Preview
1 CRAIG N. LUNDGREN - State Bar No. 148842
RACHEL T. ANDERSON - State Bar No. 266505 ftil^w r™,rt ftf riliffimta
2 LUNDGREN & REYNOLDS, LLP Supenor Court Of California
424 2nd Street, Suite A
3 Davis, C A 95616
(530) 297-5030 (Voice)
4 (530) 297-5077 (Facsimile)
5 ..
Attorneys for defendant, cross-complainant
6 and cross-defendant
RONALD PAUL BRITSCHGI,
7 individually and dba BRITSCHGI CONSTRUCTION
8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 COUNTY OF SACRAMENTO
10 RODNEY ABBOTT and FLORENTINE ) CASE NO. 07AS04450
ABBOTT, )
11 ) DEFENDANT, CROSS-
Plaintiffs, ) COMPLAINANT, AND CROSS-
12 ) DEFENDANT BRITSCHGPS
v. ) ANSWER TO PLAINTIFFS'
13 ) SECOND AMENDED COMPLAINT
RONALD PAUL BRITSCHGI et al., ) FOR DAMAGES FOR BREACH OF
14 ) CONTRACT, NEGLIGENCE, AND
Defendants. ) VIOLATIONS OF BUSINESS &
15 ) PROFESSIONS CODE
)
16 AND RELATED CROSS-ACTIONS. )
17
18
19 GENERAL DENIAL
20 Comes now defendant RONALD PAUL BRITSCHGI, individually and dba
21 BRITSCHGI CONSTRUCTION (hereinafter "BRITSCHGI") on behalf of himself and his
22 business and for no other defendant, and answers plaintiffs' Second Amended Complaint for
23 Damages on file herein as follows:
24 BRITSCHGI denies each and every allegation of the complaint on file herein pursuant
25 to Code of Civil Procedure Section 431.30(d), and each and every paragraph thereof and
26 further denies that plaintiffs sustained any damages in the sum or sums alleged, or in any
27 other sum or sums whatsoever, or at all, and further denies that plaintiffs are entitled to any
28 damages by way of this action in any amount whatsoever.
BRITSCHGI'S ANSWER TO ABBOTTS' SECOND AMENDED COMPLAINT
1 FIRST AFFIRMATIVE DEFENSE
2 (Failure to State a Cause of Action)
3 1. As and for a first affirmative defense, BRITSCHGI alleges that plaintiffs
4 have failed to plead facts sufficient to state a cause of action against BRITSCHGI.
5 SECOND AFFIRMATIVE DEFENSE
6 (Laches)
7 2. As and for a separate second affirmative defense, BRITSCHGI alleges that
8 the complaint is barred against BRITSCHGI, in whole or in part, by the doctrine of laches.
9 THIRD AFFIRMATIVE DEFENSE
10 (Statute of Limitations)
11 3. As and for a separate third affirmative defense, BRITSCHGI alleges that
12 the complaint is barred by the applicable statute of limitations, including, but not limited to,
13 California Code of Civil Procedure Sections 337, 337.1, 339, 340, 343 and 344.
14 FOURTH AFFIRMATIVE DEFENSE
15 (Full or Partial Performance)
16 4. As and for a separate fourth affirmative defense, BRITSCHGI alleges that
17 plaintiffs' complaint, and each cause of action therein, is barred by the provisions of Civil
18 Code Sections 1473, 1475, 1476, 1477 and each of them.
19 FIFTH AFFIRMATIVE DEFENSE
20 (Estoppel)
21 5. As and for a separate fifth affirmative defense, BRITSCHGI alleges that
22 plaintiffs' complaint is barred in whole or in part by the doctrine of estoppel.
23 SIXTH AFFIRMATIVE DEFENSE
24 (Failure to Mitigate Damages)
25 6. As and for a separate sixth affirmative defense, BRITSCHGI alleges that
26 plaintiffs have failed to mitigate their damages, if any, against BRITSCHGI.
