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1 HORTON, OBERRECHT & KIRKPATRICK
Cheryl A. Kirkpatrick, Esq. (SBN 149906)
2 Alice S. Li, Esq. (SBN 255605)
3 Park Plaza, Suite 350
3 Irvine, CA 92614
PH: (949) 251-5100
4 FX: (949) 251-5104
5 Attorneys for Cross-Defendants Concrete Value Corp. and CVC Construction Corp.
6
7
8 SUPERIOR COURT FOR THE STATE OF CALIFORNIA
9 FOR THE COUNTY OF KERN
10
11 EDUARDO BARRON; ADILENE CASE NO. BCV-18-101493
HERNANDESZ & JESUS GOMEZ; ALFREDO
12 MENDOZA & MARIBEL MARTINEZ; ASSIGNED FOR ALL PURPOSES TO:
ANTONIO DURAN & ASHLEY MENDEZ; Judge: Hon. J. Eric Bradshaw
13 BRUNO BUGAMBILIA & JENNIFER PEREZ; Department: J
GILBERTO RIOS-GARCIA & LIDIA
14 PERALTA-ESPINOZA; JOSE SANTOYO & CROSS-DEFENDANTS CONCRETE
GRACIELA VILLALOBOS; MARIA VALUE CORP. AND CVC
15 GONZALEZ & SANTOS MARTINEZ; CONSTRUCTION CORP.’S ANSWER TO
RODRIGO GARCIA & LOURDES CROSS-COMPLAINT OF K. HOVNANIAN
16 GUTIERREZ; TOMAS GARCIA & MARIA AT CIELO LLC
MARTINEZ-DE-GARCIA; JOSE ALVAREZ;
17 ROY ALVAREZ-CORTEZ; JOSE & ALICIA Complaint Filed: June 20, 2018
AYALA; ALEJANDRO ESTRADA; JULIUS Trial Date: None Set
18 RUBEN GALLEGOS; JUAN GARCIA;
FERNANDO, ALFREDO & BEATRIZ
19 GOMEZ; MARCOS GOMEZ; MIGUEL &
LUZ HERNANDEZ; EDUARDO IBARRA;
20 JUAN LEYVA & PATRICIA RAMIREZ DE
LEYVA LEYVA; MARCELA MAGANA;
21 ADALBERTO & SHASTYNE NAVARRO;
SAMUEL PARRA; PEDRO PEREZ; SERGIO
22 & MARIA QUEZADA; CRISANTO & EVA
RODRIGUEZ; MARIBEL SAMANIEGO;
23 DAVID VELAZQUEZ; PATRICIA &
ADISBERTH FARFAN
24
Plaintiffs,
25
v.
26
K. HOVNANIAN; K. HOVNANIAN AT
27 CIELO LLC, A CALIFORNIA LIMITED
LIABILITY COMPANY FORMERLY
28 KNOWN AS K. HOVNANIAN AT ARVIN
1
CONCRETE VALUE CORP. AND CVC CONSTRUCTION CORP.’S ANSWER TO CROSS-COMPLANT
1 LLC, A CALIFORNIA LIMITED LIABILITY
COMPANY; AND DOES 1-1000, INCLUSIVE,
2
Defendants.
3
4 K. HONANIAN AT CIELO LLC, A
CALIFORNIA LIMITED LIABILITY
5 COMPANY FORMERLY KNOWN AS K.
HOVNANIAN AT ARVIN LLC, A
6 CALIFORNIA LIMITED LIABILITY
COMPANY,
7
Cross-Complainant,
8 v.
9 AIRPLUS OF CALIFORNIA, INC., A
DELAWARE CORPORATION; BRENNAN
10 ELECTRIC, INC., A CALIFORNIA
CORPORATION; CAMPBELL PAINTING,
11 INC., A CALIFORNIA CORPORATION;
CHAMPION WINDOWS, INC., A
12 CALIFORNIA CORPORATION; CONCRETE
VALUE CORP., A CALIFORNIA
13 CORPORATION; CVC CONSTRUCTION
CORP., A CALIFORNIA CORPORATION;
14 DESERT PLUMBING, INC., A CALIFORNIA
CORPORATION; FENCEWORKS, INC., A
15 CALIFORNIA CORPORATION; FIBER CARE
BATHS, INC., A CALIFORNIA
16 CORPORATION; GRANT CONSTRUCTION,
INC., A CALIFORNIA CORPORATION;
17 HOMESITE SERVICES, INC., A
CALIFORNIA CORPORATION; HY-TECH
18 TILE, INC., A CALIFORNIA
CORPORATION; KENYON PLASTERING
19 OF VISALIA, INC., A CALIFONRIA
CORPORATION; L.A.R.K INDUSTRIES, INC.
20 DBA RESIDENTIAL DESIGN SERVICES, A
CALIFORNIA CORPORATION;
21 LANDSCAPE DEVELOPMENT, INC., A
CALIFORNIA CORPORATION; LEONARD
22 ROOFING, INC., A CLAIFORNIA
CORPORATION; PREMIER ELECTRICAL
23 CONTRACTORS, INC., A CALIFORNIA
CORPORATION; RSI PROFESSIONAL
24 CABINET SOLUTIONS, A CALIFORNIA
CORPORATION; SOUTH PAC INDUSTRIES,
25 INC., A CALIFORNIA CORPORATION; T &
R CONSTRUCTION GROUP, A
26 CALIFORNIA CORPORATION; TMS
TECHNOLOGIES INCORPORATED, A
27 CALIFORNIA CORPORATION; TRUTEAM
OF CALIFORNIA, INC., A CALIFORNIA
28 CORPORATION; WALL CONSTRUCTORS
2
CONCRETE VALUE CORP. AND CVC CONSTRUCTION CORP.’S ANSWER TO CROSS-COMPLANT
1 INCORPORATED, A CALIFORNIA
CORPORATION; WALTERS WHOLESALE
2 ELECTRIC CO., A CALIFORIA
CORPORATION; WESLAR, INC., A
3 CALIFORNIA CORPORATION; AND ROES 1
- 400, INCLUSIVE,
4
Cross-Defendants,
5
6 Cross-Defendants Concrete Value Corp. and CVC Construction Corp. (“Cross-Defendants”)
7 answers the cross-complaint of Cross-Complainant K. Hovnanian at Cielo LLC, a California Limited
8 Lability Company formerly known as K. Hovnanian at Arvin LLC, a California Limited liability
9 Company (“Cross- Complainant”) as follows:
10 Pursuant to the provision of §431.30 of the Code of Civil Procedure, these answering Cross-
11 Defendants deny generally and specifically each and every allegation contained in the Cross-Complaint,
12 and the whole thereof, and deny that the Cross-Complainant sustained damages as alleged, by reason of
13 any act, breach or omission on the part of these answering Cross-Defendants.
14 FIRST AFFIRMATIVE DEFENSE
15 (No Cause of Action)
16 As a first, separate and distinct affirmative defense, these answering Cross-Defendants allege
17 that the Cross-Complaint, and each and every purported cause of action contained therein, fails to state
18 facts sufficient to constitute a cause of action or any cause of action against these answering Cross-
19 Defendants.
20 SECOND AFFIRMATIVE DEFENSE
21 (Comparative Negligence)
22 As a second, separate and distinct affirmative defense, these answering Cross-Defendants allege
23 that the damages suffered by Cross-Complainants, if any, were the direct and proximate result of the
24 negligence of parties, persons, corporations and/or entities other than these answering Cross-Defendants,
25 and that the liability of these answering Cross-Defendants, if any, is limited in direct proportion to the
26 percentage of fault actually attributable to these answering Cross-Defendants.
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CONCRETE VALUE CORP. AND CVC CONSTRUCTION CORP.’S ANSWER TO CROSS-COMPLANT
1 THIRD AFFIRMATIVE DEFENSE
2 (Contributory Negligence)
3 As a third, separate and distinct affirmative defense, these answering Cross-Defendants are
4 informed and believe and thereon allege that at all times mentioned herein, Cross-Complainant was
5 negligent, careless and reckless and unlawfully conducted itself so as to directly and proximately
6 contribute to the happening of the incident and the occurrence of claimed damages, all of which said
7 negligence bars either completely or partially the damages sought herein.
8 FOURTH AFFIRMATIVE DEFENSE
9 (Estoppel)
10 As a fourth, separate and distinct affirmative defense, these answering Cross-Defendants are
11 informed and believe and thereon allege that Cross-Complainant has engaged in conduct and activities
12 with respect to the property and activities which are the subject of the Cross-Complaint and by reason of
13 said activities is estopped from asserting any claim for damages or seeking any other relief against these
14 answering Cross-Defendants.
