Preview
1 MICHAEL T. McCALL, State Bar No. 109580
mmccall@wfbm.com
2 WFBM, LLP
19900 MacArthur Blvd., Suite 1150
3 Irvine, California 92612-2445
Telephone: (714) 634-2522
4 Facsimile: (714) 634-0686
5 Attorneys for S & L BUILDINGS, a California
corporation
6
7
8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 COUNTY OF KERN
10
11 MARTHA WOODS, Case No. BCV-23-101333
TEL (714) 634-2522 • FAX (714) 634-0686
19900 MACARTHUR BLVD., SUITE 1150
12 Plaintiff, S & L BUILDING’S ANSWER TO
IRVINE, CALIFORNIA 92612-2445
CROSS-COMPLAINT OF DC
Walsworth
13 v. PROPERTIES 1, LP dba HOLIDAY INN
EXPRESS & SUITES
14 HOLIDAY INN EXPRESS & SUITES, DC
PROPERTIES 1, LP, IHG HOTELS AND Assigned for All Purposes to:
15 RESORTS, AND DOES 1 to 25, Inclusive, Hon. Mark T. Smith
Department T2
16 Defendant.
Action Filed: April 28, 20223
17 Trial Date: None Set
DC PROPERTIES 1, LP dba HOLIDAY INN
18 EXPRESS & SUITES,
19 Cross-Complainant,
20 v.
21 S & L BUILDING, a California corporation;
PREMIER CONSTRUCTION
22 MANAGEMENT, INC., a California
corporation; PMCI CORP., a business entity of
23 unknown form; BILL R. HARRISON, an
individual, and ROES 1 to 25, Inclusive,
24
Cross-Defendant.
25
26 Cross-Defendant, S & L Building (“Cross-Defendant”) on behalf of itself and not jointly
27 with any other party to this action, hereby answers the Cross- Complaint filed by DC PROPERTIES
28 1, LP dba HOLIDAY INN EXPRESS & SUITES (“Cross-Complainant”) as follows:
63728985.1 S & L BUILDING’S ANSWER TO CROSS-COMPLAINT OF DC PROPERTIES 1, LP dba HOLIDAY INN
6164-3.6828 EXPRESS & SUITES
1 GENERAL DENIAL
2 Pursuant to the provisions of Code of Civil Procedure section 431.30, this answering Cross-
3 Defendant denies generally and specifically each and every allegation contained in each cause of
4 action of the Cross-Complaint and further denies that Cross-Complainant has been damaged in any
5 sum whatsoever, or at all.
6 Cross-Defendant alleges and sets forth separately and distinctly the following affirmative
7 defenses to each and every cause of action alleged in Cross-Complainant’s Cross-Complaint as
8 though pleaded separately to each and every cause of action:
9 FIRST AFFIRMATIVE DEFENSE
10 (Failure to State A Cause of Action)
11 1. The Cross-Complaint fails to state facts sufficient to constitute a cause of action upon
TEL (714) 634-2522 • FAX (714) 634-0686
19900 MACARTHUR BLVD., SUITE 1150
12 which relief can be granted against Cross-Defendant. The Cross-Complaint also seeks relief against
IRVINE, CALIFORNIA 92612-2445
Walsworth
13 Cross-Defendant that is not properly recoverable by Cross-Complainant, and Cross-Complainant is
14 therefore barred from any recovery against Cross-Defendant.
15 SECOND AFFIRMATIVE DEFENSE
16 (Statute of Limitation)
17 2. Cross-Complainant’s Cross-Complaint, and the allegations contained therein, are
18 barred or diminished, in whole or in part, by the applicable statutes of limitation, including but not
19 limited to, Code of Civil Procedure §§ 337, 337.1, 337.15 and 343.
