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BREMER WHYTE BROWN & O’MEARA LLP E-FILED
Daniel A. Crespo, State Bar No. 234087 5/20/2020 659 PM
dcresp0@bremerwhyte.com Superior Court of California
Ava Vahdat, State Bar N0. 318468 County of Fresno
avahdat@bremerwhyte.com By: M. Douangkham, Deputy
21215 Burbank Boulevard
Suite 500
Woodland Hills, California 9 l 367
Telephone: (8 1 8) 7 1 2-9800
Facsimile: (8 1 8) 7 1 2-9900
Attorneys for Cross—Defendant,
CALIFORNIA TRUSFRAME, LLC (sued and served as
ROE 203, ROE 303)
SUPERIOR COURT 0F THE STATE OF CALIFORNIA
10 COUNTY 0F FRESNO
11
12 ZAIDA PACHECO, et al., ) Case N0. 19CECG01330
)
13 Plaintiffs, ) CALIFORNIA TRUSFRAME, LLC’S
) ANSWER T0 THE CROSS-
14 Vs. ) COMPLAINT 0F 5198 FOWLER, L.P.
)
15 5198 FOWLER, L.P, a California Limited ) Complaint Filed: April 18, 2019
Partnership; and DOES 1-1000, inclusive, )
16 )
Defendants. )
17 )
18 3
AND RELATED CROSS-ACTIONS. )
19 )
20 Cross-Defendant, CALIFORNIA TRUSFRAME, LLC (sued and served as ROE 203, ROE
21 303, hereinafter “Cross-Defendant”), for itself and no others, hereby responds t0 the Cross-
22 Complaint of 5198 FOWLER, L.P (hereinafter “Cross-Complainant”) as follows:
23 GENERAL DENIAL
24 1. By Virtue 0f the provisions 0f California Code 0f Civil Procedure section 431 .30,
25 Cross-Defendant denies, generally and specifically, each and every allegation contained in Cross—
26 Complainants’ Cross-Complaint, and the whole thereof, and further denies that as a proximate
27 result of any conduct on the part 0f this answering Cross-Defendant, that Cross-Complainants have
28
BREMER WHYTE BROWN
81
O'MEARA LLP
21215 Burbank Blvd.
Suite 500
Wood‘and HiHs, CA 91367
CALIFORNIA TRUSFRAME, LLC’S ANSWER TO THE CROSS-COMPLAINT OF 5198 FOWLER, L.P,
{B18} 71279800
1428.1084815-9497-2348‘l
sustained damages in the sums alleged, or in any sum, orat all, by reason of any act, breach or
omission 0n the part 0f Cross—Defendant or 0n the part of any agent, servant, representative,
employee, predecessor or successor 0f Cross-Defendant.
FIRST AFFIRMATIVE DEFENSE
(Failure to State a Cause of Action)
2. The Cross-Complaint fails to state facts sufficient t0 constitute a cause 0f action
upon which relief can be granted against Cross—Defendant. The Cross—Complaint also seeks relief
against Cross-Defendant that is not properly recoverable by Cross—Complainants. Cross-
Complainants are therefore barred from any recovery against Cross—Defendant.
10 SECOND AFFIRMATIVE DEFENSE
11 (Statutes 0f Limitations)
12 3. Cross-Complainants’ Cross—Complaint and the allegations contained therein are
13 barred 0r diminished, in whole or in part, by the applicable statutes 0f limitations, including, but
14 not limited to, California Code 0f Civil Procedure sections 337(1) and (2), 337.1, 337.15, 338, 339,
15 340 and 343.
16 THIRD AFFIRMATIVE DEFENSE
17 (Unclean Hands)
18 4. Cross-Complainants, through their conduct, acts and omissions, is barred by the
19 doctrine of unclean hands from recovering any damages or other relief herein against Cross-
20 Defendant.
21 FOURTH AFFIRMATIVE DEFENSE
22 (Estoppel)
23 5. Cross-Complainants, through their conduct, acts and omissions, is estopped from
24 asserting or recovering under any of their causes of actions alleged against Cross—Defendant in the
25 Cross-Complaint because 0f its own conduct at the subj ect properties at issue in this action. Cross-
26 Defendant alleges that Cross—Complainants knew or should have known of the damages claimed in
27 their Cross-Complaint but failed to take any corrective measures and failed to notify any other
28 party of the need for such corrective measures, thereby estopping Cross—Complainants from
BREMER WHYTE BROWN
81
O’MEARA LLP
21215 Burbank Blvd.
2
Suite 500 CALIFORNIA TRUSFRAME, LLC’S ANSWER TO THE CROSS-COMPLAINT OF 5 198 FOWLER,
Woodland Hills, CA 91367
L.P.
(818) 71279800
1428.1084815—9497-2348.1
claiming damages as a result 0f these purported conditions, defects or otherwise, if any there be.
FIFTH AFFIRMATIVE DEFENSE
(Waiver)
6. Cross-Complainants, through their conduct, acts and omissions, has waived its
causes 0f action and recovery against Cross—Defendant alleged in their Cross—Complaint.
SIXTH AFFIRMATIVE DEFENSE
(Laches)
7. Cross-Complainants’ claims alleged in their Cross—Complaint against Cross-
Defendant isbarred or diminished by the doctrine 0f laches.
10 SEVENTH AFFIRMATIVE DEFENSE
11 (Failure t0 Mitigate)
12 8. Without peril t0 Cross-Defendant’s denial 0f the existence of every alleged defect
13 and claimed damage, Cross-Defendant alleges that Cross-Complainants, while knowing 0f the
14 purported defects and damages complained 0f, if any there be, failed t0 undertake t0 mitigate its
15 damages and/or increased its damages, ifany there be. Accordingly, if Cross-Complainants
16 suffered any damages proximately caused by Cross—Defendant, which Cross-Defendant expressly
17 denies, such damages should have been mitigated by reasonable efforts on the part 0f Cross-
18 Complainants.
19 EIGHTH AFFIRMATIVE DEFENSE
20 (Unjust Enrichment)
21 9. The Cross-Complaint and each cause of action contained therein isbarred by the
22 doctrine of unjust enrichment.
23 NINTH AFFIRMATIVE DEFENSE
24 (Assumption of the Risk)
25 10. The injuries and damages, ifany, 0f which Cross-Complainants complain were
26 directly and proximately caused and contributed t0 by a risk(s) known t0 Cross—Complainants 0f
27 which Cross—Complainants appreciated the danger and magnitude, but which Cross—Complainants
28 nevertheless voluntarily assumed, thus barring Cross—Complainants from recovery herein and/or
BREMER WHYTE BROWN
81
O’MEARA LLP
21215 Burbank Blvd.
3
Suite 500 CALIFORNIA TRUSFRAME, LLC’S ANSWER TO THE CROSS-COMPLAINT OF 5 198 FOWLER,
Woodland Hills, CA 91367
L.P.
(818) 71279800
1428.1084815—9497-2348.1
reducing Cross-Complainants’ recovery thereby.
TENTH AFFIRMATIVE DEFENSE
(Performance by Law)
11. Each claimed act or failure to act alleged by Cross—Complainants were performed or
not performed under the express authority of the statute or pursuant t0 other requirements of law
and, therefore, the Cross—Complaint and each cause of action asserted against Cross-Complainants
are barred.
ELEVENTH AFFIRMATIVE DEFENSE
(Complete Performance)
10 12. Cross-Defendant has appropriately, completely, and fully performed and discharged
11 any and allobligations and legal duties arising out of the matters alleged in the Cross-Complaint.
