Complaint,Petition: CORREA ET AL VS JOHN BALFANZ HOMES, INC., A CALIFORNIA CORPORATION

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                                1    Todd D. Bromgard (SBN 192375)
     LAW OFFICE OF PATRICK J. CAMPBELL
2    925 Highland Pointe Drive, Suite 420
     Roseville, CA 95678-5427
3    Telephone: (916) 630-3803
     Fax: (916) 630-3848
4    Email: tbromgard@unitedfiregroup.com
5    Attorneys For Cross-Defendant MIKE'S FENCING, INC.
6

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8                                   SUPERIOR COURT OF CALIFORNIA
9                 IN AND FOR THE COUNTY OF KERN - METROPOLITAN DIVISION
10   NOE CORREA, et al.,                                      CASE NO. BCV-23-100235
11                           Plaintiffs,                      Assigned for all purposes to
                                                              Honorable T. Mark Smith, Dept T-2
12   v.
13   JOHN BALFANZ HOMES, INC., et al.,                        MIKE'S FENCING, INC.’S ANSWER TO
                                                              CROSS-COMPLAINT OF JOHN BALFANZ
14                           Defendants.                      HOMES, INC.
15
     JOHN BALFANZ HOMES, INC.,                                Action Filed:         January 24, 2023
16                                                            Trial Date:           Not set
                             Cross-Complainant,
17
     v.
18
     84 LUMBER ACQUISITION AND
19   DEVELOPMENT COMPANY, LP, et al.,
20                           Cross-Defendants.
21

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23          Cross-defendant MIKE’S FENCING, INC. hereby answers the cross-complaint on file herein,
24   and admits, denies, and alleges as follows:
25                                            GENERAL DENIAL
26          Cross-defendant denies each and every, all and singular, generally and specifically, all of the
27   allegations contained in said cross-complaint insofar as they pertain to this answering cross-
28   defendant, denies liability under the theories alleged or in any manner set forth in said cross-
                                                   1
            MIKE'S FENCING, INC.’S ANSWER TO CROSS-COMPLAINT OF JOHN BALFANZ HOMES, INC.
1    complaint, or at all, and denies that cross-complainants have suffered any injury or incurred any

2    damage as a result of the alleged conduct of this answering cross-defendant, or at all.

3                                           AFFIRMATIVE DEFENSES

4              AS AND FOR AFFIRMATIVE DEFENSES to the cross-complaint herein, this answering

5    cross-defendant alleges as follows:

6                                       FIRST AFFIRMATIVE DEFENSE

7              The cross-complaint, and each cause of action thereof, fails to state facts sufficient to

8    constitute a cause of action against this answering cross-defendant.

9                                     SECOND AFFIRMATIVE DEFENSE

10             The cross-complaint, and each cause of action thereof, is barred by the statutes of limitation

11   set forth in the California Code of Civil Procedure, commencing with Section 335 and continuing

12   through 349.4, more particularly, but not limited to, the following: Section 337, Section 337.1,

13   Section 337.15, Section 338, Section 338(d), Section 339, Section 340, and Section 343; and by

14   Sections 2607(3)(a) and 2725(1) and (2) of the Uniform Commercial Code of the State of California;

15   and by Section 900 and Section 941 of the Civil Code.

16   In addition to Statutes of Limitations stated herein, this party also asserts that statutory limitations for

17   specific claims made by plaintiffs are limited as described and set out under Civil Code Sections 895-

18   945.5.”

19                                      THIRD AFFIRMATIVE DEFENSE

20             Cross-complainant has unreasonably delayed in bringing this action to the prejudice of this

21   answering cross-defendant and is therefore barred from bringing this action by the doctrine of laches.

22                                    FOURTH AFFIRMATIVE DEFENSE

23             Cross-complainant is at fault in and about the matters referred to in the cross-complaint, and

24   such fault on the part of the cross-complainant is proximately caused and contributed to the damages

25   complained of, if there were any. This answering cross-defendant further alleges that any fault not

26   attributable to said cross-complainant were a result of fault on the part of persons and/or entities other

27   than this answering cross-defendant. Such fault bars and/or proportionately reduces any recovery by

28   cross-complainant against this answering cross-defendant.

                                                   2
            MIKE'S FENCING, INC.’S ANSWER TO CROSS-COMPLAINT OF JOHN BALFANZ HOMES, INC.
1                                     FIFTH AFFIRMATIVE DEFENSE

2            Should cross-complainant recover damages from this answering cross-defendant, this

3    answering cross-defendant is entitled to indemnification, either in whole or in part, from all persons

4    or entities whose negligence and/or fault proximately contributed to cross-complainant’s damages, if

5    there were any.