20 THIRD AFFIRMATIVE DEFENSE
21 (Unclean Hands)
22 3. Cross-Complainant, through its conduct, acts, and omissions, is barred by the
23 doctrine of unclean hands from recovering any damages or other relief herein against Cross-
24 Defendant.
25 FOURTH AFFIRMATIVE DEFENSE
26 (Estoppel)
27 4. Cross-Complainant, through its conduct, acts, and omissions, is estopped from
28 asserting or recovering under any of its causes of actions alleged against Cross-Defendant in the
-2-
63728985.1 S & L BUILDING’S ANSWER TO CROSS-COMPLAINT OF DC PROPERTIES 1, LP dba HOLIDAY INN
6164-3.6828 EXPRESS & SUITES
1 Cross-Complaint because of its own conduct at the subject properties at issue in this action. Cross-
2 Defendant alleges that Cross-Complainant knew or should have known of the damages claimed in
3 its Cross-Complaint, if any there are, but failed to take any corrective measures and failed to notify
4 any other party of the need for such corrective measures, thereby estopping Cross-Complainant from
5 claiming damages as a result of these purported conditions, defect, or otherwise, if any.
6 FIFTH AFFIRMATIVE DEFENSE
7 (Waiver)
8 5. Cross-Complainant, though its conduct, acts, and omissions, has waived its causes
9 of action and any recovery against Cross-Defendant alleged in its Cross-Complaint.
10 SIXTH AFFIRMATIVE DEFENSE
11 (Laches)
TEL (714) 634-2522 • FAX (714) 634-0686
19900 MACARTHUR BLVD., SUITE 1150
12 6. Cross-Complainant’s claims alleged in its Cross-Complaint against Cross-Defendant
IRVINE, CALIFORNIA 92612-2445
Walsworth
13 are barred or diminished by the doctrine of laches.
14 SEVENTH AFFIRMATIVE DEFENSE
15 (Failure to Mitigate)
16 7. Without peril to Cross-Defendant’s denial of the existence of each and every alleged
17 claimed damage, Cross-Defendant alleges that Cross-Complainant, while knowing of the purported
18 damages complained of, if any, failed to undertake to mitigate its damages and/or increased its
19 damages, if any. Accordingly, if Cross-Complainant suffered any damages proximately caused by
20 Cross-Defendant, which Cross-Defendant expressly denies, such damages should have been
21 mitigated by reasonable efforts on the part of Cross-Complainant.
22 EIGHTH AFFIRMATIVE DEFENSE
23 (Unjust Enrichment)
24 8. The Cross-Complaint and each cause of action contained therein are barred by the
25 doctrine of unjust enrichment.
26 NINTH AFFIRMATIVE DEFENSE
27 (Assumption of Risk)
28 9. The injuries and damages, if any, of which Cross-Complainant complains were
-3-
63728985.1 S & L BUILDING’S ANSWER TO CROSS-COMPLAINT OF DC PROPERTIES 1, LP dba HOLIDAY INN
6164-3.6828 EXPRESS & SUITES
1 directly and proximately caused and contributed to by a risk(s) known to Cross-Complainant and of
2 which Cross-Complainant appreciated the danger and magnitude, but which Cross-Complainant
3 nevertheless voluntarily assumed, thus barring Cross-Complainant from recovery herein and/or
4 reducing Cross-Complainant’s recovery thereby.
5 TENTH AFFIRMATIVE DEFENSE
6 (Defective Performance)
7 10. Cross-Complainant’s failure to perform pursuant to the agreements, if any, between
8 the parties excused Cross-Defendant from performing any obligations allegedly not performed, if
9 any.
10 ELEVENTH AFFIRMATIVE DEFENSE
11 (Performance by Law)
TEL (714) 634-2522 • FAX (714) 634-0686
19900 MACARTHUR BLVD., SUITE 1150
12 11. Each claimed act or failure to act alleged by Cross-Complainant was performed or
IRVINE, CALIFORNIA 92612-2445
Walsworth
13 not performed under the express authority of statute or pursuant to other requirements of law, and
14 therefore, the Cross-Complaint and each cause of action asserted against Cross-Defendant are
15 barred.
16 TWELFTH AFFIRMATIVE DEFENSE
17 (Complete Performance)
18 12. Cross-Defendant has appropriately, completely, and fully performed and discharged any and
19 all obligations and legal duties arising out of the matters alleged in the Cross-Complaint.
20 THIRTEENTH AFFIRMATIVE DEFENSE
21 (Failure to Fulfil Conditions Precedent)
22 13. Any recovery on Cross-Complainant’s Cross-Complaint, or any purported cause of
23 action alleged therein, is barred on the ground that, as to each and every oral, implied, or other
24 contract alleged therein, Cross-Complainant failed to fulfill a condition or conditions precedent to
25 the enforcement of said contract.
