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ORIGINAL
CRAIG N. LUNDGREN, State Bar 148842
424 2nd Street, Suite A
Davis, CA 95616 4~ 1 iJxKSV -71"" "' '"' '*" " ' "-- -
530.792.8800
530.297.5077
I
(fax) \
'j OCT 9 2008
Attorney for Defendant and Cross-Complainant
and Cross-Defendant
Rv Al/lAClAS
RONALD PAUL BRITSCHGI Y
•—-""^Ef^ilCLERli--------
Individually and dba BRITSCHGI CONSTRUCTION
6
7
8 SUPERIOR
\
COURT OF THE STATE OF CALIFORNIA
/
9 ' COUNTY OF SACRAMENTO
10 RODNEY ABBOTT and FLORENTINE CASE NO. PC 07AS04450
ABBOTT,
11 ANSWER TO CROSS-COMPLAINT
Plaintiffs, OF CADRE DESIGN GROUP. INC,
12
v.
13
14
RONALD PAUL BRITSCHGI, individually
and doing business as BRITSCHGI BY FAX
CONSTRUCTION, RICHARD KIRK
15 RUYBALID, individually and doing business as)
CA CONSTRUCTION, SURETY COMPANY )
16 OF THE PACIFIC, WESTERN SURETY )
„ COMPANY and DOES 1 through 20, inclusive,)
17
Defendants. )
18
19 RONALD PAUL BRITSCHGI, individually
and doing business as BRITSCHGI )
20 CONSTRUCTION,
)
21 - Cross-Complainant,
)
22 v.
23 RICHARD KIRK RUYBALID, individually )
and doing business as CA CONSTRUCTION, )
24 WESTERN SURETY COMPANY and ROES 1)
through 20, inclusive, )
25
Cross-Defendants. )
26
27
28
ANSWER TO CADRE CUGSS-COP/IPLA1NT
11)002
1 RICHARD KIRK RUYBALID, )
Individually and dba CA )
CONSTRUCTION, )
)
Cross-Complainants, )
v- )
4
RONALD PAUL BRITSCHGI, )
Individually and dba BRITSCHGI )
CONSTRUCTION, and MOES 1 )
through 100, )
7 Cross-Defendants. )
8
CADRE DESIGN GROUP, INC., )
9
Cross-Complainant, )
10 )
v. )
11 )
RONALD PAUL BRITSCHGI, )
12 Individually and dba BRITSCHGI )
CONSTRUCTION, RICHARD KIRK )
13 RUYBALID, individually and dba )
CA CONSTRUCTION, and ROES 1 )
14 through 20, )
)
15 Cross-Defendants. )
16
17 GENERAL DENIAL
18 Comes now defendant Ronald Paul Britschgi, individually and dba Britschgi
19 Construction (hereinafter "Britschgi") and denies the allegations of the cross-complaint of
20 Cadre Design Group, Inc., pursuant to Code of Civil Procedures section 431.30(d).
21 Further, Britschgi denies that the cross-complainant has been damaged in any sum or
22 sums whatsoever or at all, by reason of any act or omission on the part of Britschgi or
23 independent contractors.
24 FIRST AFFIRMATIVE DEFENSE
25 1. As and for a first affirmative defense, Britschgi alleges that cross-
26 complainant has failed to plead facts sufficient to state a cause of action against Britschgi.
27 SECOND AFFIRMATIVE DEFENSE
28 2. As and for a separate second affirmative defense, Britschgi
ANSWER TO CADRE CROSS-COMPLAINT
alleges that the cross-complaint is barred against Britschgi, in whole or in part by the doctrine
of laches.
TfflRD AFFIRMATIVE DEFENSE
3. As and for a separate third affirmative defense, Britschgi alleges that the
cross-complaint is barred by the applicable statute of limitations, including, but not limited to,
:
California Code of Civil Procedure §§ 337, 337.1,339, 340,343 and 344. '
7 FOURTH AFFIRMATIVE DEFENSE
8 4. As and for a separate fourth affirmative defense, Britscshgi alleges that
9 each cause of action in the cross-complaint on file herein is barred by the statute of frauds.
10 FIFTH AFFIRMATIVE DEFENSE
11 5. As and for a separate fifth affirmative defense, Britschgi alleges that the
12 cross-complaint is barred in whole or in part by the doctrine of estoppel.