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FIFTH AFFIRMATIVE DEFENSE
16
(Waiver)
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As a fifth, separate and distinct affirmative defense, these answering Cross-Defendants are
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informed and believe and thereon allege that Cross-Complainant has engaged in conduct and activities
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sufficient to constitute a waiver of any alleged breach of conduct, negligence, or any other conduct, if
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any, as set forth in the Cross-Complaint.
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22 SIXTH AFFIRMATIVE DEFENSE
23 (Intervening/Superseding Acts of Negligence)
24 As a sixth, separate and distinct affirmative defense, these answering Cross-Defendants are
25 informed and believe and thereon allege that the damages of which Cross-Complainant complains were
26 proximately caused or contributed to by the acts of other persons and/or other entities and that said acts
27 were an intervening and/or superseding cause of the damages, if any, of which Cross-Complainant
28 complains, thus barring any recovery against these answering Cross-Defendants.
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CONCRETE VALUE CORP. AND CVC CONSTRUCTION CORP.’S ANSWER TO CROSS-COMPLANT
1 SEVENTH AFFIRMATIVE DEFENSE
2 (Assumption of Risk)
3 As a seventh, separate and distinct affirmative defense, these answering Cross-Defendants allege
4 that Cross-Complainant expressly, voluntarily and knowingly assumed all risks about which it
5 complains and that, therefore, it is barred either totally or to the extent of said assumption from any
6 damages.
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EIGHTH AFFIRMATIVE DEFENSE
8
(Unclean Hands)
9
As an eighth, separate and distinct affirmative defense, these answering Cross-Defendants are
10
informed and believe and thereon allege that each and every one of Cross-Complainant’s causes of
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action are barred by the doctrine of unclean hands.
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NINTH AFFIRMATIVE DEFENSE
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(Non-Performance of Duties)
14
As a ninth, separate and distinct affirmative defense, these answering Cross-Defendants are
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informed and believe and based thereon allege that at all times and places alleged in the Cross-
16
Complaint, Cross-Complainant failed to perform all duties and obligations on its part of any agreement,
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oral or written, with these answering Cross-Defendants, and such acts or omissions bar Cross-
18
Complainant’s recovery herein.
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TENTH AFFIRMATIVE DEFENSE
20
(Contractual Defenses)
21
As a tenth, separate and distinct affirmative defense, these answering Cross-Defendants are
22
informed and believe and based thereon allege that the rights and remedies of these answering Cross-
23
Defendants are governed by the terms and conditions of the contracts and amendments between them.
24
These answering Cross-Defendants rely upon each and every defense and limitation contained therein
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and in the work specifications, invoices, change orders, amendments and attachments to said contracts
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and amendments.
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CONCRETE VALUE CORP. AND CVC CONSTRUCTION CORP.’S ANSWER TO CROSS-COMPLANT
1 ELEVENTH AFFIRMATIVE DEFENSE
2 (Active and Primary Negligence)
3 As an eleventh, separate and distinct affirmative defense, these answering Cross-Defendants are
4 informed and believe and based thereon allege that Cross-Complainant is barred from recovery from
5 these answering Cross-Defendants on a theory of comparative indemnity in that Cross-Complainant’s
6 negligence, if any, was active and primary while the negligence, if any, of these answering Cross-
7 Defendants was passive and secondary.
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TWELFTH AFFIRMATIVE DEFENSE
9
(Conditions Precedent)
10
As a twelfth, separate and distinct affirmative defense, these answering Cross-Defendants are
11
informed and believe and based thereon allege that Cross-Complainant has failed to satisfy one or
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more express or implied conditions precedent to any obligations allegedly owed to Cross-Complainant.
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THIRTEENTH AFFIRMATIVE DEFENSE
14
(Mitigation of Damages)
15
As a thirteenth, separate and distinct affirmative defense, these answering Cross-Defendants are
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informed and believe and thereon allege that Cross-Complainant has failed, refused and neglected to
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take reasonable steps to mitigate damages, if any, thus barring or diminishing Cross-Complainant’s
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recovery herein.
19
FOURTEENTH AFFIRMATIVE DEFENSE
20
(Statute of Limitations)
21
As a fourteenth, separate and distinct affirmative defense, these answering Cross-Defendants are
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informed and believe and based thereon allege that each and every cause of action contained in the
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Cross-Complaint is barred by the provisions of California Code of Civil Procedure including, but not
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limited to, '337, '337.1, '337.15, '338, '339, '343, and any other applicable statutes of limitation.
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CONCRETE VALUE CORP. AND CVC CONSTRUCTION CORP.’S ANSWER TO CROSS-COMPLANT
1 FIFTEENTH AFFIRMATIVE DEFENSE
2 (Laches)
3 As a fifteenth, separate and distinct affirmative defense, these answering Cross-Defendants are
4 informed and believe and based upon such information and belief allege that Cross-Complainant herein
5 is barred by the doctrine of laches.
6 SIXTEENTH AFFIRMATIVE DEFENSE
7 (Lack of Capacity to Sue)
8 As a sixteenth, separate and distinct affirmative defense, these answering Cross-Defendants are
9 informed and believe and based thereon allege that Cross-Complainant lacks capacity to sue.
10 SEVENTEENTH AFFIRMATIVE DEFENSE
11 (No Justiciable Controversy)
12 As a seventeenth, separate and distinct affirmative defense, these answering Cross-Defendants
13 are informed and believe and based thereon allege that the Cross-Complaint, and each purported cause
14 of action contained therein, was brought without reasonable care and without a good faith belief that
15 there was a justifiable controversy under the facts and the law which warranted the filing of the Cross-
16 Complaint against these answering Cross-Defendants; therefore, Cross-Complainant is responsible for
17 all necessary and reasonable costs including attorneys’ fees incurred by Cross-Defendants as more
18 particularly set forth in California Code of Civil Procedure '128.5.
19 EIGHTEENTH AFFIRMATIVE DEFENSE
20 (Setoff)
21 As an eighteenth, separate and distinct affirmative defense, these answering Cross-Defendants
22 are entitled to a setoff against any damages owed by these answering Cross-Defendants to Cross-
23 Complainant by virtue of the conduct of Cross-Complainant and others responsible for Cross-
24 Complainant’s alleged damages, if any.
25 NINETEENTH AFFIRMATIVE DEFENSE
26 (Civil Code §2782)
27 As a nineteenth, separate and distinct affirmative defense, these answering Cross-Defendants are
28 informed and believe and based thereon allege that Cross-Complainant’s actions against Cross-
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CONCRETE VALUE CORP. AND CVC CONSTRUCTION CORP.’S ANSWER TO CROSS-COMPLANT
1 Defendants are barred by California Civil Code §2782.
2 TWENTIETH AFFIRMATIVE DEFENSE
3 (Standing to Sue)
4 As a twentieth, separate and distinct affirmative defense, these answering Cross-Defendants are
5 informed and believe and based upon such information and belief allege that Cross-Complainant lacks
6 standing to sue.
7 TWENTY-FIRST AFFIRMATIVE DEFENSE
8 (Disclaimer of Warranties)
9 As a twenty-first, separate and distinct affirmative defense, these answering Cross-Defendants
10 allege if it is found that Cross-Defendants made a warranty, express or implied, which these Cross-
11 Defendants deny, then such warranty, if any, was disclaimed, excluded and limited in all of its parts and
12 its entirety, explicitly and conspicuously both orally and in writing, in words that plainly convey the
13 meaning to Cross-Complainant that such disclaimer and limitation of such warranty, if any, was also
14 excluded and modified in the course of dealing and usage of trade, all as to preclude Cross-Complainant
15 from reliance upon a recovery from this warranty.
16 TWENTY-SECOND AFFIRMATIVE DEFENSE
17 (Detrimental Reliance)
18 As a twenty-second, separate and distinct affirmative defense, these answering Cross-
19 Defendants alleges Cross-Complainant is barred by reason of the acts, omissions, representations and
20 course of conduct of Cross-Complainants, which these answering Cross-Defendants were lead to rely
21 upon to their detriment, thereby barring any causes of action asserted by Cross-Complainant.
22 TWENTY-THIRD AFFIRMATIVE DEFENSE
23 (Notice of Breach of Warranty)
24 As a twenty-third, separate and distinct affirmative defense, these answering Cross-Defendants
25 allege Cross-Complainant failed to give adequate notice of the alleged breach of warranty, that there was
26 delay of giving notice of a breach within a reasonable time of discovering the breach of warranty or
27 when Cross-Complainant should have discovered the breach of warranty.