26 FOURTEENTH AFFIRMATIVE DEFENSE
27 (Compliance with Applicable Codes and Industry Standards)
28 14. The work and services provided by this answering Cross-Defendant conformed to all
-4-
63728985.1 S & L BUILDING’S ANSWER TO CROSS-COMPLAINT OF DC PROPERTIES 1, LP dba HOLIDAY INN
6164-3.6828 EXPRESS & SUITES
1 applicable codes and generally accepted industry standards and the practices and products utilize
2 were and are safe for their intended uses. At all relevant times, the work and services provided on
3 the subject project by this answering Cross-Defendant conformed to the “state of the art” in its
4 industry, and Cross-Defendant should not be held liable for any unknown and undiscoverable
5 damages allegedly associated with the subject project, if any.
6 FIFTEENTH AFFIRMATIVE DEFENSE
7 (No Liability for Non-Economic Damages)
8 15. In the event a judgment is rendered against Cross-Defendant and in favor of Cross-
9 Complainant, Cross-Defendant can only be held responsible, if at all, for that portion of the “non-
10 economic” damages for which it is found liable by jury or judicial determination in direct proportion
11 to Cross-Defendant’s percentage of fault, pursuant to Civil Code § 1431.2, as the rule of joint and
TEL (714) 634-2522 • FAX (714) 634-0686
19900 MACARTHUR BLVD., SUITE 1150
12 several liability does not apply under such circumstances.
IRVINE, CALIFORNIA 92612-2445
Walsworth
13 SIXTEENTH AFFIRMATIVE DEFENSE
14 (Satisfaction of Obligations)
15 16. The obligations and conditions of Cross-Defendant to any agreements between the
16 parties have been satisfied.
17 SEVENTEENTH AFFIRMATIVE DEFENSE
18 (No Indemnity)
19 17. To the extent there is any enforceable indemnity agreement as to Cross-Defendant,
20 the existence of which Cross-Defendant denies in total, Cross-Complainant was obligated to
21 perform certain conditions in order to enforce any rights thereunder. Cross-Complainant failed to
22 perform the conditions as required, thereby discharging Cross-Defendant from any obligations
23 thereunder, if any.
24 EIGHTEENTH AFFIRMATIVE DEFENSE
25 (Indemnification)
26 18. Cross-Defendant is entitled to the right of indemnification by apportionment against
27 all other parties and persons whose negligence contributed proximately to the happening of the
28 claimed accident or alleged injuries.
-5-
63728985.1 S & L BUILDING’S ANSWER TO CROSS-COMPLAINT OF DC PROPERTIES 1, LP dba HOLIDAY INN
6164-3.6828 EXPRESS & SUITES
1 NINETEENTH AFFIRMATIVE DEFENSE
2 (Statute of Frauds)
3 19. To the extent that Cross-Complainant request relief based upon an oral contract or
4 agreement, Cross-Complainant’s claims are barred by the applicable statute of frauds.
5 TWENTIETH AFFIRMATIVE DEFENSE
6 (Negligence of Others)
7 20. Damages and claims for which Cross-Complainant seeks indemnity, apportionment,
8 and declaratory relief in its Cross-Complaint, if any, were caused by the acts, errors, or omissions
9 of Cross-Complainant and/or third parties and/or contributed to and/or caused by the acts, errors,
10 omissions, or negligence of Cross-Complainant and/or third parties, for whose conduct Cross-
11 Defendant is not responsible.
TEL (714) 634-2522 • FAX (714) 634-0686
19900 MACARTHUR BLVD., SUITE 1150
12 TWENTY-FIRST AFFIRMATIVE DEFENSE
IRVINE, CALIFORNIA 92612-2445
Walsworth
13 (Comparative Negligence of Cross-Complainant)
14 21. Cross-Complainant failed to exercise ordinary care on its own behalf, which
15 negligence and carelessness was a proximate cause of some portion, up to and including the whole
16 thereof, of the injuries and damages complained of in this action. Cross-Complainant’s recovery,
17 therefore, against Cross-Defendant should be barred or reduced according to principles of
18 comparative negligence.