12 TWELFTH AFFIRMATIVE DEFENSE
13 (Standard of Care)
14 13. Cross-Defendant isinformed and believes and based thereon alleges that at no time
15 prior t0 the filing 0f this action did Cross—Complainants, or any agent, representative or employee
16 thereof notify Cross—Defendant of any breach 0f any contract, warranty, or duty to Cross-
17 Complainants. By reason of said failure t0 notify, Cross-Complainants are barred from any right 0f
18 recovery from Cross—Defendant. Furthermore, Cross-Defendant alleges that Cross-Complainants
19 are barred and precluded from any recovery in this action because Cross-Defendant at all times
20 complied with the applicable standard 0f care required of Cross-Defendant at the time and location
21 where professional services were rendered.
22 THIRTEENTH AFFIRMATIVE DEFENSE
23 (Custom and Standard Work)
24 14. At all times relevant herein, Cross—Defendant performed its work in a workmanlike
25 manner and within custom and standards of the relevant industry.
26 ///
27 ///
28 ///
BREMER WHYTE BROWN
81
O’MEARA LLP
21215 Burbank Blvd.
4
Suite 500 CALIFORNIA TRUSFRAME, LLC’S ANSWER To THE CROSS-COMPLAINT 0F 5 198 FOWLER,
Woodland Hills, CA 91367
L.P.
(818) 71279800
1428.1084815—9497-2348.1
FOURTEENTH AFFIRMATIVE DEFENSE
(Allocation)
15. In the event that Cross—Defendant isfound responsible in damages to Cross-
Complainants, Cross-Defendant can only be held responsible, if at all, for that portion 0f the “non-
economic” damages for which it isfound liable by jury or judicial determination in direct
proportion t0 Cross-Defendant’s percentage 0f fault, pursuant t0 California Civil Code section
1431.2, as the rule joint and several liability does not apply under such circumstances.
FIFTEENTH AFFIRMATIVE DEFENSE
(No Recovery in Tort for Economic Damages)
10 16. The economic loss doctrine precludes Cross—Complainants from recovering in tort
11 economic losses which have not yet caused personal injury or physical damage t0 other property.
12 SIXTEENTH AFFIRMATIVE DEFENSE
13 (Indemnification)
14 17. Cross-Defendant isentitled t0 a right indemnification by apportionment against all
15 other parties and persons whose negligence contributed proximately t0 the happening of the
16 claimed accident or alleged injuries.
17 SEVENTEENTH AFFIRMATIVE DEFENSE
18 (Statute of Frauds)
19 18. To the extent that Cross—Complainants requests relief based upon an oral contract or
20 agreement, and/or related alleged fraud, Cross-Complainants’ claims are barred by the applicable
21 Statute 0f Frauds.
22 EIGHTEENTH AFFIRMATIVE DEFENSE
23 (Negligence 0f Others)
24 19. Damages and claims for which Cross—Complainants seeks indemnity, apportionment
25 and declaratory relief in their Cross—Complaint, if any, were caused by the acts, errors or omissions
26 of Cross-Complainants and/or third parties and/or contributed to and/or caused by the acts, errors,
27 omissions or negligence of Cross-Complainants and/or third parties, for whose conduct Cross-
28 Defendant isnot responsible.
BREMER WHYTE BROWN
81
O’MEARA LLP
21215 Burbank Blvd.
5
Suite 500 CALIFORNIA TRUSFRAME, LLC’S ANSWER TO THE CROSS-COMPLAINT OF 5 198 FOWLER,
Woodland Hills, CA 91367
L.P.
(818) 71279800
1428.1084815—9497-2348.1
NINETEENTH AFFIRMATIVE DEFENSE
(Comparative Fault)
20. Cross-Defendant isinformed and believes and based thereon alleges that if Cross-
Complainants were injured or damaged in the manner alleged or otherwise, which Cross-Defendant
denies, then Cross-Complainants’ injuries and damages, ifany; accordingly, Cross—Complainants’
damages should be reduced in proportion t0 itsown fault.
TWENTIETH AFFIRMATIVE DEFENSE
(Comparative Negligence)
21. Cross-Defendant isinformed and believes and based thereon alleges that if Cross-
10 Complainants were injured or damaged in the manner alleged or otherwise, which Cross-Defendant
11 denies, then Cross-Complainants were comparatively negligent, and such comparative negligence
12 proximately caused Cross—Complainants’ injuries and damages, ifany; accordingly, Cross-
13 Complainants’ damages should be reduced in proportion to its own fault.
14 TWENTY-FIRST AFFIRMATIVE DEFENSE
15 (Superseding Cause)
16 22. Cross-Complainants’ causes 0f action are barred in that any alleged act or omission
17 was intervened and/or superseded by the acts and omissions 0f others, named and unnamed,
18 including Cross—Complainants and/or its agents, which were the sole cause 0f injury, damage or
19 loss, if any, which Cross—Defendant expressly denies t0 Cross-Complainants herein.
20 TWENTY-SECOND AFFIRMATIVE DEFENSE
21 (Independent Causes)
22 23. The alleged injuries, damages or loss, if any, for which Cross-Complainants seeks
23 recovery were the result of causes independent 0f any purported acts or omissions on the part of
24 Cross-Defendant, or any 0f its respective agents, representatives or employees, thereby eliminating
25 or reducing the alleged liability 0f Cross—Defendant.
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28 ///
BREMER WHYTE BROWN
81
O’MEARA LLP
21215 Burbank Blvd.
6
Suite 500 CALIFORNIA TRUSFRAME, LLC’S ANSWER TO THE CROSS-COMPLAINT OF 5 198 FOWLER,
Woodland Hills, CA 91367
L.P.
(818) 71279800
1428.1084815—9497-2348.1
TWENTY-THIRD AFFIRMATIVE DEFENSE
(No Proximate Cause)
24. The acts and/or omissions, if any, of Cross-Defendant were not the proximate cause
of the losses, damage 0r injuries alleged in the Cross—Complaint.
TWENTY-FOURTH AFFIRMATIVE DEFENSE
(Act 0f God)
25. The damages and defects 0f which Cross-Complainants complain, ifany there are,
were caused by acts 0f God for which Cross—Defendant has no responsibility.
TWENTY-FIFTH AFFIRMATIVE DEFENSE
10 (Unavoidable Conditions)
11 26. The alleged injuries, damages or loss, if any, for which Cross-Complainants seeks
12 recovery, were the direct and proximate result of unavoidable accidents or conditions without fault
13 or liability 0n the part 0f Cross—Defendant.
14 TWENTY-SIXTH AFFIRMATIVE DEFENSE
15 (Natural Causes)
16 27. The alleged injuries, damages or loss, if any, for which Cross-Complainants seeks
17 recovery were the direct and proximate result 0f natural deterioration, wear and tear 0r other natural
18 causes which were unforeseeable without fault or liability 0n the part 0f Cross—Defendant.
19 TWENTY-SEVENTH AFFIRMATIVE DEFENSE
20 (Subsequent Modification)
21 28. Cross-Defendant isinformed and believes and based thereon alleges that Cross-
22 Complainants, and other person retained by Cross-Complainants, have made changes, alterations,
23 and/or modifications t0 the work performed by Cross-Defendant, which conduct discharges Cross-
24 Defendant from any liability.
25 TWENTY-EIGHTH AFFIRMATIVE DEFENSE
26 (Subsequent Misuse)
27 29. Cross-Defendant isinformed and believes and based thereon alleges that the
28 property, which is the subject 0f Cross—Complainants’ Cross-Complaint, may have been used in a
BREMER WHYTE BROWN
81
O’MEARA LLP
21215 Burbank Blvd.
7
Suite 500 CALIFORNIA TRUSFRAME, LLC’S ANSWER TO THE CROSS-COMPLAINT OF 5 198 FOWLER,
Woodland Hills, CA 91367
L.P.
