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1 KENNETH M. MALOVOS - State Bar No. 45886
CRAIG N. LUNDGREN - State Bar No. 148842
2 MALOVOS & MENDOZA, LLP
3620 American River Drive, Ste 215
3 Sacramento, CA 95864
(916)974-8600 DEC 1 4 2007
4 (916) 974-8608 (fax)
5 By. T CALAUSTRQ \\\ I
Deputy Cleik
Attorneys for defendant
6 RONALD PAUL BRITSCHGI
Individually and dba BRITSCHGI CONSTRUCTION
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8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 COUNTY OF SACRAMENTO
10 RODNEY ABBOTT and FLORENTINE ) CASE NO. 07AS04450
ABBOTT, )
11 ) ANSWER TO COMPLAINT
Plaintiffs )
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v. )
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RONALD PAUL BRITSCHGI, individually )
14 and doing business as BRITSCHGI )
CONSTRUCTION, RICHARD KIRK )
15 RUYBALID, individually and doing business )
as CA CONSTRUCTION, SURETY )
16 COMPANY OF THE PACIFIC, WESTERN )
SURETY COMPANY and DOES 1 through 20,)
17 inclusive, )
18 Defendants. )
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GENERAL DENIAL
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Comes now defendant Ronald Paul Britschgi, individually and dba Britschgi
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Construction (hereinafter "Britschgi") and denies the allegations of the complaint pursuant to
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Code of Civil Procedures section 431.30(d)
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FIRST AFFIRMATIVE DEFENSE
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1. As and for a first affirmative defense, Britschgi alleges that plaintiffs have
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failed to plead facts sufficient to state a cause of action against Britschgi
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SECOND AFFIRMATIVE DEFENSE
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2. As and for a separate second affirmative defense, Britschgi
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ANSWER TO COMPLAINT
1 alleges that the complaint is barred against Britschgi, in whole or in part by the doctrine of
2 laches.
3 THIRD AFFIRMATIVE DEFENSE
4 3. As and for a separate third affirmative defense, Britschgi alleges that the
5 complaint is barred by the applicable statute of limitations, including, but not limited to,
6 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, Britschgi alleges that
9 plaintiffs' complaint, and each cause of action therein, is barred by the provisions of Civil
10 Code Sections 1473, 1475, 1476, 1477 and each of them.
11 FIFTH AFFIRMATIVE DEFENSE
12 5 As and for a separate fifth affirmative defense, Britschgi alleges that
13 plaintiffs' complaint is barred in whole or in part by the doctrine of estoppel.
14 SIXTH AFFIRMATIVE DEFENSE
15 6 As and for a separate sixth affirmative defense, Britschgi alleges that
16 plaintiffs have failed to mitigate their damages, if any, against Britschgi.
17 SEVENTH AFFIRMATIVE DEFENSE
18 7. As and for a separate seventh affirmative defense, Britschgi alleges that
19 plaintiffs' damages, if any, were a direct and proximate result of the intervening and
20 superseding negligence or fault on the part of other parties and that this intervening and
21 superseding negligence bars recovery by plaintiffs.
22 EIGHTH AFFIRMATIVE DEFENSE
23 8. As and for a separate eighth affirmative defense, Britschgi alleges that
24 plaintiffs' claims are barred by the equitable doctrine of waiver and/or setoff
25 NINTH AFFIRMATIVE DEFENSE
26 9. As and for a separate ninth affirmative defense, Britschgi alleges that
27 plaintiffs' claims are barred by the equitable doctrine of unclean hands.
28 ///
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ANSWER TO COMPLAINT
1 TENTH AFFIRMATIVE DEFENSE
2 10. As and for a separate tenth affirmative defense, Bntschgi alleges that the
3 damages alleged by plaintiffs, if any, were caused by plaintiffs' own negligence and/or failure
4 to use reasonable care.
5 ELEVENTH AFFIRMATIVE DEFENSE
6 11. As and for a separate eleventh affirmative defense, if plaintiffs have
7 suffered any of the damages alleged, then such damages were caused solely by the project's
8 owners', engineers' or architects' breach of the implied warranty of suitability of the site,
9 plans and specifications for the subject work of improvement, and not by any act or omission
10 for which these answering defendants may be held responsible.
11 TWELFTH AFFIRMATIVE DEFENSE
12 12. As and for a separate twelfth affirmative defense, Bntschgi alleges that
13 plaintiffs' complaint, and each cause of action therein, is barred by plaintiffs' failure to
14 perform or satisfy some or all of the conditions precedent to any further obligations of
15 defendant under the alleged contract.
16 THIRTEENTH AFFIRMATIVE DEFENSE
17 13 As and for a separate thirteenth affirmative defense, Britschgi alleges that
18 the contract sued upon is illegal and unenforceable.