6                                    SIXTH AFFIRMATIVE DEFENSE

7            Cross-complainant directed, ordered, approved and/or ratified cross-defendant’s conduct, and

8    cross-complainant is therefore estopped from asserting any claim based thereon.

9                                  SEVENTH AFFIRMATIVE DEFENSE

10           Cross-complainant has failed and neglected to use reasonable care to minimize and mitigate

11   the losses, injuries and damages complained of, if there were any.

12                                  EIGHTH AFFIRMATIVE DEFENSE

13           Prior to commencement of this action, this answering cross-defendant duly performed,

14   satisfied, and discharged all duties and obligations it may have owed to cross-complainant arising out

15   of any and all agreements, representations, or contracts made by it or on behalf of this answering

16   cross-defendant, and this action is therefore barred by the provisions of California Civil Code Section

17   1473.

18                                   NINTH AFFIRMATIVE DEFENSE

19           The cross-complaint, and each cause of action thereof, is barred by the following provisions

20   of the Uniform Commercial Code: Sections 1201(25(c), 2601, 2602(1), 2513(1) and (3), 2510(1),

21   2605(1)(a) and (b), 2607, 2715(2)(a) and 2719(3).

22                                   TENTH AFFIRMATIVE DEFENSE

23           The cross-complaint, and each cause of action thereof, fails to state a cause of action against

24   this answering cross-defendant as there is no privity between cross-complainant and this answering

25   cross-defendant.

26   ///

27   ///

28   ///

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             MIKE'S FENCING, INC.’S ANSWER TO CROSS-COMPLAINT OF JOHN BALFANZ HOMES, INC.
1                                  ELEVENTH AFFIRMATIVE DEFENSE

2           Cross-complainant acted with full knowledge of all of the facts and circumstances

3    surrounding its alleged injuries and damages, and thus assumed the risk of its injuries and damages, if

4    there were any.

5                                  TWELFTH AFFIRMATIVE DEFENSE

6           The cross-complaint, and each alleged cause of action appearing therein, fails to state facts, or

7    to allege claims, which would impose joint and several liability for any of the damages claimed by

8    any party against this answering cross-defendant. Any liability of this answering cross-defendant,

9    which liability is expressly denied, would therefore be limited to those injuries, losses or damages, if

10   there were any, was a primary contributing factor.

11                               THIRTEENTH AFFIRMATIVE DEFENSE

12          The cross-complaint, and each alleged cause of action therein, is absolutely barred by the

13   provisions of Civil Code Sections 1474, 1475, 1476, 1477 and each of them.

14                               FOURTEENTH AFFIRMATIVE DEFENSE

15          The cross-complaint, and each alleged cause of action therein, fails to state facts sufficient to

16   constitute a cause of action for indemnity or contribution based on strict liability.

17                                FIFTEENTH AFFIRMATIVE DEFENSE

18          The cross-complaint, and each alleged cause of action therein, fails to state facts sufficient to

19   constitute a cause of action for breach of implied warranty against this answering cross-defendant.

20                                SIXTEENTH AFFIRMATIVE DEFENSE

21          The cross-complaint, and each alleged cause of action therein, is barred by the equitable

22   principle of waiver, in that cross-complainants, by virtue of its conduct and its agents’ conduct

23   toward this cross-defendant and it’s predecessors-in-interest and others, undertaken with full

24   knowledge of the action complained of in the subject pleadings, has relinquished and waived any

25   right to assert any of the claims upon which cross-complainant now seek.

26                              SEVENTEENTH AFFIRMATIVE DEFENSE

27          The cross-complaint, and each alleged cause of action therein, is barred by the equitable

28   principle of estoppel, in that cross-complainants, by the acts and omissions of itself and its agents,

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            MIKE'S FENCING, INC.’S ANSWER TO CROSS-COMPLAINT OF JOHN BALFANZ HOMES, INC.
1    which were justifiably relied on by cross-defendants and its predecessors-in-interest, is estopped from

2    asserting any of the claims upon which it now seeks relief.

3                               EIGHTEENTH AFFIRMATIVE DEFENSE

4           Cross-complainant accepted all of the work performed by this answering cross-defendant

5    and/or its subcontractors, and is therefore barred from seeking any recourse against this cross-

6    defendant and/or its surety.

7                                   NINETEENTH AFFIRMATIVE DEFENSE

8           Cross-defendant duly performed, satisfied, and discharged all duties and obligations it may

9    have owed to the cross-complainant and/or cross-complainant arising out of any and all agreements,

10   representations, or contracts made by it or on behalf of this answering Cross-Defendant pursuant to

11   the novations reached between this cross-defendant and cross-complainant and this action is therefore

12   barred by the provisions of California Civil Code Sections 1530 and 1531.

