Preview
/-,
1 Todd A. Jones (Bar No. 198024)
2
Jasun C. Molinelli (Bar No. 204456)
ARCHER NORRIS
(f^ LEJVENDORSED
^
A Professional Law Corporation
3 655 University Avenue, Suite 225 MAY - 8 2008
Sacramento, California 95825
4 Telephone:
Facsimile:
916.646.2480
916.646.5696 Bv:
A / ,-
T. CALAUSTROl/tx 1
5 Deputy Clerk
Attorneys for Defendants
6 RICHARD KIRK RUYBALID, individually, and
dba CA CONSTRUCTION
7
8 SUPERIOR COURT OF CALIFORNIA
9 COUNTY OF SACRAMENTO
10
11 RODNEY ABBOTT and FLORENTINE Case No. 07AS04450
ABBOTT,
12 ANSWER OF RICHARD KIRK
Plaintiffs, RUYBALID, individually, and dba CA
13 CONSTRUCTION TO CROSS-
V. COMPLAINT OF RONALD PAUL
14 BRITSCHGI
RONALD PAUL BRITSCHGI, et al.,
15 Action Filed: September 24, 2007
Defendants.
16
17
18
AND RELATED CROSS-ACTIONS.
BY FAX ,
19
20 COMES NOW Cross-Defendant RICHARD KIRK RUYBALID, individually, and dba
21 CA CONSTRUCTION ("CA CONSTRUCTION") on behalf of itself and for no other Cross-
22 Defendant and answers Cross-Complainant RONALD PAUL BRITSCHGI cross-complaint on
23 file herein as follows:
24 This answering Cross-Defendant denies each and every allegation of the cross-complaint
25 on file herein and each and every paragraph thereof and further denies that Cross-Complainant
26 sustained any damages in the sum or sums alleged, or in any other sum or sums whatsoever, or at
27 all, and further denies that Cross-Complainant is entitled to any damages by way of this action in
28 any amount whatsoever.
N1C34 1/640275-1
ANSWER TO CROSS-COMPLAINT
1
FIRST AFFIRMATIVE DEFENSE
2 (Failure to State a Cause of Action)
The cross-complaint on file herein fails to state facts sufficient to state a claim upon which
4
relief can be granted.
SECOND AFFIRMATIVE DEFENSE
5 (Contributory Negligence)
7 Cross-complainant was itself careless and negligent and its own carelessness and
8 negligence proximately caused and contributed to the injuries and damages cross-complainant
9 complains of, if any there were. Cross-complainant's own carelessness and negligence account
10 for one hundred percent of the total carelessness and negligence relating to cross-complainants'
11 injuries and damages, if any.
12 THIRD AFFIRMATIVE DEFENSE
13 (Negligence of Others)
14 The negligence, carelessness and other acts and omissions of other defendants or cross-
15 defendants in this lawsuit, as well as other persons and entities not parties to this lawsuit,
16 proximately caused or contributed to cross-complainant's injuries and damages, if any. The
17 negligence, carelessness and other acts or omissions of the other defendants or cross-defendants
18 in this lawsuit, and other persons and entities not parties to this lawsuit, account for one hundred
19 percent of the injuries and damages, if any, and/or constitute supervening and/or intervening
20 causes of cross-complainant's injuries and damages, if any.
21
FOURTH AFFIRMATIVE DEFENSE
22 (Assumption of the Risk)
23 Cross-complainant is barred from asserting any claim against this answering cross-
24 defendant by reason of cross-complainant's assumption of the risk of the matters causing the
25 injuries and damages incurred, if any.
26
FIFTH AFFIRMATIVE DEFENSE
27 (Cross-complainant' Voluntary Conduct)
28 Cross-complainant voluntarily and knowingly entered into and engaged in the conduct
NIC341/640275-1 2
ANSWER TO CROSS-COMPLAINT
1 alleged in the cross-complaint and voluntarily and knowingly assumed all of the risks incident to
2 said conduct at the time and place mentioned in said cross-complaint.
3
SIXTH AFFIRMATIVE DEFENSE
4 (Cross-complainant' Failure to use Reasonable Diligence)
5
This answering cross-defendant is informed and believes and thereon alleges that cross-
6
complainant's injuries, loss or damages, if any, were aggravated by cross-complainant's failure to
7
use reasonable diligence.
8
SEVENTH AFFIRMATIVE DEFENSE
9 (Time Barred Claims)
10
This answering cross-defendant alleges that the cross-complaint and each cause of action
11
set forth therein is barred by provisions of Code of Civil Procedure Sections 337, 337.1, 337.15,
12
338, 339, 340, 342 and 343; and California Civil Code Sections 896 and 900.
