Preview
1 Todd A. Jones (Bar No. 198024)
tjones@archernorris.com
2 Gregory K. Federico (Bar No, 242184)
gfederico@archernorris.com
3 ARCHER. NOKRIS
A Professional Law Corporation
4 655 University Avenue, Suite 225
Sacramento, California 95825
5 Telephone: 916.646.2480
Facsimile: 916.646.5696
6
Attorneys for Defendants
7 RICHARD KIRK RUYBALID, individually, and
dba CA CONSTRUCTION
8
9 SUPERIOR COURT OF CALIFORNIA
10 COUNTY OF SACRAMENTO
11
12 RODNEY ABBOTT and FLORENTINE Case No. 07AS04450
ABBOTT,
13 ANSWER TO PLAINTIFFS' SECOND
Plaintiffs, AMENDED COMPLAINT FOR DAMAGES
14 FOR BREACH OF CONTRACT,
v. NEGLIGENCE, AND VIOLATIONS OF
15 BUSINESS & PROFESSIONS CODE
RONALD PAUL BRITSCHGI, et al.,
16 Action Filed: September 24, 2007
Defendants.
17
18
19 COMES NOW Defendants RICHARD KIRK RUYBALID, individually and dba CA
20 CONSTRUCTION (hereinafter "CA CONSTRUCTION" or "Defendants") on behalf of
<
21 themselves and for no other Defendant and answers Plaintiffs' Second Amended Complaint for
22 Damages on file herein as follows:
23 These answering Defendants deny each and every allegation of the complaint on file
24 herein and each and every paragraph thereof and further deny that Plaintiffs sustained any
25 damages in the sum or sums alleged, or in any other sum or sums whatsoever, or at all, and
26 further deny that Plaintiffs are entitled to any damages by way of this action in any amount
27 whatsoever.
28
N1C34 1/879557-1
ANSWER TO PLAINTIFFS' SECOND AMENDED COMPLAINT FOR DAMAGES
1 FIRST AFFIRMATIVE DEFENSE
^ (Failure to State a Cause of Action)
3 The complaint on file herein fails to state facts sufficient to state a claim upon which relief
4 can be granted.
5 SECOND AFFIRMATIVE DEFENSE
f- (Contributory Negligence)
7 Plaintiffs were themselves careless and negligent and their own carelessness and
8 negligence proximately caused and contributed to the injuries and damages Plaintiffs complain of,
9 if any there were. Plaintiffs' own carelessness and negligence account for one hundred percent of
10 the total carelessness and negligence relating to Plaintiffs' injuries and damages, if any.
11 THIRD AFFIRMATIVE DEFENSE
,- (Negligence of Others)
13 The negligence, carelessness and other acts and omissions of other Defendants or Cross-
14 defendants in this lawsuit, as well as other persons and entities not parties to this lawsuit,
15 proximately caused or contributed to Plaintiffs' injuries and damages, if any. The negligence,
16 carelessness and other acts or omissions of the other Defendants in this lawsuit, and other persons
17 and entities not parties to this lawsuit, account for one hundred percent of the injuries and
1g damages, if any, and/or constitute supervening and/or intervening causes of Plaintiffs' injuries
19 and damages, if any.
20
FOURTH AFFIRMATIVE DEFENSE
21 (Assumption of the Risk)
22 Plaintiffs are barred from asserting any claim against this answering defendant by reason of
23 Plaintiffs' assumption of the risk of the matters causing the injuries and damages incurred, if any.
24
FIFTH AFFIRMATIVE DEFENSE
25 (Plaintiffs'Voluntary Conduct)
26 Plaintiffs voluntarily and knowingly entered into and engaged in the conduct alleged in
27 the complaint and voluntarily and knowingly assumed all of the risks incident to said conduct at
28 the time and place mentioned in said complaint.
NIC34I/879557-1 2
ANSWER TO PLAINTIFFS' SECOND AMENDED COMPLAINT FOR DAMAGES
1 SIXTH AFFIRMATIVE DEFENSE
(Plaintiffs' Failure to use Reasonable Diligence)
1
3 These answering Defendants are informed and believe and thereon allege that Plaintiffs'
4 injuries, loss or damages, if any, were aggravated by Plaintiffs' failure to use reasonable
5 diligence.
6 SEVENTH AFFIRMATIVE DEFENSE
(Time Barred Claims)
1
g These answering Defendants allege that the complaint and each cause of action set forth
9 therein is barred by provisions of Code of Civil Procedure Sections 337, 337.1, 337.15, 338, 339,
10 340, 342 and 343; and California Civil Code Sections 896 and 900.
11 EIGHTH AFFIRMATIVE DEFENSE
(Plaintiffs' Undertaking a Known Danger)
12
13 These answering Defendants allege that if Plaintiffs were injured, as alleged in the
14 complaint, or at all, then these answering Defendants are informed and believe and on the basis of
15 such information and belief allege that said damages were and are the result of an open, obvious
15 and apparent danger which was known to and recognized by Plaintiffs, who nevertheless
17 knowingly, willingly, intentionally and voluntarily exposed themselves to said danger, thereby
1g assuming the risk of accident, injury and damage.
19 NINTH AFFIRMATIVE DEFENSE
(Laches)
20
21 These answering Defendants allege that the Plaintiffs are barred by the equitable doctrines
22 of laches.