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CONCRETE VALUE CORP. AND CVC CONSTRUCTION CORP.’S ANSWER TO CROSS-COMPLANT
1 TWENTY-FOURTH AFFIRMATIVE DEFENSE
2 (Complete Performance)
3 As a twenty-fourth, separate and distinct affirmative defense, these answering Cross-Defendants
4 have appropriately, completely, and fully performed and discharged any and all obligations and legal
5 duties arising out of the matters alleged in the Cross-Complaint.
6 TWENTY-FIFTH AFFIRMATIVE DEFENSE
7 (Failure of Performance)
8 As a twenty-fifth, separate and distinct affirmative defense, any failure on the part of the
9 answering Cross-Defendants to perform the obligations described in the Cross-Complaint is excused by
10 Cross-Complainant’s failure to perform its obligations in a timely, proper, and complete manner.
11 TWENTY-SIXTH AFFIRMATIVE DEFENSE
12 (Prevention of Performance)
13 As a twenty-sixth, separate and distinct affirmative defense, if Cross-Defendants are found to
14 have failed to perform any covenant or condition pursuant to any alleged agreement with Cross-
15 Complainant, these answering Cross-Defendants allege that such failure was for the reason that Cross-
16 Complainant, by its acts or omissions, or those of its agents, prevented these answering Cross-
17 Defendants’ performance and excused any and all future performance.
18 TWENTY-SEVENTH AFFIRMATIVE DEFENSE
19 (Excuse of Performance)
20 As a twenty-seventh, separate and distinct affirmative defense, the conduct of these answering
21 Cross-Defendants was justified or otherwise subject to the doctrine of excuse, and by reason of the
22 foregoing, Cross-Complainant is barred from any recovery.
23 TWENTY-EIGHTH AFFIRMATIVE DEFENSE
24 (Release)
25 As a twenty-eighth, separate and distinct affirmative defense, Cross-Complainants’ Cross-
26 Complaint is barred due to the existence of releases and other matters of contract, by which Cross-
27 Complainant is bound, which preclude Cross-Complainant’s recovery of damages.
28 ///
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CONCRETE VALUE CORP. AND CVC CONSTRUCTION CORP.’S ANSWER TO CROSS-COMPLANT
1 TWENTY-NINTH AFFIRMATIVE DEFENSE
2 (Full or Partial Satisfaction)
3 As a twenty-ninth, separate and distinct affirmative defense, Cross-Complainant has been
4 fully or partially compensated for damages, if any, arising out of the allegations of the Cross-Complaint
5 and has waived its right to further recovery and its recovery is barred or diminished by that amount.
6 THIRTIETH AFFIRMATIVE DEFENSE
7 (Failure to Notify)
8 As a thirtieth, separate and distinct affirmative defense, these answering Cross-Defendants are
9 informed and believe and based thereon allege that Cross-Complainant is barred from pursuing any
10 remedy against these answering Cross-Defendants for breach of any warranty, express or implied, or
11 for breach of any contract, express or implied, or for any damage which is the subject of the Cross-
12 Complaint, because Cross-Complainant did not notify these answering Cross-Defendants within a
13 reasonable time after Cross-Complainants discovered or reasonably should have discovered the alleged
14 breach.
15 THIRTY-FIRST AFFIRMATIVE DEFENSE
16 (Unjust Enrichment)
17 As a thirty-first, separate and distinct affirmative defense, granting Cross-Complainant’s
18 demand in the Cross-Complaint would result in Cross-Complainant receiving more money than it is
19 entitled.
20 THIRTY-SECOND AFFIRMATIVE DEFENSE
21 (Statute of Frauds)
22 As a thirty-second, separate and distinct affirmative defense, these answering Cross-
23 Defendants are informed and believe and based upon such information and belief allege that Cross-
24 Complainant violated the statute of frauds.
25 THIRTY-THIRD AFFIRMATIVE DEFENSE
26 (Attorneys Fees Not Recoverable)
27 As a thirty-third, separate and distinct affirmative defense, Cross-Complainant or the people
28 or entities that assigned the claim to Cross-Complainant is not entitled to reimbursement of attorneys’
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CONCRETE VALUE CORP. AND CVC CONSTRUCTION CORP.’S ANSWER TO CROSS-COMPLANT
1 fees because the contract did not include such a provision, and there is no law that otherwise allows
2 them. (California Code of Civil Procedure section 1021).
3 THIRTY-FOURTH AFFIRMATIVE DEFENSE
4 (Parole Evidence)
5 As a thirty-fourth, separate and distinct affirmative defense, Cross-Complainant’s claims are
6 based on a verbal statement that contradicts or falls outside the written terms of the agreement.
7 THIRTY-FIFTH AFFIRMATIVE DEFENSE
8 (Frustration of Purpose)
9 As a thirty-fifth, separate and distinct affirmative defense, the enforcement of Cross-
10 Complainant’s agreement would go against the purpose of the agreement.
11 THIRTY-SIXTH AFFIRMATIVE DEFENSE
12 (No Contract Formation)
13 As a thirty-sixth, separate and distinct affirmative defense, there is no contract because
14 there was no offer and acceptance or meeting of the minds on all material points in the agreement
15 between Cross-Complainant and these answering Cross-Defendants.
16 THIRTY-SEVENTH AFFIRMATIVE DEFENSE
17 (Novation)
18 As a thirty-seventh, separate and distinct affirmative defense, the agreement cannot be enforced
19 because Cross-Complainant and the answering Cross-Defendants substituted a new and different
20 agreement.
21 THIRTY-EIGHTH AFFIRMATIVE DEFENSE
22 (No Consideration)
23 As a thirty-eighth, separate and distinct affirmative defense, the agreement cannot be enforced
24 because there was no consideration.
25 THIRTY-NINTH AFFIRMATIVE DEFENSE
26 (No Causation)
27 As a thirty-ninth, separate and distinct affirmative defense, these answering Cross-Defendants
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CONCRETE VALUE CORP. AND CVC CONSTRUCTION CORP.’S ANSWER TO CROSS-COMPLANT
1 allege that Cross-Complainant’s alleged losses or damages, if any, were not proximately caused or
2 contributed to by any acts or omissions of these answering Cross-Defendants.
3 FORTIETH AFFIRMATIVE DEFENSE
4 (Knowledge)
5 As a fortieth, separate and distinct affirmative defense, these answering Cross-Defendants
6 allege that Cross-Complainant’s claims are barred by its actual or constructive knowledge or acceptance
7 of the facts on which it bases its claims against these answering Cross-Defendants.
8 FORTY-FIRST AFFIRMATIVE DEFENSE
9 (Prior Breach)
10 As a forty-first, separate and distinct affirmative defense, these answering Cross-Defendants
11 alleges that Cross-Complainant’s claims are barred by their prior breach of the agreement.
12 FORTY- SECOND AFFIRMATIVE DEFENSE
13 (Invalid License)
14 As a forty-second, separate and distinct affirmative defense, these answering Cross-Defendants
15 allege that Cross-Complainant may not have held a valid general contractor’s license during the relevant
16 times of construction, and therefore its contractual and express indemnity claims are barred.
17 FORTY-THIRD AFFIRMATIVE DEFENSE
18 (Misuse)
19 As a forty-third, separate and distinct affirmative defense, these answering Cross-Defendants
20 allege that at all times and places alleged in the Cross-Complaint, the Cross-Complainant misused the
21 product therein described knowing full well that such misuse was unforeseen and unforeseeable to these
22 answering Cross-Defendants, with full knowledge of the danger resulting from such misuse, in that such
23 misuse proximately caused and contributed to the injuries and damages, if any, suffered by Cross-
24 Complainant.
25 FORTY-FOURTH AFFIRMATIVE DEFENSE
26 (Privilege)
27 As a forty-fourth, separate and distinct affirmative defense, these answering Cross-Defendants
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CONCRETE VALUE CORP. AND CVC CONSTRUCTION CORP.’S ANSWER TO CROSS-COMPLANT
1 allege that the alleged actions, statements and other actionable events attributed to these answering
2 Cross-Defendants were absolutely or qualifiedly privileged.
3 FORTY-FIFTH AFFIRMATIVE DEFENSE
4 (Right to Assert Additional Affirmative Defenses)
5 As a forty-fifth, separate and distinct affirmative defense, these answering Cross-Defendants
6 presently do not have sufficient knowledge or information upon which to form a belief as to whether it
7 has more additional as yet unstated affirmative defenses. These answering Cross-Defendants reserve
8 the right to assert additional affirmative defenses in the event discovery indicates to do so would be
9 appropriate.
