Preview
4000103
1 Todd A. Fischer — Bar No. 142771
FISCHER SCIIONEMANr LLP
I
2 2511 Garden Road, Suite B-270
Monterey, CA 93940
3 Telephone: (831) 372-9200
Facsimile: (831) 372-9220
4 todd&et,fslln-law.corn
5 Attorneys for intervenor,
SECURITY NATIONAL INSURANCE COMPANY, INC.
6
SUPERIOR COURT OF THEi STATE OF CALIFORNIA
COUNTY OF SANTA BARBARA — SOUTH COUNTY
9
JOHN C. ELLSWORTH AND JANICE L. Case No. 19CV02346
10 ELLSWORTH AS TRUSTEES OF THE
CASA GRAN VISTA REVOCABLE
TRUST, DECLARATION OF TODD A. FISCHER
SUPPORTING EXPARTE
12 Plaintiff, APPLICATION TO ALLOW SECURITY
NATIONAL INSURANCE COMPANY,
13 INC. TO INTERVENE ON BEHALF OF
CHRIS SCOTT MASONRY, INC.
14 SIERRA PACIFIC WINDOWS, A
DIVISION 4.
OF SIERRA PACIFIC INDUSTRIES, a Date: March 18, 2024
California Corporation; KEN TAUB d/b/a/ Time: 8:30 am
KT CONSTRUCTION COMPANY d/b/a Dept.: 4 [The Honorable Judge Geckt
17 TAUB DESIGNS, a Sole Proprietorship,
and DOES 1 through 100, inclusive,
18
Defendants,
Complaint: 5/02/2019
20
21 AND RELATED CROSS-ACTIONS.
22
23 I, Todd A. Fischer, hereby declare as follows:
24 1. I am an attorney at law duly licensed to practice before all courts in the State of
25 California and a partner in the law firm of Fischer Schoneman, LLP, attorneys for the proposed
26 intervenor, SECURITY NATIONAL INSURANCE COMPANY ("SNIC").
27 2. Upon review of the California Secretary of State Business Portal web page Chris
28 Scott Masonry, Inc. is a suspended California Corporation. Attached as Exhibit A are true and
Ellsworth v Sierra Paafic Windows -I-
Case No. 19CV02346
Declaration of Todd a. Pischer Supporting Es Parte Application for Leave to Intervene
4000I03
I conect copies fiom the California Secretary of State Business Portal, which show the entity
2 status.
3 3. Attached hereto as Exhibit B is the proposed Complaint in Intervention NSIC
4 proposes to file should oiu motion for leave to intervene be granted.
5 I hereby declare under penalty of perjury under the laws of the State of California that the
6 foregoing is true to the best of my own knowledge and belief. Executed this 140'ay of March,
7 in Monterey, California.
10 Todd A. Fischer
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Ellsworth v. Sierra Pncrfic Windows -2-
Case No. t9CV02346
Declaration of Todd a. Fischer Supporting Ex Parte Applicauon for Leave to Intervene
&.x,'vi,'&ii. A
1/25/24, 10.09 PM Search I California Sscrslsrr of State
California Loglh
Sf'i I'/my Of Stole Business UCC
Cl-IRIS SCOTT MASONRY, INC.
(2337349l
Business Search
Search The California Business Search provides access to available
information far corporations, limited liability companies
and limited partnershi ps of record with the California
Request
Ponos Secretary of State, with free PDF copies of over I? million Csrtincats
imaged business entity documents including the most recent
imaged Statements of Information filed for Corporations and Iniaal Fikng Date 03/07/2001
Limited Liability Companies.
S/CIUS , Suspended-SOS
Currently, information far Limited Liability Partnerships (e.g. Standing SOS
- Not Good
law firms, architecture firms, engineering firms, public Stonding - FTB Good
accountancy firms, ond land survey firms), General
S rending - Agent Good
Parrnerships, and other entity types are not contained m the
California Business Search. If you wish to obtain /%rmat/on Standing - VCFCF Good
about LLPs and GPs, submit a Business Entities Order paper inactive Dote 10/29/2019
form ta request copies offilings for these entity types. Note:
Fomied /n CALIFORNIA
This search is not intended to sen/e as a name reservation
search. To reserve an entity name, select Forms on the left Entity Type Stock Corporation - CA-
General
panel and select Entity Name Reservation? Corporation, LLC,
LP. Pnncipol Address 619E. MONTECITO STREEET
SANTA BARBARA, CA 93103
Basic Search Mailing Address 619E. MONTECITO STREEET
SANTA BARBARA,CA93103
A Basic search can be performed using an enrity name or sraremenr of 03/31/201 8
Info Due Dnte
entity number. When conducting a search by an entity
number, where opplrcable, remove "C" from the entity Agent Individual
number. Note, a basic search will search anly ACTIVE ERICK KITCHEN
entities (Corporations, Limited Liablllty Companies, 610 ANACAPA STREET
SANTA BARBARA, CA 93103
Limited Parrnerships, Cooperatives, Name Reservations,
Foreign Name Reservations, Unincorporated common
Interest Developments, and Our of Srare Associations). The
OOQ
basic search performs a contains?keyword? search. The GhSI
Skip to main content
htlas //hizfi/son/ins sos ca gov/ssarch/husinsss
i Xi lli31i.
4000103
Todd A. Fischer — Bar No. 142771
FISCHER i SCHONEMANr LLP
2511 Garden Road, Suite B-270
Monterey, CA 93940
Telephone: (831) 372-9200
Facsimile: (831) 372-9220
todd@fslln-law.corn
Attorneys for Cross-Defendant,
SECURITY NATIONAL INSURANCE COMPANY, INC.
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SANTA BARBARA — SOUTH COUNTY
9
JOHN C. ELLSWORTH AND JANICE L. Case No. 19CV02346
10 ELLSWORTH AS TRUSTEES OF THE
CASA GRAN VISTA REVOCABLE
11 TRUST, COMPLAINT IN INTERVENTION
12 Plaintiff,
13 V.
14 SIERRA PACIFIC WINDOWS, A
DIVISION 4.
15
OF SIERRA PACIFIC INDUSTRIES, a
16 California Corporation; KEN TAUB d/b/a/ Complaint: 5/02/2019
KT CONSTRUCTION COMPANY d/b/a
17 TAUB DESIGNS, a Sole Proprietorship,
and DOES 1 through 100, inclusive,
18
Defendants,
19
KEN TAUB d/b/a KT CONSTRUCTION, a
20
Sole Proprietorship,
21
Cross-Complainant,
22 vs.
23 SIERRA PACIFIC WINDOWS, a division
of SIERRA PACIFIC INDUSTRIES, a
24 California corporation, and MOES 1
through 100, inclusive,
25
26 Cross-Defendants.
27
AND RELATED CROSS-ACTIONS.
28
Ellsworth v. Sierra Pacific Windows
Case No. 19CV02346
Complaint m Intervention
4000103
I COMES NOW Intervenor, SECURITY NATIONAL INSURANCE COMPANY, INC.
2 (hereinafter "INTERVENOR" ) on behalf of Cross-Defendant, CHRIS SCOTT MASONRY, INC.
3 (CSM) and alleges:
4 l. INTERVENOR, at all times mentioned herein, is a corporation doing business in
5 the State of California.
6 2. INTERVENOR will seek leave of Court allowing it to intervene if necessary.
7 3. This construction defect action involves alleged construction defects at a single-
8 family home located at 1410 Northridge, Santa Barbara, California. John C. Ellsworth and Janice
9 L. Ellsworth as Trustees of the Casa Gran Vista Revocable Trust (hereinafter "PLAINTIFF") filed
10 their complaint on 5/2/2019. Ken Taub dba KT Construction filed their cross-complaint on
11 10/18/2019 with a Moe amendment to their cross-complaint on 6/17/2020 thereafter naming Chris
12 Scott Masonry. Ken Taub dba KT Construction and PLAINTIFF are collectively hereinafter
13 referred to as COMPLAINANTS.