13 SIXTH AFFIRMATIVE DEFENSE
14 6. As and for a separate sixth affirmative defense, Britschgi alleges that
15 cross-complainant has failed to mitigate its damages, if any, against Britschgi.
16 SEVENTH AFFIRMATIVE DEFENSE
17 7. As and for a separate seventh affirmative defense, Britschgi alleges that
18 cross-complainant's claims are barred by the equitable doctrine of unclean hands.
19 EIGHTH AFFIRMATIVE DEFENSE
20 8. As and for a separate eighth affirmative defense, if cross-complainant has
21 suffered any of the damages alleged, then such damages were caused solely by the project's
22 owners', engineers' or architects' breach of the implied warranty of suitability of the site,
23 plans and specifications for the subject work of improvement, and not by any act or omission
24 for which these answering defendants may be held responsible. Such fault bars and/or
25 proportionately reduces any recovery against Britschgi.
26 NINTH AFFIRMATIVE DEFENSE
27 9. As and for a separate ninth affirmative defense, Britschgi alleges that its
28 fault, if any, was passive and secondary as compared to cross-complainant's fault which was
ANSWER TO CADRE CROSS-COMPLAINT
active and primary.
TENTH AFFIRMATIVE DEFENSE
10. As and for a separate tenth affirmative defense, Britschgi alleges that it is
entitled to indemnification either in whole or in part, from the cross-complainant and from all
persons or entities whose negligence and/or fault proximately contributed to cross-
complainant's damages, if any there were.
ELEVENTH AFFIRMATIVE DEFENSE
11. As and for a separate eleventh affirmative defense, Britschgi alleges that
the cross-complainant by conduct, representations, and/or omissions has waived, relinquished,
10 and/or abandoned each and every cause of action of its cross-complaint.
11 TWELFTH AFFIRMATIVE DEFENSE
12 12. As and for a separate twelfth affirmative defense, Britschgi alleges that any
13 deficiencies in performance of any duties or obligations he may have owed cross-
14 complainant, and/or any other party or stranger to this lawsuit arising out of any and all
15 Agreements, representations, or contracts made by defendant, were caused by cross-
16 complainant and/or other persons or entities not named as parties herein.
17 THIRTEENTH AFFIRMATIVE DEFENSE
18 13. As and for a separate thirteenth affirmative defense, Britschgi alleges that
19 any fault not attributable to the cross-complainant in the construction referred to in the cross-
20 complaint was a result of fault on the part of persons and/or entities other than the cross-
s"
21 defendant. Such fault bars and/or proportionately reduces any recovery against the cross-
22 defendant.
23 FOURTEENTH AFFIRMATIVE DEFENSE
24 14. As and for a separate fourteenth affirmative defense, Britschgi alleges that
25 cross-complainant's damages, if any, were a direct and proximate result of the intervening and
26 superseding negligence or fault on the part of other parties and that this intervening and
27 superseding negligence bars recovery by cross-complainants.
28
ANSWER TO CADRE CROSS-COMPLAINT
FIFTEENTH AFFIRMATIVE DEFENSE
15. As and for a separate fifteenth affirmative defense, Britschgi alleges that
cross-complainant's damages, if any, were a direct and proximate result of the intervening and
superseding negligence or fault on the part of other parties and that this intervening and
superseding negligence bars recovery by cross-complainants.
6 SIXTEENTH AFFIRMATIVE DEFENSE
7 16. As and for a separate sixteenth affirmative defense, Britschgi alleges that
8 the damages alleged by cross-complainant, if any, were caused by cross-complainant's'own
9 negligence and/or failure to use reasonable care.
10 SEVENTEENTH AFFIRMATIVE DEFENSE
11 17. As and for a separate seventeenth affirmative defense, Britschgi alleges
12 that the damages alleged by cross-complainant was caused solely by the unforeseeable and
13 unreasonable abuse, misuse or alteration of the subject products or improvements, by persons,
14 parties or entities other than this answering cross-defendant, and not by any act or omission
15 by which this answering cross-defendant may be held legally or equitably responsible.
16 WHEREFORE, the cross-defendant prays for relief as follows:
17 1. That each and every cause of action be dismissed with prejudice;
18 2. That cross-complainant take nothing by reason of his cross-complaint;
19 3. That cross-defendant be awarded attorneys fees, costs, and expenses of suit;
20 and
21 4. For such other relief as the court may deem just and proper.
