE Cross-complainant accepted all of the work performed by this answering cross-defendant 10 and/or its subcontractors, and is therefore barred from seeking any recourse against this cross- 11 defendant and/or its surety. 12 NINETEENTH AFFIRMATIVE DEFENSE 13 Cross-defendant duly performed, satisfied, and discharged all duties and obligations it may 14 have owed to the cross-complainant and/or cross-complainant arising out of any and all agreements, 15 representations, or contracts made by it or on behalf of this answering Cross- Defendant pursuant to 16 the novations reached between this cross-defendant and cross-complainant and this action is therefore 17 barred by the provisions of Califomia Civil Code Sections 1530 and 1531. 18 TWENTIETH AFFIRMATIVE DEFENSE 19 Cross-defendant duly performed, satisfied and discharged all duties and obligations it may 20 have owed to the cross-complainant arising out of any and all agreements, representations, or 21 contracts made by it or on behalf of this answering cross-defendant which were subsequently 22 accepted, fully executed, and therefore satisfied pursuant to the provisions of Califomia Civil Code 23 Sections 1521, 1522, 1523, and 1524. 24 TWENTY-FIRST AFFIRMATIVE DEFENSE 25 Cross-defendant duly performed, satisfied, and discharged all duties and obligations it may 26 have owed to the Cross-Complainant arising out of any and all agreements, representations, or 27 contracts made by it or on behalf of this answering cross-defendant pursuant to the releases between. 28 said parties as provided by Califomia Civil Code Section 1541. 5 CENTRAL VALLEY OVERHEAD DOOR, INC.’S ANSWER TO 5198 FOWLER, LP’S CROSS-COMPLAINT TWENTY-SECOND AFFIRMATIVE DEFENSE Cross-defendant alleges that it received no notice of breach of warranty, if any there was, as required by law. TWENTY -THIRD AFFIRMATIVE DEFENSE Cross-defendant alleges that cross-defendant presently has insufficient knowledge or information on which forma belief as to whether it may have additional, as yet unstated, affirmative defenses available. Cross-defendant reserves herein the right to assert additional defenses in the event that discovery indicates that they would be appropriate. TWENTY -FOURTH AFFIRMATIVE DEFENSE 10 Cross-defendant alleges no contract was created and/or provisions of the contract are void. 11 and/or voidable because said cross-defendant was subjected to duress, menace, fraud, undue 12 influence, and/or mistake, by said cross-complainant. Said cross-defendant alleges that cross- 13 complainant used its position of real or apparent authority for the purpose of obtaining an unfair 14 advantage and unequal bargaining power over cross-defendant, thereby inducing cross-defendant, 15 under duress, menace, fraud, undue influence, and/or mistake, to consent to the contract and denying 16 cross-defendant negotiation and meaningful choice. Were it not for cross-complainant’s improper 17 acts, cross-defendant would not have consented to the contract. The agreements are procedurally 18 unconscionable due to oppression and/or surprise. The agreements are substantively unconscionable 19 due to lack of mutuality. 20 TWENTY -FIFTH AFFIRMATIVE DEFENSE 21 This party contends that Plaintiff homeowners have failed to comply with the provisions of 22 CC 907, CC 944, and 945.5 in maintaining and repairing their property and in allowing builder and/or 23 others to repair or fix the alleged conditions. 24 TWENTY -SIXTH AFFIRMATIVE DEFENSE 25 This party contends that the action was not brought timely under the provisions of CC 896 26 and/or that others have failed to perform their obligations for construction as set out in CC 896 and. 27 thus their actions have impacted on this party and this party contends they are not responsible for 28 those violations. 6 CENTRAL VALLEY OVERHEAD DOOR, INC.’S ANSWER TO 5198 FOWLER, LP’S CROSS-COMPLAINT TWENTY -SEVENTH AFFIRMATIVE DEFENSE This party asserts that owners and/or developer and/or general contractor has failed to comply with the requirements for causes of actions on homes constructed after January 1, 2003 under Cal Civil Code Sections 895- 945.5 and that damages are limited as set out under Cal Civil Code Sections 896 through 945.5. TWENTY-EIGHTH AFFIRMATIVE DEFENSE If it is contended that any contract obligations claimed against this party were entered into after January 1, 2009, this party asserts that proper tender to undertake defense of obligations of a subcontractor under CC 2782 have not been made and this answering party reserves all rightsto 10 undertake the defense as set out in C.C. 2782 to undertake that defense under the conditions set forth 11 therein. This party also asserts any rights to choose the type of defense to be undertaken as set out 12 under CC 2782, if complaining party sets out a proper tender to undertake defense. This party also 13 asserts their rights to attomeys’ fees and costs for failure of others to comply with the provisions of 14 that statute and as the statute allows. Further under this Code Section (CC2782) this party asserts the 15 rights for indennity as provided by this statute. 16 TWENTY-NINTH AFFIRMATIVE DEFENSE 17 This answering party asserts that the contracting party either replaced an obligation or 18 obligations in the contract with a new obligation and/or obligations, creating a novation of the 19 original obligation and thus transferring that obligation to a new party. Under this novation some or 20 all duties and obligations under the novation process were transferred from the original obligor to a 21 new obligor. This party also asserts that evidence may exist that an assignment of obligations under 22 the contract existed during the time that the obligee was receiving the benefit of the contractual 23 bargain, and notice of such assignment was given and thus obligations and duties may have existed 24 with parties other than this answering defendant. 25 THIRTIETH AFFIRMATIVE DEFENSE 26 Cross- Defendant asserts the right to raise other affirmative defenses as they become 27 ascertained. 28 7 CENTRAL VALLEY OVERHEAD DOOR, INC.’S ANSWER TO 5198 FOWLER, LP’S CROSS-COMPLAINT WHEREFORE, cross-defendant prays that cross-complainant take nothing by this action and that cross-defendant be awarded costs and all further relief that the court deems just and proper. DATED: May 13, 2020 LAW OFFICE OF PATRICKJ. CAMPBELL By: Ke => 23 ROBERT N. PAIGE Attomey for Cross-Defendant CENTRAL VALLEY OVERHEAD DOOR, INC. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8 CENTRAL VALLEY OVERHEAD DOOR, INC.’S ANSWER TO 5198 FOWLER, LP’S CROSS-COMPLAINT Re: Pacheco, et al. v. 5198 Fowler, LP Fresno County Superior Court, Case Number: 19CECG01330 PROOF OF E-SERVICE — C.R.C., Rule 2.251 I declare that I am employed in the County of Placer, California. I am over the age of eighteen years and am not a party to the within cause. My business address is 3880 Atherton Road, Rocklin, CA 95765. My e-mail address is mmorgan@unitedfiregroup.com. Pursuant to the Case Management Order on file in this matter, on the date last written below, I instituted service of the foregoing document(s) described as CENTRAL VALLEY OVERHEAD DOOR, INC.’S ANSWER TO 5198 FOWLER, LP’S CROSS-COMPLAINT on all parties listed on the service list maintained through File & Serve Xpress as of the below 10 stated date by: i 12 XXX Submitting an electronic version of the document(s) through the upload 13 feature at File & Serve Xpress and that the transmission was reported as complete 14 and without error. A copy of the File & Serve Xpress filing receipt will be 15 maintained with the document in our file. 16 17 I declare under penalty of perjury under the laws of the State of California, that the 18 | foregoing is true and correct, and that this declaration was executed on May 13 , 2020, at 19 Placer County, California. 20 oO ) 21 eC MARY MORGAN 22 23 24 25 26 27 28