13
EIGHTH AFFIRMATIVE DEFENSE
14 (Cross-complainant' Undertaking a Known Danger)
15
This answering cross-defendant alleges that if cross-complainant was injured, as alleged
16
in the cross-complaint, or at all, then this answering cross-defendant is informed and believes and
17
on the basis of such information and belief alleges that said damages were and are the result of an
18
open, obvious and apparent danger which was known to and recognized by cross-complainant,
19
who nevertheless knowingly, willingly, intentionally and voluntarily exposed itself to said
20
danger, thereby assuming the risk of accident, injury and damage.
21
NINTH AFFIRMATIVE DEFENSE
22 (Laches)
23
This answering cross-defendant alleges that the cross-complainant is barred by the
24
equitable doctrines of laches.
25
TENTH AFFIRMATIVE DEFENSE
26 (Waiver)
27
Cross-complainant has waived and is estopped from asserting any claim against this
28
NIC341/640275-1 3
ANSWER TO CROSS-COMPLAINT
1 answering cross-defendant by reason of cross-complainant's approval and consent to the risk in
2 the matters causing the damages alleged, if any, in their acknowledgement of, acquiescence in
3 and consent to the alleged act or omissions, if any, of this answering cross-defendant.
4 ELEVENTH AFFIRMATIVE DEFENSE
(Comparative Fault)
5
6 While at all times denying any liability whatsoever to the cross-complainant, any alleged
7 liability or responsibility of this cross-defendant is small in proportion to the alleged liability and
8 responsibility of other persons or entities, including other persons and entities who are defendants
9 or cross-Defendants herein, and cross-complainant should be limited to seeking recovery from
10 this cross-defendant for the proportion of alleged injuries and damages for which this answering
11 cross-defendant is allegedly liable or responsible, all such alleged liability and responsibility
12 being expressly denied.
13 TWELFTH AFFIRMATIVE DEFENSE
(Failure to Mitigate)
14
15 Cross-complainant's cross-complaint fails to state a claim against this answering cross-
16 defendant as cross-complainant failed to mitigate its damages.
17
THIRTEENTH AFFIRMATIVE DEFENSE
18 (Doctrine of Unclean Hands)
19 Cross-complainant's cross-complaint and each cause of action therein is barred by the
20 doctrine of unclean hands.
21 FOURTEENTH AFFIRMATIVE DEFENSE
(Failure to Provide Notice of Breach of Warranty)
22
Cross-complainant's cross-complaint and each cause of action therein fails to state a cause
23
of action in that cross-complainant failed to give timely and proper notice of breach of warranty.
24
FIFTEENTH AFFIRMATIVE DEFENSE
25 (Failure to Join Necessary Parties)
26 Cross-complainant's cross-complaint fails to state a claim upon which relief can be
27 granted as there is a defect or misjoinder of parties pursuant to Code of Civil Procedure section
28 430.10(d), in that cross-complainant failed to join all parties necessary for final determination of
NIC341/640275-1 4
ANSWER TO CROSS-COMPLAINT
1 this action.
2 SIXTEENTH AFFIRMATIVE DEFENSE
(Failure to State a Claim for Attorneys' Fees)
Cross-complainant' cross-complaint fails to state a claim upon which attorney fees can be
4
awarded.
5
SEVENTEENTH AFFIRMATIVE DEFENSE
6 (Attorneys'Fees)
7 This answering cross-defendant alleges that it is entitled to an award of attorneys' fees
8 pursuant to Code of Civil Procedure Section 1038, by which attorneys' fees may be awarded
9 upon entry of judgment on a cross-complaint for express or implied indemnity or contribution,
10 when such cross-complaint has been filed without any reasonable cause and good faith belief that
11 there was controversy that warranted the filing of such cross-complaint.
12 EIGHTEENTH AFFIRMATIVE DEFENSE
(Applicability of Business Judgment Rule)
This answering cross-defendant is exempt from liability to Cross-complainant by
14
operation of Corporations Code section 7231.
15
NINETEENTH AFFIRMATIVE DEFENSE
16 (Limited Warranty)
17
This answering cross-defendant alleges that the warranties, if any, by this answering
18
cross-defendant was limited as to time and scope.
19
TWENTIETH AFFIRMATIVE DEFENSE
20 (Lack of Privity)
21
This answering cross-defendant alleges that at no time has this cross-defendant breached
22
any warranty to cross-complainant or any party herein, and cross-defendant further alleges that
23
even if any warranties had been made by this answering cross-defendant, which is denied, no
24
cause of action for breach of warranty has been asserted or may be asserted against this cross-
25
defendant as there is no allegation of privity between this cross-defendant and any other party
26
and, in fact, there was no such'privity to give rise to such cause of action.