27 ///
28 ///
2
BRITSCHGPS ANSWER TO ABBOTTS' SECOND AMENDED COMPLAINT
1 SEVENTH AFFIRMATIVE DEFENSE
2 (Negligence of Others)
3 7. As and for a separate seventh affirmative defense, BRITSCHGI alleges that
4 plaintiffs' damages, if any, were a direct and proximate result of the intervening and
5 superseding negligence or fault on the part of other parties and that this intervening and
6 superseding negligence bars recovery by plaintiffs.
7 EIGHTH AFFIRMATIVE DEFENSE
8 (Uncertain Terms)
9 8. As and for a separate eighth affirmative defense, BRITSCHGI alleges that
10 the terms of the oral contract alleged by plaintiffs are too uncertain to establish that
11 BRITSCHGI was responsible for or agreed to supervise the work done by subcontractors on
12 plaintiffs' property, which work plaintiffs allege to have caused their damages.
13 NINTH AFFIRMATIVE DEFENSE
14 (Unclean Hands)
15 9. As and for a separate ninth affirmative defense, BRITSCHGI alleges that
16 plaintiffs' claims are barred by the equitable doctrine of unclean hands.
17 TENTH AFFIRMATIVE DEFENSE
18 (Contributory Negligence)
19 10. As and for a separate tenth affirmative defense, BRITSCHGI alleges that
20 the damages alleged by plaintiffs, if any, were caused by plaintiffs' own negligence and/or
21 failure to use reasonable care.
22 ELEVENTH AFFIRMATIVE DEFENSE
23 (Breach of Condition Precedent)
24 11. As and for a separate eleventh affirmative defense, BRITSCHGI alleges
25 that plaintiffs' complaint, and each cause of action therein, is barred by plaintiffs' failure to
26 perform or satisfy some or all of the conditions precedent to any further obligations of
27 BRITSCHGI under the alleged contract.
28 ///
3
BRITSCHGI'S ANSWER TO ABBOTTS' SECOND AMENDED COMPLAINT
1 TWELFTH AFFIRMATIVE DEFENSE
2 (Illegality)
3 12. As and for a separate twelfth affirmative defense, BRITSCHGI alleges that
4 the contract sued upon is illegal and unenforceable.
5 THIRTEENTH AFFIRMATIVE DEFENSE
6 (No Private Right of Action)
7 13. As and for a separate thirteenth affirmative defense, BRITSCHGI alleges
8 that plaintiffs' complaint fails to state a cause of action against BRITSCHGI because there is
9 no private right of action afforded to plaintiffs under California Business and Professions
10 Code Sections 7028, 7109, or 7110. These sections are disciplinary in nature, and therefore
11 not a basis for recovery for plaintiffs.
12 FOURTEENTH AFFIRMATIVE DEFENSE
13 (Superseding Cause)
14 14. As and for a separate fourteenth affirmative defense, BRITSCHGI alleges
15 that the damages alleged by plaintiffs were caused solely by the unforeseeable and
16 unreasonable abuse, misuse or alteration of the subject products or improvements, by persons,
17 parties or entities other than BRITSCHGI, and not by any act or omission by which
18 BRITSCHGI may be held legally or equitably responsible.
19 FIFTEENTH AFFIRMATIVE DEFENSE
20 (Failure to Give Notice)
21 15. As and for a separate fifteenth affirmative defense, BRITSCHGI alleges
22 that plaintiffs' complaint, and each alleged cause of action therein, is barred by plaintiffs'
23 failure to give BRITSCHGI reasonable notice of the alleged breaches of contract or other
24 wrongful conduct.
25 SIXTEENTH AFFIRMATIVE DEFENSE
26 (Waiver)
27 16. As and for a separate sixteenth affirmative defense, BRITSCHGI alleges
28 that plaintiffs waived and are estopped from asserting any claim against BRITSCHGI because
4
BRITSCHGPS ANSWER TO ABBOTTS' SECOND AMENDED COMPLAINT
1 of plaintiffs' approval and consent to the risk in the matters causing the damages alleged, if
2 any, in their acknowledgement of, acquiescence in, and consent to the alleged acts or
3 omissions, if any, of BRITSCHGI.