10 FORTY-SIXTH AFFIRMATIVE DEFENSE
11 (Violation of Civil Code §896 through §945.5)
12 Cross-Defendants allege that Cross-Complainant has violated provisions set forth in Civil
13 Code §896 through §945.5, which require non-adversarial procedures to resolve disputes, including
14 providing defendants with a detailed notice of claim, a notice of defects, if any, a reasonable
15 opportunity to cure any alleged defects, mediation, and/or opportunity to otherwise reach a settlement
16 with Plaintiffs prior to the filing of their Complaint, as well as other particulars of those sections.
17 FORTY-SEVENTH AFFIRMATIVE DEFENSE
18 (Civil Code §945.5(a) – Act Of God)
19 Cross-Defendants allege that they are excused, in whole or in part, from any obligation,
20 damage, loss or liability alleged as same was caused by an unforeseen act of nature including, but not
21 limited to, a weather condition, earthquake, or manmade even such as war, terrorism or vandalism.
22 FORTY-EIGHTH AFFIRMATIVE DEFENSE
23 (Civil Code §945.5(b) – Homeowner Unreasonableness)
24 Cross-Defendants are excused, in whole or in part, from any obligation, damage, loss or
25 liability alleged as same was caused by a homeowner’s unreasonable failure to minimize or prevent
26 those damages in a timely manner, including the failure of the homeowner to allow reasonable and
27 timely access for inspections and repairs in accordance with provisions as set forth in Civil Code §896
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CONCRETE VALUE CORP. AND CVC CONSTRUCTION CORP.’S ANSWER TO CROSS-COMPLANT
1 through §945.5, which includes failure to give timely notice to the Builder after discovery of a
2 violation.
3 FORTY-NINTH AFFIRMATIVE DEFENSE
4 (Civil Code §945.5(c) – Failure to Maintain)
5 Cross-Defendants are excused, in whole or in part, from any obligation, damage, loss or
6 liability alleged as same was caused by a homeowner or his or her or their agent, employee, general
7 contractor, subcontractor, independent contractor or consultant by virtue of their failure to follow the
8 Builder’s or manufacturer’s recommendations or commonly accepted homeowner maintenance
9 obligations.
10 FIFTIETH AFFIRMATIVE DEFENSE
11 (Civil Code §945.5(d) – Alterations/Misuse)
12 Cross-Defendants are excused, in whole or in part, from any obligation, damage, loss or
13 liability alleged as same was caused by a homeowner or his or her or their agent’s or an independent
14 third party’s alterations, ordinary wear and tear, misuse, abuse or neglect or by the structure’s use for
15 something other than its intended purpose.
16 FIFTY-FIRST AFFIRMATIVE DEFENSE
17 (Civil Code §945.5(e) – Statute Of Limitations)
18 Cross-Defendants are excused, in whole or in part, from any obligation, damage, loss or
19 liability alleged to the extent that the time period for filing actions bars the claimed violation.
20 FIFTY-SECOND AFFIRMATIVE DEFENSE
21 (Civil Code §945.5(f) – Release)
22 Cross-Defendants are excused, in whole or in part, from any obligation, damage, loss or
23 liability alleged as to a particular violation for which the Builder has obtained a valid release.
24 FIFTY-THIRD AFFIRMATIVE DEFENSE
25 (Civil Code §945.5(g) – Repair Successful)
26 Cross-Defendants are excused, in whole or in part, from any obligation, damage, loss or
27 liability alleged to the extent that the Builder’s repair was successful in correcting the particular
28 violation of the applicable standard.
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CONCRETE VALUE CORP. AND CVC CONSTRUCTION CORP.’S ANSWER TO CROSS-COMPLANT
1 FIFTY-FOURTH AFFIRMATIVE DEFENSE
2 (Civil Code 1717(b)(2))
3 As a separate, distinct and fifty-fourth affirmative defense, these answering Cross-Defendants
4 have tendered or will tender the full amount to which Cross-Complainant is entitled and will deposit the
5 full amount in the court for Cross-Complainant should there be any liability on the part of these
6 answering Cross-Defendants.
7 WHEREFORE, these answering Cross-Defendants pray for judgment against the Cross-
8 Complainant as follows:
9 1. Cross-Complainant take nothing by way of its Cross-Complaint;
10 2. That these answering Cross-Defendants be awarded costs of suit incurred herein;
11 3. Any liability attributed to these answering Cross-Defendants be limited in direct
12 proportion to the percentage of fault actually attributable to these answering Cross-Defendants;
13 4. Reasonable attorneys’ fees pursuant to contract or statute; and
14 5. For such other and further relief as the Court may deem just and proper.
15
16 DATED: October 9, 2023 HORTON, OBERRECHT & KIRKPATRICK
17
18
19 By:_____________________________________
Cheryl A. Kirkpatrick
20
Alice S. Li
21
Attorneys for Cross-Defendants
Concrete Value Corp. and CVC Construction Corp.
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CONCRETE VALUE CORP. AND CVC CONSTRUCTION CORP.’S ANSWER TO CROSS-COMPLANT
1 PROOF OF SERVICE
2 STATE OF CALIFORNIA, COUNTY OF ORANGE
3 I am employed in the County of Orange, State of California. I am over the age of 18 and not a
party to the within action. My business address is: HORTON, OBERRECHT & KIRKPATRICK, 3
4 Park Plaza, Suite 350, Irvine, California 92614.
5
On October 9, 2023, I served the foregoing document described as: Cross-Defendants,
6 Concrete Value Corp. and CVC Construction Corp.’s Answer to Cross-Complaint of K.
Hovnanian at Cielo LLC, on all interested parties in this action by placing a true copy thereof enclosed
7 in sealed envelopes addressed as stated on the attached service list:
8 [ ] BY MAIL – I deposited such envelope in the mail at Irvine, California. The envelope was
mailed with postage thereon fully prepaid. I am “readily familiar” with the firm’s practice of
9 collection and processing correspondence for mailing. Under that practice it would be deposited
with the U.S. Postal Service on that same day with postage thereon fully prepaid at Irvine,
10 California in the ordinary course of business. I am aware that on motion of the party served,
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service is presumed invalid if postal cancellation date or postage meter date is more than (1) day
after the date of deposit for mailing in affidavit.
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[ ] BY PERSONAL SERVICE – I caused such envelope to be delivered by a process server
13 employed by [name of process server].
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[ ] VIA FACSIMILE – I faxed said document, to the office(s) of the addressee(s) shown above,
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and the transmission was reported as complete and without error.
16 [X] BY ELECTRONIC TRANSMISSION – I transmitted a PDF version of this document by
electronic mail to the party(s) identified on the attached service list using the e-mail address(es)
17 indicated.
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[ ] BY OVERNIGHT DELIVERY – I deposited such envelope for collection and delivery by
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Federal Express with delivery fees paid or provided for in accordance with ordinary business
practices. I am “readily familiar” with the firm’s practice of collection and processing packages
20 for overnight delivery by Federal Express. They are deposited with a facility regularly
maintained by Federal Express for receipt on the same day in the ordinary course of business.
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[X] (State) I declare under penalty of perjury under the laws of the State of California that the
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above is true and correct.
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Executed on October 9, 2023, at Irvine, California.
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Crystal Thompson
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CONCRETE VALUE CORP. AND CVC CONSTRUCTION CORP.’S ANSWER TO CROSS-COMPLANT
1 SERVICE LIST
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Barron v. K. Hovnanian, et al.