(818) 71279800
1428.1084815—9497-2348.1
non-intended or abnormal manner, and not as a result 0f any defects in or failure 0f, any work done
by Cross—Defendant.
TWENTY-NINTH AFFIRMATIVE DEFENSE
(Passive Acts)
30. If Cross—Defendant is found to have been negligent or liable in any manner, such
negligence or liability was passive and secondary while the negligence or liability 0f Cross-
Complainants and others was active and primary, and such active and primary negligence and
liability bars, in whole or in part, the recovery requested, or any recovery, against Cross-Defendant.
THIRTIETH AFFIRMATIVE DEFENSE
10 (Intentional Conduct)
11 31. The Cross-Complaint, and each cause 0f action alleged therein, is barred by Cross-
12 Complainants’ intentional conduct.
13 THIRTY-FIRST AFFIRMATIVE DEFENSE
14 (Justified Conduct)
15 32. The conduct 0f Cross—Defendant with respect t0 the matters alleged in the Cross-
16 Complaint was justified, and, by reason of the foregoing, Cross-Complainants are barred from any
17 recovery against Cross—Defendant.
18 THIRTY-SECOND AFFIRMATIVE DEFENSE
19 (Acquiescence)
20 33. Cross-Complainants acquiesced to any conduct engaged in by Cross-Defendant.
21 THIRTY-THIRD AFFIRMATIVE DEFENSE
22 (Ratification)
23 34. Cross-Complainants expressly ordered, approved, authorized, participated in and
24 ratified the actions and transactions complained of and the actions upon which recovery is allegedly
25 sought, and Cross-Complainants are accordingly precluded from recovery.
26 ///
27 ///
28 ///
BREMER WHYTE BROWN
81
O’MEARA LLP
21215 Burbank Blvd.
8
Suite 500 CALIFORNIA TRUSFRAME, LLC’S ANSWER TO THE CROSS-COMPLAINT OF 5 198 FOWLER,
Woodland Hills, CA 91367
L.P.
(818) 71279800
1428.1084815—9497-2348.1
THIRTY-FOURTH AFFIRMATIVE DEFENSE
(Express Consent)
35. Cross-Complainants expressly consented to the actions alleged to have caused its
damages.
THIRTY-FIFTH AFFIRMATIVE DEFENSE
(Implied Consent)
36. Cross-Complainants impliedly consented to the actions alleged to have caused its
damages.
THIRTY-SIXTH AFFIRMATIVE DEFENSE
10 (Privilege and Consent)
11 37. Cross-Complainants’ claims against Cross—Defendant are barred in that any conduct
12 by Cross—Defendant was privileged and/or fully consented t0 by the parties.
13 THIRTY-SEVENTH AFFIRMATIVE DEFENSE
14 (Lack 0f Notice)
15 38. The Cross-Complaint, and each cause 0f action alleged therein, is barred by Cross-
16 Complainants’ failure t0 timely notify Cross-Defendant of the alleged defects, breach and/or
17 damages, if any, which any party may have sustained.
18 THIRTY-EIGHTH AFFIRMATIVE DEFENSE
19 (No Reliance)
20 39. Cross-Complainants did not rely on any representations or conduct of Cross-
21 Defendant and therefore Cross—Defendant is not responsible for any damages, if any exist. In the
22 event that they did rely on representations, which Cross—Defendant denies, such reliance was not
23 justified.
24 THIRTY-NINTH AFFIRMATIVE DEFENSE
25 (Setoff)
26 40. By Virtue of the acts, omissions and misrepresentations 0f Cross—Complainants,
27 Cross-Defendant has incurred damages and expenses, allin amounts to be ascertained and applied
28 as an offset against the claims of Cross-Complainants.
BREMER WHYTE BROWN
81
O’MEARA LLP
21215 Burbank Blvd.
9
Suite 500 CALIFORNIA TRUSFRAME, LLC’S ANSWER TO THE CROSS-COMPLAINT OF 5 198 FOWLER,
Woodland Hills, CA 91367
L.P.
(818) 71279800
1428.1084815—9497-2348.1
FORTIETH AFFIRMATIVE DEFENSE
(Refusal t0 Allow Cure)
41. Cross-Complainants has refused to allow Cross-Defendant, or otherwise prevented
Cross-Defendant, reasonable opportunity to cure any alleged defects or deficiencies in the subject
property. Therefore, Cross-Complainants are estopped and barred from any claim predicated upon
the failure to cure or remedy the alleged defects or deficiencies, if any.
FORTY-FIRST AFFIRMATIVE DEFENSE
(Lack of Standing)
42. Cross-Complainants lack standing t0 seek the relief that they are pursuing in their
10 Cross-Complaint against Cross—Defendant.
11 FORTY-SECOND AFFIRMATIVE DEFENSE
12 (Absence of Necessary Parties)
13 43. The purported claims and causes 0f action contained in the Cross—Complaint require,
14 for complete adjudication, the joining 0f additional, necessary or indispensable parties, without
15 whom the purported claims and causes of action cannot be fully, finally and completely resolved.
16 FORTY-THIRD AFFIRMATIVE DEFENSE
17 (Lack 0f Capacity to Sue)
18 44. Cross-Complainants lack the capacity to sue Cross—Defendant.
19 FORTY-FOURTH AFFIRMATIVE DEFENSE
20 (Demand for Alternative Dispute Resolution)
21 45. If an agreement or statute exists which requires 0r permits this matter to proceed t0
22 binding arbitration, judicial reference, mediation or other form of alternative dispute resolution,
23 answering party hereby demands the required or permitted alternative dispute resolution.
24 FORTY-FIFTH AFFIRMATIVE DEFENSE
25 (No Justiciable Controversy)
26 46. Cross-Defendant isinformed and believes and based thereon alleges that the Cross-
27 Complaint, and each purported cause of action contained therein, was brought without reasonable
28 care and without a good faith belief that there was a justiciable controversy under the facts and the
BREMER WHYTE BROWN
81
O’MEARA LLP
21215 Burbank Blvd.
10
Suite 500 CALIFORNIA TRUSFRAME, LLC’S ANSWER TO THE CROSS-COMPLAINT OF 5 198 FOWLER,
Woodland Hills, CA 91367
L.P.
(818) 71279800
1428.1084815—9497-2348.1
law which warranted the filing 0f the Cross-Complaint against this answering Cross—Defendant;
therefore, Cross-Complainants are responsible for all necessary and reasonable costs including
attorneys’ fees incurred by this Cross-Defendant as more particularly set forth in California Code
of Civil Procedure section 128.5.
FORTY-SIXTH AFFIRMATIVE DEFENSE
(California Business and Professions Code § 7031)
47. Cross-Defendant alleges that Cross-Complainants are prohibited from bringing any
action pursuant to California Business and Professions Code section 7031, which states:
No person engaged in the business or acting in the capacity 0f a contractor, may bring or maintain
10 any action, or recovery in law or equity in any action, in any court 0f this state for the collection 0f
11 compensation for the performance 0f any act or contract where a license is required by [California
12 Business and Professions Code section 7031] without alleging that he or she was a duly licensed
13 contractor at all times during the
14 performance 0f that act or contract, regardless of the merits of the cause
15 of action brought by the person. ..