4 SEVENTEENTH AFFIRMATIVE DEFENSE
5 (Comparative Fault)
6 17. As and for a separate seventeenth affirmative defense, BRITSCHGI alleges,
7 while at all times denying any liability whatsoever to the plaintiffs, that any alleged liability
8 or responsibility of BRITSCHGI is small in proportion to the alleged liability and
9 responsibility of other persons or entities, including other persons and entities who are
10 defendants or cross-defendants herein, and plaintiffs should be limited to seeking recovery
11 from these defendants for the proportion of alleged injuries and damages for which these
12 answering defendants are allegedly liable or responsible, all such alleged liability and
13 responsibility being expressly denied.
14 EIGHTEENTH AFFIRMATIVE DEFENSE
15 (Unjust Enrichment)
16 18. As and for a separate eighteenth affirmative defense, BRITSCHGI alleges
17 that any recovery by plaintiffs would be unjust and inequitable under the circumstances of the
18 case, as all performance required by BRITSCHGI was properly performed.
19 NINETEENTH AFFIRMATIVE DEFENSE
20 (Ratification of Work)
21 19. As and for a separate nineteenth affirmative defense, BRITSCHGI alleges
22 that plaintiffs expressly or impliedly approved and/or ratified any and all work performed by
23 BRITSCHGI at the subject property and therefore plaintiffs have waived and are estopped
24 from asserting any claims arising out of such matter.
25 TWENTIETH AFFIRMATIVE DEFENSE
26 (Civil Code Sections 896 and 945.5)
27 20. As and for a separate twentieth affirmative defense, BRITSCHGI alleges
28 that each cause of action is barred by the provisions of Civil Code section 896 et seq. and
5
BRITSCHGI'S ANSWER TO ABBOTTS' SECOND AMENDED COMPLAINT
1 Civil Code section 945.5.
2 TWENTY-FIRST AFFIRMATIVE DEFENSE
3 (No Reliance)
4 21. As and for a separate twenty-first affirmative defense, BRITSCHGI alleges
5 that plaintiffs' fraud claim is barred because plaintiffs did not rely on BRITSCHGI's alleged
6 statements in proceeding with construction of the subject property.
7 TWENTY-SECOND AFFIRMATIVE DEFENSE
8 (Reliance Not Reasonable)
9 22. As and for a separate twenty-second affirmative defense, BRITSCHGI
10 alleges that plaintiffs' fraud claim is barred because, if plaintiffs did rely on BRITSCHGI's
11 statements in proceeding with construction of the subject property, plaintiffs' reliance was not
12 reasonable.
13 TWENTY-THIRD AFFIRMATIVE DEFENSE
14 (Alleged Statements Not Material)
15 23. As and for a separate twenty-third affirmative defense, BRITSCHGI alleges
16 that plaintiffs' fraud claim is barred because the statements plaintiffs allege to have been
17 made by BRITSCHGI were not material to plaintiffs' decision to proceed with construction of
18 the subject property.
19 TWENTY-FOURTH AFFIRMATIVE DEFENSE
20 (No Intent to Deceive)
21 24. As and for a separate twenty-fourth affirmative defense, BRITSCHGI
22 alleges that plaintiffs' fraud claim is barred because BRITSCHGI had no intent to deceive
23 plaintiffs in making any alleged statements to plaintiffs.
24 TWENTY-FIFTH AFFIRMATIVE DEFENSE
25 (No Intent to Induce Reliance)
26 25. As and for a separate twenty-fifth affirmative defense, BRITSCHGI alleges
27 that plaintiffs' fraud claim is barred because BRITSCHGI had no intent to induce plaintiffs to
28 rely on BRITSCHGI's alleged statements in deciding to proceed with construction of the
6
BRITSCHGI'S ANSWER TO ABBOTTS' SECOND AMENDED COMPLAINT
1 subject property.