19 TWENTY-SECOND AFFIRMATIVE DEFENSE
20 (Superseding Cause)
21 22. If Cross-Complainant suffered any damage, which is denied, then any such damage
22 was proximately caused by the intervening and superseding actions of others, which bar Cross-
23 Complainant’s recovery, if any, against Cross-Defendant.
24 TWENTY-THIRD AFFIRMATIVE DEFENSE
25 (Independent Causes)
26 23. The alleged injuries, damages, or loss, if any, for which Cross-Complainant seeks
27 recovery were the result of causes independent of any purported acts or omissions on the part of
28 Cross-Defendant or any of its agents, representatives, or employees, thereby eliminating or
-6-
63728985.1 S & L BUILDING’S ANSWER TO CROSS-COMPLAINT OF DC PROPERTIES 1, LP dba HOLIDAY INN
6164-3.6828 EXPRESS & SUITES
1 reducing the alleged liability of Cross-Defendant.
2 TWENTY-FOURTH AFFIRMATIVE DEFENSE
3 (No Proximate Cause)
4 24. The acts and/or omissions, if any, of Cross-Defendant were not the proximate cause
5 of the losses, damage, or injuries alleged in the Cross-Complaint.
6 TWENTY-FIFTH AFFIRMATIVE DEFENSE
7 (Act of God)
8 25. The damages and defects of which Cross-Complainant complains, if any, were
9 caused by acts of God for which Cross-Defendant has no responsibility.
10 TWENTY-SIXTH AFFIRMATIVE DEFENSE
11 (Unavoidable Conditions)
TEL (714) 634-2522 • FAX (714) 634-0686
19900 MACARTHUR BLVD., SUITE 1150
12 26. The alleged injuries, damages, or loss, if any, for which Cross-Complainant seeks
IRVINE, CALIFORNIA 92612-2445
Walsworth
13 recovery were the direct and proximate result of unavoidable conditions without fault or liability on
14 the part of Cross-Defendant.
15 TWENTY-SEVENTH AFFIRMATIVE DEFENSE
16 (Passive Acts)
17 27. If Cross-Defendant is found to have been negligent or liable in any manner, such
18 negligence or liability was passive and secondary while the negligence or liability of Cross-
19 Complainant and/or others was active and primary, and such active and primary negligence and
20 liability bars, in whole or in part, the recovery requested, or any recovery, against Cross-Defendant.
21 TWENTY-EIGHTH AFFIRMATIVE DEFENSE
22 (Intentional Conduct)
23 28. The Cross-Complaint and each cause of action alleged therein are barred by Cross-
24 Complainant’s intentional conduct.
25 TWENTY-NINTH AFFIRMATIVE DEFENSE
26 (Justified Conduct)
27 29. The conduct of Cross-Defendant with respect to the matters alleged in the Cross-
28 Complaint was justified, and by reason of the foregoing, Cross-Complainant is barred from any
-7-
63728985.1 S & L BUILDING’S ANSWER TO CROSS-COMPLAINT OF DC PROPERTIES 1, LP dba HOLIDAY INN
6164-3.6828 EXPRESS & SUITES
1 recovery against Cross-Defendant.
2 THIRTIETH AFFIRMATIVE DEFENSE
3 (Acquiescence)
4 30. Cross-Complainant acquiesced to any conduct engaged in by Cross-Defendant.
5 THIRTY-FIRST AFFIRMATIVE DEFENSE
6 (Ratification)
7 31. Cross-Complainant expressly ordered, approved, authorized, participated in, and
8 ratified the actions and transactions complained of and the actions upon which recovery is allegedly
9 sought, and Cross-Complainant is accordingly precluded from recovery.
10 THIRTY-SECOND AFFIRMATIVE DEFENSE
11 (Consent)
TEL (714) 634-2522 • FAX (714) 634-0686
19900 MACARTHUR BLVD., SUITE 1150
12 32. Cross-Complainant expressly and/or impliedly consented to the actions alleged to
IRVINE, CALIFORNIA 92612-2445
Walsworth
13 have caused it damages.