16 FORTY-SEVENTH AFFIRMATIVE DEFENSE
17 (Indispensable Parties)
18 48. Cross-Defendant alleges that Cross-Complainants were reimbursed for a portion 0f
19 the claimed damages by a third party; this answering Cross-Defendant isinformed and believes and
20 thereon alleges that Cross-Complainants has subrogated that third party to a portion 0f the damages
21 claimed herein; this answering Cross—Defendant is informed and believes and thereon alleges that
22 by Virtue 0f the aforementioned subrogation, Cross—Complainants has failed to name indispensable
23 parties, and has violated the rule against splitting causes 0f action, thus barring Cross-
24 Complainants’ recovery herein.
25 FORTY-EIGHTH AFFIRMATIVE DEFENSE
26 (In Pari Delicto)
27 49. Cross-Defendant denies any wrongdoing, but alleges that, in any event, Cross-
28 Complainants are barred from any recovery for the acts alleged in the Cross—Complaint because
BREMER WHYTE BROWN
81
O’MEARA LLP
1 1
21215 Burbank Blvd.
Suite 500 CALIFORNIA TRUSFRAME, LLC’S ANSWER TO THE CROSS-COMPLAINT OF 5 198 FOWLER,
Woodland Hills, CA 91367
L.P.
(818) 71279800
1428.1084815—9497-2348.1
Cross-Complainants were in pari delicto.
FORTY-NINTH AFFIRMATIVE DEFENSE
(Negligent Loss/Destruction 0f Evidence)
50. Cross-Defendant alleges that prior t0 the commencement 0f this litigation, Cross-
Complainants and each 0f their successors-in-interest, and predecessors—in-interest, maintained in
their possession and control certain works 0f improvements, including the works 0f improvements
which this answering Cross—Defendant allegedly installed or supplied, which Cross—Complainants
herein knew 0r had reason to know of the potential use 0f the items as evidence in potential
litigation, Cross-Complainants had a duty to this answering Cross-Defendant before such items
10 were removed, destroyed, or concealed, the items constituting valuable and necessary evidence,
11 that the value 0f such evidence to this answering Cross—Defendant in potential litigation was
12 reasonably foreseeable t0 Cross—Complainants and that following the commencement 0f this
13 litigation, Cross-Complainants carelessly, negligently, and unreasonably caused or permitted the
14 removal, destruction, loss or concealment 0f the aforementioned items, such that the items were
15 and remain unavailable for examination, all of which has unduly and severely prejudiced this
16 answering Cross—Defendant in itsdefense of the action thereby barring or diminishing Cross-
17 Complainants’ recovery.
18 FIFTIETH AFFIRMATIVE DEFENSE
19 (Res Judicata)
20 51. Cross-Defendant alleges that there was final judgment entered in a prior action, in
21 which the court has jurisdiction over both the subj ect matter and the parties, the causes of action
22 encompassed in the judgment in the prior action are presented in the subsequent action, between
23 the same Cross—Complainants, or those who are in privity, and Cross-Defendant, thus barring or
24 diminishing Cross-Complainants’ recovery herein.
25 FIFTY-FIRST AFFIRMATIVE DEFENSE
26 (Collateral Estoppel)
27 52. Cross-Defendant alleges that there was final judgment on the merits entered in a
28 prior action, in which the court has jurisdiction over both the subj ect matter and the parties, the
BREMER WHYTE BROWN
81
O’MEARA LLP
21215 Burbank Blvd.
12
Suite 500 CALIFORNIA TRUSFRAME, LLC’S ANSWER TO THE CROSS-COMPLAINT OF 5 198 FOWLER,
Woodland Hills, CA 91367
L.P.
(818) 71279800
1428.1084815—9497-2348.1
issues decided in the prior action were identical to the issues raised on Cross-Complaint, between
the same Cross—Complainants, or those who are in privity, and Cross-Defendant, thus barring or
diminishing Cross-Complainants’ recovery herein.
FIFTY-SECOND AFFIRMATIVE DEFENSE
(N0 Assignment of Rights)
53. Cross-Defendant alleges that any harm and/or damage allegedly suffered t0 the
Cross-Complainants necessarily occurred during the original purchaser’s ownership, thereby
barring either wholly or partially, the subsequent purchaser’s claimed damages herein as there was
no assignment of rights for any cause of action accruing before their subsequent ownership.
10 FIFTY-THIRD AFFIRMATIVE DEFENSE
11 (No Privity)
12 54. Cross-Defendant alleges that there was a lack 0f privity between Cross-
13 Complainants and this answering Cross—Defendant, thus barring or diminishing Cross-
14 Complainants’ recovery herein.
15 FIFTY-FOURTH AFFIRMATIVE DEFENSE
16 (Prior Agreements)
17 55. Cross-Defendant alleges that Cross-Complainants and this answering Cross-
18 Defendant entered into written and oral prior settlement agreements pertaining to the allegations of
19 Cross-Complainants at issue in this action, thereby barring or diminishing Cross—Complainants’
20 recovery herein.
21 FIFTY-FIFTH AFFIRMATIVE DEFENSE
22 (Releases)
23 56. Cross—Defendant alleges that there were in existence at the time and place 0f the
24 incident, releases and other matters of contract by which the Cross—Complainants bound herein, and
25 which preclude Cross-Complainants’ recovery of damages.
26 FIFTY-SIXTH AFFIRMATIVE DEFENSE
27 (Conditions Precedent)
28 57. Cross-Defendant isinformed and believes and based thereon alleges that Cross-
BREMER WHYTE BROWN
81
O’MEARA LLP
21215 Burbank Blvd.
13
Suite 500 CALIFORNIA TRUSFRAME, LLC’S ANSWER TO THE CROSS-COMPLAINT OF 5 198 FOWLER,
Woodland Hills, CA 91367
L.P.
(818) 71279800
1428.1084815—9497-2348.1
Complainants has failed t0 satisfy one or more express or implied conditions precedent t0 any
obligations allegedly owed by Cross—Defendant.
FIFTY-SEVENTH AFFIRMATIVE DEFENSE
(Completed and Accepted doctrine)
58. This answering Defendant alleges that any and all 0f the work which it is alleged to
have undertaken was completed and then accepted by the owner after a reasonable inspection. This
answering Defendant further contends that any alleged condition of its completed work was known
to and accepted by the owner thereby negating any liability owed to any third party for said
condition, including Plaintiff.
10 FIFTY-EIGHTH AFFIRMATIVE DEFENSE
11 (Contractor Followed Plans and Specifications)
12 59. Cross-Defendant alleges that Developer’s claim isbarred as against this answer
13 Cross-Defendant due t0 the fact that Cross—Defendant followed the plans and specifications that
14 were provided t0 it.
15 FIFTY-NINTH AFFIRMATIVE DEFENSE
16 (Unstated Additional Defenses)
17 60. Cross-Defendant presently has insufficient knowledge and information on which t0
18 form a belief as t0 whether there exist additional, as yet unstated, affirmative defenses. Cross-
19 Defendant reserves herein the right to assert additional affirmative defenses in the event that
20 discovery indicates that such defenses would be appropriate.
21 ///
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27 ///
28 ///
BREMER WHYTE BROWN
81
O’MEARA LLP
21215 Burbank Blvd.
14
Suite 500 CALIFORNIA TRUSFRAME, LLC’S ANSWER TO THE CROSS-COMPLAINT OF 5 198 FOWLER,
Woodland Hills, CA 91367
L.P.