19 FOURTEENTH AFFIRMATIVE DEFENSE
20 14. As and for a separate fourteenth affirmative defense, Bntschgi alleges that
21 the damages alleged by plaintiffs were caused solely by the unforeseeable and unreasonable
22 abuse, misuse or alteration of the subject products or improvements, by persons, parties or
23 entities other than this answering defendant, and not by any act or omission by which this
24 answering defendant may be held legally or equitably responsible.
25 FIFTEENTH AFFIRMATIVE DEFENSE
26 15. As and for a separate fifteenth affirmative defense, Britschgi alleges that
27 plaintiffs' complaint, and each alleged cause of action therein, is barred by plaintiffs' failure
28 to give Britschgi reasonable notice of the alleged breaches of contract or other wrongful
3
ANSWER TO COMPLAINT
1 conduct.
DATED. December 14, 2007 MALOVOS & MENDOZA, LLP
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4 CRAIG N.TAJNDGI
Attorneys for defendant Ronald Paul
5 Britschgi, individually and dba
Britschgi Construction
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ANSWER TO COMPLAINT
Rodney Abbott, et al. v. Ronald Britschgi, et al.
Sacramento County Superior Court Case No 07AS04450
DECLARATION OF SERVICE
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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 Malovos & Mendoza, LLP and my business
address is 3620 American River Drive, Suite 215, Sacramento, CA 95864. On this day I
5 caused to be served the following document(s):
6 ANSWER TO COMPLAINT
7 [>3 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 [~~l By personal delivery of a true copy to the person indicated and at the address set forth
below.
11 _
By Federal Express Mail to the person and at the address set forth below.
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I | By transmitting a true copy by facsimile to the person and at the facsimile number set
13 forth below.
14 John A. Britton Attorneys for plaintiff
Harold Wright RODNEY ABBOTT and
15 Wright & Britton FLORENTINE ABBOTT
3741 Douglas Blvd, Suite 380
16 Roseville, CA 95661
FAX (916) 782-7560
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Steven F. Nimoy Attorney for defendant
18 Geisler & Nimoy SURETY COMPANY OF THE
P.O. Box 10289 PACIFIC
19 VanNuys, CA 91410-0298
FAX (818) 609-9331
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I declare under penalty of perjury under the laws of the State of California that the
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foregoing is true and correct.
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Executed on December 14, 2007, at Sacramento, California.
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'SHAULA PATCHETT
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k \bntschgi, rorApser doc PROOF OF
SERVICE
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1 KENNETH M. MALOVOS - State Bar No. 45886 CRAIG N. LUNDGREN - State Bar No. 148842 2 MALOVOS & MENDOZA, LLP 3620 American River Drive, Ste 215 3 Sacramento, CA 95864 (916)974-8600 DEC 1 4 2007 4 (916) 974-8608 (fax) 5 By. T CALAUSTRQ \\\ I Deputy Cleik Attorneys for defendant 6 RONALD PAUL BRITSCHGI Individually and dba BRITSCHGI CONSTRUCTION 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 COUNTY OF SACRAMENTO 10 RODNEY ABBOTT and FLORENTINE ) CASE NO. 07AS04450 ABBOTT, ) 11 ) ANSWER TO COMPLAINT Plaintiffs ) 12 v. ) 13 RONALD PAUL BRITSCHGI, individually ) 14 and doing business as BRITSCHGI ) CONSTRUCTION, RICHARD KIRK ) 15 RUYBALID, individually and doing business ) as CA CONSTRUCTION, SURETY ) 16 COMPANY OF THE PACIFIC, WESTERN ) SURETY COMPANY and DOES 1 through 20,) 17 inclusive, ) 18 Defendants. ) 19 20 GENERAL DENIAL 21 Comes now defendant Ronald Paul Britschgi, individually and dba Britschgi 22 Construction (hereinafter "Britschgi") and denies the allegations of the complaint pursuant to 23 Code of Civil Procedures section 431.30(d) 24 FIRST AFFIRMATIVE DEFENSE 25 1. As and for a first affirmative defense, Britschgi alleges that plaintiffs have 26 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 1 ANSWER TO COMPLAINT 1 alleges that the complaint is barred against Britschgi, in whole or in part by the doctrine of 2 laches. 3 THIRD AFFIRMATIVE DEFENSE 4 3. As and for a separate third affirmative defense, Britschgi alleges that the 5 complaint is barred by the applicable statute of limitations, including, but not limited to, 6 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, Britschgi alleges that 9 plaintiffs' complaint, and each cause of action therein, is barred by the provisions of Civil 10 Code Sections 1473, 1475, 1476, 1477 and each of them. 11 FIFTH AFFIRMATIVE DEFENSE 12 5 As and for a separate fifth affirmative defense, Britschgi alleges that 13 plaintiffs' complaint is barred in whole or in part by the doctrine of estoppel. 