14 THIRTY-THIRD AFFIRMATIVE DEFENSE
15 (Lack of Notice and Failure to Timely Notify)
16 33. The Cross-Complaint and each cause of action alleged therein are barred by Cross-
17 Complainant’s failure to timely notify Cross-Defendant of t
Preview
1 MICHAEL T. McCALL, State Bar No. 109580 mmccall@wfbm.com 2 WFBM, LLP 19900 MacArthur Blvd., Suite 1150 3 Irvine, California 92612-2445 Telephone: (714) 634-2522 4 Facsimile: (714) 634-0686 5 Attorneys for S & L BUILDINGS, a California corporation 6 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 COUNTY OF KERN 10 11 MARTHA WOODS, Case No. BCV-23-101333 TEL (714) 634-2522 • FAX (714) 634-0686 19900 MACARTHUR BLVD., SUITE 1150 12 Plaintiff, S & L BUILDING’S ANSWER TO IRVINE, CALIFORNIA 92612-2445 CROSS-COMPLAINT OF DC Walsworth 13 v. PROPERTIES 1, LP dba HOLIDAY INN EXPRESS & SUITES 14 HOLIDAY INN EXPRESS & SUITES, DC PROPERTIES 1, LP, IHG HOTELS AND Assigned for All Purposes to: 15 RESORTS, AND DOES 1 to 25, Inclusive, Hon. Mark T. Smith Department T2 16 Defendant. Action Filed: April 28, 20223 17 Trial Date: None Set DC PROPERTIES 1, LP dba HOLIDAY INN 18 EXPRESS & SUITES, 19 Cross-Complainant, 20 v. 21 S & L BUILDING, a California corporation; PREMIER CONSTRUCTION 22 MANAGEMENT, INC., a California corporation; PMCI CORP., a business entity of 23 unknown form; BILL R. HARRISON, an individual, and ROES 1 to 25, Inclusive, 24 Cross-Defendant. 25 26 Cross-Defendant, S & L Building (“Cross-Defendant”) on behalf of itself and not jointly 27 with any other party to this action, hereby answers the Cross- Complaint filed by DC PROPERTIES 28 1, LP dba HOLIDAY INN EXPRESS & SUITES (“Cross-Complainant”) as follows: 63728985.1 S & L BUILDING’S ANSWER TO CROSS-COMPLAINT OF DC PROPERTIES 1, LP dba HOLIDAY INN 6164-3.6828 EXPRESS & SUITES 1 GENERAL DENIAL 2 Pursuant to the provisions of Code of Civil Procedure section 431.30, this answering Cross- 3 Defendant denies generally and specifically each and every allegation contained in each cause of 4 action of the Cross-Complaint and further denies that Cross-Complainant has been damaged in any 5 sum whatsoever, or at all. 6 Cross-Defendant alleges and sets forth separately and distinctly the following affirmative 7 defenses to each and every cause of action alleged in Cross-Complainant’s Cross-Complaint as 8 though pleaded separately to each and every cause of action: 9 FIRST AFFIRMATIVE DEFENSE 10 (Failure to State A Cause of Action) 11 1. The Cross-Complaint fails to state facts sufficient to constitute a cause of action upon TEL (714) 634-2522 • FAX (714) 634-0686 19900 MACARTHUR BLVD., SUITE 1150 12 which relief can be granted against Cross-Defendant. The Cross-Complaint also seeks relief against IRVINE, CALIFORNIA 92612-2445 Walsworth 13 Cross-Defendant that is not properly recoverable by Cross-Complainant, and Cross-Complainant is 14 therefore barred from any recovery against Cross-Defendant. 15 SECOND AFFIRMATIVE DEFENSE 16 (Statute of Limitation) 17 2. Cross-Complainant’s Cross-Complaint, and the allegations contained therein, are 18 barred or diminished, in whole or in part, by the applicable statutes of limitation, including but not 19 limited to, Code of Civil Procedure §§ 337, 337.1, 337.15 and 343. 20 THIRD AFFIRMATIVE DEFENSE 21 (Unclean Hands) 22 3. Cross-Complainant, through its conduct, acts, and omissions, is barred by the 23 doctrine of unclean hands from recovering any damages or other relief herein against Cross- 24 Defendant. 