27
28
NIC341/640275-1 5
ANSWER TO CROSS-COMPLAINT
1 TWENTY-FIRST AFFIRMATIVE DEFENSE
(Contractual Privity)
2
3 This answering cross-defendant alleges that it was not in contractual privity with cross-
4 complainant and, therefore, cross-complainant have no contractual rights for recovery against said
5 cross-Defendant.
6 TWENTY-SECOND AFFIRMATIVE DEFENSE
(Unjust Enrichment)
1
8 This answering cross-defendant alleges that any recovery by cross-complainant would be
9 unjust and inequitable under the circumstances of the case, as all performance required by such
Io cross-defendant was properly performed.
II TWENTY-THIRD AFFIRMATIVE DEFENSE
(Intervening Acts)
12
13 This answering cross-defendant alleges that each cause of action is barred by the
14 independent, intervening and superseding acts of other parties.
15 TWENTY-FOURTH AFFIRMATIVE DEFENSE
(CMl Code Section 2782)
16
17 This answering cross-defendant alleges that each cause of action is barred by the
1g provisions of Civil Code Section 2782, et seq.
19 TWENTY-FIFTH AFFIRMATIVE DEFENSE
(Allocation of Fault)
20
21 This answering cross-defendant requests that the Court determine the rights and liabilities
22 of the parties and determine the proportionate share of fault with respect to each party, and all
23 persons or entities not a party to the action, in order that proportionate shares of liability, if any
24 there may be, can be allocated.
25 TWENTY-SIXTH AFFIRMATIVE DEFENSE
(Misuse and Improper Maintenance)
26
27 This answering cross-defendant alleges on information and belief that persons or entities
28 other than this answering cross-defendant misused and failed to properly maintain or repair the
NIC341/640275-1 6
ANSWER TO CROSS-COMPLAINT
1 property which is the subject of this action thereby causing or contributing to the damages, if any,
2 alleged in the cross-complaint.
3 TWENTY-SEVENTH AFFIRMATIVE DEFENSE
(Alteration)
4
5 This answering cross-defendant alleges on information and belief that persons or entities
6 other than this answering cross-defendant, without the knowledge or consent of this answering
7 cross-defendant, altered the subject property to the extent that any alleged damages were solely
8 and proximately caused by such alteration.
9 TWENTY-EIGHTH AFFIRMATIVE DEFENSE
(Ratification of Work)
11 This answering cross-defendant alleges that Cross-complainant expressly or impliedly
12 approved and/or ratified any and all work performed by this answering cross-defendant at the
13 subject property and therefore Cross-complainant has waived and is estopped from asserting any
14 claims arising out of such matter.
15 TWENTY-NINTH AFFIRMATIVE DEFENSE
(Accord and Satisfaction)
17 This answering cross-defendant alleges an accord and satisfaction between the parties
18 barring the cross-complaint.
19 THIRTIETH AFFIRMATIVE DEFENSE
(Prior Breach of Contract)
This answering cross-defendant alleges that they have been excused from performance of
21
any contract alleged by cross-complainant because of cross-complainant's prior breach of
22
contract.
23
THIRTY-FIRST AFFIRMATIVE DEFENSE
24 (Unconscionable Contract)
25 This answering cross-defendant alleges that the contract alleged to exist between it and
26 cross-complainant was drafted by cross-complainant and was unconscionable at the time it was
27 made. It is therefore unenforceable.
28
NIC341/640275-1 7
ANSWER TO CROSS-COMPLAINT
1 THIRTY-SECOND AFFIRMATIVE DEFENSE
(Non-Negotiated Terms, Conditions)
2
This answering cross-defendant alleges that the contract alleged to exist between it and
3
cross-complainant was drafted by cross-complainant and contained non-negotiated terms and
4
conditions which exclusively benefited cross-complainant to the detriment of this answering
5
cross-defendant at the time the contract was made.
6
THIRTY-THIRD AFFIRMATIVE DEFENSE
7 (Uncertain Terms)
8 This answering cross-defendant alleges that the contract alleged to exist between it and
9 cross-complainant was drafted by cross-complainant and contained uncertain terms, conditions
10 and language which must be interpreted against cross-complainant.