2 TWENTY-SIXTH AFFIRMATIVE DEFENSE
3 (Lack of Causation)
4 26. As and for a separate twenty-sixth affirmative defense, BRITSCHGI alleges
5 that plaintiffs' fraud claim is barred because any alleged statements made by BRITSCHGI
6 were not the proximate or foreseeable cause of plaintiffs' alleged damages.
7 WHEREFORE, defendant RONALD PAUL BRITSCHGI individually and dba
8 BRITSCHGI CONSTRUCTION prays for judgment as follows:
9 1. That plaintiffs take nothing by way of their second amended complaint on file
10 herein;
11 2. That the second amended complaint herein against defendant, cross-
12 complainant, and cross-defendant RONALD PAUL BRITSCHGI individually and dba
13 BRITSCHGI CONSTRUCTION be dismissed in its entirety;
14 3. For costs of suit, including attorneys' fees; and
15 4. For such other and further relief that the Court may deem just and proper.
16 ..
17 DATED: December \L , 2009 LUNDGREN & REYNOLDS, LLP
18
19
CRAIG N. LUNDGREN
20 Attorneys for defendant, cross-
complainant, and cross-defendant
21 RONALD PAUL BRITSCHGI,
individually and dba BRITSCHGI
22 CONSTRUCTION
23
24
25
26
27
28
BRITSCHGI'S ANSWER TO ABBOTTS' SECOND AMENDED COMPLAINT
1 Rodney Abbott, etal. V. Ronald Paul Britschgi, etal.
Sacramento County Superior Court No. 07AS04450
2
DECLARATION OF SERVICE
3
I am a citizen of the United States, over the age of 18 years, and not a party to or
4 interested in this action. I am an employee of Lundgren and Reynolds, LLP and my business
address is 424 2nd Street, Suite A, Davis, California. On this day I caused to be served the
5 following document(s):
6 DEFENDANT, CROSS-COMPLAINANT, AND CROSS-DEFENDANAT
BRITSCHGI'S ANSWER TO PLAINTIOFFS' SECOND AMENDED
7 COMPLAINT FOR DAMAGES FOR BREACH OF CONTRACT,
NEGLIGENCE, AND VIOLATIONS OF BUSINESS & PROFESSIONS CODE
8
£3 By placing a true copy, in a sealed envelope, with postage fully prepaid, in the United
9 States Post Office mail at Davis, California, addressed as set forth below. I am
familiar with this firm's practice whereby the mail, after being placed in a designated
10 area, is given the appropriate postage and is deposited in a U.S. mail box after the
close of the day's business.
11
D By personal delivery of a true copy to the person indicated and at the address set forth
12 below.
13 D By Federal Express Mail to the person and at the address set forth below.
14 D By transmitting a true copy by facsimile to the person and at the facsimile number set
forth below.
15
Stephanie J. Finelli Attorney for Plaintiffs
16 Law Office of Stephanie J. Finelli Rodney Abbott, Florentine Abbott
1007 Seventh Street, Suite 500
17 Sacramento, CA 95814
FAX (916) 443-1511
18
Gregory K. Federico Attorney for defendant, cross-
19 Archer Norris Defendant and cross-complainant
655 University Avenue, #225 Richard Kirk Ruybalid, individually
20 Sacramento, CA 95825 and dba CA Construction
FAX (916) 646-5695
21
Richard D. Sopp Attorney for cross-defendant and
22 Wheatley Sopp, LLP cross-complainant
1004 River Rock Drive, Suite 245 Cadre Design Group, Inc.
23 Folsom, CA 95630
FAX (916) 988-5296
24
25 I declare under penalty of perjury under the laws of the State of California that the
26 foregoing is true and correct. Executed on December /_/_, 2009, at Davis, California.