23 TENTH AFFIRMATIVE DEFENSE
(Waiver)
24
25 Plaintiffs have waived and are estopped from asserting any claim against these answering
26 Defendants by reason of Plaintiffs' approval and consent to the risk in the matters causing the
27 damages alleged, if any, in their acknowledgement of, acquiescence in and consent to the alleged
28 act or omissions, if any, of these answering Defendants.
NIC341/879557-1 3
ANSWER TO PLAINTIFFS' SECOND AMENDED COMPLAINT FOR DAMAGES
1 ELEVENTH AFFIRMATIVE DEFENSE
(Comparative Fault)
2
3 While at all times denying any liability whatsoever to the Plaintiffs, any alleged liability
4 or responsibility of these Defendants are small in proportion to the alleged liability and
5 responsibility of other persons or entities, including other persons and entities who are
6 Defendants or Cross-Defendants herein, and Plaintiffs should be limited to seeking recovery from
7 these Defendants for the proportion of alleged injuries and damages for which these answering
8 Defendants are allegedly liable or responsible, all such alleged liability and responsibility being
9 expressly denied.
10 TWELFTH AFFIRMATIVE DEFENSE
(Failure to Mitigate)
11
12 Plaintiffs' complaint fails to state a claim against these answering Defendants as Plaintiffs
13 failed to mitigate their damages.
14
THIRTEENTH AFFIRMATIVE DEFENSE
15 (Doctrine of Unclean Hands)
16 Plaintiffs' complaint and each cause of action therein is barred by the doctrine of unclean
17 hands.
FOURTEENTH AFFIRMATIVE DEFENSE
18 (Failure to Provide Notice of Breach of Warranty)
19 Plaintiffs' complaint and each cause of action therein fails to state a cause of action in that
20 Plaintiffs failed to give timely and proper notice of breach of warranty.
21 FIFTEENTH AFFIRMATIVE DEFENSE
(Failure to Join Necessary Parties)
22
23 Plaintiffs' complaint fails to state a claim upon which relief can be granted as there is a
24 defect or misjoinder of parties pursuant to Code of Civil Procedure section 430.10(d), in that
25 Plaintiffs failed to join all parties necessary for final determination of this action.
26 SIXTEENTH AFFIRMATIVE DEFENSE
(Failure to State a Claim for Attorneys' Fees)
27
28 Plaintiffs' complaint fails to state a claim upon which attorney fees can be awarded.
NFC341/879557-1 4
ANSWER TO PLAINTIFFS' SECOND AMENDED COMPLAINT FOR DAMAGES
1 SEVENTEENTH AFFIRMATIVE DEFENSE
(Attorneys' Fees)
2
3 These answering Defendants allege that they are entitled to an award of attorneys' fees
4 pursuant to Code of Civil Procedure Section 1038, by which attorneys' fees may be awarded
5 upon entry of judgment on a complaint for express or implied indemnity or contribution, when
6 such complaint has been filed without any reasonable cause and good faith belief that there was
7 controversy that warranted the filing of such complaint.
8 EIGHTEENTH AFFIRMATIVE DEFENSE
(Applicability of Business Judgment Rule)
9
10 These answering Defendants are exempt from liability to Plaintiffs by operation of
11 Corporations Code section 7231.
12 NINETEENTH AFFIRMATIVE DEFENSE
(Limited Warranty)
13
14 These answering Defendants allege that the warranties, if any, by this answering
15 Defendants were limited as to time and scope.
16 TWENTIETH AFFIRMATIVE DEFENSE
(Lack of Privity)
17
1g These answering Defendants allege that at no time has this Defendant breached any
19 warranty to Plaintiffs or any party herein, and Defendants further allege that even if any
20 warranties had been made by these answering Defendants, which is denied, no cause of action for
21 breach of warranty has been asserted or may be asserted against these Defendants as there is no
22 allegation of privity between these Defendants and any other party and, in fact, there was no such
23 privity to give rise to such cause of action.
24 TWENTY-FIRST AFFIRMATIVE DEFENSE
(Contractual Privity)
25
26 These answering Defendants allege that it was not in contractual privity with Plaintiffs
27 and, therefore, Plaintiffs have no contractual rights for recovery against said Defendants.
28 ///
NIC341/879557-I 5
ANSWER TO PLAINTIFFS' SECOND AMENDED COMPLAINT FOR DAMAGES
1 TWENTY-SECOND AFFIRMATIVE DEFENSE
(Unjust Enrichment)
2
3 These answering Defendants allege that any recovery by Plaintiffs would be unjust and
4 inequitable under the circumstances of the case, as all performance required by such Defendants
5 was properly performed.
6 TWENTY-THIRD AFFIRMATIVE DEFENSE
(Intervening Acts)
7
g These answering Defendants allege that each cause of action is barred by the independent
9 intervening and superseding acts of other parties.
]0 TWENTY-FOURTH AFFIRMATIVE DEFENSE
(Civil Code Section 2782)
11
12 These answering Defendants allege that each cause of action is barred by the provisions of
13 Civil Code Section 2782, et seq.
14 TWENTY-FIFTH AFFIRMATIVE DEFENSE
(Allocation of Fault)
15
15 These answering Defendants request that the Court determine the rights and liabilities of
17 the parties and determine the proportionate share of fault with respect to each party, and all
1g persons or entities not a party to the action, in order that proportionate shares of liability, if any
19 there may be, can be allocated.
20 TWENTY-SIXTH AFFIRMATIVE DEFENSE
(Misuse and Improper Maintenance)
21
22 These answering Defendants allege on information and belief that persons or entities other
23 than these answering Defendants misused and failed to properly maintain or repair the property
24 which is the subject of this action thereby causing or contributing to the damages, if any, alleged
25 in the Complaint.