11 THIRTY-FOURTH AFFIRMATIVE DEFENSE
(Performance Excused)
12
This answering cross-defendant alleges that it has been excused from performing any
13
contractual duties alleged by cross-complainant by reason of failure of consideration, waiver,
14
breach of condition precedent, impossibility of performance, prevention by cross-complainant,
15
frustration of purpose and/or acceptance by cross-complainant.
16
THIRTY-FIFTH AFFIRMATIVE DEFENSE
17 (Full or Partial Performance)
\8 This answering cross-defendant alleges that all duties owed to cross-complainant have
19 been extinguished by this answering cross-defendant's full or partial performance.
20 THIRTY-SIXTH AFFIRMATIVE DEFENSE
(Adhesion)
21
This answering cross-defendant alleges that the contract alleged to exist between it and
22
cross-complainant was drafted by cross-complainant and is a contract of adhesion. Any
23
ambiguities in terms and conditions of the contract must be resolved against cross-complainant.
24
THIRTY-SEVENTH AFFIRMATIVE DEFENSE
25 (Act of God)
26 This answering cross-defendant alleges that any and all injuries, losses or damages, if any,
27 were the direct and proximate result of any unavoidable incident or condition and, as such, were
28 an act of God, without fault or liability on the part of this answering cross-defendant, including
NIC341/640275-1 8
ANSWER TO CROSS-COMPLAINT
1 but not limited to, an unforeseeable shifting of land mass, abnormal rainfall, or preexisting
2 ancient landslide.
3 THIRTY-EIGHTH AFFIRMATIVE DEFENSE
(Economic Loss)
4
This answering cross-defendant alleges that any and all damages sought are due to
5
economic loss, and these damages are noncompensible. The sole physical injury at issue is to the
6
product itself without any damage to other property. As such, the damages sought are for
7
economic loss, and these damages cannot be recovered from this answering party.
8
THIRTY-NINTH AFFIRMATIVE DEFENSE
9 (Lack of Standing)
10 This answering cross-defendant alleges that cross-complainant lacks standing to sue this
11 answering cross-defendant with respect to the properties described in the cross-complaint.
12 FORTIETH AFFIRMATIVE DEFENSE
(Civil Code Section 896 and 945.5)
This answering cross-defendant alleges that each cause of action is barred by the
14
provisions of Civil Code Section 896, et seq. and Civil Code Section 945.5.
15
Wherefore, Cross-Defendant CA CONSTRUCTION prays for judgment as follows:
16
1. That Cross-Complainant take nothing by way of its cross-complaint on file herein;
17
2. That the cross-complaint herein against CA CONSTRUCTION be dismissed in its
18
entirety;
19
3. For costs of suit, including attorneys' fees; and
20
4. For such other and further relief that the court may deem just and proper.
21
Dated: MayS, 2008 ARCHER NORRIS
22
23
24
Jasun C. Molinelli T
Attorneys for Cross-Defendant
25
RICHARD KIRK RUYBALID, individually,
and dba CA CONSTRUCTION
26
27
28
NIC341/640275-1 9
ANSWER TO CROSS-COMPLAINT
1 PROOF OF SERVICE
2 Name of Action: Abbot v. Britschgi, et al.
Court and Action No: Sacramento County Superior No. 07AS04450
3
I, Jasun C. Molinelli, declare that I am over the age of eighteen years and not a party to
4 this action or proceeding. My business address is 655 University Avenue, Suite 225, Sacramento,
California 95825. On May£, 2008,1 caused the following document(s) to be served:
5
ANSWER TO CROSS COMPLAINT OF RONALD PAUL
6 BRITSCHGI
7 j~~j by placing a true copy of the document(s) 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
with the United States Postal Service with postage fully prepaid.
11
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
1_ was reported as complete without error by a report issued by the transmitting facsimile
machine.
14
| j by placing a true copy of the documents) listed above, in a box or other facility
15 regularly maintained by UPS, an express service carrier, or delivered to a courier or
driver authorized by the express service carrier to receive documents, in an envelope
16 designated by the express service carrier, with delivery fees paid or provided for,
addressed as set forth below.
18
RaziA. Shah Plaintiffs
Attorney at Law
2140 Shattuck Avenue, Suite 411 Tel: (510) 486-1190
Berkeley, CA 94704 • Fax: (510) 486-1339
Email: razishah@sbcglobal.net
91
*•* Craig N. Lundgren Defendant Ron Britschgi
__ Malovos & Mendoza, LLP
zz
3620 American River Drive, Suite 215 Tel: (916)974-8600
Sacramento, CA 95864 Fax: (916) 974-8608
I declare under penalty of perjury that the foregoing/Jsjtf06yand correct. Executed on May
_5 & 2008, at Sacramento, California.