14 4. SECURITY NATIONAL is a comprehensive general liability insurer of CSM and
15 has been providing a defense to CSM for the claims that arise out of this litigation pursuant to a
16 reservation of rights under the applicable policies of insurance. SECURITY NATIONAL has
17 recently learned that CSM is a suspended corporation pursuant to provisions of the California
18 Revenue and Tax Code. SECURITY NATIONAL, therefore, seeks to intervene and defend its
19 own interests in this action and the interests of it's insured, all of which would be adversely
20 affected if SECURITY NATIONAL was not given leave to intervene.
21 5. It is understood by the Court that: 1) SECURITY NATIONAL does not waive its
22 rights to assert any and all claims and defense under its policies including, but not limited to, lack
23 of coverage, any policy limit, applicable exclusions, or failure of the insured to cooperate in
24 subsequent proceedings; 2) SECURITY NATIONAL is permitted to litigate all elements of
25 liability and damages that have not been determined by the trier of fact in this action or in any
26 subsequent proceedings to determine coverage under its policy; 3) SECURITY NATIONAL'S
27 intervention is solely to assert the claims and defenses of CSM pursuant to the terms and
28 conditions of its policy and within its policy limits; 4) SECURITY NATIONAL will not become
Ellswordt v. Sierra Pacific Windows
Case No. 19CV02346
Complaint in Intervention
4000l03
I subject to a judgment directly against it and its responsibility, if any, for any judgment against
2 SECURITY NATIONAL is contingent upon a determination in a subsequent action that there is
3 coverage under the applicable policies of insurance, the nature and extent of coverage for any
4 judgment and within the applicable policy limits.
5 6. COMES NOW Intervenor for themselves and none other as follows: Pursuant to
6 Code of Civl'I Procedure Section 431.10, Intervenor, on behalf of CSM denies generally and
7 specifically, each and every allegation contained in the complaints and cross-complaints and the
8 whole thereof, and further denies that as a proximate result of any conduct on the part of the
9 Intervenors, on behalf of CSM that Complainants have been injured or damaged in the sum or
10 sums alleged, or at all.
FIRST AFFIRMATIVE DEFENSE
12 (COMPARATIVE NEGLIGENCE)
13 7. Intervenor is informed and believes, and on such information and belief alleges that
14 the injury and damage, if any, alleged in the Complaint and Cross-Complaint occurred and was
15 proximately caused by either the sole or the partial negligence of Complainants, which negligence
16 bars or reduces Complainants'ecovery herein.
17 SECOND AFFIRMATIVE DEFENSE
18 (FAILURE TO STATE A CAUSE OF ACTION)
19 8. Complainants'auses of action, individually, fail to state facts sufficient to
20 constitute a cause of action against this Intervenor.
21 THIRD AFFIRMATIVE DEFENSE
22 (REDUCTION TO PERCENT OF FAULT)
23 9. The right of Complainants to recovery herein, if any right exists, is reduced and
24 limited to the percentage of negligence attributable to this Intervenor pursuant to California Civil
25 Code section 1431.2.
26 FOURTH AFFIRMATIVE DEFENSE
27 (NEGLIGENCK OF OTHERS)
28 10. Intervenor denies that Complainants were damaged as a proximate result of any
Etlsworth v. Sierra Pacific Windows
Case No. 19CV02346
Comolaint in intervention
4000103
1 conduct on the part of this Intervenor. Intervenor affirmatively alleges that Complainants'
damages, if any, were proximately caused by the independent conduct of third parties or entities
3 whether or not parties to this action. Complainants'ecovery against Intervenor, if any, must
4 therefore be reduced to the extent that those damages, if any, were caused by the independent
5 conduct of third parties.
FIFTH AFFIRMATIVE DEFENSE
(ACTIVE-PASSIVE NEGLIGENCE DEFENSE)
8 11. If Intervenor is found responsible in damages to Complainants or some other party,
9 whether as alleged or otherwise, then Intervenor is informed and believes and, on that basis
10 alleges, that the liability will be predicated upon the active conduct of Complainants, whether by
11 negligence, breach of warranty, strict liability in tort or otherwise, which unlawful conduct
12 proximately caused the alleged incident and that Complainants'ction against Intervenor is barred
13 by that active and affirmative conduct.
14 SIXTH AFFIRMATIVE DEFENSE
15 (FAILURE TO MITIGATE)
16 12. Intervenor alleges that Complainants have failed to take reasonable steps to mitigate
17 its damages, if any.
18 SEVENTH AFFIRMATIVE DEFENSE
19 (STATUTE OF LIMITATIONS)
20 13. Intervenor alleges that Complainants are barred by the applicable statute of
21 limitations, including but not limited to California Code of Civil Procedure sections 337, 337.1,
22 337.15, 338, 339, 340, and California Civil Code Sections 896 et seq.
23 EIGHTH AFFIRMATIVE DEFENSE
24 (UNAVOIDABLE ACCIDENT)
25 14. Intervenor is informed and believes, and on that basis alleges that any and all
26 injuries, losses or damages, if any, were the direct and proximate result of an unavoidable incident
27 or condition and, as such, were an act of God without fault or liability on the part of Intervenor.
28 ///
Etlswordt v. Sierra Pacific Windows
Case No. 19CV02346
Complaint in Intervention
4000103
I NINTH AFFIRMATIVE DEFENSE
2 (SUPERSEDING CAUSES)
3 15. Intervenor is informed and believes, and on that basis alleges that any and all
4 damages, if any, were the direct and proximate result of the intervening and superseding actions of
5 other parties, either served or unserved, and not Intervenor, and that such intervening and
6 superseding actions of other parties, whether or not served, bar recovery herein on behalf of
7 Complainants.
8 TENTH AFFIRMATIVE DEFENSE
9 (FAILURE TO PERFORM CONDITIONS PRECEDENT)
10 16. Intervenor is informed and believes, and on such information and belief alleges that
11 Complainants failed to perform express contractual conditions precedent to Intervenor's
12 performance, and such failure excuses any nonperformance by Intervenor.
13 ELEVENTH AFFIRMATIVE DEFENSE
14 (BREACH OF CONTRACT BY COMPLAINANTS)
15 17. Intervenor is informed and believes and based thereon alleges that actions and
16 omissions by Complainants constituted a breach of contract by Complainants, and such breach
17 excuses any nonperformance by Intervenor.
18 TWELFTH AFFIRMATIVE DEFENSE
19 (PRODUCT USED IN AN ABNORMAL MANNER)
20 Complainants'1
18. Intervenor is informed and believes and based thereon alleges that
damages, if any, proximately resulted from the use of the product in question in an unintended and
22 abnormal manner and not from any defect or mechanical failure of, or failure to service properly,
23 said product or any of its components.
24 THIRTEENTH AFFIRMATIVE DEFENSE
25 (EXTRA CONTRACTUAL DAMAGES BARRED)
26 19. Complainants'lleged claims for extra contractual damages are barred by the
27 provisions of California Code of Civil Procedure section 1021.
28 ///
Ellswortit v. Sierra Pacific Windows
Case No. 19CV02346
Complaint in Intervention
4000103
1 FOURTEENTH AFFIRMATIVE DEFENSE
(LACHES)
3 20. Complainants have unreasonably delayed the commencement of the within action
4 to the substantial prejudice of Intervenor and by reason thereof have been guilty of laches, and
5 Complaints are thereby precluded from recovery in the within action.
6 FIFTEENTH AFFIRMATIVE DEFENSE
7 (UNCLEAN HANDS)
8 21. Complainants'onduct with respect to the matters alleged in the pleadings deprives
9 Complainants of clean hands, and by reason of not coming into court with clean hands
10 Complainants are precluded from recovery in the within action.
SIXTEENTH AFFIRMATIVE DEFENSE
12 (FAILURE OF CONSIDERATION)
13 22. At all times mentioned, there was, has been, and continues to be a material failure
14 of consideration on the part of Complainants herein, as a consequence of which failure
15 Intervenor's duty of performance has been discharged.
16 SEVENTEENTH AFFIRMATIVE DEFENSE
17 (MISUSE OR MODIFICATION OF PRODUCT)
18 23. Intervenor is informed and believes and based thereon alleges that if there was any
19 defect in the product referred to in the pleadings at the time of said accident, that such defect did
20 not exist at the time said product left the possession of Intervenor and was caused by the misuse,
21 abuse, changes, modifications and alterations of others, including Complainants herein and that
22 said accident was caused by such misuse, abuse, changes, alterations and modifications.