(818) 71279800
1428.1084815—9497-2348.1
PRAYER
WHEREFORE, Cross—Defendant respectfully prays for entry ofjudgment in its
favor and against Cross-Complainants as follows:
1. That Cross—Complainants takes nothing by way of their Cross-Complaint;
2. That Cross—Complainants’ recovery against Cross—Defendant, if any, be diminished
by an amount equal t0 the degree of negligence of fault attributable to Cross—Complainants;
3. That Cross—Complainants’
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BREMER WHYTE BROWN & O’MEARA LLP E-FILED Daniel A. Crespo, State Bar No. 234087 5/20/2020 659 PM dcresp0@bremerwhyte.com Superior Court of California Ava Vahdat, State Bar N0. 318468 County of Fresno avahdat@bremerwhyte.com By: M. Douangkham, Deputy 21215 Burbank Boulevard Suite 500 Woodland Hills, California 9 l 367 Telephone: (8 1 8) 7 1 2-9800 Facsimile: (8 1 8) 7 1 2-9900 Attorneys for Cross—Defendant, CALIFORNIA TRUSFRAME, LLC (sued and served as ROE 203, ROE 303) SUPERIOR COURT 0F THE STATE OF CALIFORNIA 10 COUNTY 0F FRESNO 11 12 ZAIDA PACHECO, et al., ) Case N0. 19CECG01330 ) 13 Plaintiffs, ) CALIFORNIA TRUSFRAME, LLC’S ) ANSWER T0 THE CROSS- 14 Vs. ) COMPLAINT 0F 5198 FOWLER, L.P. ) 15 5198 FOWLER, L.P, a California Limited ) Complaint Filed: April 18, 2019 Partnership; and DOES 1-1000, inclusive, ) 16 ) Defendants. ) 17 ) 18 3 AND RELATED CROSS-ACTIONS. ) 19 ) 20 Cross-Defendant, CALIFORNIA TRUSFRAME, LLC (sued and served as ROE 203, ROE 21 303, hereinafter “Cross-Defendant”), for itself and no others, hereby responds t0 the Cross- 22 Complaint of 5198 FOWLER, L.P (hereinafter “Cross-Complainant”) as follows: 23 GENERAL DENIAL 24 1. By Virtue 0f the provisions 0f California Code 0f Civil Procedure section 431 .30, 25 Cross-Defendant denies, generally and specifically, each and every allegation contained in Cross— 26 Complainants’ Cross-Complaint, and the whole thereof, and further denies that as a proximate 27 result of any conduct on the part 0f this answering Cross-Defendant, that Cross-Complainants have 28 BREMER WHYTE BROWN 81 O'MEARA LLP 21215 Burbank Blvd. Suite 500 Wood‘and HiHs, CA 91367 CALIFORNIA TRUSFRAME, LLC’S ANSWER TO THE CROSS-COMPLAINT OF 5198 FOWLER, L.P, {B18} 71279800 1428.1084815-9497-2348‘l sustained damages in the sums alleged, or in any sum, orat all, by reason of any act, breach or omission 0n the part 0f Cross—Defendant or 0n the part of any agent, servant, representative, employee, predecessor or successor 0f Cross-Defendant. FIRST AFFIRMATIVE DEFENSE (Failure to State a Cause of Action) 2. The Cross-Complaint fails to state facts sufficient t0 constitute a cause 0f action upon which relief can be granted against Cross—Defendant. The Cross—Complaint also seeks relief against Cross-Defendant that is not properly recoverable by Cross—Complainants. Cross- Complainants are therefore barred from any recovery against Cross—Defendant. 10 SECOND AFFIRMATIVE DEFENSE 11 (Statutes 0f Limitations) 12 3. Cross-Complainants’ Cross—Complaint and the allegations contained therein are 13 barred 0r diminished, in whole or in part, by the applicable statutes 0f limitations, including, but 14 not limited to, California Code 0f Civil Procedure sections 337(1) and (2), 337.1, 337.15, 338, 339, 15 340 and 343. 16 THIRD AFFIRMATIVE DEFENSE 17 (Unclean Hands) 18 4. Cross-Complainants, through their conduct, acts and omissions, is barred by the 19 doctrine of unclean hands from recovering any damages or other relief herein against Cross- 20 Defendant. 21 FOURTH AFFIRMATIVE DEFENSE 22 (Estoppel) 23 5. Cross-Complainants, through their conduct, acts and omissions, is estopped from 24 asserting or recovering under any of their causes of actions alleged against Cross—Defendant in the 25 Cross-Complaint because 0f its own conduct at the subj ect properties at issue in this action. Cross- 26 Defendant alleges that Cross—Complainants knew or should have known of the damages claimed in 27 their Cross-Complaint but failed to take any corrective measures and failed to notify any other 28 party of the need for such corrective measures, thereby estopping Cross—Complainants from BREMER WHYTE BROWN 81 O’MEARA LLP 21215 Burbank Blvd. 2 Suite 500 CALIFORNIA TRUSFRAME, LLC’S ANSWER TO THE CROSS-COMPLAINT OF 5 198 FOWLER, Woodland Hills, CA 91367 L.P. (818) 71279800 1428.1084815—9497-2348.1 claiming damages as a result 0f these purported conditions, defects or otherwise, if any there be. FIFTH AFFIRMATIVE DEFENSE (Waiver) 6. Cross-Complainants, through their conduct, acts and omissions, has waived its causes 0f action and recovery against Cross—Defendant alleged in their Cross—Complaint. SIXTH AFFIRMATIVE DEFENSE (Laches) 7. Cross-Complainants’ claims alleged in their Cross—Complaint against Cross- Defendant isbarred or diminished by the doctrine 0f laches. 10 SEVENTH AFFIRMATIVE DEFENSE 11 (Failure t0 Mitigate) 12 8. Without peril t0 Cross-Defendant’s denial 0f the existence of every alleged defect 13 and claimed damage, Cross-Defendant alleges that Cross-Complainants, while knowing 0f the 14 purported defects and damages complained 0f, if any there be, failed t0 undertake t0 mitigate its 15 damages and/or increased its damages, ifany there be. Accordingly, if Cross-Complainants 16 suffered any damages proximately caused by Cross—Defendant, which Cross-Defendant expressly 17 denies, such damages should have been mitigated by reasonable efforts on the part 0f Cross- 18 Complainants. 19 EIGHTH AFFIRMATIVE DEFENSE 20 (Unjust Enrichment) 21 9. The Cross-Complaint and each cause of action contained therein isbarred by the 22 doctrine of unjust enrichment. 23 NINTH AFFIRMATIVE DEFENSE 24 (Assumption of the Risk) 25 10. The injuries and damages, ifany, 0f which Cross-Complainants complain were 26 directly and proximately caused and contributed t0 by a risk(s) known t0 Cross—Complainants 0f 27 which Cross—Complainants appreciated the danger and magnitude, but which Cross—Complainants 28 nevertheless voluntarily assumed, thus barring Cross—Complainants from recovery herein and/or BREMER WHYTE BROWN 81 O’MEARA LLP 21215 Burbank Blvd. 3 Suite 500 CALIFORNIA TRUSFRAME, LLC’S ANSWER TO THE CROSS-COMPLAINT OF 5 198 FOWLER, Woodland Hills, CA 91367 L.P. (818) 71279800 1428.1084815—9497-2348.1 reducing Cross-Complainants’ recovery thereby. TENTH AFFIRMATIVE DEFENSE (Performance by Law) 11. Each claimed act or failure to act alleged by Cross—Complainants were performed or not performed under the express authority of the statute or pursuant t0 other requirements of law and, therefore, the Cross—Complaint and each cause of action asserted against Cross-Complainants are barred. ELEVENTH AFFIRMATIVE DEFENSE (Complete Performance) 10 12. Cross-Defendant has appropriately, completely, and fully performed and discharged 11 any and allobligations and legal duties arising out of the matters alleged in the Cross-Complaint. 