26
27
28
N1C341/655190-1
PROOF OF SERVICE
Preview
/-, 1 Todd A. Jones (Bar No. 198024) 2 Jasun C. Molinelli (Bar No. 204456) ARCHER NORRIS (f^ LEJVENDORSED ^ A Professional Law Corporation 3 655 University Avenue, Suite 225 MAY - 8 2008 Sacramento, California 95825 4 Telephone: Facsimile: 916.646.2480 916.646.5696 Bv: A / ,- T. CALAUSTROl/tx 1 5 Deputy Clerk Attorneys for Defendants 6 RICHARD KIRK RUYBALID, individually, and dba CA CONSTRUCTION 7 8 SUPERIOR COURT OF CALIFORNIA 9 COUNTY OF SACRAMENTO 10 11 RODNEY ABBOTT and FLORENTINE Case No. 07AS04450 ABBOTT, 12 ANSWER OF RICHARD KIRK Plaintiffs, RUYBALID, individually, and dba CA 13 CONSTRUCTION TO CROSS- V. COMPLAINT OF RONALD PAUL 14 BRITSCHGI RONALD PAUL BRITSCHGI, et al., 15 Action Filed: September 24, 2007 Defendants. 16 17 18 AND RELATED CROSS-ACTIONS. BY FAX , 19 20 COMES NOW Cross-Defendant RICHARD KIRK RUYBALID, individually, and dba 21 CA CONSTRUCTION ("CA CONSTRUCTION") on behalf of itself and for no other Cross- 22 Defendant and answers Cross-Complainant RONALD PAUL BRITSCHGI cross-complaint on 23 file herein as follows: 24 This answering Cross-Defendant denies each and every allegation of the cross-complaint 25 on file herein and each and every paragraph thereof and further denies that Cross-Complainant 26 sustained any damages in the sum or sums alleged, or in any other sum or sums whatsoever, or at 27 all, and further denies that Cross-Complainant is entitled to any damages by way of this action in 28 any amount whatsoever. N1C34 1/640275-1 ANSWER TO CROSS-COMPLAINT 1 FIRST AFFIRMATIVE DEFENSE 2 (Failure to State a Cause of Action) The cross-complaint on file herein fails to state facts sufficient to state a claim upon which 4 relief can be granted. SECOND AFFIRMATIVE DEFENSE 5 (Contributory Negligence) 7 Cross-complainant was itself careless and negligent and its own carelessness and 8 negligence proximately caused and contributed to the injuries and damages cross-complainant 9 complains of, if any there were. Cross-complainant's own carelessness and negligence account 10 for one hundred percent of the total carelessness and negligence relating to cross-complainants' 11 injuries and damages, if any. 12 THIRD AFFIRMATIVE DEFENSE 13 (Negligence of Others) 14 The negligence, carelessness and other acts and omissions of other defendants or cross- 15 defendants in this lawsuit, as well as other persons and entities not parties to this lawsuit, 16 proximately caused or contributed to cross-complainant's injuries and damages, if any. The 17 negligence, carelessness and other acts or omissions of the other defendants or cross-defendants 18 in this lawsuit, and other persons and entities not parties to this lawsuit, account for one hundred 19 percent of the injuries and damages, if any, and/or constitute supervening and/or intervening 20 causes of cross-complainant's injuries and damages, if any. 21 FOURTH AFFIRMATIVE DEFENSE 22 (Assumption of the Risk) 23 Cross-complainant is barred from asserting any claim against this answering cross- 24 defendant by reason of cross-complainant's assumption of the risk of the matters causing the 25 injuries and damages incurred, if any. 26 FIFTH AFFIRMATIVE DEFENSE 27 (Cross-complainant' Voluntary Conduct) 28 Cross-complainant voluntarily and knowingly entered into and engaged in the conduct NIC341/640275-1 2 ANSWER TO CROSS-COMPLAINT 1 alleged in the cross-complaint and voluntarily and knowingly assumed all of the risks incident to 2 said conduct at the time and place mentioned in said cross-complaint. 3 SIXTH AFFIRMATIVE DEFENSE 4 (Cross-complainant' Failure to use Reasonable Diligence) 5 This answering cross-defendant is informed and believes and thereon alleges that cross- 6 complainant's injuries, loss or damages, if any, were aggravated by cross-complainant's failure to 7 use reasonable diligence. 8 SEVENTH AFFIRMATIVE DEFENSE 9 (Time Barred Claims) 10 This answering cross-defendant alleges that the cross-complaint and each cause of action 11 set forth therein is barred by provisions of Code of Civil Procedure Sections 337, 337.1, 337.15, 12 338, 339, 340, 342 and 343; and California Civil Code Sections 896 and 900. 