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
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Cross-Complainant,
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Vv.
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84 LUMBER COMPANY; et al. AND ROES 1
24 5
25 Cross- Defendants.
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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
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AS AND FOR AFFIRMATIVE DEFENSES to the cross-complaint herein, this answering
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cross-defendant alleges as follows:
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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.
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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).
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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
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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.
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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.
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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.
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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 =>
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ROBERT N. PAIGE
Attomey for Cross-Defendant
CENTRAL VALLEY OVERHEAD DOOR, INC.
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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
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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.
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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.
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MARY MORGAN
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