12 TWELFTH AFFIRMATIVE DEFENSE 13 (Standard of Care) 14 13. Cross-Defendant isinformed and believes and based thereon alleges that at no time 15 prior t0 the filing 0f this action did Cross—Complainants, or any agent, representative or employee 16 thereof notify Cross—Defendant of any breach 0f any contract, warranty, or duty to Cross- 17 Complainants. By reason of said failure t0 notify, Cross-Complainants are barred from any right 0f 18 recovery from Cross—Defendant. Furthermore, Cross-Defendant alleges that Cross-Complainants 19 are barred and precluded from any recovery in this action because Cross-Defendant at all times 20 complied with the applicable standard 0f care required of Cross-Defendant at the time and location 21 where professional services were rendered. 22 THIRTEENTH AFFIRMATIVE DEFENSE 23 (Custom and Standard Work) 24 14. At all times relevant herein, Cross—Defendant performed its work in a workmanlike 25 manner and within custom and standards of the relevant industry. 26 /// 27 /// 28 /// BREMER WHYTE BROWN 81 O’MEARA LLP 21215 Burbank Blvd. 4 Suite 500 CALIFORNIA TRUSFRAME, LLC’S ANSWER To THE CROSS-COMPLAINT 0F 5 198 FOWLER, Woodland Hills, CA 91367 L.P. (818) 71279800 1428.1084815—9497-2348.1 FOURTEENTH AFFIRMATIVE DEFENSE (Allocation) 15. In the event that Cross—Defendant isfound responsible in damages to Cross- Complainants, Cross-Defendant can only be held responsible, if at all, for that portion 0f the “non- economic” damages for which it isfound liable by jury or judicial determination in direct proportion t0 Cross-Defendant’s percentage 0f fault, pursuant t0 California Civil Code section 1431.2, as the rule joint and several liability does not apply under such circumstances. FIFTEENTH AFFIRMATIVE DEFENSE (No Recovery in Tort for Economic Damages) 10 16. The economic loss doctrine precludes Cross—Complainants from recovering in tort 11 economic losses which have not yet caused personal injury or physical damage t0 other property. 12 SIXTEENTH AFFIRMATIVE DEFENSE 13 (Indemnification) 14 17. Cross-Defendant isentitled t0 a right indemnification by apportionment against all 15 other parties and persons whose negligence contributed proximately t0 the happening of the 16 claimed accident or alleged injuries. 17 SEVENTEENTH AFFIRMATIVE DEFENSE 18 (Statute of Frauds) 19 18. To the extent that Cross—Complainants requests relief based upon an oral contract or 20 agreement, and/or related alleged fraud, Cross-Complainants’ claims are barred by the applicable 21 Statute 0f Frauds. 22 EIGHTEENTH AFFIRMATIVE DEFENSE 23 (Negligence 0f Others) 24 19. Damages and claims for which Cross—Complainants seeks indemnity, apportionment 25 and declaratory relief in their Cross—Complaint, if any, were caused by the acts, errors or omissions 26 of Cross-Complainants and/or third parties and/or contributed to and/or caused by the acts, errors, 27 omissions or negligence of Cross-Complainants and/or third parties, for whose conduct Cross- 28 Defendant isnot responsible. BREMER WHYTE BROWN 81 O’MEARA LLP 21215 Burbank Blvd. 5 Suite 500 CALIFORNIA TRUSFRAME, LLC’S ANSWER TO THE CROSS-COMPLAINT OF 5 198 FOWLER, Woodland Hills, CA 91367 L.P. (818) 71279800 1428.1084815—9497-2348.1 NINETEENTH AFFIRMATIVE DEFENSE (Comparative Fault) 20. Cross-Defendant isinformed and believes and based thereon alleges that if Cross- Complainants were injured or damaged in the manner alleged or otherwise, which Cross-Defendant denies, then Cross-Complainants’ injuries and damages, ifany; accordingly, Cross—Complainants’ damages should be reduced in proportion t0 itsown fault. TWENTIETH AFFIRMATIVE DEFENSE (Comparative Negligence) 21. Cross-Defendant isinformed and believes and based thereon alleges that if Cross- 10 Complainants were injured or damaged in the manner alleged or otherwise, which Cross-Defendant 11 denies, then Cross-Complainants were comparatively negligent, and such comparative negligence 12 proximately caused Cross—Complainants’ injuries and damages, ifany; accordingly, Cross- 13 Complainants’ damages should be reduced in proportion to its own fault. 14 TWENTY-FIRST AFFIRMATIVE DEFENSE 15 (Superseding Cause) 16 22. Cross-Complainants’ causes 0f action are barred in that any alleged act or omission 17 was intervened and/or superseded by the acts and omissions 0f others, named and unnamed, 18 including Cross—Complainants and/or its agents, which were the sole cause 0f injury, damage or 19 loss, if any, which Cross—Defendant expressly denies t0 Cross-Complainants herein. 20 TWENTY-SECOND AFFIRMATIVE DEFENSE 21 (Independent Causes) 22 23. The alleged injuries, damages or loss, if any, for which Cross-Complainants seeks 23 recovery were the result of causes independent 0f any purported acts or omissions on the part of 24 Cross-Defendant, or any 0f its respective agents, representatives or employees, thereby eliminating 25 or reducing the alleged liability 0f Cross—Defendant. 26 /// 27 /// 28 /// BREMER WHYTE BROWN 81 O’MEARA LLP 21215 Burbank Blvd. 6 Suite 500 CALIFORNIA TRUSFRAME, LLC’S ANSWER TO THE CROSS-COMPLAINT OF 5 198 FOWLER, Woodland Hills, CA 91367 L.P. (818) 71279800 1428.1084815—9497-2348.1 TWENTY-THIRD AFFIRMATIVE DEFENSE (No Proximate Cause) 24. The acts and/or omissions, if any, of Cross-Defendant were not the proximate cause of the losses, damage 0r injuries alleged in the Cross—Complaint. TWENTY-FOURTH AFFIRMATIVE DEFENSE (Act 0f God) 25. The damages and defects 0f which Cross-Complainants complain, ifany there are, were caused by acts 0f God for which Cross—Defendant has no responsibility. TWENTY-FIFTH AFFIRMATIVE DEFENSE 10 (Unavoidable Conditions) 11 26. The alleged injuries, damages or loss, if any, for which Cross-Complainants seeks 12 recovery, were the direct and proximate result of unavoidable accidents or conditions without fault 13 or liability 0n the part 0f Cross—Defendant. 14 TWENTY-SIXTH AFFIRMATIVE DEFENSE 15 (Natural Causes) 16 27. The alleged injuries, damages or loss, if any, for which Cross-Complainants seeks 17 recovery were the direct and proximate result 0f natural deterioration, wear and tear 0r other natural 18 causes which were unforeseeable without fault or liability 0n the part 0f Cross—Defendant. 19 TWENTY-SEVENTH AFFIRMATIVE DEFENSE 20 (Subsequent Modification) 21 28. Cross-Defendant isinformed and believes and based thereon alleges that Cross- 22 Complainants, and other person retained by Cross-Complainants, have made changes, alterations, 23 and/or modifications t0 the work performed by Cross-Defendant, which conduct discharges Cross- 24 Defendant from any liability. 