25 FOURTH AFFIRMATIVE DEFENSE 26 (Estoppel) 27 4. Cross-Complainant, through its conduct, acts, and omissions, is estopped from 28 asserting or recovering under any of its causes of actions alleged against Cross-Defendant in the -2- 63728985.1 S & L BUILDING’S ANSWER TO CROSS-COMPLAINT OF DC PROPERTIES 1, LP dba HOLIDAY INN 6164-3.6828 EXPRESS & SUITES 1 Cross-Complaint because of its own conduct at the subject properties at issue in this action. Cross- 2 Defendant alleges that Cross-Complainant knew or should have known of the damages claimed in 3 its Cross-Complaint, if any there are, but failed to take any corrective measures and failed to notify 4 any other party of the need for such corrective measures, thereby estopping Cross-Complainant from 5 claiming damages as a result of these purported conditions, defect, or otherwise, if any. 6 FIFTH AFFIRMATIVE DEFENSE 7 (Waiver) 8 5. Cross-Complainant, though its conduct, acts, and omissions, has waived its causes 9 of action and any recovery against Cross-Defendant alleged in its Cross-Complaint. 10 SIXTH AFFIRMATIVE DEFENSE 11 (Laches) TEL (714) 634-2522 • FAX (714) 634-0686 19900 MACARTHUR BLVD., SUITE 1150 12 6. Cross-Complainant’s claims alleged in its Cross-Complaint against Cross-Defendant IRVINE, CALIFORNIA 92612-2445 Walsworth 13 are barred or diminished by the doctrine of laches. 14 SEVENTH AFFIRMATIVE DEFENSE 15 (Failure to Mitigate) 16 7. Without peril to Cross-Defendant’s denial of the existence of each and every alleged 17 claimed damage, Cross-Defendant alleges that Cross-Complainant, while knowing of the purported 18 damages complained of, if any, failed to undertake to mitigate its damages and/or increased its 19 damages, if any. Accordingly, if Cross-Complainant suffered any damages proximately caused by 20 Cross-Defendant, which Cross-Defendant expressly denies, such damages should have been 21 mitigated by reasonable efforts on the part of Cross-Complainant. 22 EIGHTH AFFIRMATIVE DEFENSE 23 (Unjust Enrichment) 24 8. The Cross-Complaint and each cause of action contained therein are barred by the 25 doctrine of unjust enrichment. 26 NINTH AFFIRMATIVE DEFENSE 27 (Assumption of Risk) 28 9. The injuries and damages, if any, of which Cross-Complainant complains were -3- 63728985.1 S & L BUILDING’S ANSWER TO CROSS-COMPLAINT OF DC PROPERTIES 1, LP dba HOLIDAY INN 6164-3.6828 EXPRESS & SUITES 1 directly and proximately caused and contributed to by a risk(s) known to Cross-Complainant and of 2 which Cross-Complainant appreciated the danger and magnitude, but which Cross-Complainant 3 nevertheless voluntarily assumed, thus barring Cross-Complainant from recovery herein and/or 4 reducing Cross-Complainant’s recovery thereby. 5 TENTH AFFIRMATIVE DEFENSE 6 (Defective Performance) 7 10. Cross-Complainant’s failure to perform pursuant to the agreements, if any, between 8 the parties excused Cross-Defendant from performing any obligations allegedly not performed, if 9 any. 10 ELEVENTH AFFIRMATIVE DEFENSE 11 (Performance by Law) TEL (714) 634-2522 • FAX (714) 634-0686 19900 MACARTHUR BLVD., SUITE 1150 12 11. Each claimed act or failure to act alleged by Cross-Complainant was performed or IRVINE, CALIFORNIA 92612-2445 Walsworth 13 not performed under the express authority of statute or pursuant to other requirements of law, and 14 therefore, the Cross-Complaint and each cause of action asserted against Cross-Defendant are 15 barred. 16 TWELFTH AFFIRMATIVE DEFENSE 17 (Complete Performance) 18 12. Cross-Defendant has appropriately, completely, and fully performed and discharged any and 19 all obligations and legal duties arising out of the matters alleged in the Cross-Complaint. 20 THIRTEENTH AFFIRMATIVE DEFENSE 21 (Failure to Fulfil Conditions Precedent) 22 13. Any recovery on Cross-Complainant’s Cross-Complaint, or any purported cause of 23 action alleged therein, is barred on the ground that, as to each and every oral, implied, or other 24 contract alleged therein, Cross-Complainant failed to fulfill a condition or conditions precedent to 25 the enforcement of said contract. 