27
SHAULA PATCHETT
28
I \craig's client files\bntschgi (abbott v)\pleadmgs\pser doc 1
PROOF OF SERVICE
Preview
1 CRAIG N. LUNDGREN - State Bar No. 148842 RACHEL T. ANDERSON - State Bar No. 266505 ftil^w r™,rt ftf riliffimta 2 LUNDGREN & REYNOLDS, LLP Supenor Court Of California 424 2nd Street, Suite A 3 Davis, C A 95616 (530) 297-5030 (Voice) 4 (530) 297-5077 (Facsimile) 5 .. Attorneys for defendant, cross-complainant 6 and cross-defendant RONALD PAUL BRITSCHGI, 7 individually and dba BRITSCHGI CONSTRUCTION 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 COUNTY OF SACRAMENTO 10 RODNEY ABBOTT and FLORENTINE ) CASE NO. 07AS04450 ABBOTT, ) 11 ) DEFENDANT, CROSS- Plaintiffs, ) COMPLAINANT, AND CROSS- 12 ) DEFENDANT BRITSCHGPS v. ) ANSWER TO PLAINTIFFS' 13 ) SECOND AMENDED COMPLAINT RONALD PAUL BRITSCHGI et al., ) FOR DAMAGES FOR BREACH OF 14 ) CONTRACT, NEGLIGENCE, AND Defendants. ) VIOLATIONS OF BUSINESS & 15 ) PROFESSIONS CODE ) 16 AND RELATED CROSS-ACTIONS. ) 17 18 19 GENERAL DENIAL 20 Comes now defendant RONALD PAUL BRITSCHGI, individually and dba 21 BRITSCHGI CONSTRUCTION (hereinafter "BRITSCHGI") on behalf of himself and his 22 business and for no other defendant, and answers plaintiffs' Second Amended Complaint for 23 Damages on file herein as follows: 24 BRITSCHGI denies each and every allegation of the complaint on file herein pursuant 25 to Code of Civil Procedure Section 431.30(d), and each and every paragraph thereof and 26 further denies that plaintiffs sustained any damages in the sum or sums alleged, or in any 27 other sum or sums whatsoever, or at all, and further denies that plaintiffs are entitled to any 28 damages by way of this action in any amount whatsoever. BRITSCHGI'S ANSWER TO ABBOTTS' SECOND AMENDED COMPLAINT 1 FIRST AFFIRMATIVE DEFENSE 2 (Failure to State a Cause of Action) 3 1. As and for a first affirmative defense, BRITSCHGI alleges that plaintiffs 4 have failed to plead facts sufficient to state a cause of action against BRITSCHGI. 5 SECOND AFFIRMATIVE DEFENSE 6 (Laches) 7 2. As and for a separate second affirmative defense, BRITSCHGI alleges that 8 the complaint is barred against BRITSCHGI, in whole or in part, by the doctrine of laches. 9 THIRD AFFIRMATIVE DEFENSE 10 (Statute of Limitations) 11 3. As and for a separate third affirmative defense, BRITSCHGI alleges that 12 the complaint is barred by the applicable statute of limitations, including, but not limited to, 13 California Code of Civil Procedure Sections 337, 337.1, 339, 340, 343 and 344. 14 FOURTH AFFIRMATIVE DEFENSE 15 (Full or Partial Performance) 16 4. As and for a separate fourth affirmative defense, BRITSCHGI alleges that 17 plaintiffs' complaint, and each cause of action therein, is barred by the provisions of Civil 18 Code Sections 1473, 1475, 1476, 1477 and each of them. 19 FIFTH AFFIRMATIVE DEFENSE 20 (Estoppel) 21 5. As and for a separate fifth affirmative defense, BRITSCHGI alleges that 22 plaintiffs' complaint is barred in whole or in part by the doctrine of estoppel. 23 SIXTH AFFIRMATIVE DEFENSE 24 (Failure to Mitigate Damages) 25 6. As and for a separate sixth affirmative defense, BRITSCHGI alleges that 26 plaintiffs have failed to mitigate their damages, if any, against BRITSCHGI. 