26 TWENTY-SEVENTH AFFIRMATIVE DEFENSE
(Alteration)
27
28 These answering Defendants allege on information and belief that persons or entities other
N1C341/879557-1 6
ANSWER TO PLAINTIFFS' SECOND AMENDED COMPLAINT FOR DAMAGES
1 than these answering Defendants, without the knowledge or consent of these answering
2 Defendants, altered the subject property to the extent that any alleged damages were solely and
3 proximately caused by such alteration.
4 TWENTY-EIGHTH AFFIRMATIVE DEFENSE
(Ratification of Work)
6 These answering Defendants allege that Plaintiffs expressly or impliedly approved and/or
7 ratified any and all work performed by these answering Defendants at the subject property and
8 therefore Plaintiffs have waived and are estopped from asserting any claims arising out of such
9 matter.
10 TWENTY-NINTH AFFIRMATIVE DEFENSE
(Accord and Satisfaction)
12 • These answering Defendants allege an accord and satisfaction between the parties barring
13 the complaint.
14 THIRTIETH AFFIRMATIVE DEFENSE
(Prior Breach of Contract)
16 These answering Defendants allege that they have been excused from performance of any
17 contract alleged by Plaintiffs because of Plaintiffs' prior breach of contract.
18 THIRTY-FIRST AFFIRMATIVE DEFENSE
(Unconscionable Contract)
20 These answering Defendants allege that the contract alleged to exist between these
21 answering Defendants and Plaintiffs was drafted by Plaintiffs and was unconscionable at the time
22 it was made. It is therefore unenforceable.
23 THIRTY-SECOND AFFIRMATIVE DEFENSE
(Non-Negotiated Terms, Conditions)
/L\
25 These answering Defendants allege that the contract alleged to exist between these
26 answering Defendants and Plaintiffs was drafted by Plaintiffs and contained non-negotiated terms
27 and conditions which exclusively benefited Plaintiffs to the detriment of these answering
28 Defendants at the time the contract was made.
NIC34I/879557-1 7
ANSWER TO PLAINTIFFS' SECOND AMENDED COMPLAINT FOR DAMAGES
1 THIRTY-THIRD AFFIRMATIVE DEFENSE
(Uncertain Terms)
2
3 These answering Defendants allege that the contract alleged to exist between these
4 answering Defendants and Plaintiffs was drafted by Plaintiffs and contained uncertain terms,
5 conditions and language which must be interpreted against Plaintiffs.
6 THIRTY-FOURTH AFFIRMATIVE DEFENSE
(Performance Excused)
7
g These answering Defendants allege that they have been excused from performing any
9 contractual duties alleged by Plaintiffs by reason of failure of consideration, waiver, breach of
10 condition precedent, impossibility of performance, prevention by Plaintiffs, frustration of puiposc
11 and/or acceptance by Plaintiffs.
12 THIRTY-FIFTH AFFIRMATIVE DEFENSE
(Full or Partial Performance)
13
14 These answering Defendants allege that all duties owed to Plaintiffs have been
15 extinguished by these answering Defendants' full or partial performance.
16 THIRTY-SIXTH AFFIRMATIVE DEFENSE
(Adhesion)
17
1g These answering Defendants allege that the contract alleged to exist between these
19 answering Defendants and Plaintiffs was drafted by Plaintiffs and is a contract of adhesion. Any
20 ambiguities in terms and conditions of the contract must be resolved against Plaintiffs.
21 THIRTY-SEVENTH AFFIRMATIVE DEFENSE
(Act of God)
22
23 These answering Defendants allege that any and all injuries, losses or damages, if any,
24 were the direct and proximate result of any unavoidable incident or condition and, as such, were
25 an act of God, without fault or liability on the part of these answering Defendants, including but
26 not limited to, an unforeseeable shifting of land mass, abnormal rainfall, or preexisting ancient
27 landslide.
28 ///
NIC34I/879557-I g
ANSWER TO PLAINTIFFS' SECOND AMENDED COMPLAINT FOR DAMAGES
1 THIRTY-EIGHTH AFFIRMATIVE DEFENSE
(Economic Loss)
2
3 These answering Defendants allege that any and all damages sought are due to economic
4 loss, and these damages are noncompensible, The sole physical injury at issue is to the product
5 itself without any damage to other property. As such, the damages sought are for economic loss,
6 and these damages cannot be recovered from this answering party.
7 THIRTY-NINTH AFFIRMATIVE DEFENSE
(Lack of Standing)
8
9 These answering Defendants allege that Plaintiffs lack standing to sue these answering
10 Defendants with respect to the property described in the complaint.
11 FORTIETH AFFIRMATIVE DEFENSE
(Civil Code Section 896 and 945.5)
12
13 These answering Defendants allege that each cause of action is barred by the provisions of
14 Civil Code Section 896, et seq. and Civil Code Section 945.5.
15 FORTY-FIRST AFFIRMATIVE DEFENSE
(Failure to Allow Reasonable Access for Inspection and Repair)
16
17 These answering Defendants allege that Plaintiffs have unreasonably failed to minimize or
13 prevent damages in a timely manner, including the failure of the homeowners to allow reasonable
19 and timely access for inspections and repairs under Civil Code Sections 896 and 945.5,
20 FORTY-SECOND AFFIRMATIVE DEFENSE
(Homeowner Maintenance Obligation)
21
22 These answering Defendants allege that Plaintiffs have failed to follow the builder's or
23 manufacturer's recommendations, or commonly accepted homeowner's maintenance obligations
24 and, therefore, all claims are barred.