26 FOURTEENTH AFFIRMATIVE DEFENSE 27 (Compliance with Applicable Codes and Industry Standards) 28 14. The work and services provided by this answering Cross-Defendant conformed to all -4- 63728985.1 S & L BUILDING’S ANSWER TO CROSS-COMPLAINT OF DC PROPERTIES 1, LP dba HOLIDAY INN 6164-3.6828 EXPRESS & SUITES 1 applicable codes and generally accepted industry standards and the practices and products utilize 2 were and are safe for their intended uses. At all relevant times, the work and services provided on 3 the subject project by this answering Cross-Defendant conformed to the “state of the art” in its 4 industry, and Cross-Defendant should not be held liable for any unknown and undiscoverable 5 damages allegedly associated with the subject project, if any. 6 FIFTEENTH AFFIRMATIVE DEFENSE 7 (No Liability for Non-Economic Damages) 8 15. In the event a judgment is rendered against Cross-Defendant and in favor of Cross- 9 Complainant, Cross-Defendant can only be held responsible, if at all, for that portion of the “non- 10 economic” damages for which it is found liable by jury or judicial determination in direct proportion 11 to Cross-Defendant’s percentage of fault, pursuant to Civil Code § 1431.2, as the rule of joint and TEL (714) 634-2522 • FAX (714) 634-0686 19900 MACARTHUR BLVD., SUITE 1150 12 several liability does not apply under such circumstances. IRVINE, CALIFORNIA 92612-2445 Walsworth 13 SIXTEENTH AFFIRMATIVE DEFENSE 14 (Satisfaction of Obligations) 15 16. The obligations and conditions of Cross-Defendant to any agreements between the 16 parties have been satisfied. 17 SEVENTEENTH AFFIRMATIVE DEFENSE 18 (No Indemnity) 19 17. To the extent there is any enforceable indemnity agreement as to Cross-Defendant, 20 the existence of which Cross-Defendant denies in total, Cross-Complainant was obligated to 21 perform certain conditions in order to enforce any rights thereunder. Cross-Complainant failed to 22 perform the conditions as required, thereby discharging Cross-Defendant from any obligations 23 thereunder, if any. 24 EIGHTEENTH AFFIRMATIVE DEFENSE 25 (Indemnification) 26 18. Cross-Defendant is entitled to the right of indemnification by apportionment against 27 all other parties and persons whose negligence contributed proximately to the happening of the 28 claimed accident or alleged injuries. -5- 63728985.1 S & L BUILDING’S ANSWER TO CROSS-COMPLAINT OF DC PROPERTIES 1, LP dba HOLIDAY INN 6164-3.6828 EXPRESS & SUITES 1 NINETEENTH AFFIRMATIVE DEFENSE 2 (Statute of Frauds) 3 19. To the extent that Cross-Complainant request relief based upon an oral contract or 4 agreement, Cross-Complainant’s claims are barred by the applicable statute of frauds. 5 TWENTIETH AFFIRMATIVE DEFENSE 6 (Negligence of Others) 7 20. Damages and claims for which Cross-Complainant seeks indemnity, apportionment, 8 and declaratory relief in its Cross-Complaint, if any, were caused by the acts, errors, or omissions 9 of Cross-Complainant and/or third parties and/or contributed to and/or caused by the acts, errors, 10 omissions, or negligence of Cross-Complainant and/or third parties, for whose conduct Cross- 11 Defendant is not responsible. TEL (714) 634-2522 • FAX (714) 634-0686 19900 MACARTHUR BLVD., SUITE 1150 12 TWENTY-FIRST AFFIRMATIVE DEFENSE IRVINE, CALIFORNIA 92612-2445 Walsworth 13 (Comparative Negligence of Cross-Complainant) 14 21. Cross-Complainant failed to exercise ordinary care on its own behalf, which 15 negligence and carelessness was a proximate cause of some portion, up to and including the whole 16 thereof, of the injuries and damages complained of in this action. Cross-Complainant’s recovery, 17 therefore, against Cross-Defendant should be barred or reduced according to principles of 18 comparative negligence. 