27 /// 28 /// 2 BRITSCHGPS ANSWER TO ABBOTTS' SECOND AMENDED COMPLAINT 1 SEVENTH AFFIRMATIVE DEFENSE 2 (Negligence of Others) 3 7. As and for a separate seventh affirmative defense, BRITSCHGI alleges that 4 plaintiffs' damages, if any, were a direct and proximate result of the intervening and 5 superseding negligence or fault on the part of other parties and that this intervening and 6 superseding negligence bars recovery by plaintiffs. 7 EIGHTH AFFIRMATIVE DEFENSE 8 (Uncertain Terms) 9 8. As and for a separate eighth affirmative defense, BRITSCHGI alleges that 10 the terms of the oral contract alleged by plaintiffs are too uncertain to establish that 11 BRITSCHGI was responsible for or agreed to supervise the work done by subcontractors on 12 plaintiffs' property, which work plaintiffs allege to have caused their damages. 13 NINTH AFFIRMATIVE DEFENSE 14 (Unclean Hands) 15 9. As and for a separate ninth affirmative defense, BRITSCHGI alleges that 16 plaintiffs' claims are barred by the equitable doctrine of unclean hands. 17 TENTH AFFIRMATIVE DEFENSE 18 (Contributory Negligence) 19 10. As and for a separate tenth affirmative defense, BRITSCHGI alleges that 20 the damages alleged by plaintiffs, if any, were caused by plaintiffs' own negligence and/or 21 failure to use reasonable care. 22 ELEVENTH AFFIRMATIVE DEFENSE 23 (Breach of Condition Precedent) 24 11. As and for a separate eleventh affirmative defense, BRITSCHGI alleges 25 that plaintiffs' complaint, and each cause of action therein, is barred by plaintiffs' failure to 26 perform or satisfy some or all of the conditions precedent to any further obligations of 27 BRITSCHGI under the alleged contract. 28 /// 3 BRITSCHGI'S ANSWER TO ABBOTTS' SECOND AMENDED COMPLAINT 1 TWELFTH AFFIRMATIVE DEFENSE 2 (Illegality) 3 12. As and for a separate twelfth affirmative defense, BRITSCHGI alleges that 4 the contract sued upon is illegal and unenforceable. 5 THIRTEENTH AFFIRMATIVE DEFENSE 6 (No Private Right of Action) 7 13. As and for a separate thirteenth affirmative defense, BRITSCHGI alleges 8 that plaintiffs' complaint fails to state a cause of action against BRITSCHGI because there is 9 no private right of action afforded to plaintiffs under California Business and Professions 10 Code Sections 7028, 7109, or 7110. These sections are disciplinary in nature, and therefore 11 not a basis for recovery for plaintiffs. 12 FOURTEENTH AFFIRMATIVE DEFENSE 13 (Superseding Cause) 14 14. As and for a separate fourteenth affirmative defense, BRITSCHGI alleges 15 that the damages alleged by plaintiffs were caused solely by the unforeseeable and 16 unreasonable abuse, misuse or alteration of the subject products or improvements, by persons, 17 parties or entities other than BRITSCHGI, and not by any act or omission by which 18 BRITSCHGI may be held legally or equitably responsible. 19 FIFTEENTH AFFIRMATIVE DEFENSE 20 (Failure to Give Notice) 21 15. As and for a separate fifteenth affirmative defense, BRITSCHGI alleges 22 that plaintiffs' complaint, and each alleged cause of action therein, is barred by plaintiffs' 23 failure to give BRITSCHGI reasonable notice of the alleged breaches of contract or other 24 wrongful conduct. 25 SIXTEENTH AFFIRMATIVE DEFENSE 26 (Waiver) 27 16. As and for a separate sixteenth affirmative defense, BRITSCHGI alleges 28 that plaintiffs waived and are estopped from asserting any claim against BRITSCHGI because 4 BRITSCHGPS ANSWER TO ABBOTTS' SECOND AMENDED COMPLAINT 1 of plaintiffs' approval and consent to the risk in the matters causing the damages alleged, if 2 any, in their acknowledgement of, acquiescence in, and consent to the alleged acts or 3 omissions, if any, of BRITSCHGI. 