13                                  TWENTIETH AFFIRMATIVE DEFENSE

14          Cross-defendant duly performed, satisfied and discharged all duties and obligations it may

15   have owed to the cross-complainant arising out of any and all agreements, representations, or

16   contracts made by it or on behalf of this answering cross-defendant which were subsequently

17   accepted, fully executed, and therefore satisfied pursuant to the provisions of California Civil Code

18   Sections 1521, 1522, 1523, and 1524.

19                             TWENTY-FIRST AFFIRMATIVE DEFENSE

20          Cross-defendant duly performed, satisfied, and discharged all duties and obligations it may

21   have owed to the Cross-Complainant arising out of any and all agreements, representations, or

22   contracts made by it or on behalf of this answering cross-defendant pursuant to the releases between

23   said parties as provided by California Civil Code Section 1541.

24                            TWENTY-SECOND AFFIRMATIVE DEFENSE

25          Cross-defendant alleges that it received no notice of breach of warranty, if any there was, as

26   required by law.

27   ///

28   ///

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            MIKE'S FENCING, INC.’S ANSWER TO CROSS-COMPLAINT OF JOHN BALFANZ HOMES, INC.
1                                TWENTY-THIRD AFFIRMATIVE DEFENSE

2           Cross-defendant alleges that cross-defendant presently has insufficient knowledge or

3    information on which form a belief as to whether it may have additional, as yet unstated, affirmative

4    defenses available. Cross-defendant reserves herein the right to assert additional defenses in the

5    event that discovery indicates that they would be appropriate.

6                             TWENTY-FOURTH AFFIRMATIVE DEFENSE

7           Cross-defendant alleges no contract was created and/or provisions of the contract are void

8    and/or voidable because said cross-defendant was subjected to duress, menace, fraud, undue

9    influence, and/or mistake, by said cross-complainant. Said cross-defendant alleges that cross-

10   complainant used its position of real or apparent authority for the purpose of obtaining an unfair

11   advantage and unequal bargaining power over cross-defendant, thereby inducing cross-defendant,

12   under duress, menace, fraud, undue influence, and/or mistake, to consent to the contract and denying

13   cross-defendant negotiation and meaningful choice. Were it not for cross-complainant’s improper

14   acts, cross-defendant would not have consented to the contract. The agreements are procedurally

15   unconscionable due to oppression and/or surprise. The agreements are substantively unconscionable

16   due to lack of mutuality.

17                               TWENTY-FIFTH AFFIRMATIVE DEFENSE

18          This party contends that Plaintiff homeowners have failed to comply with the provisions of

19   CC 907, CC 944, and 945.5 in maintaining and repairing their property and in allowing builder and/or

20   others to repair or fix the alleged conditions.

21                               TWENTY-SIXTH AFFIRMATIVE DEFENSE

22          This party contends that the action was not brought timely under the provisions of CC 896

23   and/or that others have failed to perform their obligations for construction as set out in CC 896 and

24   thus their actions have impacted on this party and this party contends they are not responsible for

25   those violations.

26                            TWENTY-SEVENTH AFFIRMATIVE DEFENSE

27          This party asserts that owners and/or developer and/or general contractor has failed to comply

28   with the requirements for causes of actions on homes constructed after January 1, 2003 under Cal

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            MIKE'S FENCING, INC.’S ANSWER TO CROSS-COMPLAINT OF JOHN BALFANZ HOMES, INC.
1    Civil Code Sections 895- 945.5 and that damages are limited as set out under Cal Civil Code

2    Sections 896 through 945.5.

3                             TWENTY-EIGHTH AFFIRMATIVE DEFENSE

4           If it is contended that any contract obligations claimed against this party were entered into

5    after January 1, 2009, this party asserts that proper tender to undertake defense of obligations of a

6    subcontractor under CC 2782 have not been made and this answering party reserves all rights to

7    undertake the defense as set out in C.C. 2782 to undertake that defense under the conditions set forth

8    therein. This party also asserts any rights to choose the type of defense to be undertaken as set out

9    under CC 2782, if complaining party sets out a proper tender to undertake defense. Further under this

10   Code Section (CC2782) this party asserts the rights for indemnity as provided by this statute.

11                             TWENTY-NINTH AFFIRMATIVE DEFENSE

12          This answering party asserts that the contracting party either replaced an obligation or

13   obligations in the contract with a new obligation and/or obligations, creating a novation of the

14   original obligation and thus transferring that obligation to a new party. Under this novation, some or

15   all duties and obligations under the novation process were transferred from the original obligor to a

16   new obligor. This party also asserts that evidence may exist that an assignment of obligations under

17   the contract existed during the time that the obligee was receiving the benefit of the contractual

18   bargain, and notice of such assignment was given and thus obligations and duties may have existed

19   with parties other than this answering defendant.