25 TWENTY-EIGHTH AFFIRMATIVE DEFENSE 26 (Subsequent Misuse) 27 29. Cross-Defendant isinformed and believes and based thereon alleges that the 28 property, which is the subject 0f Cross—Complainants’ Cross-Complaint, may have been used in a BREMER WHYTE BROWN 81 O’MEARA LLP 21215 Burbank Blvd. 7 Suite 500 CALIFORNIA TRUSFRAME, LLC’S ANSWER TO THE CROSS-COMPLAINT OF 5 198 FOWLER, Woodland Hills, CA 91367 L.P. (818) 71279800 1428.1084815—9497-2348.1 non-intended or abnormal manner, and not as a result 0f any defects in or failure 0f, any work done by Cross—Defendant. TWENTY-NINTH AFFIRMATIVE DEFENSE (Passive Acts) 30. If Cross—Defendant is found to have been negligent or liable in any manner, such negligence or liability was passive and secondary while the negligence or liability 0f Cross- Complainants and others was active and primary, and such active and primary negligence and liability bars, in whole or in part, the recovery requested, or any recovery, against Cross-Defendant. THIRTIETH AFFIRMATIVE DEFENSE 10 (Intentional Conduct) 11 31. The Cross-Complaint, and each cause 0f action alleged therein, is barred by Cross- 12 Complainants’ intentional conduct. 13 THIRTY-FIRST AFFIRMATIVE DEFENSE 14 (Justified Conduct) 15 32. The conduct 0f Cross—Defendant with respect t0 the matters alleged in the Cross- 16 Complaint was justified, and, by reason of the foregoing, Cross-Complainants are barred from any 17 recovery against Cross—Defendant. 18 THIRTY-SECOND AFFIRMATIVE DEFENSE 19 (Acquiescence) 20 33. Cross-Complainants acquiesced to any conduct engaged in by Cross-Defendant. 21 THIRTY-THIRD AFFIRMATIVE DEFENSE 22 (Ratification) 23 34. Cross-Complainants expressly ordered, approved, authorized, participated in and 24 ratified the actions and transactions complained of and the actions upon which recovery is allegedly 25 sought, and Cross-Complainants are accordingly precluded from recovery. 26 /// 27 /// 28 /// BREMER WHYTE BROWN 81 O’MEARA LLP 21215 Burbank Blvd. 8 Suite 500 CALIFORNIA TRUSFRAME, LLC’S ANSWER TO THE CROSS-COMPLAINT OF 5 198 FOWLER, Woodland Hills, CA 91367 L.P. (818) 71279800 1428.1084815—9497-2348.1 THIRTY-FOURTH AFFIRMATIVE DEFENSE (Express Consent) 35. Cross-Complainants expressly consented to the actions alleged to have caused its damages. THIRTY-FIFTH AFFIRMATIVE DEFENSE (Implied Consent) 36. Cross-Complainants impliedly consented to the actions alleged to have caused its damages. THIRTY-SIXTH AFFIRMATIVE DEFENSE 10 (Privilege and Consent) 11 37. Cross-Complainants’ claims against Cross—Defendant are barred in that any conduct 12 by Cross—Defendant was privileged and/or fully consented t0 by the parties. 13 THIRTY-SEVENTH AFFIRMATIVE DEFENSE 14 (Lack 0f Notice) 15 38. The Cross-Complaint, and each cause 0f action alleged therein, is barred by Cross- 16 Complainants’ failure t0 timely notify Cross-Defendant of the alleged defects, breach and/or 17 damages, if any, which any party may have sustained. 18 THIRTY-EIGHTH AFFIRMATIVE DEFENSE 19 (No Reliance) 20 39. Cross-Complainants did not rely on any representations or conduct of Cross- 21 Defendant and therefore Cross—Defendant is not responsible for any damages, if any exist. In the 22 event that they did rely on representations, which Cross—Defendant denies, such reliance was not 23 justified. 24 THIRTY-NINTH AFFIRMATIVE DEFENSE 25 (Setoff) 26 40. By Virtue of the acts, omissions and misrepresentations 0f Cross—Complainants, 27 Cross-Defendant has incurred damages and expenses, allin amounts to be ascertained and applied 28 as an offset against the claims of Cross-Complainants. BREMER WHYTE BROWN 81 O’MEARA LLP 21215 Burbank Blvd. 9 Suite 500 CALIFORNIA TRUSFRAME, LLC’S ANSWER TO THE CROSS-COMPLAINT OF 5 198 FOWLER, Woodland Hills, CA 91367 L.P. (818) 71279800 1428.1084815—9497-2348.1 FORTIETH AFFIRMATIVE DEFENSE (Refusal t0 Allow Cure) 41. Cross-Complainants has refused to allow Cross-Defendant, or otherwise prevented Cross-Defendant, reasonable opportunity to cure any alleged defects or deficiencies in the subject property. Therefore, Cross-Complainants are estopped and barred from any claim predicated upon the failure to cure or remedy the alleged defects or deficiencies, if any. FORTY-FIRST AFFIRMATIVE DEFENSE (Lack of Standing) 42. Cross-Complainants lack standing t0 seek the relief that they are pursuing in their 10 Cross-Complaint against Cross—Defendant. 11 FORTY-SECOND AFFIRMATIVE DEFENSE 12 (Absence of Necessary Parties) 13 43. The purported claims and causes 0f action contained in the Cross—Complaint require, 14 for complete adjudication, the joining 0f additional, necessary or indispensable parties, without 15 whom the purported claims and causes of action cannot be fully, finally and completely resolved. 16 FORTY-THIRD AFFIRMATIVE DEFENSE 17 (Lack 0f Capacity to Sue) 18 44. Cross-Complainants lack the capacity to sue Cross—Defendant. 19 FORTY-FOURTH AFFIRMATIVE DEFENSE 20 (Demand for Alternative Dispute Resolution) 21 45. If an agreement or statute exists which requires 0r permits this matter to proceed t0 22 binding arbitration, judicial reference, mediation or other form of alternative dispute resolution, 23 answering party hereby demands the required or permitted alternative dispute resolution. 24 FORTY-FIFTH AFFIRMATIVE DEFENSE 25 (No Justiciable Controversy) 26 46. Cross-Defendant isinformed and believes and based thereon alleges that the Cross- 27 Complaint, and each purported cause of action contained therein, was brought without reasonable 28 care and without a good faith belief that there was a justiciable controversy under the facts and the BREMER WHYTE BROWN 81 O’MEARA LLP 21215 Burbank Blvd. 10 Suite 500 CALIFORNIA TRUSFRAME, LLC’S ANSWER TO THE CROSS-COMPLAINT OF 5 198 FOWLER, Woodland Hills, CA 91367 L.P. (818) 71279800 1428.1084815—9497-2348.1 law which warranted the filing 0f the Cross-Complaint against this answering Cross—Defendant; therefore, Cross-Complainants are responsible for all necessary and reasonable costs including attorneys’ fees incurred by this Cross-Defendant as more particularly set forth in California Code of Civil Procedure section 128.5. FORTY-SIXTH AFFIRMATIVE DEFENSE (California Business and Professions Code § 7031) 47. Cross-Defendant alleges that Cross-Complainants are prohibited from bringing any action pursuant to California Business and Professions Code section 7031, which states: No person engaged in the business or acting in the capacity 0f a contractor, may bring or maintain 10 any action, or recovery in law or equity in any action, in any court 0f this state for the collection 0f 11 compensation for the performance 0f any act or contract where a license is required by [California 12 Business and Professions Code section 7031] without alleging that he or she was a duly licensed 13 contractor at all times during the 14 performance 0f that act or contract, regardless of the merits of the cause 15 of action brought by the person. .. 16 FORTY-SEVENTH AFFIRMATIVE DEFENSE 17 (Indispensable Parties) 18 48. Cross-Defendant alleges that Cross-Complainants were reimbursed for a portion 0f 19 the claimed damages by a third party; this answering Cross-Defendant isinformed and believes and 20 thereon alleges that Cross-Complainants has subrogated that third party to a portion 0f the damages 21 claimed herein; this answering Cross—Defendant is informed and believes and thereon alleges that 22 by Virtue 0f the aforementioned subrogation, Cross—Complainants has failed to name indispensable 23 parties, and has violated the rule against splitting causes 0f action, thus barring Cross- 24 Complainants’ recovery herein. 