3 Kern County Superior Court Case No. BCV-18-101493-JEB
4 MILSTEIN JACKSON FAIRCHILD & WADE, Attorneys for Plaintiff, Eduardo Barron, et al.
LLP
5 10250 Constellation Blvd., 14th Floor
Los Angeles, CA 90067
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Tel: (310) 396-9600
7 Fax: (310) 396-9635
Edward R. Huguenin, Esq. Attorneys for K. Hovnanian at Cielo LLC,
8 James L. Bothwell, Esq.
HUGUENIN KAHN LLP
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3001 Lava Ridge Court, Suite 300
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Roseville, CA 95661
Tel: (916) 367-7098
11 Fax: (916) 367-7491
Email: ehuguenin@huguninkahn.com;
12 jbothwell@hugueninkahn.com
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CONCRETE VALUE CORP. AND CVC CONSTRUCTION CORP.’S ANSWER TO CROSS-COMPLANT
Preview
1 HORTON, OBERRECHT & KIRKPATRICK Cheryl A. Kirkpatrick, Esq. (SBN 149906) 2 Alice S. Li, Esq. (SBN 255605) 3 Park Plaza, Suite 350 3 Irvine, CA 92614 PH: (949) 251-5100 4 FX: (949) 251-5104 5 Attorneys for Cross-Defendants Concrete Value Corp. and CVC Construction Corp. 6 7 8 SUPERIOR COURT FOR THE STATE OF CALIFORNIA 9 FOR THE COUNTY OF KERN 10 11 EDUARDO BARRON; ADILENE CASE NO. BCV-18-101493 HERNANDESZ & JESUS GOMEZ; ALFREDO 12 MENDOZA & MARIBEL MARTINEZ; ASSIGNED FOR ALL PURPOSES TO: ANTONIO DURAN & ASHLEY MENDEZ; Judge: Hon. J. Eric Bradshaw 13 BRUNO BUGAMBILIA & JENNIFER PEREZ; Department: J GILBERTO RIOS-GARCIA & LIDIA 14 PERALTA-ESPINOZA; JOSE SANTOYO & CROSS-DEFENDANTS CONCRETE GRACIELA VILLALOBOS; MARIA VALUE CORP. AND CVC 15 GONZALEZ & SANTOS MARTINEZ; CONSTRUCTION CORP.’S ANSWER TO RODRIGO GARCIA & LOURDES CROSS-COMPLAINT OF K. HOVNANIAN 16 GUTIERREZ; TOMAS GARCIA & MARIA AT CIELO LLC MARTINEZ-DE-GARCIA; JOSE ALVAREZ; 17 ROY ALVAREZ-CORTEZ; JOSE & ALICIA Complaint Filed: June 20, 2018 AYALA; ALEJANDRO ESTRADA; JULIUS Trial Date: None Set 18 RUBEN GALLEGOS; JUAN GARCIA; FERNANDO, ALFREDO & BEATRIZ 19 GOMEZ; MARCOS GOMEZ; MIGUEL & LUZ HERNANDEZ; EDUARDO IBARRA; 20 JUAN LEYVA & PATRICIA RAMIREZ DE LEYVA LEYVA; MARCELA MAGANA; 21 ADALBERTO & SHASTYNE NAVARRO; SAMUEL PARRA; PEDRO PEREZ; SERGIO 22 & MARIA QUEZADA; CRISANTO & EVA RODRIGUEZ; MARIBEL SAMANIEGO; 23 DAVID VELAZQUEZ; PATRICIA & ADISBERTH FARFAN 24 Plaintiffs, 25 v. 26 K. HOVNANIAN; K. HOVNANIAN AT 27 CIELO LLC, A CALIFORNIA LIMITED LIABILITY COMPANY FORMERLY 28 KNOWN AS K. HOVNANIAN AT ARVIN 1 CONCRETE VALUE CORP. AND CVC CONSTRUCTION CORP.’S ANSWER TO CROSS-COMPLANT 1 LLC, A CALIFORNIA LIMITED LIABILITY COMPANY; AND DOES 1-1000, INCLUSIVE, 2 Defendants. 3 4 K. HONANIAN AT CIELO LLC, A CALIFORNIA LIMITED LIABILITY 5 COMPANY FORMERLY KNOWN AS K. HOVNANIAN AT ARVIN LLC, A 6 CALIFORNIA LIMITED LIABILITY COMPANY, 7 Cross-Complainant, 8 v. 9 AIRPLUS OF CALIFORNIA, INC., A DELAWARE CORPORATION; BRENNAN 10 ELECTRIC, INC., A CALIFORNIA CORPORATION; CAMPBELL PAINTING, 11 INC., A CALIFORNIA CORPORATION; CHAMPION WINDOWS, INC., A 12 CALIFORNIA CORPORATION; CONCRETE VALUE CORP., A CALIFORNIA 13 CORPORATION; CVC CONSTRUCTION CORP., A CALIFORNIA CORPORATION; 14 DESERT PLUMBING, INC., A CALIFORNIA CORPORATION; FENCEWORKS, INC., A 15 CALIFORNIA CORPORATION; FIBER CARE BATHS, INC., A CALIFORNIA 16 CORPORATION; GRANT CONSTRUCTION, INC., A CALIFORNIA CORPORATION; 17 HOMESITE SERVICES, INC., A CALIFORNIA CORPORATION; HY-TECH 18 TILE, INC., A CALIFORNIA CORPORATION; KENYON PLASTERING 19 OF VISALIA, INC., A CALIFONRIA CORPORATION; L.A.R.K INDUSTRIES, INC. 20 DBA RESIDENTIAL DESIGN SERVICES, A CALIFORNIA CORPORATION; 21 LANDSCAPE DEVELOPMENT, INC., A CALIFORNIA CORPORATION; LEONARD 22 ROOFING, INC., A CLAIFORNIA CORPORATION; PREMIER ELECTRICAL 23 CONTRACTORS, INC., A CALIFORNIA CORPORATION; RSI PROFESSIONAL 24 CABINET SOLUTIONS, A CALIFORNIA CORPORATION; SOUTH PAC INDUSTRIES, 25 INC., A CALIFORNIA CORPORATION; T & R CONSTRUCTION GROUP, A 26 CALIFORNIA CORPORATION; TMS TECHNOLOGIES INCORPORATED, A 27 CALIFORNIA CORPORATION; TRUTEAM OF CALIFORNIA, INC., A CALIFORNIA 28 CORPORATION; WALL CONSTRUCTORS 2 CONCRETE VALUE CORP. AND CVC CONSTRUCTION CORP.’S ANSWER TO CROSS-COMPLANT 1 INCORPORATED, A CALIFORNIA CORPORATION; WALTERS WHOLESALE 2 ELECTRIC CO., A CALIFORIA CORPORATION; WESLAR, INC., A 3 CALIFORNIA CORPORATION; AND ROES 1 - 400, INCLUSIVE, 4 Cross-Defendants, 5 6 Cross-Defendants Concrete Value Corp. and CVC Construction Corp. (“Cross-Defendants”) 7 answers the cross-complaint of Cross-Complainant K. Hovnanian at Cielo LLC, a California Limited 8 Lability Company formerly known as K. Hovnanian at Arvin LLC, a California Limited liability 9 Company (“Cross- Complainant”) as follows: 10 Pursuant to the provision of §431.30 of the Code of Civil Procedure, these answering Cross- 11 Defendants deny generally and specifically each and every allegation contained in the Cross-Complaint, 12 and the whole thereof, and deny that the Cross-Complainant sustained damages as alleged, by reason of 13 any act, breach or omission on the part of these answering Cross-Defendants. 14 FIRST AFFIRMATIVE DEFENSE 15 (No Cause of Action) 16 As a first, separate and distinct affirmative defense, these answering Cross-Defendants allege 17 that the Cross-Complaint, and each and every purported cause of action contained therein, fails to state 18 facts sufficient to constitute a cause of action or any cause of action against these answering Cross- 19 Defendants. 20 SECOND AFFIRMATIVE DEFENSE 21 (Comparative Negligence) 22 As a second, separate and distinct affirmative defense, these answering Cross-Defendants allege 23 that the damages suffered by Cross-Complainants, if any, were the direct and proximate result of the 24 negligence of parties, persons, corporations and/or entities other than these answering Cross-Defendants, 25 and that the liability of these answering Cross-Defendants, if any, is limited in direct proportion to the 26 percentage of fault actually attributable to these answering Cross-Defendants. 27 28 3 CONCRETE VALUE CORP. AND CVC CONSTRUCTION CORP.’S ANSWER TO CROSS-COMPLANT 1 THIRD AFFIRMATIVE DEFENSE 2 (Contributory Negligence) 3 As a third, separate and distinct affirmative defense, these answering Cross-Defendants are 4 informed and believe and thereon allege that at all times mentioned herein, Cross-Complainant was 5 negligent, careless and reckless and unlawfully conducted itself so as to directly and proximately 6 contribute to the happening of the incident and the occurrence of claimed damages, all of which said 7 negligence bars either completely or partially the damages sought herein. 8 FOURTH AFFIRMATIVE DEFENSE 9 (Estoppel) 10 As a fourth, separate and distinct affirmative defense, these answering Cross-Defendants are 11 informed and believe and thereon allege that Cross-Complainant has engaged in conduct and activities 12 with respect to the property and activities which are the subject of the Cross-Complaint and by reason of 13 said activities is estopped from asserting any claim for damages or seeking any other relief against these 14 answering Cross-Defendants. 15 FIFTH AFFIRMATIVE DEFENSE 16 (Waiver) 17 As a fifth, separate and distinct affirmative defense, these answering Cross-Defendants are 18 informed and believe and thereon allege that Cross-Complainant has engaged in conduct and activities 19 sufficient to constitute a waiver of any alleged breach of conduct, negligence, or any other conduct, if 20 any, as set forth in the Cross-Complaint. 21 22 SIXTH AFFIRMATIVE DEFENSE 23 (Intervening/Superseding Acts of Negligence) 24 As a sixth, separate and distinct affirmative defense, these answering Cross-Defendants are 25 informed and believe and thereon allege that the damages of which Cross-Complainant complains were 26 proximately caused or contributed to by the acts of other persons and/or other entities and that said acts 27 were an intervening and/or superseding cause of the damages, if any, of which Cross-Complainant 28 complains, thus barring any recovery against these answering Cross-Defendants. 