25
FORTY-THIRD AFFIRMATIVE DEFENSE
26 (Spoliation of Evidence)
27
These answering Defendants allege that Plaintiffs either intentionally or negligently failed
28
NIC341/879557-1 Q
ANSWER TO PLAINTIFFS' SECOND AMENDED COMPLAINT FOR DAMAGES
1 to preserve the primary evidence relevant to this litigation, thus failing to give these answering
2 Defendants an opportunity to inspect said evidence and thereby damaging and prejudicing a
3 defense. Plaintiffs, therefore, should be barred from introducing secondary or lesser evidence,
4 and any recovery should be diminished accordingly.
5 FORTY-FOURTH AFFIRMATIVE DEFENSE
(No Private Right of Action)
6
1 These answering Defendants allege that Plaintiffs' Complaint fails to state a cause of
8 action against these answering Defendants because there is no private right of action afforded to
9 Plaintiffs under California Business and Professions Code Sections 7026, 7028, 7031, 7109, and
10 7160. These sections are disciplinary in nature, and therefore, they are not a basis of recovery for
11 Plaintiffs,
12 Wherefore, Defendant CA CONSTRUCTION prays for judgment as follows;
13 1. That Plaintiffs take nothing by way of their complaint on file herein;
14 2. That the complaint herein against Defendant RICHARD KIRK
15 RUYBALID, individually and dba CA CONSTRUCTION be dismissed in its entirety;
16 3. For costs of suit, including attorneys' fees; and
17 4 For such other and further relief that the court may deem just and proper.
18
19 Dated: December f , 2009 ARCHER NORRIS
20
21 M
Gregory K. Federico
22 Attorneys for Defendants
RICHARD KIRK RUYBALID, individually
23
and dba CA CONSTRUCTION
24
25
26
27
28 ((
NIC34I/879557-I 10
ANSWER TO PLAINTIFFS' SECOND AMENDED COMPLAINT FOR DAMAGES
1 PROOF OF SERVICE
2 Name of Action: Rodney Abbott, et al. v. Ronald Paul Britschgi, et a I.
Court and Action No: Sacramento County Superior No. 07AS04450
3
I, Marie Cantrell, declare that I am over the age of 18 years and not a party to this action
4 or proceeding. My business address is 655 University Avenue, Suite 225, Sacramento, California
95825. On December 8, 2009,1 caused the following document(s) to be served;
5
ANSWER TO PLAINTIFFS' SECOND AMENDED COMPLAINT FOR DAMAGES FOR
6 BREACH OF CONTRACT, NEGLIGENCE, AND VIOLATIONS OF BUSINESS &
PROFESSIONS CODE
7
by placing a true copy of the documents listed above, enclosed in a sealed envelope,
addressed as set forth below, for collection and mailing on the date and at the business
address shown above following our ordinary business practices. I am readily familiar
with this business' practice for collection and processing of correspondence for
mailing with the United States Postal Service. On the same day that a sealed envelope
is placed for collection and mailing, it is deposited in the ordinary course of business
11 with the United States Postal Service with postage fully prepaid.
12 j—| by having a true copy of the document(s) listed above transmitted by facsimile to the
person(s) at the facsimile number(s) set forth below before 5:00 p.m. The transmission
was reported as complete without error by a report issued by the transmitting facsimile
machine.
15 [~] by placing a true copy of the document(s) listed above, in a box or other facility
regularly maintained by UPS, an express service carrier, or delivered to a courier or
16 driver authorized by the express service carrier to receive documents, in an envelope
designated by the express service carrier, with delivery fees paid or provided for,
'' addressed as set forth below.
18
[SEE ATTACHED SERVICE LIST]
20 n
I declare under penalty of perjury that the foregoing is true and correct. Executed on
December 8, 2009, at Sacramento, California.
22
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NFC341/608293-1
PROOF OF SERVICE
1 Service List
2
Stephanie Finelli PLAINTIFFS
3 Law Offices of Stephanie J. Finelli
1007 Seventh Street, Suite 500 Tel (916)443-2144
4 Sacramento, CA95814 Fax:(916)443-1511
E-mail: sfinelli700@yahoo.com
5
Craig N. Lundgren Counsel for RONALD PAUL BRITSCHGI,
6 LUNDGREN & REYNOLDS, LLP INDIVIDUALLY AND DBA BRITSCHGI
424 Second Street, Suite A CORPORATION
7 Davis, CA 95616
Tel' (530)297-5030
8 Fax: (530) 297-5077
E-mail: clundgren@lr-law.net
9
Richard D. Sopp Counsel for CADRE DESIGN GROUP, INC.
10 Wheatley Sopp LLP
1004 River Rock Drive, Suite 245 Tel: (916)988-3857
11 Folsom, CA 95630 Fax:(916)988-5296
Email, rds@mwsblaw.com
12
Sean D. Schwerdtfeger Counsel for CONSTRUCTION TESTING &
13 Joyati Tanya Schomee ENGINEERING, INC.
I/O OF SEAN D. SCHWERDTFEGER
14 501 West Broadway, Suite 1700 Tel' (619)595-3403
San Diego, CA 92101 Fax:(619)595-3404
15 Email: sean.schwerdtfeger@gmail.com
16 Mark Smith In Pro Per
8549 Willow Valley Place
17 Granite Bay, CA 95746
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NIC34I/608293-!