13 EIGHTH AFFIRMATIVE DEFENSE 14 (Cross-complainant' Undertaking a Known Danger) 15 This answering cross-defendant alleges that if cross-complainant was injured, as alleged 16 in the cross-complaint, or at all, then this answering cross-defendant is informed and believes and 17 on the basis of such information and belief alleges that said damages were and are the result of an 18 open, obvious and apparent danger which was known to and recognized by cross-complainant, 19 who nevertheless knowingly, willingly, intentionally and voluntarily exposed itself to said 20 danger, thereby assuming the risk of accident, injury and damage. 21 NINTH AFFIRMATIVE DEFENSE 22 (Laches) 23 This answering cross-defendant alleges that the cross-complainant is barred by the 24 equitable doctrines of laches. 25 TENTH AFFIRMATIVE DEFENSE 26 (Waiver) 27 Cross-complainant has waived and is estopped from asserting any claim against this 28 NIC341/640275-1 3 ANSWER TO CROSS-COMPLAINT 1 answering cross-defendant by reason of cross-complainant's approval and consent to the risk in 2 the matters causing the damages alleged, if any, in their acknowledgement of, acquiescence in 3 and consent to the alleged act or omissions, if any, of this answering cross-defendant. 4 ELEVENTH AFFIRMATIVE DEFENSE (Comparative Fault) 5 6 While at all times denying any liability whatsoever to the cross-complainant, any alleged 7 liability or responsibility of this cross-defendant is small in proportion to the alleged liability and 8 responsibility of other persons or entities, including other persons and entities who are defendants 9 or cross-Defendants herein, and cross-complainant should be limited to seeking recovery from 10 this cross-defendant for the proportion of alleged injuries and damages for which this answering 11 cross-defendant is allegedly liable or responsible, all such alleged liability and responsibility 12 being expressly denied. 13 TWELFTH AFFIRMATIVE DEFENSE (Failure to Mitigate) 14 15 Cross-complainant's cross-complaint fails to state a claim against this answering cross- 16 defendant as cross-complainant failed to mitigate its damages. 17 THIRTEENTH AFFIRMATIVE DEFENSE 18 (Doctrine of Unclean Hands) 19 Cross-complainant's cross-complaint and each cause of action therein is barred by the 20 doctrine of unclean hands. 21 FOURTEENTH AFFIRMATIVE DEFENSE (Failure to Provide Notice of Breach of Warranty) 22 Cross-complainant's cross-complaint and each cause of action therein fails to state a cause 23 of action in that cross-complainant failed to give timely and proper notice of breach of warranty. 24 FIFTEENTH AFFIRMATIVE DEFENSE 25 (Failure to Join Necessary Parties) 26 Cross-complainant's cross-complaint fails to state a claim upon which relief can be 27 granted as there is a defect or misjoinder of parties pursuant to Code of Civil Procedure section 28 430.10(d), in that cross-complainant failed to join all parties necessary for final determination of NIC341/640275-1 4 ANSWER TO CROSS-COMPLAINT 1 this action. 2 SIXTEENTH AFFIRMATIVE DEFENSE (Failure to State a Claim for Attorneys' Fees) Cross-complainant' cross-complaint fails to state a claim upon which attorney fees can be 4 awarded. 5 SEVENTEENTH AFFIRMATIVE DEFENSE 6 (Attorneys'Fees) 7 This answering cross-defendant alleges that it is entitled to an award of attorneys' fees 8 pursuant to Code of Civil Procedure Section 1038, by which attorneys' fees may be awarded 9 upon entry of judgment on a cross-complaint for express or implied indemnity or contribution, 10 when such cross-complaint has been filed without any reasonable cause and good faith belief that 11 there was controversy that warranted the filing of such cross-complaint. 12 EIGHTEENTH AFFIRMATIVE DEFENSE (Applicability of Business Judgment Rule) This answering cross-defendant is exempt from liability to Cross-complainant by 14 operation of Corporations Code section 7231. 15 NINETEENTH AFFIRMATIVE DEFENSE 16 (Limited Warranty) 17 This answering cross-defendant alleges that the warranties, if any, by this answering 18 cross-defendant was limited as to time and scope. 19 TWENTIETH AFFIRMATIVE DEFENSE 20 (Lack of Privity) 21 This answering cross-defendant alleges that at no time has this cross-defendant breached 22 any warranty to cross-complainant or any party herein, and cross-defendant further alleges that 23 even if any warranties had been made by this answering cross-defendant, which is denied, no 24 cause of action for breach of warranty has been asserted or may be asserted against this cross- 25 defendant as there is no allegation of privity between this cross-defendant and any other party 26 and, in fact, there was no such'privity to give rise to such cause of action. 