4 CONCRETE VALUE CORP. AND CVC CONSTRUCTION CORP.’S ANSWER TO CROSS-COMPLANT 1 SEVENTH AFFIRMATIVE DEFENSE 2 (Assumption of Risk) 3 As a seventh, separate and distinct affirmative defense, these answering Cross-Defendants allege 4 that Cross-Complainant expressly, voluntarily and knowingly assumed all risks about which it 5 complains and that, therefore, it is barred either totally or to the extent of said assumption from any 6 damages. 7 EIGHTH AFFIRMATIVE DEFENSE 8 (Unclean Hands) 9 As an eighth, separate and distinct affirmative defense, these answering Cross-Defendants are 10 informed and believe and thereon allege that each and every one of Cross-Complainant’s causes of 11 action are barred by the doctrine of unclean hands. 12 NINTH AFFIRMATIVE DEFENSE 13 (Non-Performance of Duties) 14 As a ninth, separate and distinct affirmative defense, these answering Cross-Defendants are 15 informed and believe and based thereon allege that at all times and places alleged in the Cross- 16 Complaint, Cross-Complainant failed to perform all duties and obligations on its part of any agreement, 17 oral or written, with these answering Cross-Defendants, and such acts or omissions bar Cross- 18 Complainant’s recovery herein. 19 TENTH AFFIRMATIVE DEFENSE 20 (Contractual Defenses) 21 As a tenth, separate and distinct affirmative defense, these answering Cross-Defendants are 22 informed and believe and based thereon allege that the rights and remedies of these answering Cross- 23 Defendants are governed by the terms and conditions of the contracts and amendments between them. 24 These answering Cross-Defendants rely upon each and every defense and limitation contained therein 25 and in the work specifications, invoices, change orders, amendments and attachments to said contracts 26 and amendments. 27 /// 28 5 CONCRETE VALUE CORP. AND CVC CONSTRUCTION CORP.’S ANSWER TO CROSS-COMPLANT 1 ELEVENTH AFFIRMATIVE DEFENSE 2 (Active and Primary Negligence) 3 As an eleventh, separate and distinct affirmative defense, these answering Cross-Defendants are 4 informed and believe and based thereon allege that Cross-Complainant is barred from recovery from 5 these answering Cross-Defendants on a theory of comparative indemnity in that Cross-Complainant’s 6 negligence, if any, was active and primary while the negligence, if any, of these answering Cross- 7 Defendants was passive and secondary. 8 TWELFTH AFFIRMATIVE DEFENSE 9 (Conditions Precedent) 10 As a twelfth, separate and distinct affirmative defense, these answering Cross-Defendants are 11 informed and believe and based thereon allege that Cross-Complainant has failed to satisfy one or 12 more express or implied conditions precedent to any obligations allegedly owed to Cross-Complainant. 13 THIRTEENTH AFFIRMATIVE DEFENSE 14 (Mitigation of Damages) 15 As a thirteenth, separate and distinct affirmative defense, these answering Cross-Defendants are 16 informed and believe and thereon allege that Cross-Complainant has failed, refused and neglected to 17 take reasonable steps to mitigate damages, if any, thus barring or diminishing Cross-Complainant’s 18 recovery herein. 19 FOURTEENTH AFFIRMATIVE DEFENSE 20 (Statute of Limitations) 21 As a fourteenth, separate and distinct affirmative defense, these answering Cross-Defendants are 22 informed and believe and based thereon allege that each and every cause of action contained in the 23 Cross-Complaint is barred by the provisions of California Code of Civil Procedure including, but not 24 limited to, '337, '337.1, '337.15, '338, '339, '343, and any other applicable statutes of limitation. 25 /// 26 /// 27 /// 28 6 CONCRETE VALUE CORP. AND CVC CONSTRUCTION CORP.’S ANSWER TO CROSS-COMPLANT 1 FIFTEENTH AFFIRMATIVE DEFENSE 2 (Laches) 3 As a fifteenth, separate and distinct affirmative defense, these answering Cross-Defendants are 4 informed and believe and based upon such information and belief allege that Cross-Complainant herein 5 is barred by the doctrine of laches. 6 SIXTEENTH AFFIRMATIVE DEFENSE 7 (Lack of Capacity to Sue) 8 As a sixteenth, separate and distinct affirmative defense, these answering Cross-Defendants are 9 informed and believe and based thereon allege that Cross-Complainant lacks capacity to sue. 10 SEVENTEENTH AFFIRMATIVE DEFENSE 11 (No Justiciable Controversy) 12 As a seventeenth, separate and distinct affirmative defense, these answering Cross-Defendants 13 are informed and believe and based thereon allege that the Cross-Complaint, and each purported cause 14 of action contained therein, was brought without reasonable care and without a good faith belief that 15 there was a justifiable controversy under the facts and the law which warranted the filing of the Cross- 16 Complaint against these answering Cross-Defendants; therefore, Cross-Complainant is responsible for 17 all necessary and reasonable costs including attorneys’ fees incurred by Cross-Defendants as more 18 particularly set forth in California Code of Civil Procedure '128.5. 19 EIGHTEENTH AFFIRMATIVE DEFENSE 20 (Setoff) 21 As an eighteenth, separate and distinct affirmative defense, these answering Cross-Defendants 22 are entitled to a setoff against any damages owed by these answering Cross-Defendants to Cross- 23 Complainant by virtue of the conduct of Cross-Complainant and others responsible for Cross- 24 Complainant’s alleged damages, if any. 25 NINETEENTH AFFIRMATIVE DEFENSE 26 (Civil Code §2782) 27 As a nineteenth, separate and distinct affirmative defense, these answering Cross-Defendants are 28 informed and believe and based thereon allege that Cross-Complainant’s actions against Cross- 7 CONCRETE VALUE CORP. AND CVC CONSTRUCTION CORP.’S ANSWER TO CROSS-COMPLANT 1 Defendants are barred by California Civil Code §2782. 2 TWENTIETH AFFIRMATIVE DEFENSE 3 (Standing to Sue) 4 As a twentieth, separate and distinct affirmative defense, these answering Cross-Defendants are 5 informed and believe and based upon such information and belief allege that Cross-Complainant lacks 6 standing to sue. 7 TWENTY-FIRST AFFIRMATIVE DEFENSE 8 (Disclaimer of Warranties) 9 As a twenty-first, separate and distinct affirmative defense, these answering Cross-Defendants 10 allege if it is found that Cross-Defendants made a warranty, express or implied, which these Cross- 11 Defendants deny, then such warranty, if any, was disclaimed, excluded and limited in all of its parts and 12 its entirety, explicitly and conspicuously both orally and in writing, in words that plainly convey the 13 meaning to Cross-Complainant that such disclaimer and limitation of such warranty, if any, was also 14 excluded and modified in the course of dealing and usage of trade, all as to preclude Cross-Complainant 15 from reliance upon a recovery from this warranty. 16 TWENTY-SECOND AFFIRMATIVE DEFENSE 17 (Detrimental Reliance) 18 As a twenty-second, separate and distinct affirmative defense, these answering Cross- 19 Defendants alleges Cross-Complainant is barred by reason of the acts, omissions, representations and 20 course of conduct of Cross-Complainants, which these answering Cross-Defendants were lead to rely 21 upon to their detriment, thereby barring any causes of action asserted by Cross-Complainant. 22 TWENTY-THIRD AFFIRMATIVE DEFENSE 23 (Notice of Breach of Warranty) 24 As a twenty-third, separate and distinct affirmative defense, these answering Cross-Defendants 25 allege Cross-Complainant failed to give adequate notice of the alleged breach of warranty, that there was 26 delay of giving notice of a breach within a reasonable time of discovering the breach of warranty or 27 when Cross-Complainant should have discovered the breach of warranty. 28 /// 8 CONCRETE VALUE CORP. AND CVC CONSTRUCTION CORP.’S ANSWER TO CROSS-COMPLANT 1 TWENTY-FOURTH AFFIRMATIVE DEFENSE 2 (Complete Performance) 3 As a twenty-fourth, separate and distinct affirmative defense, these answering Cross-Defendants 4 have appropriately, completely, and fully performed and discharged any and all obligations and legal 5 duties arising out of the matters alleged in the Cross-Complaint. 