14 SIXTH AFFIRMATIVE DEFENSE 15 6 As and for a separate sixth affirmative defense, Britschgi alleges that 16 plaintiffs have failed to mitigate their damages, if any, against Britschgi. 17 SEVENTH AFFIRMATIVE DEFENSE 18 7. As and for a separate seventh affirmative defense, Britschgi alleges that 19 plaintiffs' damages, if any, were a direct and proximate result of the intervening and 20 superseding negligence or fault on the part of other parties and that this intervening and 21 superseding negligence bars recovery by plaintiffs. 22 EIGHTH AFFIRMATIVE DEFENSE 23 8. As and for a separate eighth affirmative defense, Britschgi alleges that 24 plaintiffs' claims are barred by the equitable doctrine of waiver and/or setoff 25 NINTH AFFIRMATIVE DEFENSE 26 9. As and for a separate ninth affirmative defense, Britschgi alleges that 27 plaintiffs' claims are barred by the equitable doctrine of unclean hands. 28 /// 2 ANSWER TO COMPLAINT 1 TENTH AFFIRMATIVE DEFENSE 2 10. As and for a separate tenth affirmative defense, Bntschgi alleges that the 3 damages alleged by plaintiffs, if any, were caused by plaintiffs' own negligence and/or failure 4 to use reasonable care. 5 ELEVENTH AFFIRMATIVE DEFENSE 6 11. As and for a separate eleventh affirmative defense, if plaintiffs have 7 suffered any of the damages alleged, then such damages were caused solely by the project's 8 owners', engineers' or architects' breach of the implied warranty of suitability of the site, 9 plans and specifications for the subject work of improvement, and not by any act or omission 10 for which these answering defendants may be held responsible. 11 TWELFTH AFFIRMATIVE DEFENSE 12 12. As and for a separate twelfth affirmative defense, Bntschgi alleges that 13 plaintiffs' complaint, and each cause of action therein, is barred by plaintiffs' failure to 14 perform or satisfy some or all of the conditions precedent to any further obligations of 15 defendant under the alleged contract. 16 THIRTEENTH AFFIRMATIVE DEFENSE 17 13 As and for a separate thirteenth affirmative defense, Britschgi alleges that 18 the contract sued upon is illegal and unenforceable. 19 FOURTEENTH AFFIRMATIVE DEFENSE 20 14. As and for a separate fourteenth affirmative defense, Bntschgi alleges that 21 the damages alleged by plaintiffs were caused solely by the unforeseeable and unreasonable 22 abuse, misuse or alteration of the subject products or improvements, by persons, parties or 23 entities other than this answering defendant, and not by any act or omission by which this 24 answering defendant may be held legally or equitably responsible. 25 FIFTEENTH AFFIRMATIVE DEFENSE 26 15. As and for a separate fifteenth affirmative defense, Britschgi alleges that 27 plaintiffs' complaint, and each alleged cause of action therein, is barred by plaintiffs' failure 28 to give Britschgi reasonable notice of the alleged breaches of contract or other wrongful 3 ANSWER TO COMPLAINT 1 conduct. DATED. December 14, 2007 MALOVOS & MENDOZA, LLP 2 3 4 CRAIG N.TAJNDGI Attorneys for defendant Ronald Paul 5 Britschgi, individually and dba Britschgi Construction 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ANSWER TO COMPLAINT Rodney Abbott, et al. v. Ronald Britschgi, et al. Sacramento County Superior Court Case No 07AS04450 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 Malovos & Mendoza, LLP and my business address is 3620 American River Drive, Suite 215, Sacramento, CA 95864. On this day I 5 caused to be served the following document(s): 6 ANSWER TO COMPLAINT 7 [>3 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 [~~l By personal delivery of a true copy to the person indicated and at the address set forth below. 11 _ By Federal Express Mail to the person and at the address set forth below. 12 I | By transmitting a true copy by facsimile to the person and at the facsimile number set 13 forth below. 14 John A. Britton Attorneys for plaintiff Harold Wright RODNEY ABBOTT and 15 Wright & Britton FLORENTINE ABBOTT 3741 Douglas Blvd, Suite 380 16 Roseville, CA 95661 FAX (916) 782-7560 17 Steven F. Nimoy Attorney for defendant 18 Geisler & Nimoy SURETY COMPANY OF THE P.O. Box 10289 PACIFIC 19 VanNuys, CA 91410-0298 FAX (818) 609-9331 20 21 I declare under penalty of perjury under the laws of the State of California that the 22 foregoing is true and correct. 23 Executed on December 14, 2007, at Sacramento, California. 24 25 'SHAULA PATCHETT 26 " 27 28 k \bntschgi, rorApser doc PROOF OF SERVICE