27 28 NIC341/640275-1 5 ANSWER TO CROSS-COMPLAINT 1 TWENTY-FIRST AFFIRMATIVE DEFENSE (Contractual Privity) 2 3 This answering cross-defendant alleges that it was not in contractual privity with cross- 4 complainant and, therefore, cross-complainant have no contractual rights for recovery against said 5 cross-Defendant. 6 TWENTY-SECOND AFFIRMATIVE DEFENSE (Unjust Enrichment) 1 8 This answering cross-defendant alleges that any recovery by cross-complainant would be 9 unjust and inequitable under the circumstances of the case, as all performance required by such Io cross-defendant was properly performed. II TWENTY-THIRD AFFIRMATIVE DEFENSE (Intervening Acts) 12 13 This answering cross-defendant alleges that each cause of action is barred by the 14 independent, intervening and superseding acts of other parties. 15 TWENTY-FOURTH AFFIRMATIVE DEFENSE (CMl Code Section 2782) 16 17 This answering cross-defendant alleges that each cause of action is barred by the 1g provisions of Civil Code Section 2782, et seq. 19 TWENTY-FIFTH AFFIRMATIVE DEFENSE (Allocation of Fault) 20 21 This answering cross-defendant requests that the Court determine the rights and liabilities 22 of the parties and determine the proportionate share of fault with respect to each party, and all 23 persons or entities not a party to the action, in order that proportionate shares of liability, if any 24 there may be, can be allocated. 25 TWENTY-SIXTH AFFIRMATIVE DEFENSE (Misuse and Improper Maintenance) 26 27 This answering cross-defendant alleges on information and belief that persons or entities 28 other than this answering cross-defendant misused and failed to properly maintain or repair the NIC341/640275-1 6 ANSWER TO CROSS-COMPLAINT 1 property which is the subject of this action thereby causing or contributing to the damages, if any, 2 alleged in the cross-complaint. 3 TWENTY-SEVENTH AFFIRMATIVE DEFENSE (Alteration) 4 5 This answering cross-defendant alleges on information and belief that persons or entities 6 other than this answering cross-defendant, without the knowledge or consent of this answering 7 cross-defendant, altered the subject property to the extent that any alleged damages were solely 8 and proximately caused by such alteration. 9 TWENTY-EIGHTH AFFIRMATIVE DEFENSE (Ratification of Work) 11 This answering cross-defendant alleges that Cross-complainant expressly or impliedly 12 approved and/or ratified any and all work performed by this answering cross-defendant at the 13 subject property and therefore Cross-complainant has waived and is estopped from asserting any 14 claims arising out of such matter. 15 TWENTY-NINTH AFFIRMATIVE DEFENSE (Accord and Satisfaction) 17 This answering cross-defendant alleges an accord and satisfaction between the parties 18 barring the cross-complaint. 19 THIRTIETH AFFIRMATIVE DEFENSE (Prior Breach of Contract) This answering cross-defendant alleges that they have been excused from performance of 21 any contract alleged by cross-complainant because of cross-complainant's prior breach of 22 contract. 23 THIRTY-FIRST AFFIRMATIVE DEFENSE 24 (Unconscionable Contract) 25 This answering cross-defendant alleges that the contract alleged to exist between it and 26 cross-complainant was drafted by cross-complainant and was unconscionable at the time it was 27 made. It is therefore unenforceable. 28 NIC341/640275-1 7 ANSWER TO CROSS-COMPLAINT 1 THIRTY-SECOND AFFIRMATIVE DEFENSE (Non-Negotiated Terms, Conditions) 2 This answering cross-defendant alleges that the contract alleged to exist between it and 3 cross-complainant was drafted by cross-complainant and contained non-negotiated terms and 4 conditions which exclusively benefited cross-complainant to the detriment of this answering 5 cross-defendant at the time the contract was made. 6 THIRTY-THIRD AFFIRMATIVE DEFENSE 7 (Uncertain Terms) 8 This answering cross-defendant alleges that the contract alleged to exist between it and 9 cross-complainant was drafted by cross-complainant and contained uncertain terms, conditions 10 and language which must be interpreted against cross-complainant. 11 THIRTY-FOURTH AFFIRMATIVE DEFENSE (Performance Excused) 12 This answering cross-defendant alleges that it has been excused from performing any 13 contractual duties alleged by cross-complainant by reason of failure of consideration, waiver, 14 breach of condition precedent, impossibility of performance, prevention by cross-complainant, 15 frustration of purpose and/or acceptance by cross-complainant. 