6 TWENTY-FIFTH AFFIRMATIVE DEFENSE 7 (Failure of Performance) 8 As a twenty-fifth, separate and distinct affirmative defense, any failure on the part of the 9 answering Cross-Defendants to perform the obligations described in the Cross-Complaint is excused by 10 Cross-Complainant’s failure to perform its obligations in a timely, proper, and complete manner. 11 TWENTY-SIXTH AFFIRMATIVE DEFENSE 12 (Prevention of Performance) 13 As a twenty-sixth, separate and distinct affirmative defense, if Cross-Defendants are found to 14 have failed to perform any covenant or condition pursuant to any alleged agreement with Cross- 15 Complainant, these answering Cross-Defendants allege that such failure was for the reason that Cross- 16 Complainant, by its acts or omissions, or those of its agents, prevented these answering Cross- 17 Defendants’ performance and excused any and all future performance. 18 TWENTY-SEVENTH AFFIRMATIVE DEFENSE 19 (Excuse of Performance) 20 As a twenty-seventh, separate and distinct affirmative defense, the conduct of these answering 21 Cross-Defendants was justified or otherwise subject to the doctrine of excuse, and by reason of the 22 foregoing, Cross-Complainant is barred from any recovery. 23 TWENTY-EIGHTH AFFIRMATIVE DEFENSE 24 (Release) 25 As a twenty-eighth, separate and distinct affirmative defense, Cross-Complainants’ Cross- 26 Complaint is barred due to the existence of releases and other matters of contract, by which Cross- 27 Complainant is bound, which preclude Cross-Complainant’s recovery of damages. 28 /// 9 CONCRETE VALUE CORP. AND CVC CONSTRUCTION CORP.’S ANSWER TO CROSS-COMPLANT 1 TWENTY-NINTH AFFIRMATIVE DEFENSE 2 (Full or Partial Satisfaction) 3 As a twenty-ninth, separate and distinct affirmative defense, Cross-Complainant has been 4 fully or partially compensated for damages, if any, arising out of the allegations of the Cross-Complaint 5 and has waived its right to further recovery and its recovery is barred or diminished by that amount. 6 THIRTIETH AFFIRMATIVE DEFENSE 7 (Failure to Notify) 8 As a thirtieth, separate and distinct affirmative defense, these answering Cross-Defendants are 9 informed and believe and based thereon allege that Cross-Complainant is barred from pursuing any 10 remedy against these answering Cross-Defendants for breach of any warranty, express or implied, or 11 for breach of any contract, express or implied, or for any damage which is the subject of the Cross- 12 Complaint, because Cross-Complainant did not notify these answering Cross-Defendants within a 13 reasonable time after Cross-Complainants discovered or reasonably should have discovered the alleged 14 breach. 15 THIRTY-FIRST AFFIRMATIVE DEFENSE 16 (Unjust Enrichment) 17 As a thirty-first, separate and distinct affirmative defense, granting Cross-Complainant’s 18 demand in the Cross-Complaint would result in Cross-Complainant receiving more money than it is 19 entitled. 20 THIRTY-SECOND AFFIRMATIVE DEFENSE 21 (Statute of Frauds) 22 As a thirty-second, separate and distinct affirmative defense, these answering Cross- 23 Defendants are informed and believe and based upon such information and belief allege that Cross- 24 Complainant violated the statute of frauds. 25 THIRTY-THIRD AFFIRMATIVE DEFENSE 26 (Attorneys Fees Not Recoverable) 27 As a thirty-third, separate and distinct affirmative defense, Cross-Complainant or the people 28 or entities that assigned the claim to Cross-Complainant is not entitled to reimbursement of attorneys’ 10 CONCRETE VALUE CORP. AND CVC CONSTRUCTION CORP.’S ANSWER TO CROSS-COMPLANT 1 fees because the contract did not include such a provision, and there is no law that otherwise allows 2 them. (California Code of Civil Procedure section 1021). 3 THIRTY-FOURTH AFFIRMATIVE DEFENSE 4 (Parole Evidence) 5 As a thirty-fourth, separate and distinct affirmative defense, Cross-Complainant’s claims are 6 based on a verbal statement that contradicts or falls outside the written terms of the agreement. 7 THIRTY-FIFTH AFFIRMATIVE DEFENSE 8 (Frustration of Purpose) 9 As a thirty-fifth, separate and distinct affirmative defense, the enforcement of Cross- 10 Complainant’s agreement would go against the purpose of the agreement. 11 THIRTY-SIXTH AFFIRMATIVE DEFENSE 12 (No Contract Formation) 13 As a thirty-sixth, separate and distinct affirmative defense, there is no contract because 14 there was no offer and acceptance or meeting of the minds on all material points in the agreement 15 between Cross-Complainant and these answering Cross-Defendants. 16 THIRTY-SEVENTH AFFIRMATIVE DEFENSE 17 (Novation) 18 As a thirty-seventh, separate and distinct affirmative defense, the agreement cannot be enforced 19 because Cross-Complainant and the answering Cross-Defendants substituted a new and different 20 agreement. 21 THIRTY-EIGHTH AFFIRMATIVE DEFENSE 22 (No Consideration) 23 As a thirty-eighth, separate and distinct affirmative defense, the agreement cannot be enforced 24 because there was no consideration. 25 THIRTY-NINTH AFFIRMATIVE DEFENSE 26 (No Causation) 27 As a thirty-ninth, separate and distinct affirmative defense, these answering Cross-Defendants 28 11 CONCRETE VALUE CORP. AND CVC CONSTRUCTION CORP.’S ANSWER TO CROSS-COMPLANT 1 allege that Cross-Complainant’s alleged losses or damages, if any, were not proximately caused or 2 contributed to by any acts or omissions of these answering Cross-Defendants. 3 FORTIETH AFFIRMATIVE DEFENSE 4 (Knowledge) 5 As a fortieth, separate and distinct affirmative defense, these answering Cross-Defendants 6 allege that Cross-Complainant’s claims are barred by its actual or constructive knowledge or acceptance 7 of the facts on which it bases its claims against these answering Cross-Defendants. 8 FORTY-FIRST AFFIRMATIVE DEFENSE 9 (Prior Breach) 10 As a forty-first, separate and distinct affirmative defense, these answering Cross-Defendants 11 alleges that Cross-Complainant’s claims are barred by their prior breach of the agreement. 12 FORTY- SECOND AFFIRMATIVE DEFENSE 13 (Invalid License) 14 As a forty-second, separate and distinct affirmative defense, these answering Cross-Defendants 15 allege that Cross-Complainant may not have held a valid general contractor’s license during the relevant 16 times of construction, and therefore its contractual and express indemnity claims are barred. 17 FORTY-THIRD AFFIRMATIVE DEFENSE 18 (Misuse) 19 As a forty-third, separate and distinct affirmative defense, these answering Cross-Defendants 20 allege that at all times and places alleged in the Cross-Complaint, the Cross-Complainant misused the 21 product therein described knowing full well that such misuse was unforeseen and unforeseeable to these 22 answering Cross-Defendants, with full knowledge of the danger resulting from such misuse, in that such 23 misuse proximately caused and contributed to the injuries and damages, if any, suffered by Cross- 24 Complainant. 25 FORTY-FOURTH AFFIRMATIVE DEFENSE 26 (Privilege) 27 As a forty-fourth, separate and distinct affirmative defense, these answering Cross-Defendants 28 12 CONCRETE VALUE CORP. AND CVC CONSTRUCTION CORP.’S ANSWER TO CROSS-COMPLANT 1 allege that the alleged actions, statements and other actionable events attributed to these answering 2 Cross-Defendants were absolutely or qualifiedly privileged. 3 FORTY-FIFTH AFFIRMATIVE DEFENSE 4 (Right to Assert Additional Affirmative Defenses) 5 As a forty-fifth, separate and distinct affirmative defense, these answering Cross-Defendants 6 presently do not have sufficient knowledge or information upon which to form a belief as to whether it 7 has more additional as yet unstated affirmative defenses. These answering Cross-Defendants reserve 8 the right to assert additional affirmative defenses in the event discovery indicates to do so would be 9 appropriate. 