SERVICE LIST
Preview
1 Todd A. Jones (Bar No. 198024) tjones@archernorris.com 2 Gregory K. Federico (Bar No, 242184) gfederico@archernorris.com 3 ARCHER. NOKRIS A Professional Law Corporation 4 655 University Avenue, Suite 225 Sacramento, California 95825 5 Telephone: 916.646.2480 Facsimile: 916.646.5696 6 Attorneys for Defendants 7 RICHARD KIRK RUYBALID, individually, and dba CA CONSTRUCTION 8 9 SUPERIOR COURT OF CALIFORNIA 10 COUNTY OF SACRAMENTO 11 12 RODNEY ABBOTT and FLORENTINE Case No. 07AS04450 ABBOTT, 13 ANSWER TO PLAINTIFFS' SECOND Plaintiffs, AMENDED COMPLAINT FOR DAMAGES 14 FOR BREACH OF CONTRACT, v. NEGLIGENCE, AND VIOLATIONS OF 15 BUSINESS & PROFESSIONS CODE RONALD PAUL BRITSCHGI, et al., 16 Action Filed: September 24, 2007 Defendants. 17 18 19 COMES NOW Defendants RICHARD KIRK RUYBALID, individually and dba CA 20 CONSTRUCTION (hereinafter "CA CONSTRUCTION" or "Defendants") on behalf of < 21 themselves and for no other Defendant and answers Plaintiffs' Second Amended Complaint for 22 Damages on file herein as follows: 23 These answering Defendants deny each and every allegation of the complaint on file 24 herein and each and every paragraph thereof and further deny that Plaintiffs sustained any 25 damages in the sum or sums alleged, or in any other sum or sums whatsoever, or at all, and 26 further deny that Plaintiffs are entitled to any damages by way of this action in any amount 27 whatsoever. 28 N1C34 1/879557-1 ANSWER TO PLAINTIFFS' SECOND AMENDED COMPLAINT FOR DAMAGES 1 FIRST AFFIRMATIVE DEFENSE ^ (Failure to State a Cause of Action) 3 The complaint on file herein fails to state facts sufficient to state a claim upon which relief 4 can be granted. 5 SECOND AFFIRMATIVE DEFENSE f- (Contributory Negligence) 7 Plaintiffs were themselves careless and negligent and their own carelessness and 8 negligence proximately caused and contributed to the injuries and damages Plaintiffs complain of, 9 if any there were. Plaintiffs' own carelessness and negligence account for one hundred percent of 10 the total carelessness and negligence relating to Plaintiffs' injuries and damages, if any. 11 THIRD AFFIRMATIVE DEFENSE ,- (Negligence of Others) 13 The negligence, carelessness and other acts and omissions of other Defendants or Cross- 14 defendants in this lawsuit, as well as other persons and entities not parties to this lawsuit, 15 proximately caused or contributed to Plaintiffs' injuries and damages, if any. The negligence, 16 carelessness and other acts or omissions of the other Defendants in this lawsuit, and other persons 17 and entities not parties to this lawsuit, account for one hundred percent of the injuries and 1g damages, if any, and/or constitute supervening and/or intervening causes of Plaintiffs' injuries 19 and damages, if any. 20 FOURTH AFFIRMATIVE DEFENSE 21 (Assumption of the Risk) 22 Plaintiffs are barred from asserting any claim against this answering defendant by reason of 23 Plaintiffs' assumption of the risk of the matters causing the injuries and damages incurred, if any. 24 FIFTH AFFIRMATIVE DEFENSE 25 (Plaintiffs'Voluntary Conduct) 26 Plaintiffs voluntarily and knowingly entered into and engaged in the conduct alleged in 27 the complaint and voluntarily and knowingly assumed all of the risks incident to said conduct at 28 the time and place mentioned in said complaint. NIC34I/879557-1 2 ANSWER TO PLAINTIFFS' SECOND AMENDED COMPLAINT FOR DAMAGES 1 SIXTH AFFIRMATIVE DEFENSE (Plaintiffs' Failure to use Reasonable Diligence) 1 3 These answering Defendants are informed and believe and thereon allege that Plaintiffs' 4 injuries, loss or damages, if any, were aggravated by Plaintiffs' failure to use reasonable 5 diligence. 6 SEVENTH AFFIRMATIVE DEFENSE (Time Barred Claims) 1 g These answering Defendants allege that the complaint and each cause of action set forth 9 therein is barred by provisions of Code of Civil Procedure Sections 337, 337.1, 337.15, 338, 339, 10 340, 342 and 343; and California Civil Code Sections 896 and 900. 11 EIGHTH AFFIRMATIVE DEFENSE (Plaintiffs' Undertaking a Known Danger) 12 13 These answering Defendants allege that if Plaintiffs were injured, as alleged in the 14 complaint, or at all, then these answering Defendants are informed and believe and on the basis of 15 such information and belief allege that said damages were and are the result of an open, obvious 15 and apparent danger which was known to and recognized by Plaintiffs, who nevertheless 17 knowingly, willingly, intentionally and voluntarily exposed themselves to said danger, thereby 1g assuming the risk of accident, injury and damage. 19 NINTH AFFIRMATIVE DEFENSE (Laches) 20 21 These answering Defendants allege that the Plaintiffs are barred by the equitable doctrines 22 of laches. 