22
DATED: October 2008
23
24
By_
25 CRAIG N. LUNDGREN
Attorneys for Defendant, Cross-
26 Complainant and Cross-Defendant
Ronald Paul Britschgi, individually
27 and dba Britschgi Construction
28
ANSWER TO CADRE CROSS-COMPLAINT
12)006
1 Rodney Abbott, et al. V. Ronald Paul Britschgi, et al.
Sacramento County Superior Court No. 07AS04450
2
DECLARATION OF SERVICE
3
I am a citizen of the United States, over the age of 18 years, and not a party to or
4 interested in this action. I am an employee of Law Offices of Craig N. Lundgren and my
business address is 424 2nd Street, Suite A, Davis, California. On this day I caused to be
5 served the following document(s):
6 ANSWER TO CROSS-COMPLAINT OF CADRE DESIGN GROUP, INC.
7 EKl By placing a true copy, in a sealed envelope, with postage fully prepaid, in the United
States Post Office mail at Sacramento, California, addressed as set forth below. I am
8 familiar with this firm's practice whereby the mail, after being placed in a designated
area, is given the appropriate postage and is deposited in a U.S. mail box after the
9 close of the day's business.
10 D By personal delivery of a true copy to the person indicated and at the address set forth
below.
11
D By Federal Express Mail to the person and at the address set forth below.
12
13
D By transmitting a true copy by facsimile to the person and at the facsimile number set
forth below.
14 Rodney Abbott Plaintiffs In Pro Per
Florentine Abbott
15 8601 Rolling Green Way
Fair Oaks, CA 95628
16
Jasun C. Molinelli Attorney for defendant, cross-
17 Archer Norris Defendant and cross-complainant
655 University Avenue, #225 Richard Kirk Ruybalid, individually
18 Sacramento, CA 95825 and dba CA Construction
19 Richard D. Sopp Attorneyfor cross-defendant and
Maloney, Wheatley, Sopp & Brooks, LLP cross-complainant
20 1004 Moon River Rock Drive, Suite 245 Cadre Design Group, Inc.
Folsom, CA 95630
21
22
23
I declare under penalty of perjury under the laws of the State of California that the
24
foregoing is true and correct.
25
Executed on October 9,2008, at Sacramento, California,
26
27
28
I \craig's client flles\bnlscligi (abbolt v)\pleadings\pser doc
PROOF OF SERVICE
Preview
IJil UUJ. ORIGINAL CRAIG N. LUNDGREN, State Bar 148842 424 2nd Street, Suite A Davis, CA 95616 4~ 1 iJxKSV -71"" "' '"' '*" " ' "-- - 530.792.8800 530.297.5077 I (fax) \ 'j OCT 9 2008 Attorney for Defendant and Cross-Complainant and Cross-Defendant Rv Al/lAClAS RONALD PAUL BRITSCHGI Y •—-""^Ef^ilCLERli-------- Individually and dba BRITSCHGI CONSTRUCTION 6 7 8 SUPERIOR \ COURT OF THE STATE OF CALIFORNIA / 9 ' COUNTY OF SACRAMENTO 10 RODNEY ABBOTT and FLORENTINE CASE NO. PC 07AS04450 ABBOTT, 11 ANSWER TO CROSS-COMPLAINT Plaintiffs, OF CADRE DESIGN GROUP. INC, 12 v. 13 14 RONALD PAUL BRITSCHGI, individually and doing business as BRITSCHGI BY FAX CONSTRUCTION, RICHARD KIRK 15 RUYBALID, individually and doing business as) CA CONSTRUCTION, SURETY COMPANY ) 16 OF THE PACIFIC, WESTERN SURETY ) „ COMPANY and DOES 1 through 20, inclusive,) 17 Defendants. ) 18 19 RONALD PAUL BRITSCHGI, individually and doing business as BRITSCHGI ) 20 CONSTRUCTION, ) 21 - Cross-Complainant, ) 22 v. 23 RICHARD KIRK RUYBALID, individually ) and doing business as CA CONSTRUCTION, ) 24 WESTERN SURETY COMPANY and ROES 1) through 20, inclusive, ) 25 Cross-Defendants. ) 26 27 28 ANSWER TO CADRE CUGSS-COP/IPLA1NT 11)002 1 RICHARD KIRK RUYBALID, ) Individually and dba CA ) CONSTRUCTION, ) ) Cross-Complainants, ) v- ) 4 RONALD PAUL BRITSCHGI, ) Individually and dba BRITSCHGI ) CONSTRUCTION, and MOES 1 ) through 100, ) 7 Cross-Defendants. ) 8 CADRE DESIGN GROUP, INC., ) 9 Cross-Complainant, ) 10 ) v. ) 11 ) RONALD PAUL BRITSCHGI, ) 12 Individually and dba BRITSCHGI ) CONSTRUCTION, RICHARD KIRK ) 13 RUYBALID, individually and dba ) CA CONSTRUCTION, and ROES 1 ) 14 through 20, ) ) 15 Cross-Defendants. ) 16 17 GENERAL DENIAL 18 Comes now defendant Ronald Paul Britschgi, individually and dba Britschgi 19 Construction (hereinafter "Britschgi") and denies the allegations of the cross-complaint of 20 Cadre Design Group, Inc., pursuant to Code of Civil Procedures section 431.30(d). 