10 FORTY-SIXTH AFFIRMATIVE DEFENSE 11 (Violation of Civil Code §896 through §945.5) 12 Cross-Defendants allege that Cross-Complainant has violated provisions set forth in Civil 13 Code §896 through §945.5, which require non-adversarial procedures to resolve disputes, including 14 providing defendants with a detailed notice of claim, a notice of defects, if any, a reasonable 15 opportunity to cure any alleged defects, mediation, and/or opportunity to otherwise reach a settlement 16 with Plaintiffs prior to the filing of their Complaint, as well as other particulars of those sections. 17 FORTY-SEVENTH AFFIRMATIVE DEFENSE 18 (Civil Code §945.5(a) – Act Of God) 19 Cross-Defendants allege that they are excused, in whole or in part, from any obligation, 20 damage, loss or liability alleged as same was caused by an unforeseen act of nature including, but not 21 limited to, a weather condition, earthquake, or manmade even such as war, terrorism or vandalism. 22 FORTY-EIGHTH AFFIRMATIVE DEFENSE 23 (Civil Code §945.5(b) – Homeowner Unreasonableness) 24 Cross-Defendants are excused, in whole or in part, from any obligation, damage, loss or 25 liability alleged as same was caused by a homeowner’s unreasonable failure to minimize or prevent 26 those damages in a timely manner, including the failure of the homeowner to allow reasonable and 27 timely access for inspections and repairs in accordance with provisions as set forth in Civil Code §896 28 13 CONCRETE VALUE CORP. AND CVC CONSTRUCTION CORP.’S ANSWER TO CROSS-COMPLANT 1 through §945.5, which includes failure to give timely notice to the Builder after discovery of a 2 violation. 3 FORTY-NINTH AFFIRMATIVE DEFENSE 4 (Civil Code §945.5(c) – Failure to Maintain) 5 Cross-Defendants are excused, in whole or in part, from any obligation, damage, loss or 6 liability alleged as same was caused by a homeowner or his or her or their agent, employee, general 7 contractor, subcontractor, independent contractor or consultant by virtue of their failure to follow the 8 Builder’s or manufacturer’s recommendations or commonly accepted homeowner maintenance 9 obligations. 10 FIFTIETH AFFIRMATIVE DEFENSE 11 (Civil Code §945.5(d) – Alterations/Misuse) 12 Cross-Defendants are excused, in whole or in part, from any obligation, damage, loss or 13 liability alleged as same was caused by a homeowner or his or her or their agent’s or an independent 14 third party’s alterations, ordinary wear and tear, misuse, abuse or neglect or by the structure’s use for 15 something other than its intended purpose. 16 FIFTY-FIRST AFFIRMATIVE DEFENSE 17 (Civil Code §945.5(e) – Statute Of Limitations) 18 Cross-Defendants are excused, in whole or in part, from any obligation, damage, loss or 19 liability alleged to the extent that the time period for filing actions bars the claimed violation. 20 FIFTY-SECOND AFFIRMATIVE DEFENSE 21 (Civil Code §945.5(f) – Release) 22 Cross-Defendants are excused, in whole or in part, from any obligation, damage, loss or 23 liability alleged as to a particular violation for which the Builder has obtained a valid release. 24 FIFTY-THIRD AFFIRMATIVE DEFENSE 25 (Civil Code §945.5(g) – Repair Successful) 26 Cross-Defendants are excused, in whole or in part, from any obligation, damage, loss or 27 liability alleged to the extent that the Builder’s repair was successful in correcting the particular 28 violation of the applicable standard. 14 CONCRETE VALUE CORP. AND CVC CONSTRUCTION CORP.’S ANSWER TO CROSS-COMPLANT 1 FIFTY-FOURTH AFFIRMATIVE DEFENSE 2 (Civil Code 1717(b)(2)) 3 As a separate, distinct and fifty-fourth affirmative defense, these answering Cross-Defendants 4 have tendered or will tender the full amount to which Cross-Complainant is entitled and will deposit the 5 full amount in the court for Cross-Complainant should there be any liability on the part of these 6 answering Cross-Defendants. 7 WHEREFORE, these answering Cross-Defendants pray for judgment against the Cross- 8 Complainant as follows: 9 1. Cross-Complainant take nothing by way of its Cross-Complaint; 10 2. That these answering Cross-Defendants be awarded costs of suit incurred herein; 11 3. Any liability attributed to these answering Cross-Defendants be limited in direct 12 proportion to the percentage of fault actually attributable to these answering Cross-Defendants; 13 4. Reasonable attorneys’ fees pursuant to contract or statute; and 14 5. For such other and further relief as the Court may deem just and proper. 15 16 DATED: October 9, 2023 HORTON, OBERRECHT & KIRKPATRICK 17 18 19 By:_____________________________________ Cheryl A. Kirkpatrick 20 Alice S. Li 21 Attorneys for Cross-Defendants Concrete Value Corp. and CVC Construction Corp. 22 23 24 25 26 27 28 15 CONCRETE VALUE CORP. AND CVC CONSTRUCTION CORP.’S ANSWER TO CROSS-COMPLANT 1 PROOF OF SERVICE 2 STATE OF CALIFORNIA, COUNTY OF ORANGE 3 I am employed in the County of Orange, State of California. I am over the age of 18 and not a party to the within action. My business address is: HORTON, OBERRECHT & KIRKPATRICK, 3 4 Park Plaza, Suite 350, Irvine, California 92614. 5 On October 9, 2023, I served the foregoing document described as: Cross-Defendants, 6 Concrete Value Corp. and CVC Construction Corp.’s Answer to Cross-Complaint of K. Hovnanian at Cielo LLC, on all interested parties in this action by placing a true copy thereof enclosed 7 in sealed envelopes addressed as stated on the attached service list: 8 [ ] BY MAIL – I deposited such envelope in the mail at Irvine, California. The envelope was mailed with postage thereon fully prepaid. I am “readily familiar” with the firm’s practice of 9 collection and processing correspondence for mailing. Under that practice it would be deposited with the U.S. Postal Service on that same day with postage thereon fully prepaid at Irvine, 10 California in the ordinary course of business. I am aware that on motion of the party served, 11 service is presumed invalid if postal cancellation date or postage meter date is more than (1) day after the date of deposit for mailing in affidavit. 12 [ ] BY PERSONAL SERVICE – I caused such envelope to be delivered by a process server 13 employed by [name of process server]. 14 [ ] VIA FACSIMILE – I faxed said document, to the office(s) of the addressee(s) shown above, 15 and the transmission was reported as complete and without error. 16 [X] BY ELECTRONIC TRANSMISSION – I transmitted a PDF version of this document by electronic mail to the party(s) identified on the attached service list using the e-mail address(es) 17 indicated. 18 [ ] BY OVERNIGHT DELIVERY – I deposited such envelope for collection and delivery by 19 Federal Express with delivery fees paid or provided for in accordance with ordinary business practices. I am “readily familiar” with the firm’s practice of collection and processing packages 20 for overnight delivery by Federal Express. They are deposited with a facility regularly maintained by Federal Express for receipt on the same day in the ordinary course of business. 21 [X] (State) I declare under penalty of perjury under the laws of the State of California that the 22 above is true and correct. 23 Executed on October 9, 2023, at Irvine, California. 24 25 26 27 Crystal Thompson 28 16 CONCRETE VALUE CORP. AND CVC CONSTRUCTION CORP.’S ANSWER TO CROSS-COMPLANT 1 SERVICE LIST 2 Barron v. K. Hovnanian, et al. 3 Kern County Superior Court Case No. BCV-18-101493-JEB 4 MILSTEIN JACKSON FAIRCHILD & WADE, Attorneys for Plaintiff, Eduardo Barron, et al. LLP 5 10250 Constellation Blvd., 14th Floor Los Angeles, CA 90067 6 Tel: (310) 396-9600 7 Fax: (310) 396-9635 Edward R. Huguenin, Esq. Attorneys for K. Hovnanian at Cielo LLC, 8 James L. Bothwell, Esq. HUGUENIN KAHN LLP 9 3001 Lava Ridge Court, Suite 300 10 Roseville, CA 95661 Tel: (916) 367-7098 11 Fax: (916) 367-7491 Email: ehuguenin@huguninkahn.com; 12 jbothwell@hugueninkahn.com 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 17 CONCRETE VALUE CORP. AND CVC CONSTRUCTION CORP.’S ANSWER TO CROSS-COMPLANT