23 EIGHTEENTH AFFIRMATIVE DEFENSE
24 (COMPLAINANTS'EGLIGENCE)
25 24. Intervenor alleges that at all times herein, Complainants were negligent and
26 proximately caused the incident which is the basis of their complaints. Complainants'ecovery, if
27 Complainants'8
any, should be reduced by the amount proportionate to the amount which
negligence contributed to the happening of the alleged incident.
Ellsworth v. Sierra Pacific Windows
Case No. 19CV02346
Complamt in Intersection
4000103
1 NINETEENTH AFFIRMATIVE DEFENSE
2 (ESTOPPEL)
3 25. Intervenor is informed and believes and thereon alleges that Complainants engaged
4 in conduct and activity with respect to the subject of this litigation, contracts and incidents, which
5 are the subject of their pleadings, and by reason of said conduct and activities are estopped from
6 asserting any claims for damages or seeking any other relief against this Intervenor.
7 TWENTIETH AFFIRMATIVE DEFENSE
(WAIVER)
9 26. Intervenor is informed and believes and based thereon alleges that the Complainants
10 have engaged in conduct and activity sufficient to constitute a waiver of any alleged breach of
11 warranty, breach of duty, negligence, act, omission, or any other conduct, if any, as set forth in
12 their pleadings.
13 TWENTY-FIRST AFFIRMATIVE DEFENSE
14 (ASSUMPTION OF RISK)
15 27. Intervenor alleges that Complainants expressly, voluntarily, and knowingly
16 assumed all risks about which they complain in their pleadings, and, therefore, is barred either
17 totally or to the extent of said assumption from recovering any damages.
18 TWENTY-SECOND AFFIRMATIVE DEFENSE
19 (RESERVATION)
20 28. Intervenor presently has insufficient knowledge or information on which to form a
21 belief as to whether it may have additional, as yet, unstated affirmative defenses available.
22 Intervenor reserves herein the right to assert additional defenses in the event that the discovery
23 indicates they would be appropriate.
24 TWENTY-THIRD AFFIRMATIVE DEFENSE
25 (STANDARD OF CARE)
26 29. Intervenor alleged that Complainants are barred and precluded from any recovery in
27 this action because Intervenor at all times complied with the applicable standard of care required of
28 the subcontractor of the type of Intervenor at the time and location where the professional services
Ellsworth v. Sierra Pacific Windows
Case No. 19CV02346
Complatnt in Interventton
4000103
1 were rendered.
TWENTY-FOURTH AFFIRMATIVE DEFENSE
(FAILURE TO NOTIFY)
4 30. Intervenor is informed and believes and based thereon alleges that if any defects or
5 inadequacies in the work performed by Intervenor exists, which this Intervenor denies,
6 Complainants failed to timely notify this Intervenor of such conditions and failed to give this
7 Intervenor timely opportunity to remedy such conditions. This conduct by Complainants bars
8 them from any relief from Intervenor herein.
TWENTY-FIFTH AFFIRMATIVE DEFENSE
10 (CONSTRUCTION CONTRACT - PROVISIONS VOID AND UNKNFORCEABLE)
ll 31. Intervenor is informed and believes and based thereon alleges that the causes of
12 action as set forth in the pleadings, and any damages alleged therein, are barred by California Civil
13 Code section 2782.
14 TWENTY-SIXTH AFFIRMATIVE DEFENSE
15 (NO PRIVITY OF CONTRACT)
16 32. Intervenor is informed and believes, and on that basis alleges that with respect to all
17 causes of action in the pleadings, based on express or implied warranty, there is no privity of
18 contract or contractual or other relationship between Complainants and Intervenor which provides
19 a basis for an implied warranty or duty in favor of Complainants with respect to the property
20 described in the pleadings on file in this matter.
21 TWENTY-SEVENTH AFFIRMATIVE DEFENSE
22 (LACK OF STANDING)
23 33. Complainants lack standing to sue for the damages alleged in the pleadings.
24 TWENTY-EIGHTH AFFIRMATIVE DEFENSE
25 (RESULTANT DAMAGE)
26 34. To the extent Complainants seeks recovery for defects and/or deficient work
27 product which have not caused personal injury or property damages, such claims are barred as a
28 matter of law,
Ellsworth v. Sierra Pacific Windows
Case No. 19CV02346
Complaint in Intervention
4000103
TWENTY-NINTH AFFIRMATIVE DEFENSE
2 (NOT A LEGAL ENTITY)
3 35. Complainants are not registered entities with the California Secretary of State, or
4 Department of Corporations, or other governmental agency, therefore, Complainants have no
5 standing to sue.
THIRTIETH AFFIRMATIVE DEFENSE
7 (NEGLIGENT HIRING)
8 36. Complainants are liable for the negligent hiring and supervision of its general
9 contractor, professionals, and other subcontractors, which were negligent and actually caused all or
10 some of the damages suffered by Complainants and/or the subject property.
THIRTY-FIRST AFFIRMATIVE DEFENSE
12 (SPLITTING A CAUSE OF ACTION)
13 37. Pursuant to Ferraro v. So. Calif. Gas Co. (1980) 102 Cal.App.3d 33, Complainants
14 are prohibited from attempting to split a cause of action.
15 THIRTY-SECOND AFFIRMATIVE DEFENSE
16 (FAILURE TO GIVE REASONABLE NOTICE)
17 38. Complainants failed to give reasonable notice of the action or proceeding to
18 Intervenor, including Intervenor's insurance companies, if any.
19 THIRTY-THIRD AFFIRMATIVE DEFENSE
20 (PERFORMANCE BY LAW)
21 39. Each claimed act or failure to act alleged by Complainants were performed or not
22 performed under the express authority of the statute or pursuant to other requirements of law and,
23 therefore, the pleadings and each cause of action asserted by Complaints are barred.
24 THIRTY-FOURTH AFFIRMATIVE DEFENSE
25 (UN JUST ENRICHMENT)
26 40. The Complaint and Cross-Complaint and each cause of action contained therein are
27 barred by the doctrine of unjust enrichment.
28 ///
Eltsworttt v Sierra Pacific Windows
Case No. 19CV02346
Complaint in Intervention
4000103
THIRTY-FIFTH AFFIRMATIVE DEFENSE
2 (CUSTOM AND STANDARD OF WORK)
3 41. At all times relevant herein, Intervenor performed its work in a workmanlike
4 manner and within custom and standards of the relevant industry.
THIRTY-SIXTH AFFIRMATIVE DEFENSE
(ALLOCATION)
7 42. In the event that Intervenor is found responsible in damages to Complainants,
8 Intervenor can only be held responsible, if at all, for that portion of the "non-economic" damages
9 for which it is found liable by jury or judicial determination in direct proportion to Intervenor's
10 percentage of fault, pursuant to California Civil Code section 1431.2, as the rule joint and several
11 liability does not apply under such circumstances.
12 THIRTY-SEVENTH AFFIRMATIVE DEFENSE
13 (NO RECOVERY IN TORT FOR ECONOMIC DAMAGES)
14 43. The economic loss doctrine precludes Complainants from recovering in tort
15 economic losses which have not yet caused personal injury or physical damage to other property.
16 THIRTY-EIGHTH AFFIRMATIVE DEFENSE
17 (INDEMNIFICATION)
18 44. Intervenor is entitled to a right indemnification by apportionment against all other
19 parties and persons whose negligence contributed proximately to the happening of the claimed
20 accident or alleged injuries.
21 THIRTY-NINTH AFFIRMATIVE DEFENSE
22 (STATUTE OF FRAUDS)
23 45. To the extent that Complainants request relief based upon an oral contract or
24 agreement, and/or related alleged fraud, Complainants'laims are barred by the applicable Statute
25 of Frauds.