25 FORTY-EIGHTH AFFIRMATIVE DEFENSE 26 (In Pari Delicto) 27 49. Cross-Defendant denies any wrongdoing, but alleges that, in any event, Cross- 28 Complainants are barred from any recovery for the acts alleged in the Cross—Complaint because BREMER WHYTE BROWN 81 O’MEARA LLP 1 1 21215 Burbank Blvd. Suite 500 CALIFORNIA TRUSFRAME, LLC’S ANSWER TO THE CROSS-COMPLAINT OF 5 198 FOWLER, Woodland Hills, CA 91367 L.P. (818) 71279800 1428.1084815—9497-2348.1 Cross-Complainants were in pari delicto. FORTY-NINTH AFFIRMATIVE DEFENSE (Negligent Loss/Destruction 0f Evidence) 50. Cross-Defendant alleges that prior t0 the commencement 0f this litigation, Cross- Complainants and each 0f their successors-in-interest, and predecessors—in-interest, maintained in their possession and control certain works 0f improvements, including the works 0f improvements which this answering Cross—Defendant allegedly installed or supplied, which Cross—Complainants herein knew 0r had reason to know of the potential use 0f the items as evidence in potential litigation, Cross-Complainants had a duty to this answering Cross-Defendant before such items 10 were removed, destroyed, or concealed, the items constituting valuable and necessary evidence, 11 that the value 0f such evidence to this answering Cross—Defendant in potential litigation was 12 reasonably foreseeable t0 Cross—Complainants and that following the commencement 0f this 13 litigation, Cross-Complainants carelessly, negligently, and unreasonably caused or permitted the 14 removal, destruction, loss or concealment 0f the aforementioned items, such that the items were 15 and remain unavailable for examination, all of which has unduly and severely prejudiced this 16 answering Cross—Defendant in itsdefense of the action thereby barring or diminishing Cross- 17 Complainants’ recovery. 18 FIFTIETH AFFIRMATIVE DEFENSE 19 (Res Judicata) 20 51. Cross-Defendant alleges that there was final judgment entered in a prior action, in 21 which the court has jurisdiction over both the subj ect matter and the parties, the causes of action 22 encompassed in the judgment in the prior action are presented in the subsequent action, between 23 the same Cross—Complainants, or those who are in privity, and Cross-Defendant, thus barring or 24 diminishing Cross-Complainants’ recovery herein. 25 FIFTY-FIRST AFFIRMATIVE DEFENSE 26 (Collateral Estoppel) 27 52. Cross-Defendant alleges that there was final judgment on the merits entered in a 28 prior action, in which the court has jurisdiction over both the subj ect matter and the parties, the BREMER WHYTE BROWN 81 O’MEARA LLP 21215 Burbank Blvd. 12 Suite 500 CALIFORNIA TRUSFRAME, LLC’S ANSWER TO THE CROSS-COMPLAINT OF 5 198 FOWLER, Woodland Hills, CA 91367 L.P. (818) 71279800 1428.1084815—9497-2348.1 issues decided in the prior action were identical to the issues raised on Cross-Complaint, between the same Cross—Complainants, or those who are in privity, and Cross-Defendant, thus barring or diminishing Cross-Complainants’ recovery herein. FIFTY-SECOND AFFIRMATIVE DEFENSE (N0 Assignment of Rights) 53. Cross-Defendant alleges that any harm and/or damage allegedly suffered t0 the Cross-Complainants necessarily occurred during the original purchaser’s ownership, thereby barring either wholly or partially, the subsequent purchaser’s claimed damages herein as there was no assignment of rights for any cause of action accruing before their subsequent ownership. 10 FIFTY-THIRD AFFIRMATIVE DEFENSE 11 (No Privity) 12 54. Cross-Defendant alleges that there was a lack 0f privity between Cross- 13 Complainants and this answering Cross—Defendant, thus barring or diminishing Cross- 14 Complainants’ recovery herein. 15 FIFTY-FOURTH AFFIRMATIVE DEFENSE 16 (Prior Agreements) 17 55. Cross-Defendant alleges that Cross-Complainants and this answering Cross- 18 Defendant entered into written and oral prior settlement agreements pertaining to the allegations of 19 Cross-Complainants at issue in this action, thereby barring or diminishing Cross—Complainants’ 20 recovery herein. 21 FIFTY-FIFTH AFFIRMATIVE DEFENSE 22 (Releases) 23 56. Cross—Defendant alleges that there were in existence at the time and place 0f the 24 incident, releases and other matters of contract by which the Cross—Complainants bound herein, and 25 which preclude Cross-Complainants’ recovery of damages. 26 FIFTY-SIXTH AFFIRMATIVE DEFENSE 27 (Conditions Precedent) 28 57. Cross-Defendant isinformed and believes and based thereon alleges that Cross- BREMER WHYTE BROWN 81 O’MEARA LLP 21215 Burbank Blvd. 13 Suite 500 CALIFORNIA TRUSFRAME, LLC’S ANSWER TO THE CROSS-COMPLAINT OF 5 198 FOWLER, Woodland Hills, CA 91367 L.P. (818) 71279800 1428.1084815—9497-2348.1 Complainants has failed t0 satisfy one or more express or implied conditions precedent t0 any obligations allegedly owed by Cross—Defendant. FIFTY-SEVENTH AFFIRMATIVE DEFENSE (Completed and Accepted doctrine) 58. This answering Defendant alleges that any and all 0f the work which it is alleged to have undertaken was completed and then accepted by the owner after a reasonable inspection. This answering Defendant further contends that any alleged condition of its completed work was known to and accepted by the owner thereby negating any liability owed to any third party for said condition, including Plaintiff. 10 FIFTY-EIGHTH AFFIRMATIVE DEFENSE 11 (Contractor Followed Plans and Specifications) 12 59. Cross-Defendant alleges that Developer’s claim isbarred as against this answer 13 Cross-Defendant due t0 the fact that Cross—Defendant followed the plans and specifications that 14 were provided t0 it. 15 FIFTY-NINTH AFFIRMATIVE DEFENSE 16 (Unstated Additional Defenses) 17 60. Cross-Defendant presently has insufficient knowledge and information on which t0 18 form a belief as t0 whether there exist additional, as yet unstated, affirmative defenses. Cross- 19 Defendant reserves herein the right to assert additional affirmative defenses in the event that 20 discovery indicates that such defenses would be appropriate. 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// BREMER WHYTE BROWN 81 O’MEARA LLP 21215 Burbank Blvd. 14 Suite 500 CALIFORNIA TRUSFRAME, LLC’S ANSWER TO THE CROSS-COMPLAINT OF 5 198 FOWLER, Woodland Hills, CA 91367 L.P. (818) 71279800 1428.1084815—9497-2348.1 PRAYER WHEREFORE, Cross—Defendant respectfully prays for entry ofjudgment in its favor and against Cross-Complainants as follows: 1. That Cross—Complainants takes nothing by way of their Cross-Complaint; 2. That Cross—Complainants’ recovery against Cross—Defendant, if any, be diminished by an amount equal t0 the degree of negligence of fault attributable to Cross—Complainants; 3. That Cross—Complainants’