23 TENTH AFFIRMATIVE DEFENSE (Waiver) 24 25 Plaintiffs have waived and are estopped from asserting any claim against these answering 26 Defendants by reason of Plaintiffs' approval and consent to the risk in the matters causing the 27 damages alleged, if any, in their acknowledgement of, acquiescence in and consent to the alleged 28 act or omissions, if any, of these answering Defendants. NIC341/879557-1 3 ANSWER TO PLAINTIFFS' SECOND AMENDED COMPLAINT FOR DAMAGES 1 ELEVENTH AFFIRMATIVE DEFENSE (Comparative Fault) 2 3 While at all times denying any liability whatsoever to the Plaintiffs, any alleged liability 4 or responsibility of these Defendants are small in proportion to the alleged liability and 5 responsibility of other persons or entities, including other persons and entities who are 6 Defendants or Cross-Defendants herein, and Plaintiffs should be limited to seeking recovery from 7 these Defendants for the proportion of alleged injuries and damages for which these answering 8 Defendants are allegedly liable or responsible, all such alleged liability and responsibility being 9 expressly denied. 10 TWELFTH AFFIRMATIVE DEFENSE (Failure to Mitigate) 11 12 Plaintiffs' complaint fails to state a claim against these answering Defendants as Plaintiffs 13 failed to mitigate their damages. 14 THIRTEENTH AFFIRMATIVE DEFENSE 15 (Doctrine of Unclean Hands) 16 Plaintiffs' complaint and each cause of action therein is barred by the doctrine of unclean 17 hands. FOURTEENTH AFFIRMATIVE DEFENSE 18 (Failure to Provide Notice of Breach of Warranty) 19 Plaintiffs' complaint and each cause of action therein fails to state a cause of action in that 20 Plaintiffs failed to give timely and proper notice of breach of warranty. 21 FIFTEENTH AFFIRMATIVE DEFENSE (Failure to Join Necessary Parties) 22 23 Plaintiffs' complaint fails to state a claim upon which relief can be granted as there is a 24 defect or misjoinder of parties pursuant to Code of Civil Procedure section 430.10(d), in that 25 Plaintiffs failed to join all parties necessary for final determination of this action. 26 SIXTEENTH AFFIRMATIVE DEFENSE (Failure to State a Claim for Attorneys' Fees) 27 28 Plaintiffs' complaint fails to state a claim upon which attorney fees can be awarded. NFC341/879557-1 4 ANSWER TO PLAINTIFFS' SECOND AMENDED COMPLAINT FOR DAMAGES 1 SEVENTEENTH AFFIRMATIVE DEFENSE (Attorneys' Fees) 2 3 These answering Defendants allege that they are entitled to an award of attorneys' fees 4 pursuant to Code of Civil Procedure Section 1038, by which attorneys' fees may be awarded 5 upon entry of judgment on a complaint for express or implied indemnity or contribution, when 6 such complaint has been filed without any reasonable cause and good faith belief that there was 7 controversy that warranted the filing of such complaint. 8 EIGHTEENTH AFFIRMATIVE DEFENSE (Applicability of Business Judgment Rule) 9 10 These answering Defendants are exempt from liability to Plaintiffs by operation of 11 Corporations Code section 7231. 12 NINETEENTH AFFIRMATIVE DEFENSE (Limited Warranty) 13 14 These answering Defendants allege that the warranties, if any, by this answering 15 Defendants were limited as to time and scope. 16 TWENTIETH AFFIRMATIVE DEFENSE (Lack of Privity) 17 1g These answering Defendants allege that at no time has this Defendant breached any 19 warranty to Plaintiffs or any party herein, and Defendants further allege that even if any 20 warranties had been made by these answering Defendants, which is denied, no cause of action for 21 breach of warranty has been asserted or may be asserted against these Defendants as there is no 22 allegation of privity between these Defendants and any other party and, in fact, there was no such 23 privity to give rise to such cause of action. 24 TWENTY-FIRST AFFIRMATIVE DEFENSE (Contractual Privity) 25 26 These answering Defendants allege that it was not in contractual privity with Plaintiffs 27 and, therefore, Plaintiffs have no contractual rights for recovery against said Defendants. 28 /// NIC341/879557-I 5 ANSWER TO PLAINTIFFS' SECOND AMENDED COMPLAINT FOR DAMAGES 1 TWENTY-SECOND AFFIRMATIVE DEFENSE (Unjust Enrichment) 2 3 These answering Defendants allege that any recovery by Plaintiffs would be unjust and 4 inequitable under the circumstances of the case, as all performance required by such Defendants 5 was properly performed. 6 TWENTY-THIRD AFFIRMATIVE DEFENSE (Intervening Acts) 7 g These answering Defendants allege that each cause of action is barred by the independent 9 intervening and superseding acts of other parties. ]0 TWENTY-FOURTH AFFIRMATIVE DEFENSE (Civil Code Section 2782) 11 12 These answering Defendants allege that each cause of action is barred by the provisions of 13 Civil Code Section 2782, et seq. 14 TWENTY-FIFTH AFFIRMATIVE DEFENSE (Allocation of Fault) 15 15 These answering Defendants request that the Court determine the rights and liabilities of 17 the parties and determine the proportionate share of fault with respect to each party, and all 1g persons or entities not a party to the action, in order that proportionate shares of liability, if any 19 there may be, can be allocated. 20 TWENTY-SIXTH AFFIRMATIVE DEFENSE (Misuse and Improper Maintenance) 21 22 These answering Defendants allege on information and belief that persons or entities other 23 than these answering Defendants misused and failed to properly maintain or repair the property 24 which is the subject of this action thereby causing or contributing to the damages, if any, alleged 25 in the Complaint. 