26 FORTIETH AFFIRMATIVE DEFENSE
27 (COMPARATIVE FAULT)
46. Intervenor is informed and believes and based thereon alleges that if Complainants
Etlsworth v. Srerra Pacific Windows -10-
Case No. 19CV02346
Complaint in Intervention
4000103
1 were injured or damaged in the manner alleged or otherwise, which Intervenor denies, then
2 Complainants'njuries and damages, if any; accordingly, Complainants'amages should be
3 reduced in proportion to its own fault.
FORTY-FIRST AFFIRMATIVE DEFENSE
5 (INDEPENDENT CAUSES)
6 47. The alleged injuries, damages or loss, if any, for which Complainants seek recovery
7 were the result of causes independent of any purported acts or omissions on the part of Intervenor,
8 or any of its respective agents, representatives or employees, thereby eliminating or reducing the
9 alleged liability of Intervenor.
10 FORTY-SECOND AFFIRMATIVE DEFENSE
(NO PROXIMATE CAUSE)
12 48. The acts and/or omissions, if any, of Intervenor were not the proximate cause of the
13 losses, damage or injuries alleged in the pleadings.
14 FORTY-THIRD AFFIRMATIVE DEFENSE
15 (NATURAL CAUSES)
16 49. The alleged injuries, damages or loss, if any, for which Complainants seek recovery
17 were the direct and proximate result of natural deterioration, wear and tear or other natural causes
18 which were unforeseeable without fault or liability on the part of Intervenor.
19 FORTY-FOURTH AFFIRMATIVE DEFENSE
20 (SUBSEQUENT MODIFICATION)
21 50. Intervenor is informed and believes and based thereon alleges that Complainants,
22 and other persons retained by Complainants, have made changes, alterations, and/or modifications
23 to the work performed by Intervenor, which conduct discharges Intervenor from any liability.
24 FORTY-FIFTH AFFIRMATIVE DEFENSE
25 (SUBSEQUENT MISUSE)
26 51. Intervenor is informed and believes and based thereon alleges that the property,
27 which is the subject of Complainants'leadings, may have been used in a non-intended or
28 abnormal manner, and not as a result of any defects in or failure of, any work done by Intervenor.
Etlsworth v. Sierra Pacific Windows
Case No. 19CV02346
Complaint in Intervention
4000103
FORTY-SIXTH AFFIRMATIVE DEFENSE
2 (PASSIVE ACTS)
3 52. If Intervenor is found to have been negligent or liable in any manner, such
4 negligence or liability was passive and secondary while the negligence or liability of Intervenor
5 and others was active and primary, and such active and primary negligence and liability bars, in
6 whole or in part, the recovery requested, or any recovery, against Intervenor.
FORTY-SEVENTH AFFIRMATIVE DEFENSE
8 (INTENTIONAL CONDUCT)
9 Complainants'0
53.
intentional conduct.
The pleadings, and each cause of action alleged therein, is barred by
FORTY-EIGHTH AFFIRMATIVE DEFENSE
12 (JUSTIFIED CONDUCT)
13 54. The conduct of Intervenor with respect to the matters alleged in the pleadings was
14 justified, and, by reason of the foregoing, Complainants are barred from any recovery against
15 Intervenor.
16 FORTY-NINTH AFFIRMATIVE DEFENSE
17 (ACQUIESCENCE)
18 55. Complainants acquiesced to any conduct engaged in by Intervenor.
19 FIFTIETH AFFIRMATIVE DEFENSE
20 (RATIFICATION)
21 56. Complainants expressly ordered, approved, authorized, participated in and ratified
22 the actions and transactions complained of and the actions upon which recovery is allegedly
23 sought, and Complainants are accordingly precluded from recovery.
24 FIFTY-FIRST AFFIRMATIVE DEFENSE
25 (EXPRESS CONSENT)
26 57. Complainants expressly consented to the actions alleged to have caused their
27 damages.
28 ///
Ellsworth v. Sierra Pacific Windows -12-
Case No l9CV02346
Complaint in Intervention
4000103
FIFTY-SECOND AFFIRMATIVE DEFENSE
2 (IMPLIED CONSENT)
3 58. Complainants impliedly consented to the actions alleged to have caused their
4 damages.
FIFTY-THIRD AFFIRMATIVE DEFENSE
6 (PRIVILEGE AND CONSENT)
7 59. Complainants'laims against Intervenor are barred in that any conduct by
8 Intervenor was privileged and/or fully consented to by the parties.
FIFTY-FOURTH AFFIRMATIVE DEFENSE
10 (NO RELIANCE)
11 60. Complainants did not rely on any representations or conduct of Intervenor and
12 therefore Intervenor is not responsible for any damages, if any exist. In the event that they did rely
13 on representations, which Intervenor denies, such reliance was not justified.
14 FIFTY-FIFTH AFFIRMATIVE DEFENSE
15 (SETOFF)
16 61. By virtue of the acts, omissions and misrepresentations of Complainants, Intervenor
17 has incurred damages and expenses, all in amounts to be ascertained and applied as an offset
18 against the claims of Complainants.
19 FIFTY-SIXTH AFFIRMATIVE DEFENSE
20 (REFUSAL TO ALLOW CURE)
21 62. Complainants have refused to allow Intervenor, or otherwise prevented Intervenor,
22 reasonable opportunity to cure any alleged defects or deficiencies in the subject property.
23 Therefore, Complainants are estopped and barred from any claim predicated upon the failure to
24 cure or remedy the alleged defects or deficiencies, if any.
25 FIFTY-SEVENTH AFFIRMATIVE DEFENSE
26 (ABSENCE OF NECESSARY PARTIES)
27 63. The purported claims and causes of action contained in the pleadings require, for
28 complete adjudication, the joining of additional, necessary or indispensable parties, without whom
Ellsworth v. Sierra Pacific Windows -13-
Case No. 19CV02346
Complaint in Intervention
4000103
I the purported claims and causes of action cannot be fully, finally and completely resolved.
FIFTY-EIGHTH AFFIRMATIVE DEFENSE
(LACK OF CAPACITY TO SUE)
4 64. Complainants lack the capacity to sue Intervenor.
FIFTY-NINTH AFFIRMATIVE DEFENSE
6 (DEMAND FOR ALTERNATIVE DISPUTE RESOLUTION)
7 65. If an agreement or statute exists which requires or permits this matter to proceed to
8 binding arbitration, judicial reference, mediation or other form of alternative dispute resolution,
9 answering party hereby demands the required or permitted alternative dispute resolution.
10 SIXTIETH AFFIRMATIVE DEFENSE
(NO JUSTICIABLE CONTROVERSY)
12 66. Intervenor is informed and believes and based thereon alleges that the pleadings,
13 and each purported cause of action contained therein, was brought without reasonable care and
14 without a good faith belief that there was a justiciable controversy under the facts and the law
15 which warranted the filing of the pleadings against this answering Intervenor; therefore,
16 Complainants are responsible for all necessary and reasonable costs including attorneys'ees
17 incurred by this Intervenor as more particularly set forth in California Code of Civil Procedure
18 section 128.5.
19 SIXTY-FIRST AFFIRMATIVE DEFENSE
20 (CAL1FORNJA BUSIiVESS AND PROFESSIONS CODE I'I 7031)
21 67. Intervenor alleges that Complainants are prohibited from bringing any action
22 pursuant to California Business and Professions Code section 7031, which states:
23 No person engaged in the business or acting in the capacity of a contractor, may
24 bring or maintain any action, or recovery in law or equity in any action, in any
court of this state for the collection of compensation for the performance of any act
26 or contract where a license is required by [California Business and Professions
27 Code section 7031] without alleging that he or she was a duly licensed contractor at
28 all times during the performance of that act or contract, regardless of the merits of
Etlsworth v Srerra Pacific Wmdows -l4-
Case No. 19CV02346
Complaint rn Intervention
4000103
the cause of action brought by the person...