20                                 THIRTIETH AFFIRMATIVE DEFENSE

21          Cross-Defendant asserts the right to raise other affirmative defenses as they become

22   ascertained.

23          WHEREFORE, cross-defendant prays that cross-complainant take nothing by this action and

24   that cross-defendant be awarded costs and all further relief that the court deems just and proper.

25   DATED: March 15, 2024                       LAW OFFICE OF PATRICK J. CAMPBELL

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27                                               By:
                                                       TODD D. BROMGARD
28                                                     Attorney for Cross-Defendant MIKE'S FENCING, INC.

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            MIKE'S FENCING, INC.’S ANSWER TO CROSS-COMPLAINT OF JOHN BALFANZ HOMES, INC.
                            Noe Correa, et al. v. John Balfanz Homes, Inc., et al.
                            Kern County Superior Court, Case No. BCV-23-100235


                        PROOF OF SERVICE – C.C.P. § SECTIONS 1013A, 2015.5
1

2           I declare that I am employed in the County of Placer, California. I am over the age of eighteen
     years and am not a party to the within cause. My business address is 925 Highland Pointe Drive,
3    Suite 420, Roseville, CA, 95678-5241.
4
             On the date last written below, I caused to be served the documents named below on the parties
5    in said cause as follows:
       1. MIKE'S FENCING, INC.’S ANSWER TO CROSS-COMPLAINT OF JOHN BALFANZ
6
          HOMES, INC.
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     SEE ATTACHED SERVICE LIST
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                BY MAIL:                         I placed each such sealed envelope, for collection and
9
                                                 mailing at Rocklin, California, following ordinary business
10                                               practices. I am readily familiar with the practices for the
                                                 processing of said mail, which is deposited in the United
11                                               States Postal Service the same day as it is placed for
                                                 processing.
12
                BY PERSONAL                      I caused each such envelope to be delivered by hand to the
13              SERVICE:                         addressee(s) noted in this Proof of Service.
14              OVERNIGHT                        I caused each such envelope to be delivered by
                SERVICE:                         Overnight/Express Mail Delivery to the addressee(s) noted
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                                                 in this Proof of Service.
16              BY FACSIMILE:                    I caused said document to be transmitted by facsimile
                                                 machine to the number indicated after the address noted or
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                                                 the addressee on the facsimile cover sheet.
18              BY E-MAIL:                       By electronically mailing a true and correct copy through the
                                                 Law Office of Patrick J. Campbell’s electronic mail system
19
                                                 (from my email address: sdosmann@unitedfiregroup.com)
20                                               to the email address(es) set forth herein in accordance with
                                                 C.C.P. § 1010.6(e)(1).
21

22            I declare under penalty of perjury under the laws of the State of California, that the foregoing
     is true and correct, and that this declaration was executed March 15, 2024, at Twin Falls County, Idaho.
23

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                                                   _______________________________
25                                                 STACEY DOSMANN
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                                                 PROOF OF SERVICE
                          Noe Correa, et al. v. John Balfanz Homes, Inc., et al.
                          Kern County Superior Court, Case No. BCV-23-100235


                                               SERVICE LIST
1
       Plaintiffs                                     John Balfanz Homes
2      Luke P. Ryan, Esq.                             Craig N. Braun, Esq.
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       Lucas A. Edwards, Esq.                         Dake, Braun & Monje, LLP
       Schnnick & Ryan. LLP                           1626 19th Street, Second Floor
4      4141 Jutland Drive, Suite 210                  Bakersfield, CA 93301
       San Diego, CA 92117                            T: (661) 322-0991 / F: (661) 322-0650
5      T: (619) 239-5900 / F: (619) 239-1833          cbraun@dbmllp.com
       lryan@srfirms.com                              Linda Fallgatter, Assistant:
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       ledwards@srfirms.com                           lfallgatter@dbmllp.com
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       SPECIAL MASTER                                 DEPOSITORY
10       Served only if checked                         Served only if checked

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     DISTRIBUTION LIST
12   lryan@srfirms.com; ledwards@srfirms.com; cbraun@dbmllp.com; lfallgatter@dbmllp.com
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                                               PROOF OF SERVICE