4 SEVENTEENTH AFFIRMATIVE DEFENSE 5 (Comparative Fault) 6 17. As and for a separate seventeenth affirmative defense, BRITSCHGI alleges, 7 while at all times denying any liability whatsoever to the plaintiffs, that any alleged liability 8 or responsibility of BRITSCHGI is small in proportion to the alleged liability and 9 responsibility of other persons or entities, including other persons and entities who are 10 defendants or cross-defendants herein, and plaintiffs should be limited to seeking recovery 11 from these defendants for the proportion of alleged injuries and damages for which these 12 answering defendants are allegedly liable or responsible, all such alleged liability and 13 responsibility being expressly denied. 14 EIGHTEENTH AFFIRMATIVE DEFENSE 15 (Unjust Enrichment) 16 18. As and for a separate eighteenth affirmative defense, BRITSCHGI alleges 17 that any recovery by plaintiffs would be unjust and inequitable under the circumstances of the 18 case, as all performance required by BRITSCHGI was properly performed. 19 NINETEENTH AFFIRMATIVE DEFENSE 20 (Ratification of Work) 21 19. As and for a separate nineteenth affirmative defense, BRITSCHGI alleges 22 that plaintiffs expressly or impliedly approved and/or ratified any and all work performed by 23 BRITSCHGI at the subject property and therefore plaintiffs have waived and are estopped 24 from asserting any claims arising out of such matter. 25 TWENTIETH AFFIRMATIVE DEFENSE 26 (Civil Code Sections 896 and 945.5) 27 20. As and for a separate twentieth affirmative defense, BRITSCHGI alleges 28 that each cause of action is barred by the provisions of Civil Code section 896 et seq. and 5 BRITSCHGI'S ANSWER TO ABBOTTS' SECOND AMENDED COMPLAINT 1 Civil Code section 945.5. 2 TWENTY-FIRST AFFIRMATIVE DEFENSE 3 (No Reliance) 4 21. As and for a separate twenty-first affirmative defense, BRITSCHGI alleges 5 that plaintiffs' fraud claim is barred because plaintiffs did not rely on BRITSCHGI's alleged 6 statements in proceeding with construction of the subject property. 7 TWENTY-SECOND AFFIRMATIVE DEFENSE 8 (Reliance Not Reasonable) 9 22. As and for a separate twenty-second affirmative defense, BRITSCHGI 10 alleges that plaintiffs' fraud claim is barred because, if plaintiffs did rely on BRITSCHGI's 11 statements in proceeding with construction of the subject property, plaintiffs' reliance was not 12 reasonable. 13 TWENTY-THIRD AFFIRMATIVE DEFENSE 14 (Alleged Statements Not Material) 15 23. As and for a separate twenty-third affirmative defense, BRITSCHGI alleges 16 that plaintiffs' fraud claim is barred because the statements plaintiffs allege to have been 17 made by BRITSCHGI were not material to plaintiffs' decision to proceed with construction of 18 the subject property. 19 TWENTY-FOURTH AFFIRMATIVE DEFENSE 20 (No Intent to Deceive) 21 24. As and for a separate twenty-fourth affirmative defense, BRITSCHGI 22 alleges that plaintiffs' fraud claim is barred because BRITSCHGI had no intent to deceive 23 plaintiffs in making any alleged statements to plaintiffs. 24 TWENTY-FIFTH AFFIRMATIVE DEFENSE 25 (No Intent to Induce Reliance) 26 25. As and for a separate twenty-fifth affirmative defense, BRITSCHGI alleges 27 that plaintiffs' fraud claim is barred because BRITSCHGI had no intent to induce plaintiffs to 28 rely on BRITSCHGI's alleged statements in deciding to proceed with construction of the 6 BRITSCHGI'S ANSWER TO ABBOTTS' SECOND AMENDED COMPLAINT 1 subject property. 