SIXTY-SECOND AFFIRMATIVE DEFENSE
3 (INDISPENSABLE PARTIES)
4 68. Intervenor alleges that Complainants were reimbursed for a portion of the claimed
5 damages by a third party; this answering Intervenor is informed and believes and thereon alleges
6 that Complainants have subrogated that third party to a portion of the damages claimed herein; this
7 answering Intervenor is informed and believes and thereon alleges that by virtue of the
8 aforementioned subrogation, Complainants have failed to name indispensable parties, and has
9 violated the rule against splitting causes of action,
Preview
4000103 1 Todd A. Fischer — Bar No. 142771 FISCHER SCIIONEMANr LLP I 2 2511 Garden Road, Suite B-270 Monterey, CA 93940 3 Telephone: (831) 372-9200 Facsimile: (831) 372-9220 4 todd&et,fslln-law.corn 5 Attorneys for intervenor, SECURITY NATIONAL INSURANCE COMPANY, INC. 6 SUPERIOR COURT OF THEi STATE OF CALIFORNIA COUNTY OF SANTA BARBARA — SOUTH COUNTY 9 JOHN C. ELLSWORTH AND JANICE L. Case No. 19CV02346 10 ELLSWORTH AS TRUSTEES OF THE CASA GRAN VISTA REVOCABLE TRUST, DECLARATION OF TODD A. FISCHER SUPPORTING EXPARTE 12 Plaintiff, APPLICATION TO ALLOW SECURITY NATIONAL INSURANCE COMPANY, 13 INC. TO INTERVENE ON BEHALF OF CHRIS SCOTT MASONRY, INC. 14 SIERRA PACIFIC WINDOWS, A DIVISION 4. OF SIERRA PACIFIC INDUSTRIES, a Date: March 18, 2024 California Corporation; KEN TAUB d/b/a/ Time: 8:30 am KT CONSTRUCTION COMPANY d/b/a Dept.: 4 [The Honorable Judge Geckt 17 TAUB DESIGNS, a Sole Proprietorship, and DOES 1 through 100, inclusive, 18 Defendants, Complaint: 5/02/2019 20 21 AND RELATED CROSS-ACTIONS. 22 23 I, Todd A. Fischer, hereby declare as follows: 24 1. I am an attorney at law duly licensed to practice before all courts in the State of 25 California and a partner in the law firm of Fischer Schoneman, LLP, attorneys for the proposed 26 intervenor, SECURITY NATIONAL INSURANCE COMPANY ("SNIC"). 27 2. Upon review of the California Secretary of State Business Portal web page Chris 28 Scott Masonry, Inc. is a suspended California Corporation. Attached as Exhibit A are true and Ellsworth v Sierra Paafic Windows -I- Case No. 19CV02346 Declaration of Todd a. Pischer Supporting Es Parte Application for Leave to Intervene 4000I03 I conect copies fiom the California Secretary of State Business Portal, which show the entity 2 status. 3 3. Attached hereto as Exhibit B is the proposed Complaint in Intervention NSIC 4 proposes to file should oiu motion for leave to intervene be granted. 5 I hereby declare under penalty of perjury under the laws of the State of California that the 6 foregoing is true to the best of my own knowledge and belief. Executed this 140'ay of March, 7 in Monterey, California. 10 Todd A. Fischer 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Ellsworth v. Sierra Pncrfic Windows -2- Case No. t9CV02346 Declaration of Todd a. Fischer Supporting Ex Parte Applicauon for Leave to Intervene &.x,'vi,'&ii. A 1/25/24, 10.09 PM Search I California Sscrslsrr of State California Loglh Sf'i I'/my Of Stole Business UCC Cl-IRIS SCOTT MASONRY, INC. (2337349l Business Search Search The California Business Search provides access to available information far corporations, limited liability companies and limited partnershi ps of record with the California Request Ponos Secretary of State, with free PDF copies of over I? million Csrtincats imaged business entity documents including the most recent imaged Statements of Information filed for Corporations and Iniaal Fikng Date 03/07/2001 Limited Liability Companies. S/CIUS , Suspended-SOS Currently, information far Limited Liability Partnerships (e.g. Standing SOS - Not Good law firms, architecture firms, engineering firms, public Stonding - FTB Good accountancy firms, ond land survey firms), General S rending - Agent Good Parrnerships, and other entity types are not contained m the California Business Search. If you wish to obtain /%rmat/on Standing - VCFCF Good about LLPs and GPs, submit a Business Entities Order paper inactive Dote 10/29/2019 form ta request copies offilings for these entity types. Note: Fomied /n CALIFORNIA This search is not intended to sen/e as a name reservation search. To reserve an entity name, select Forms on the left Entity Type Stock Corporation - CA- General panel and select Entity Name Reservation? Corporation, LLC, LP. Pnncipol Address 619E. MONTECITO STREEET SANTA BARBARA, CA 93103 Basic Search Mailing Address 619E. MONTECITO STREEET SANTA BARBARA,CA93103 A Basic search can be performed using an enrity name or sraremenr of 03/31/201 8 Info Due Dnte entity number. When conducting a search by an entity number, where opplrcable, remove "C" from the entity Agent Individual number. Note, a basic search will search anly ACTIVE ERICK KITCHEN entities (Corporations, Limited Liablllty Companies, 610 ANACAPA STREET SANTA BARBARA, CA 93103 Limited Parrnerships, Cooperatives, Name Reservations, Foreign Name Reservations, Unincorporated common Interest Developments, and Our of Srare Associations). The OOQ basic search performs a contains?keyword? search. The GhSI Skip to main content htlas //hizfi/son/ins sos ca gov/ssarch/husinsss i Xi lli31i. 4000103 Todd A. Fischer — Bar No. 142771 FISCHER i SCHONEMANr LLP 2511 Garden Road, Suite B-270 Monterey, CA 93940 Telephone: (831) 372-9200 Facsimile: (831) 372-9220 todd@fslln-law.corn Attorneys for Cross-Defendant, SECURITY NATIONAL INSURANCE COMPANY, INC. SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SANTA BARBARA — SOUTH COUNTY 9 JOHN C. ELLSWORTH AND JANICE L. Case No. 19CV02346 10 ELLSWORTH AS TRUSTEES OF THE CASA GRAN VISTA REVOCABLE 11 TRUST, COMPLAINT IN INTERVENTION 12 Plaintiff, 13 V. 14 SIERRA PACIFIC WINDOWS, A DIVISION 4. 15 OF SIERRA PACIFIC INDUSTRIES, a 16 California Corporation; KEN TAUB d/b/a/ Complaint: 5/02/2019 KT CONSTRUCTION COMPANY d/b/a 17 TAUB DESIGNS, a Sole Proprietorship, and DOES 1 through 100, inclusive, 18 Defendants, 19 KEN TAUB d/b/a KT CONSTRUCTION, a 20 Sole Proprietorship, 21 Cross-Complainant, 22 vs. 23 SIERRA PACIFIC WINDOWS, a division of SIERRA PACIFIC INDUSTRIES, a 24 California corporation, and MOES 1 through 100, inclusive, 25 26 Cross-Defendants. 27 AND RELATED CROSS-ACTIONS. 28 Ellsworth v. Sierra Pacific Windows Case No. 19CV02346 Complaint m Intervention 4000103 I COMES NOW Intervenor, SECURITY NATIONAL INSURANCE COMPANY, INC. 2 (hereinafter "INTERVENOR" ) on behalf of Cross-Defendant, CHRIS SCOTT MASONRY, INC. 3 (CSM) and alleges: 4 l. INTERVENOR, at all times mentioned herein, is a corporation doing business in 5 the State of California. 6 2. INTERVENOR will seek leave of Court allowing it to intervene if necessary. 7 3. This construction defect action involves alleged construction defects at a single- 8 family home located at 1410 Northridge, Santa Barbara, California. John C. Ellsworth and Janice 9 L. Ellsworth as Trustees of the Casa Gran Vista Revocable Trust (hereinafter "PLAINTIFF") filed 10 their complaint on 5/2/2019. Ken Taub dba KT Construction filed their cross-complaint on 11 10/18/2019 with a Moe amendment to their cross-complaint on 6/17/2020 thereafter naming Chris 12 Scott Masonry. Ken Taub dba KT Construction and PLAINTIFF are collectively hereinafter 13 referred to as COMPLAINANTS. 14 4. SECURITY NATIONAL is a comprehensive general liability insurer of CSM and 15 has been providing a defense to CSM for the claims that arise out of this litigation pursuant to a 16 reservation of rights under the applicable policies of insurance. SECURITY NATIONAL has 17 recently learned that CSM is a suspended corporation pursuant to provisions of the California 18 Revenue and Tax Code. SECURITY NATIONAL, therefore, seeks to intervene and defend its 19 own interests in this action and the interests of it's insured, all of which would be adversely 20 affected if SECURITY NATIONAL was not given leave to intervene. 