19 TWENTY-SECOND AFFIRMATIVE DEFENSE 20 (Superseding Cause) 21 22. If Cross-Complainant suffered any damage, which is denied, then any such damage 22 was proximately caused by the intervening and superseding actions of others, which bar Cross- 23 Complainant’s recovery, if any, against Cross-Defendant. 24 TWENTY-THIRD AFFIRMATIVE DEFENSE 25 (Independent Causes) 26 23. The alleged injuries, damages, or loss, if any, for which Cross-Complainant seeks 27 recovery were the result of causes independent of any purported acts or omissions on the part of 28 Cross-Defendant or any of its agents, representatives, or employees, thereby eliminating or -6- 63728985.1 S & L BUILDING’S ANSWER TO CROSS-COMPLAINT OF DC PROPERTIES 1, LP dba HOLIDAY INN 6164-3.6828 EXPRESS & SUITES 1 reducing the alleged liability of Cross-Defendant. 2 TWENTY-FOURTH AFFIRMATIVE DEFENSE 3 (No Proximate Cause) 4 24. The acts and/or omissions, if any, of Cross-Defendant were not the proximate cause 5 of the losses, damage, or injuries alleged in the Cross-Complaint. 6 TWENTY-FIFTH AFFIRMATIVE DEFENSE 7 (Act of God) 8 25. The damages and defects of which Cross-Complainant complains, if any, were 9 caused by acts of God for which Cross-Defendant has no responsibility. 10 TWENTY-SIXTH AFFIRMATIVE DEFENSE 11 (Unavoidable Conditions) TEL (714) 634-2522 • FAX (714) 634-0686 19900 MACARTHUR BLVD., SUITE 1150 12 26. The alleged injuries, damages, or loss, if any, for which Cross-Complainant seeks IRVINE, CALIFORNIA 92612-2445 Walsworth 13 recovery were the direct and proximate result of unavoidable conditions without fault or liability on 14 the part of Cross-Defendant. 15 TWENTY-SEVENTH AFFIRMATIVE DEFENSE 16 (Passive Acts) 17 27. If Cross-Defendant is found to have been negligent or liable in any manner, such 18 negligence or liability was passive and secondary while the negligence or liability of Cross- 19 Complainant and/or others was active and primary, and such active and primary negligence and 20 liability bars, in whole or in part, the recovery requested, or any recovery, against Cross-Defendant. 21 TWENTY-EIGHTH AFFIRMATIVE DEFENSE 22 (Intentional Conduct) 23 28. The Cross-Complaint and each cause of action alleged therein are barred by Cross- 24 Complainant’s intentional conduct. 25 TWENTY-NINTH AFFIRMATIVE DEFENSE 26 (Justified Conduct) 27 29. The conduct of Cross-Defendant with respect to the matters alleged in the Cross- 28 Complaint was justified, and by reason of the foregoing, Cross-Complainant is barred from any -7- 63728985.1 S & L BUILDING’S ANSWER TO CROSS-COMPLAINT OF DC PROPERTIES 1, LP dba HOLIDAY INN 6164-3.6828 EXPRESS & SUITES 1 recovery against Cross-Defendant. 2 THIRTIETH AFFIRMATIVE DEFENSE 3 (Acquiescence) 4 30. Cross-Complainant acquiesced to any conduct engaged in by Cross-Defendant. 5 THIRTY-FIRST AFFIRMATIVE DEFENSE 6 (Ratification) 7 31. Cross-Complainant expressly ordered, approved, authorized, participated in, and 8 ratified the actions and transactions complained of and the actions upon which recovery is allegedly 9 sought, and Cross-Complainant is accordingly precluded from recovery. 10 THIRTY-SECOND AFFIRMATIVE DEFENSE 11 (Consent) TEL (714) 634-2522 • FAX (714) 634-0686 19900 MACARTHUR BLVD., SUITE 1150 12 32. Cross-Complainant expressly and/or impliedly consented to the actions alleged to IRVINE, CALIFORNIA 92612-2445 Walsworth 13 have caused it damages. 14 THIRTY-THIRD AFFIRMATIVE DEFENSE 15 (Lack of Notice and Failure to Timely Notify) 16 33. The Cross-Complaint and each cause of action alleged therein are barred by Cross- 17 Complainant’s failure to timely notify Cross-Defendant of t