26 TWENTY-SEVENTH AFFIRMATIVE DEFENSE (Alteration) 27 28 These answering Defendants allege on information and belief that persons or entities other N1C341/879557-1 6 ANSWER TO PLAINTIFFS' SECOND AMENDED COMPLAINT FOR DAMAGES 1 than these answering Defendants, without the knowledge or consent of these answering 2 Defendants, altered the subject property to the extent that any alleged damages were solely and 3 proximately caused by such alteration. 4 TWENTY-EIGHTH AFFIRMATIVE DEFENSE (Ratification of Work) 6 These answering Defendants allege that Plaintiffs expressly or impliedly approved and/or 7 ratified any and all work performed by these answering Defendants at the subject property and 8 therefore Plaintiffs have waived and are estopped from asserting any claims arising out of such 9 matter. 10 TWENTY-NINTH AFFIRMATIVE DEFENSE (Accord and Satisfaction) 12 • These answering Defendants allege an accord and satisfaction between the parties barring 13 the complaint. 14 THIRTIETH AFFIRMATIVE DEFENSE (Prior Breach of Contract) 16 These answering Defendants allege that they have been excused from performance of any 17 contract alleged by Plaintiffs because of Plaintiffs' prior breach of contract. 18 THIRTY-FIRST AFFIRMATIVE DEFENSE (Unconscionable Contract) 20 These answering Defendants allege that the contract alleged to exist between these 21 answering Defendants and Plaintiffs was drafted by Plaintiffs and was unconscionable at the time 22 it was made. It is therefore unenforceable. 23 THIRTY-SECOND AFFIRMATIVE DEFENSE (Non-Negotiated Terms, Conditions) /L\ 25 These answering Defendants allege that the contract alleged to exist between these 26 answering Defendants and Plaintiffs was drafted by Plaintiffs and contained non-negotiated terms 27 and conditions which exclusively benefited Plaintiffs to the detriment of these answering 28 Defendants at the time the contract was made. NIC34I/879557-1 7 ANSWER TO PLAINTIFFS' SECOND AMENDED COMPLAINT FOR DAMAGES 1 THIRTY-THIRD AFFIRMATIVE DEFENSE (Uncertain Terms) 2 3 These answering Defendants allege that the contract alleged to exist between these 4 answering Defendants and Plaintiffs was drafted by Plaintiffs and contained uncertain terms, 5 conditions and language which must be interpreted against Plaintiffs. 6 THIRTY-FOURTH AFFIRMATIVE DEFENSE (Performance Excused) 7 g These answering Defendants allege that they have been excused from performing any 9 contractual duties alleged by Plaintiffs by reason of failure of consideration, waiver, breach of 10 condition precedent, impossibility of performance, prevention by Plaintiffs, frustration of puiposc 11 and/or acceptance by Plaintiffs. 12 THIRTY-FIFTH AFFIRMATIVE DEFENSE (Full or Partial Performance) 13 14 These answering Defendants allege that all duties owed to Plaintiffs have been 15 extinguished by these answering Defendants' full or partial performance. 16 THIRTY-SIXTH AFFIRMATIVE DEFENSE (Adhesion) 17 1g These answering Defendants allege that the contract alleged to exist between these 19 answering Defendants and Plaintiffs was drafted by Plaintiffs and is a contract of adhesion. Any 20 ambiguities in terms and conditions of the contract must be resolved against Plaintiffs. 21 THIRTY-SEVENTH AFFIRMATIVE DEFENSE (Act of God) 22 23 These answering Defendants allege that any and all injuries, losses or damages, if any, 24 were the direct and proximate result of any unavoidable incident or condition and, as such, were 25 an act of God, without fault or liability on the part of these answering Defendants, including but 26 not limited to, an unforeseeable shifting of land mass, abnormal rainfall, or preexisting ancient 27 landslide. 28 /// NIC34I/879557-I g ANSWER TO PLAINTIFFS' SECOND AMENDED COMPLAINT FOR DAMAGES 1 THIRTY-EIGHTH AFFIRMATIVE DEFENSE (Economic Loss) 2 3 These answering Defendants allege that any and all damages sought are due to economic 4 loss, and these damages are noncompensible, The sole physical injury at issue is to the product 5 itself without any damage to other property. As such, the damages sought are for economic loss, 6 and these damages cannot be recovered from this answering party. 7 THIRTY-NINTH AFFIRMATIVE DEFENSE (Lack of Standing) 8 9 These answering Defendants allege that Plaintiffs lack standing to sue these answering 10 Defendants with respect to the property described in the complaint. 11 FORTIETH AFFIRMATIVE DEFENSE (Civil Code Section 896 and 945.5) 12 13 These answering Defendants allege that each cause of action is barred by the provisions of 14 Civil Code Section 896, et seq. and Civil Code Section 945.5. 15 FORTY-FIRST AFFIRMATIVE DEFENSE (Failure to Allow Reasonable Access for Inspection and Repair) 16 17 These answering Defendants allege that Plaintiffs have unreasonably failed to minimize or 13 prevent damages in a timely manner, including the failure of the homeowners to allow reasonable 19 and timely access for inspections and repairs under Civil Code Sections 896 and 945.5, 20 FORTY-SECOND AFFIRMATIVE DEFENSE (Homeowner Maintenance Obligation) 21 22 These answering Defendants allege that Plaintiffs have failed to follow the builder's or 23 manufacturer's recommendations, or commonly accepted homeowner's maintenance obligations 24 and, therefore, all claims are barred. 