21 5. It is understood by the Court that: 1) SECURITY NATIONAL does not waive its 22 rights to assert any and all claims and defense under its policies including, but not limited to, lack 23 of coverage, any policy limit, applicable exclusions, or failure of the insured to cooperate in 24 subsequent proceedings; 2) SECURITY NATIONAL is permitted to litigate all elements of 25 liability and damages that have not been determined by the trier of fact in this action or in any 26 subsequent proceedings to determine coverage under its policy; 3) SECURITY NATIONAL'S 27 intervention is solely to assert the claims and defenses of CSM pursuant to the terms and 28 conditions of its policy and within its policy limits; 4) SECURITY NATIONAL will not become Ellswordt v. Sierra Pacific Windows Case No. 19CV02346 Complaint in Intervention 4000l03 I subject to a judgment directly against it and its responsibility, if any, for any judgment against 2 SECURITY NATIONAL is contingent upon a determination in a subsequent action that there is 3 coverage under the applicable policies of insurance, the nature and extent of coverage for any 4 judgment and within the applicable policy limits. 5 6. COMES NOW Intervenor for themselves and none other as follows: Pursuant to 6 Code of Civl'I Procedure Section 431.10, Intervenor, on behalf of CSM denies generally and 7 specifically, each and every allegation contained in the complaints and cross-complaints and the 8 whole thereof, and further denies that as a proximate result of any conduct on the part of the 9 Intervenors, on behalf of CSM that Complainants have been injured or damaged in the sum or 10 sums alleged, or at all. FIRST AFFIRMATIVE DEFENSE 12 (COMPARATIVE NEGLIGENCE) 13 7. Intervenor is informed and believes, and on such information and belief alleges that 14 the injury and damage, if any, alleged in the Complaint and Cross-Complaint occurred and was 15 proximately caused by either the sole or the partial negligence of Complainants, which negligence 16 bars or reduces Complainants'ecovery herein. 17 SECOND AFFIRMATIVE DEFENSE 18 (FAILURE TO STATE A CAUSE OF ACTION) 19 8. Complainants'auses of action, individually, fail to state facts sufficient to 20 constitute a cause of action against this Intervenor. 21 THIRD AFFIRMATIVE DEFENSE 22 (REDUCTION TO PERCENT OF FAULT) 23 9. The right of Complainants to recovery herein, if any right exists, is reduced and 24 limited to the percentage of negligence attributable to this Intervenor pursuant to California Civil 25 Code section 1431.2. 26 FOURTH AFFIRMATIVE DEFENSE 27 (NEGLIGENCK OF OTHERS) 28 10. Intervenor denies that Complainants were damaged as a proximate result of any Etlsworth v. Sierra Pacific Windows Case No. 19CV02346 Comolaint in intervention 4000103 1 conduct on the part of this Intervenor. Intervenor affirmatively alleges that Complainants' damages, if any, were proximately caused by the independent conduct of third parties or entities 3 whether or not parties to this action. Complainants'ecovery against Intervenor, if any, must 4 therefore be reduced to the extent that those damages, if any, were caused by the independent 5 conduct of third parties. FIFTH AFFIRMATIVE DEFENSE (ACTIVE-PASSIVE NEGLIGENCE DEFENSE) 8 11. If Intervenor is found responsible in damages to Complainants or some other party, 9 whether as alleged or otherwise, then Intervenor is informed and believes and, on that basis 10 alleges, that the liability will be predicated upon the active conduct of Complainants, whether by 11 negligence, breach of warranty, strict liability in tort or otherwise, which unlawful conduct 12 proximately caused the alleged incident and that Complainants'ction against Intervenor is barred 13 by that active and affirmative conduct. 14 SIXTH AFFIRMATIVE DEFENSE 15 (FAILURE TO MITIGATE) 16 12. Intervenor alleges that Complainants have failed to take reasonable steps to mitigate 17 its damages, if any. 18 SEVENTH AFFIRMATIVE DEFENSE 19 (STATUTE OF LIMITATIONS) 20 13. Intervenor alleges that Complainants are barred by the applicable statute of 21 limitations, including but not limited to California Code of Civil Procedure sections 337, 337.1, 22 337.15, 338, 339, 340, and California Civil Code Sections 896 et seq. 23 EIGHTH AFFIRMATIVE DEFENSE 24 (UNAVOIDABLE ACCIDENT) 25 14. Intervenor is informed and believes, and on that basis alleges that any and all 26 injuries, losses or damages, if any, were the direct and proximate result of an unavoidable incident 27 or condition and, as such, were an act of God without fault or liability on the part of Intervenor. 28 /// Etlswordt v. Sierra Pacific Windows Case No. 19CV02346 Complaint in Intervention 4000103 I NINTH AFFIRMATIVE DEFENSE 2 (SUPERSEDING CAUSES) 3 15. Intervenor is informed and believes, and on that basis alleges that any and all 4 damages, if any, were the direct and proximate result of the intervening and superseding actions of 5 other parties, either served or unserved, and not Intervenor, and that such intervening and 6 superseding actions of other parties, whether or not served, bar recovery herein on behalf of 7 Complainants. 8 TENTH AFFIRMATIVE DEFENSE 9 (FAILURE TO PERFORM CONDITIONS PRECEDENT) 10 16. Intervenor is informed and believes, and on such information and belief alleges that 11 Complainants failed to perform express contractual conditions precedent to Intervenor's 12 performance, and such failure excuses any nonperformance by Intervenor. 13 ELEVENTH AFFIRMATIVE DEFENSE 14 (BREACH OF CONTRACT BY COMPLAINANTS) 15 17. Intervenor is informed and believes and based thereon alleges that actions and 16 omissions by Complainants constituted a breach of contract by Complainants, and such breach 17 excuses any nonperformance by Intervenor. 18 TWELFTH AFFIRMATIVE DEFENSE 19 (PRODUCT USED IN AN ABNORMAL MANNER) 20 Complainants'1 18. Intervenor is informed and believes and based thereon alleges that damages, if any, proximately resulted from the use of the product in question in an unintended and 22 abnormal manner and not from any defect or mechanical failure of, or failure to service properly, 23 said product or any of its components. 24 THIRTEENTH AFFIRMATIVE DEFENSE 25 (EXTRA CONTRACTUAL DAMAGES BARRED) 26 19. Complainants'lleged claims for extra contractual damages are barred by the 27 provisions of California Code of Civil Procedure section 1021. 28 /// Ellswortit v. Sierra Pacific Windows Case No. 19CV02346 Complaint in Intervention 4000103 1 FOURTEENTH AFFIRMATIVE DEFENSE (LACHES) 3 20. Complainants have unreasonably delayed the commencement of the within action 4 to the substantial prejudice of Intervenor and by reason thereof have been guilty of laches, and 5 Complaints are thereby precluded from recovery in the within action. 6 FIFTEENTH AFFIRMATIVE DEFENSE 7 (UNCLEAN HANDS) 8 21. Complainants'onduct with respect to the matters alleged in the pleadings deprives 9 Complainants of clean hands, and by reason of not coming into court with clean hands 10 Complainants are precluded from recovery in the within action. SIXTEENTH AFFIRMATIVE DEFENSE 12 (FAILURE OF CONSIDERATION) 13 22. At all times mentioned, there was, has been, and continues to be a material failure 14 of consideration on the part of Complainants herein, as a consequence of which failure 15 Intervenor's duty of performance has been discharged. 16 SEVENTEENTH AFFIRMATIVE DEFENSE 17 (MISUSE OR MODIFICATION OF PRODUCT) 18 23. Intervenor is informed and believes and based thereon alleges that if there was any 19 defect in the product referred to in the pleadings at the time of said accident, that such defect did 20 not exist at the time said product left the possession of Intervenor and was caused by the misuse, 21 abuse, changes, modifications and alterations of others, including Complainants herein and that 22 said accident was caused by such misuse, abuse, changes, alterations and modifications. 