16 THIRTY-FIFTH AFFIRMATIVE DEFENSE 17 (Full or Partial Performance) \8 This answering cross-defendant alleges that all duties owed to cross-complainant have 19 been extinguished by this answering cross-defendant's full or partial performance. 20 THIRTY-SIXTH AFFIRMATIVE DEFENSE (Adhesion) 21 This answering cross-defendant alleges that the contract alleged to exist between it and 22 cross-complainant was drafted by cross-complainant and is a contract of adhesion. Any 23 ambiguities in terms and conditions of the contract must be resolved against cross-complainant. 24 THIRTY-SEVENTH AFFIRMATIVE DEFENSE 25 (Act of God) 26 This answering cross-defendant alleges that any and all injuries, losses or damages, if any, 27 were the direct and proximate result of any unavoidable incident or condition and, as such, were 28 an act of God, without fault or liability on the part of this answering cross-defendant, including NIC341/640275-1 8 ANSWER TO CROSS-COMPLAINT 1 but not limited to, an unforeseeable shifting of land mass, abnormal rainfall, or preexisting 2 ancient landslide. 3 THIRTY-EIGHTH AFFIRMATIVE DEFENSE (Economic Loss) 4 This answering cross-defendant alleges that any and all damages sought are due to 5 economic loss, and these damages are noncompensible. The sole physical injury at issue is to the 6 product itself without any damage to other property. As such, the damages sought are for 7 economic loss, and these damages cannot be recovered from this answering party. 8 THIRTY-NINTH AFFIRMATIVE DEFENSE 9 (Lack of Standing) 10 This answering cross-defendant alleges that cross-complainant lacks standing to sue this 11 answering cross-defendant with respect to the properties described in the cross-complaint. 12 FORTIETH AFFIRMATIVE DEFENSE (Civil Code Section 896 and 945.5) This answering cross-defendant alleges that each cause of action is barred by the 14 provisions of Civil Code Section 896, et seq. and Civil Code Section 945.5. 15 Wherefore, Cross-Defendant CA CONSTRUCTION prays for judgment as follows: 16 1. That Cross-Complainant take nothing by way of its cross-complaint on file herein; 17 2. That the cross-complaint herein against CA CONSTRUCTION be dismissed in its 18 entirety; 19 3. For costs of suit, including attorneys' fees; and 20 4. For such other and further relief that the court may deem just and proper. 21 Dated: MayS, 2008 ARCHER NORRIS 22 23 24 Jasun C. Molinelli T Attorneys for Cross-Defendant 25 RICHARD KIRK RUYBALID, individually, and dba CA CONSTRUCTION 26 27 28 NIC341/640275-1 9 ANSWER TO CROSS-COMPLAINT 1 PROOF OF SERVICE 2 Name of Action: Abbot v. Britschgi, et al. Court and Action No: Sacramento County Superior No. 07AS04450 3 I, Jasun C. Molinelli, declare that I am over the age of eighteen years and not a party to 4 this action or proceeding. My business address is 655 University Avenue, Suite 225, Sacramento, California 95825. On May£, 2008,1 caused the following document(s) to be served: 5 ANSWER TO CROSS COMPLAINT OF RONALD PAUL 6 BRITSCHGI 7 j~~j by placing a true copy of the document(s) 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 with the United States Postal Service with postage fully prepaid. 11 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 1_ was reported as complete without error by a report issued by the transmitting facsimile machine. 14 | j by placing a true copy of the documents) listed above, in a box or other facility 15 regularly maintained by UPS, an express service carrier, or delivered to a courier or driver authorized by the express service carrier to receive documents, in an envelope 16 designated by the express service carrier, with delivery fees paid or provided for, addressed as set forth below. 18 RaziA. Shah Plaintiffs Attorney at Law 2140 Shattuck Avenue, Suite 411 Tel: (510) 486-1190 Berkeley, CA 94704 • Fax: (510) 486-1339 Email: razishah@sbcglobal.net 91 *•* Craig N. Lundgren Defendant Ron Britschgi __ Malovos & Mendoza, LLP zz 3620 American River Drive, Suite 215 Tel: (916)974-8600 Sacramento, CA 95864 Fax: (916) 974-8608 I declare under penalty of perjury that the foregoing/Jsjtf06yand correct. Executed on May _5 & 2008, at Sacramento, California. 26 27 28 N1C341/655190-1 PROOF OF SERVICE