25 FORTY-THIRD AFFIRMATIVE DEFENSE 26 (Spoliation of Evidence) 27 These answering Defendants allege that Plaintiffs either intentionally or negligently failed 28 NIC341/879557-1 Q ANSWER TO PLAINTIFFS' SECOND AMENDED COMPLAINT FOR DAMAGES 1 to preserve the primary evidence relevant to this litigation, thus failing to give these answering 2 Defendants an opportunity to inspect said evidence and thereby damaging and prejudicing a 3 defense. Plaintiffs, therefore, should be barred from introducing secondary or lesser evidence, 4 and any recovery should be diminished accordingly. 5 FORTY-FOURTH AFFIRMATIVE DEFENSE (No Private Right of Action) 6 1 These answering Defendants allege that Plaintiffs' Complaint fails to state a cause of 8 action against these answering Defendants because there is no private right of action afforded to 9 Plaintiffs under California Business and Professions Code Sections 7026, 7028, 7031, 7109, and 10 7160. These sections are disciplinary in nature, and therefore, they are not a basis of recovery for 11 Plaintiffs, 12 Wherefore, Defendant CA CONSTRUCTION prays for judgment as follows; 13 1. That Plaintiffs take nothing by way of their complaint on file herein; 14 2. That the complaint herein against Defendant RICHARD KIRK 15 RUYBALID, individually and dba CA CONSTRUCTION be dismissed in its entirety; 16 3. For costs of suit, including attorneys' fees; and 17 4 For such other and further relief that the court may deem just and proper. 18 19 Dated: December f , 2009 ARCHER NORRIS 20 21 M Gregory K. Federico 22 Attorneys for Defendants RICHARD KIRK RUYBALID, individually 23 and dba CA CONSTRUCTION 24 25 26 27 28 (( NIC34I/879557-I 10 ANSWER TO PLAINTIFFS' SECOND AMENDED COMPLAINT FOR DAMAGES 1 PROOF OF SERVICE 2 Name of Action: Rodney Abbott, et al. v. Ronald Paul Britschgi, et a I. Court and Action No: Sacramento County Superior No. 07AS04450 3 I, Marie Cantrell, declare that I am over the age of 18 years and not a party to this action 4 or proceeding. My business address is 655 University Avenue, Suite 225, Sacramento, California 95825. On December 8, 2009,1 caused the following document(s) to be served; 5 ANSWER TO PLAINTIFFS' SECOND AMENDED COMPLAINT FOR DAMAGES FOR 6 BREACH OF CONTRACT, NEGLIGENCE, AND VIOLATIONS OF BUSINESS & PROFESSIONS CODE 7 by placing a true copy of the documents listed above, enclosed in a sealed envelope, addressed as set forth below, for collection and mailing on the date and at the business address shown above following our ordinary business practices. I am readily familiar with this business' practice for collection and processing of correspondence for mailing with the United States Postal Service. On the same day that a sealed envelope is placed for collection and mailing, it is deposited in the ordinary course of business 11 with the United States Postal Service with postage fully prepaid. 12 j—| by having a true copy of the document(s) listed above transmitted by facsimile to the person(s) at the facsimile number(s) set forth below before 5:00 p.m. The transmission was reported as complete without error by a report issued by the transmitting facsimile machine. 15 [~] by placing a true copy of the document(s) listed above, in a box or other facility regularly maintained by UPS, an express service carrier, or delivered to a courier or 16 driver authorized by the express service carrier to receive documents, in an envelope designated by the express service carrier, with delivery fees paid or provided for, '' addressed as set forth below. 18 [SEE ATTACHED SERVICE LIST] 20 n I declare under penalty of perjury that the foregoing is true and correct. Executed on December 8, 2009, at Sacramento, California. 22 23 24 25 26 27 28 NFC341/608293-1 PROOF OF SERVICE 1 Service List 2 Stephanie Finelli PLAINTIFFS 3 Law Offices of Stephanie J. Finelli 1007 Seventh Street, Suite 500 Tel (916)443-2144 4 Sacramento, CA95814 Fax:(916)443-1511 E-mail: sfinelli700@yahoo.com 5 Craig N. Lundgren Counsel for RONALD PAUL BRITSCHGI, 6 LUNDGREN & REYNOLDS, LLP INDIVIDUALLY AND DBA BRITSCHGI 424 Second Street, Suite A CORPORATION 7 Davis, CA 95616 Tel' (530)297-5030 8 Fax: (530) 297-5077 E-mail: clundgren@lr-law.net 9 Richard D. Sopp Counsel for CADRE DESIGN GROUP, INC. 10 Wheatley Sopp LLP 1004 River Rock Drive, Suite 245 Tel: (916)988-3857 11 Folsom, CA 95630 Fax:(916)988-5296 Email, rds@mwsblaw.com 12 Sean D. Schwerdtfeger Counsel for CONSTRUCTION TESTING & 13 Joyati Tanya Schomee ENGINEERING, INC. I/O OF SEAN D. SCHWERDTFEGER 14 501 West Broadway, Suite 1700 Tel' (619)595-3403 San Diego, CA 92101 Fax:(619)595-3404 15 Email: sean.schwerdtfeger@gmail.com 16 Mark Smith In Pro Per 8549 Willow Valley Place 17 Granite Bay, CA 95746 18 19 20 21 22 23 24 25 26 27 28 NIC34I/608293-! SERVICE LIST