23 EIGHTEENTH AFFIRMATIVE DEFENSE 24 (COMPLAINANTS'EGLIGENCE) 25 24. Intervenor alleges that at all times herein, Complainants were negligent and 26 proximately caused the incident which is the basis of their complaints. Complainants'ecovery, if 27 Complainants'8 any, should be reduced by the amount proportionate to the amount which negligence contributed to the happening of the alleged incident. Ellsworth v. Sierra Pacific Windows Case No. 19CV02346 Complamt in Intersection 4000103 1 NINETEENTH AFFIRMATIVE DEFENSE 2 (ESTOPPEL) 3 25. Intervenor is informed and believes and thereon alleges that Complainants engaged 4 in conduct and activity with respect to the subject of this litigation, contracts and incidents, which 5 are the subject of their pleadings, and by reason of said conduct and activities are estopped from 6 asserting any claims for damages or seeking any other relief against this Intervenor. 7 TWENTIETH AFFIRMATIVE DEFENSE (WAIVER) 9 26. Intervenor is informed and believes and based thereon alleges that the Complainants 10 have engaged in conduct and activity sufficient to constitute a waiver of any alleged breach of 11 warranty, breach of duty, negligence, act, omission, or any other conduct, if any, as set forth in 12 their pleadings. 13 TWENTY-FIRST AFFIRMATIVE DEFENSE 14 (ASSUMPTION OF RISK) 15 27. Intervenor alleges that Complainants expressly, voluntarily, and knowingly 16 assumed all risks about which they complain in their pleadings, and, therefore, is barred either 17 totally or to the extent of said assumption from recovering any damages. 18 TWENTY-SECOND AFFIRMATIVE DEFENSE 19 (RESERVATION) 20 28. Intervenor presently has insufficient knowledge or information on which to form a 21 belief as to whether it may have additional, as yet, unstated affirmative defenses available. 22 Intervenor reserves herein the right to assert additional defenses in the event that the discovery 23 indicates they would be appropriate. 24 TWENTY-THIRD AFFIRMATIVE DEFENSE 25 (STANDARD OF CARE) 26 29. Intervenor alleged that Complainants are barred and precluded from any recovery in 27 this action because Intervenor at all times complied with the applicable standard of care required of 28 the subcontractor of the type of Intervenor at the time and location where the professional services Ellsworth v. Sierra Pacific Windows Case No. 19CV02346 Complatnt in Interventton 4000103 1 were rendered. TWENTY-FOURTH AFFIRMATIVE DEFENSE (FAILURE TO NOTIFY) 4 30. Intervenor is informed and believes and based thereon alleges that if any defects or 5 inadequacies in the work performed by Intervenor exists, which this Intervenor denies, 6 Complainants failed to timely notify this Intervenor of such conditions and failed to give this 7 Intervenor timely opportunity to remedy such conditions. This conduct by Complainants bars 8 them from any relief from Intervenor herein. TWENTY-FIFTH AFFIRMATIVE DEFENSE 10 (CONSTRUCTION CONTRACT - PROVISIONS VOID AND UNKNFORCEABLE) ll 31. Intervenor is informed and believes and based thereon alleges that the causes of 12 action as set forth in the pleadings, and any damages alleged therein, are barred by California Civil 13 Code section 2782. 14 TWENTY-SIXTH AFFIRMATIVE DEFENSE 15 (NO PRIVITY OF CONTRACT) 16 32. Intervenor is informed and believes, and on that basis alleges that with respect to all 17 causes of action in the pleadings, based on express or implied warranty, there is no privity of 18 contract or contractual or other relationship between Complainants and Intervenor which provides 19 a basis for an implied warranty or duty in favor of Complainants with respect to the property 20 described in the pleadings on file in this matter. 21 TWENTY-SEVENTH AFFIRMATIVE DEFENSE 22 (LACK OF STANDING) 23 33. Complainants lack standing to sue for the damages alleged in the pleadings. 24 TWENTY-EIGHTH AFFIRMATIVE DEFENSE 25 (RESULTANT DAMAGE) 26 34. To the extent Complainants seeks recovery for defects and/or deficient work 27 product which have not caused personal injury or property damages, such claims are barred as a 28 matter of law, Ellsworth v. Sierra Pacific Windows Case No. 19CV02346 Complaint in Intervention 4000103 TWENTY-NINTH AFFIRMATIVE DEFENSE 2 (NOT A LEGAL ENTITY) 3 35. Complainants are not registered entities with the California Secretary of State, or 4 Department of Corporations, or other governmental agency, therefore, Complainants have no 5 standing to sue. THIRTIETH AFFIRMATIVE DEFENSE 7 (NEGLIGENT HIRING) 8 36. Complainants are liable for the negligent hiring and supervision of its general 9 contractor, professionals, and other subcontractors, which were negligent and actually caused all or 10 some of the damages suffered by Complainants and/or the subject property. THIRTY-FIRST AFFIRMATIVE DEFENSE 12 (SPLITTING A CAUSE OF ACTION) 13 37. Pursuant to Ferraro v. So. Calif. Gas Co. (1980) 102 Cal.App.3d 33, Complainants 14 are prohibited from attempting to split a cause of action. 15 THIRTY-SECOND AFFIRMATIVE DEFENSE 16 (FAILURE TO GIVE REASONABLE NOTICE) 17 38. Complainants failed to give reasonable notice of the action or proceeding to 18 Intervenor, including Intervenor's insurance companies, if any. 19 THIRTY-THIRD AFFIRMATIVE DEFENSE 20 (PERFORMANCE BY LAW) 21 39. Each claimed act or failure to act alleged by Complainants were performed or not 22 performed under the express authority of the statute or pursuant to other requirements of law and, 23 therefore, the pleadings and each cause of action asserted by Complaints are barred. 24 THIRTY-FOURTH AFFIRMATIVE DEFENSE 25 (UN JUST ENRICHMENT) 26 40. The Complaint and Cross-Complaint and each cause of action contained therein are 27 barred by the doctrine of unjust enrichment. 28 /// Eltsworttt v Sierra Pacific Windows Case No. 19CV02346 Complaint in Intervention 4000103 THIRTY-FIFTH AFFIRMATIVE DEFENSE 2 (CUSTOM AND STANDARD OF WORK) 3 41. At all times relevant herein, Intervenor performed its work in a workmanlike 4 manner and within custom and standards of the relevant industry. THIRTY-SIXTH AFFIRMATIVE DEFENSE (ALLOCATION) 7 42. In the event that Intervenor is found responsible in damages to Complainants, 8 Intervenor can only be held responsible, if at all, for that portion of the "non-economic" damages 9 for which it is found liable by jury or judicial determination in direct proportion to Intervenor's 10 percentage of fault, pursuant to California Civil Code section 1431.2, as the rule joint and several 11 liability does not apply under such circumstances. 12 THIRTY-SEVENTH AFFIRMATIVE DEFENSE 13 (NO RECOVERY IN TORT FOR ECONOMIC DAMAGES) 14 43. The economic loss doctrine precludes Complainants from recovering in tort 15 economic losses which have not yet caused personal injury or physical damage to other property. 16 THIRTY-EIGHTH AFFIRMATIVE DEFENSE 17 (INDEMNIFICATION) 18 44. Intervenor is entitled to a right indemnification by apportionment against all other 19 parties and persons whose negligence contributed proximately to the happening of the claimed 20 accident or alleged injuries. 21 THIRTY-NINTH AFFIRMATIVE DEFENSE 22 (STATUTE OF FRAUDS) 23 45. To the extent that Complainants request relief based upon an oral contract or 24 agreement, and/or related alleged fraud, Complainants'laims are barred by the applicable Statute 25 of Frauds. 