21 Further, Britschgi denies that the cross-complainant has been damaged in any sum or 22 sums whatsoever or at all, by reason of any act or omission on the part of Britschgi or 23 independent contractors. 24 FIRST AFFIRMATIVE DEFENSE 25 1. As and for a first affirmative defense, Britschgi alleges that cross- 26 complainant has failed to plead facts sufficient to state a cause of action against Britschgi. 27 SECOND AFFIRMATIVE DEFENSE 28 2. As and for a separate second affirmative defense, Britschgi ANSWER TO CADRE CROSS-COMPLAINT alleges that the cross-complaint is barred against Britschgi, in whole or in part by the doctrine of laches. TfflRD AFFIRMATIVE DEFENSE 3. As and for a separate third affirmative defense, Britschgi alleges that the cross-complaint is barred by the applicable statute of limitations, including, but not limited to, : California Code of Civil Procedure §§ 337, 337.1,339, 340,343 and 344. ' 7 FOURTH AFFIRMATIVE DEFENSE 8 4. As and for a separate fourth affirmative defense, Britscshgi alleges that 9 each cause of action in the cross-complaint on file herein is barred by the statute of frauds. 10 FIFTH AFFIRMATIVE DEFENSE 11 5. As and for a separate fifth affirmative defense, Britschgi alleges that the 12 cross-complaint is barred in whole or in part by the doctrine of estoppel. 13 SIXTH AFFIRMATIVE DEFENSE 14 6. As and for a separate sixth affirmative defense, Britschgi alleges that 15 cross-complainant has failed to mitigate its damages, if any, against Britschgi. 16 SEVENTH AFFIRMATIVE DEFENSE 17 7. As and for a separate seventh affirmative defense, Britschgi alleges that 18 cross-complainant's claims are barred by the equitable doctrine of unclean hands. 19 EIGHTH AFFIRMATIVE DEFENSE 20 8. As and for a separate eighth affirmative defense, if cross-complainant has 21 suffered any of the damages alleged, then such damages were caused solely by the project's 22 owners', engineers' or architects' breach of the implied warranty of suitability of the site, 23 plans and specifications for the subject work of improvement, and not by any act or omission 24 for which these answering defendants may be held responsible. Such fault bars and/or 25 proportionately reduces any recovery against Britschgi. 26 NINTH AFFIRMATIVE DEFENSE 27 9. As and for a separate ninth affirmative defense, Britschgi alleges that its 28 fault, if any, was passive and secondary as compared to cross-complainant's fault which was ANSWER TO CADRE CROSS-COMPLAINT active and primary. TENTH AFFIRMATIVE DEFENSE 10. As and for a separate tenth affirmative defense, Britschgi alleges that it is entitled to indemnification either in whole or in part, from the cross-complainant and from all persons or entities whose negligence and/or fault proximately contributed to cross- complainant's damages, if any there were. ELEVENTH AFFIRMATIVE DEFENSE 11. As and for a separate eleventh affirmative defense, Britschgi alleges that the cross-complainant by conduct, representations, and/or omissions has waived, relinquished, 10 and/or abandoned each and every cause of action of its cross-complaint. 11 TWELFTH AFFIRMATIVE DEFENSE 12 12. As and for a separate twelfth affirmative defense, Britschgi alleges that any 13 deficiencies in performance of any duties or obligations he may have owed cross- 14 complainant, and/or any other party or stranger to this lawsuit arising out of any and all 15 Agreements, representations, or contracts made by defendant, were caused by cross- 16 complainant and/or other persons or entities not named as parties herein. 17 THIRTEENTH AFFIRMATIVE DEFENSE 18 13. As and for a separate thirteenth affirmative defense, Britschgi alleges that 19 any fault not attributable to the cross-complainant in the construction referred to in the cross- 20 complaint was a result of fault on the part of persons and/or entities other than the cross- s" 21 defendant. Such fault bars and/or proportionately reduces any recovery against the cross- 22 defendant. 