2 TWENTY-SIXTH AFFIRMATIVE DEFENSE 3 (Lack of Causation) 4 26. As and for a separate twenty-sixth affirmative defense, BRITSCHGI alleges 5 that plaintiffs' fraud claim is barred because any alleged statements made by BRITSCHGI 6 were not the proximate or foreseeable cause of plaintiffs' alleged damages. 7 WHEREFORE, defendant RONALD PAUL BRITSCHGI individually and dba 8 BRITSCHGI CONSTRUCTION prays for judgment as follows: 9 1. That plaintiffs take nothing by way of their second amended complaint on file 10 herein; 11 2. That the second amended complaint herein against defendant, cross- 12 complainant, and cross-defendant RONALD PAUL BRITSCHGI individually and dba 13 BRITSCHGI CONSTRUCTION be dismissed in its entirety; 14 3. For costs of suit, including attorneys' fees; and 15 4. For such other and further relief that the Court may deem just and proper. 16 .. 17 DATED: December \L , 2009 LUNDGREN & REYNOLDS, LLP 18 19 CRAIG N. LUNDGREN 20 Attorneys for defendant, cross- complainant, and cross-defendant 21 RONALD PAUL BRITSCHGI, individually and dba BRITSCHGI 22 CONSTRUCTION 23 24 25 26 27 28 BRITSCHGI'S ANSWER TO ABBOTTS' SECOND AMENDED COMPLAINT 1 Rodney Abbott, etal. V. Ronald Paul Britschgi, etal. Sacramento County Superior Court No. 07AS04450 2 DECLARATION OF SERVICE 3 I am a citizen of the United States, over the age of 18 years, and not a party to or 4 interested in this action. I am an employee of Lundgren and Reynolds, LLP and my business address is 424 2nd Street, Suite A, Davis, California. On this day I caused to be served the 5 following document(s): 6 DEFENDANT, CROSS-COMPLAINANT, AND CROSS-DEFENDANAT BRITSCHGI'S ANSWER TO PLAINTIOFFS' SECOND AMENDED 7 COMPLAINT FOR DAMAGES FOR BREACH OF CONTRACT, NEGLIGENCE, AND VIOLATIONS OF BUSINESS & PROFESSIONS CODE 8 £3 By placing a true copy, in a sealed envelope, with postage fully prepaid, in the United 9 States Post Office mail at Davis, California, addressed as set forth below. I am familiar with this firm's practice whereby the mail, after being placed in a designated 10 area, is given the appropriate postage and is deposited in a U.S. mail box after the close of the day's business. 11 D By personal delivery of a true copy to the person indicated and at the address set forth 12 below. 13 D By Federal Express Mail to the person and at the address set forth below. 14 D By transmitting a true copy by facsimile to the person and at the facsimile number set forth below. 15 Stephanie J. Finelli Attorney for Plaintiffs 16 Law Office of Stephanie J. Finelli Rodney Abbott, Florentine Abbott 1007 Seventh Street, Suite 500 17 Sacramento, CA 95814 FAX (916) 443-1511 18 Gregory K. Federico Attorney for defendant, cross- 19 Archer Norris Defendant and cross-complainant 655 University Avenue, #225 Richard Kirk Ruybalid, individually 20 Sacramento, CA 95825 and dba CA Construction FAX (916) 646-5695 21 Richard D. Sopp Attorney for cross-defendant and 22 Wheatley Sopp, LLP cross-complainant 1004 River Rock Drive, Suite 245 Cadre Design Group, Inc. 23 Folsom, CA 95630 FAX (916) 988-5296 24 25 I declare under penalty of perjury under the laws of the State of California that the 26 foregoing is true and correct. Executed on December /_/_, 2009, at Davis, California. 27 SHAULA PATCHETT 28 I \craig's client files\bntschgi (abbott v)\pleadmgs\pser doc 1 PROOF OF SERVICE