26 FORTIETH AFFIRMATIVE DEFENSE 27 (COMPARATIVE FAULT) 46. Intervenor is informed and believes and based thereon alleges that if Complainants Etlsworth v. Srerra Pacific Windows -10- Case No. 19CV02346 Complaint in Intervention 4000103 1 were injured or damaged in the manner alleged or otherwise, which Intervenor denies, then 2 Complainants'njuries and damages, if any; accordingly, Complainants'amages should be 3 reduced in proportion to its own fault. FORTY-FIRST AFFIRMATIVE DEFENSE 5 (INDEPENDENT CAUSES) 6 47. The alleged injuries, damages or loss, if any, for which Complainants seek recovery 7 were the result of causes independent of any purported acts or omissions on the part of Intervenor, 8 or any of its respective agents, representatives or employees, thereby eliminating or reducing the 9 alleged liability of Intervenor. 10 FORTY-SECOND AFFIRMATIVE DEFENSE (NO PROXIMATE CAUSE) 12 48. The acts and/or omissions, if any, of Intervenor were not the proximate cause of the 13 losses, damage or injuries alleged in the pleadings. 14 FORTY-THIRD AFFIRMATIVE DEFENSE 15 (NATURAL CAUSES) 16 49. The alleged injuries, damages or loss, if any, for which Complainants seek recovery 17 were the direct and proximate result of natural deterioration, wear and tear or other natural causes 18 which were unforeseeable without fault or liability on the part of Intervenor. 19 FORTY-FOURTH AFFIRMATIVE DEFENSE 20 (SUBSEQUENT MODIFICATION) 21 50. Intervenor is informed and believes and based thereon alleges that Complainants, 22 and other persons retained by Complainants, have made changes, alterations, and/or modifications 23 to the work performed by Intervenor, which conduct discharges Intervenor from any liability. 24 FORTY-FIFTH AFFIRMATIVE DEFENSE 25 (SUBSEQUENT MISUSE) 26 51. Intervenor is informed and believes and based thereon alleges that the property, 27 which is the subject of Complainants'leadings, may have been used in a non-intended or 28 abnormal manner, and not as a result of any defects in or failure of, any work done by Intervenor. Etlsworth v. Sierra Pacific Windows Case No. 19CV02346 Complaint in Intervention 4000103 FORTY-SIXTH AFFIRMATIVE DEFENSE 2 (PASSIVE ACTS) 3 52. If Intervenor is found to have been negligent or liable in any manner, such 4 negligence or liability was passive and secondary while the negligence or liability of Intervenor 5 and others was active and primary, and such active and primary negligence and liability bars, in 6 whole or in part, the recovery requested, or any recovery, against Intervenor. FORTY-SEVENTH AFFIRMATIVE DEFENSE 8 (INTENTIONAL CONDUCT) 9 Complainants'0 53. intentional conduct. The pleadings, and each cause of action alleged therein, is barred by FORTY-EIGHTH AFFIRMATIVE DEFENSE 12 (JUSTIFIED CONDUCT) 13 54. The conduct of Intervenor with respect to the matters alleged in the pleadings was 14 justified, and, by reason of the foregoing, Complainants are barred from any recovery against 15 Intervenor. 16 FORTY-NINTH AFFIRMATIVE DEFENSE 17 (ACQUIESCENCE) 18 55. Complainants acquiesced to any conduct engaged in by Intervenor. 19 FIFTIETH AFFIRMATIVE DEFENSE 20 (RATIFICATION) 21 56. Complainants expressly ordered, approved, authorized, participated in and ratified 22 the actions and transactions complained of and the actions upon which recovery is allegedly 23 sought, and Complainants are accordingly precluded from recovery. 24 FIFTY-FIRST AFFIRMATIVE DEFENSE 25 (EXPRESS CONSENT) 26 57. Complainants expressly consented to the actions alleged to have caused their 27 damages. 28 /// Ellsworth v. Sierra Pacific Windows -12- Case No l9CV02346 Complaint in Intervention 4000103 FIFTY-SECOND AFFIRMATIVE DEFENSE 2 (IMPLIED CONSENT) 3 58. Complainants impliedly consented to the actions alleged to have caused their 4 damages. FIFTY-THIRD AFFIRMATIVE DEFENSE 6 (PRIVILEGE AND CONSENT) 7 59. Complainants'laims against Intervenor are barred in that any conduct by 8 Intervenor was privileged and/or fully consented to by the parties. FIFTY-FOURTH AFFIRMATIVE DEFENSE 10 (NO RELIANCE) 11 60. Complainants did not rely on any representations or conduct of Intervenor and 12 therefore Intervenor is not responsible for any damages, if any exist. In the event that they did rely 13 on representations, which Intervenor denies, such reliance was not justified. 14 FIFTY-FIFTH AFFIRMATIVE DEFENSE 15 (SETOFF) 16 61. By virtue of the acts, omissions and misrepresentations of Complainants, Intervenor 17 has incurred damages and expenses, all in amounts to be ascertained and applied as an offset 18 against the claims of Complainants. 19 FIFTY-SIXTH AFFIRMATIVE DEFENSE 20 (REFUSAL TO ALLOW CURE) 21 62. Complainants have refused to allow Intervenor, or otherwise prevented Intervenor, 22 reasonable opportunity to cure any alleged defects or deficiencies in the subject property. 23 Therefore, Complainants are estopped and barred from any claim predicated upon the failure to 24 cure or remedy the alleged defects or deficiencies, if any. 25 FIFTY-SEVENTH AFFIRMATIVE DEFENSE 26 (ABSENCE OF NECESSARY PARTIES) 27 63. The purported claims and causes of action contained in the pleadings require, for 28 complete adjudication, the joining of additional, necessary or indispensable parties, without whom Ellsworth v. Sierra Pacific Windows -13- Case No. 19CV02346 Complaint in Intervention 4000103 I the purported claims and causes of action cannot be fully, finally and completely resolved. FIFTY-EIGHTH AFFIRMATIVE DEFENSE (LACK OF CAPACITY TO SUE) 4 64. Complainants lack the capacity to sue Intervenor. FIFTY-NINTH AFFIRMATIVE DEFENSE 6 (DEMAND FOR ALTERNATIVE DISPUTE RESOLUTION) 7 65. If an agreement or statute exists which requires or permits this matter to proceed to 8 binding arbitration, judicial reference, mediation or other form of alternative dispute resolution, 9 answering party hereby demands the required or permitted alternative dispute resolution. 10 SIXTIETH AFFIRMATIVE DEFENSE (NO JUSTICIABLE CONTROVERSY) 12 66. Intervenor is informed and believes and based thereon alleges that the pleadings, 13 and each purported cause of action contained therein, was brought without reasonable care and 14 without a good faith belief that there was a justiciable controversy under the facts and the law 15 which warranted the filing of the pleadings against this answering Intervenor; therefore, 16 Complainants are responsible for all necessary and reasonable costs including attorneys'ees 17 incurred by this Intervenor as more particularly set forth in California Code of Civil Procedure 18 section 128.5. 19 SIXTY-FIRST AFFIRMATIVE DEFENSE 20 (CAL1FORNJA BUSIiVESS AND PROFESSIONS CODE I'I 7031) 21 67. Intervenor alleges that Complainants are prohibited from bringing any action 22 pursuant to California Business and Professions Code section 7031, which states: 23 No person engaged in the business or acting in the capacity of a contractor, may 24 bring or maintain any action, or recovery in law or equity in any action, in any court of this state for the collection of compensation for the performance of any act 26 or contract where a license is required by [California Business and Professions 27 Code section 7031] without alleging that he or she was a duly licensed contractor at 28 all times during the performance of that act or contract, regardless of the merits of Etlsworth v Srerra Pacific Wmdows -l4- Case No. 19CV02346 Complaint rn Intervention 4000103 the cause of action brought by the person... SIXTY-SECOND AFFIRMATIVE DEFENSE 3 (INDISPENSABLE PARTIES) 4 68. Intervenor alleges that Complainants were reimbursed for a portion of the claimed 5 damages by a third party; this answering Intervenor is informed and believes and thereon alleges 6 that Complainants have subrogated that third party to a portion of the damages claimed herein; this 7 answering Intervenor is informed and believes and thereon alleges that by virtue of the 8 aforementioned subrogation, Complainants have failed to name indispensable parties, and has 9 violated the rule against splitting causes of action,