23 FOURTEENTH AFFIRMATIVE DEFENSE 24 14. As and for a separate fourteenth affirmative defense, Britschgi alleges that 25 cross-complainant's damages, if any, were a direct and proximate result of the intervening and 26 superseding negligence or fault on the part of other parties and that this intervening and 27 superseding negligence bars recovery by cross-complainants. 28 ANSWER TO CADRE CROSS-COMPLAINT FIFTEENTH AFFIRMATIVE DEFENSE 15. As and for a separate fifteenth affirmative defense, Britschgi alleges that cross-complainant's damages, if any, were a direct and proximate result of the intervening and superseding negligence or fault on the part of other parties and that this intervening and superseding negligence bars recovery by cross-complainants. 6 SIXTEENTH AFFIRMATIVE DEFENSE 7 16. As and for a separate sixteenth affirmative defense, Britschgi alleges that 8 the damages alleged by cross-complainant, if any, were caused by cross-complainant's'own 9 negligence and/or failure to use reasonable care. 10 SEVENTEENTH AFFIRMATIVE DEFENSE 11 17. As and for a separate seventeenth affirmative defense, Britschgi alleges 12 that the damages alleged by cross-complainant was caused solely by the unforeseeable and 13 unreasonable abuse, misuse or alteration of the subject products or improvements, by persons, 14 parties or entities other than this answering cross-defendant, and not by any act or omission 15 by which this answering cross-defendant may be held legally or equitably responsible. 16 WHEREFORE, the cross-defendant prays for relief as follows: 17 1. That each and every cause of action be dismissed with prejudice; 18 2. That cross-complainant take nothing by reason of his cross-complaint; 19 3. That cross-defendant be awarded attorneys fees, costs, and expenses of suit; 20 and 21 4. For such other relief as the court may deem just and proper. 22 DATED: October 2008 23 24 By_ 25 CRAIG N. LUNDGREN Attorneys for Defendant, Cross- 26 Complainant and Cross-Defendant Ronald Paul Britschgi, individually 27 and dba Britschgi Construction 28 ANSWER TO CADRE CROSS-COMPLAINT 12)006 1 Rodney Abbott, et al. V. Ronald Paul Britschgi, et al. Sacramento County Superior Court No. 07AS04450 2 DECLARATION OF SERVICE 3 I am a citizen of the United States, over the age of 18 years, and not a party to or 4 interested in this action. I am an employee of Law Offices of Craig N. Lundgren and my business address is 424 2nd Street, Suite A, Davis, California. On this day I caused to be 5 served the following document(s): 6 ANSWER TO CROSS-COMPLAINT OF CADRE DESIGN GROUP, INC. 7 EKl By placing a true copy, in a sealed envelope, with postage fully prepaid, in the United States Post Office mail at Sacramento, California, addressed as set forth below. I am 8 familiar with this firm's practice whereby the mail, after being placed in a designated area, is given the appropriate postage and is deposited in a U.S. mail box after the 9 close of the day's business. 10 D By personal delivery of a true copy to the person indicated and at the address set forth below. 11 D By Federal Express Mail to the person and at the address set forth below. 12 13 D By transmitting a true copy by facsimile to the person and at the facsimile number set forth below. 14 Rodney Abbott Plaintiffs In Pro Per Florentine Abbott 15 8601 Rolling Green Way Fair Oaks, CA 95628 16 Jasun C. Molinelli Attorney for defendant, cross- 17 Archer Norris Defendant and cross-complainant 655 University Avenue, #225 Richard Kirk Ruybalid, individually 18 Sacramento, CA 95825 and dba CA Construction 19 Richard D. Sopp Attorneyfor cross-defendant and Maloney, Wheatley, Sopp & Brooks, LLP cross-complainant 20 1004 Moon River Rock Drive, Suite 245 Cadre Design Group, Inc. Folsom, CA 95630 21 22 23 I declare under penalty of perjury under the laws of the State of California that the 24 foregoing is true and correct. 25 Executed on October 9,2008, at Sacramento, California, 26 27 28 I \craig's client flles\bnlscligi (abbolt v)\pleadings\pser doc PROOF OF SERVICE