Preview
1 John Van De Poel (SBN 112151)
VAN DE POEL, LEVY, THOMAS LLP
2 1600 South Main Plaza, Suite 325
Walnut Creek, California 94596
3 Telephone: (925) 934-6102
Facsimile: (925) 934-6060
4 Email: jay@vanlevylaw.com
5 Attorney for Cross-Defendant,
BERGER CONCRETE, INC.
6
7
8 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 IN AND FOR THE COUNTY OF SONOMA
10
11 HOLLY CONSTRUCTION, INC. fka CASE NO.: SCV-271287
HOLLY & ASSOCIATES, INC., a
12 California corporation; JANVER C.
HOLLY, an individual; RICHARD BERGER CONCRETE INC.’S
13 HOLLY, an individual; JUSTIN HUNTER, ANSWER TO HOLLY
an individual, CONSTRUCTION, INC. fka HOLLY &
14 ASSOCIATES JANVER C. HOLLY,
Plaintiffs, RICHARD HOLLY, JUSTIN
15 HUNTER’S CROSS-COMPLAINT
vs.
16
LEE NOVICH, RENEE NOVICH, et al. Complaint Filed: July 29, 2022
17 Cross-Comp. Filed: November 17, 2023
Defendants.
18
19 ALL RELATED ACTIONS.
20
21 Cross-Defendant BERGER CONCRETE, INC. (hereinafter referred to as “this answering
22 Cross-Defendant”), answering for itself alone, hereby answers the Cross-Complaint of Cross-
23 Complainants HOLLY CONSTRUCTION, INC. fka HOLLY & ASSOCIATES JANVER C.
24 HOLLY, RICHARD HOLLY, JUSTIN HUNTER (hereinafter, “Cross-Complainants”), as follows:
25 GENERAL DENIAL
26 Pursuant to the provisions of Code of Civil Procedure section 431.30, this answering Cross-
27 Defendant denies generally and specifically each and every allegation contained in each cause of
28 action of the Cross-Complaint and further denies that Cross-Complainants have been damaged in any
VAN DE POEL, LEVY,
THOMAS LLP
1
ATTORNEYS AT LAW
1600 South Main Plaza
Suite 325 BERGER CONCRETE INC.’S ANSWER TO HOLLY CONSTRUCTION, INC. fka HOLLY & ASSOCIATES
Walnut Creek, CA 94596
Telephone: (925) 934-6102 JANVER C. HOLLY, RICHARD HOLLY, JUSTIN HUNTER’S CROSS-COMPLAINT
Facsimile: (925) 934-6060
4867-9842-2951, v. 2
1 sums whatsoever, or at all.
2 FIRST AFFIRMATIVE DEFENSE
3 1. The Cross-Complaint in its entirety and each and every cause of action therein, fails to
4 state facts sufficient to constitute a cause of action against this answering Cross-Defendant.
5 SECOND AFFIRMATIVE DEFENSE
6 2. As a further and separate affirmative defense to the Cross-Complaint, this answering
7 Cross-Defendant alleges that any damage or injury allegedly suffered by Cross-Complainants were
8 proximately caused or contributed to by the negligence or fault of Cross-Complainants’ agents,
9 representatives and/or employees; and this answering Cross-Defendant is informed and believes and
10 thereon alleges that said party was careless and negligent. Thus, if Cross-Complainants are entitled
11 to recover at all for any damages alleged, such recovery must be diminished to the extent that said
12 damages are attributable to the negligence of Cross-Complainants’ agents, representatives and/or
13 employees.
14 THIRD AFFIRMATIVE DEFENSE
15 3. As a further and separate affirmative defense to the Cross-Complaint, this answering
16 Cross-Defendant alleges that any injury or damage suffered by Cross-Complainants, other parties, or
17 any of them, was caused or contributed to by the negligence or fault of persons or entities other than
18 this answering Cross-Defendant, thereby entitling this answering Cross-Defendant to an appropriate
19 proration of damages in accordance with the provisions of California law.
20 FOURTH AFFIRMATIVE DEFENSE
21 4. As a further and separate affirmative defense to the Cross-Complaint, this answering
22 Cross-Defendant alleges that the alleged injuries and damages for which Cross-Complainants seek
23 recovery were the result of causes independent of any acts or omissions by of this answering Cross-
24 Defendant, thereby eliminating or reducing the liability of this answering Cross-Defendant.
25 FIFTH AFFIRMATIVE DEFENSE
26 5. As a further and separate affirmative defense to the Cross-Complaint, this answering
27 Cross-Defendant alleges that the injuries and damages asserted by Cross-Complainants were caused
28 or contributed to, in whole or in part, by the negligence or fault of Cross-Complainants or others,
VAN DE POEL, LEVY,
THOMAS LLP
2
ATTORNEYS AT LAW
1600 South Main Plaza
Suite 325 BERGER CONCRETE INC.’S ANSWER TO HOLLY CONSTRUCTION, INC. fka HOLLY & ASSOCIATES
Walnut Creek, CA 94596
Telephone: (925) 934-6102 JANVER C. HOLLY, RICHARD HOLLY, JUSTIN HUNTER’S CROSS-COMPLAINT
Facsimile: (925) 934-6060
4867-9842-2951, v. 2
1 which entitles this answering Cross-Defendant to contribution from said individuals and entities, and
2 each of them.
3 SIXTH AFFIRMATIVE DEFENSE
4 6. As a further and separate affirmative defense to the Cross-Complaint, this answering
5 Cross-Defendant alleges that if it is found to have been negligent or liable in any manner, such
6 conduct was passive and secondary, while the negligence of Cross-Complainants or others was active
7 and primary, which bars, in whole or in part, the recovery requested or any recovery at all, against
8 this answering Cross-Defendant.
9 SEVENTH AFFIRMATIVE DEFENSE
10 7. As a further and separate affirmative defense to the Cross-Complaint, this answering
11 Cross-Defendant alleges that the negligence of Cross-Complainants or other parties or entities
12 constitutes an intervening and superseding cause of the injuries and damages, if any, thereby barring
13 or reducing Cross-Complainants’ recovery herein.
14 EIGHTH AFFIRMATIVE DEFENSE
15 8. As a further and separate affirmative defense to the Cross-Complaint, this answering
16 Cross-Defendant alleges that the Cross-Complaint is barred in whole or in part by reason of Cross-
17 Complainants’ inequitable conduct and/or unclean hands, and the court should not give Cross-
18 Complainants relief based upon the facts alleged.
19 NINTH AFFIRMATIVE DEFENSE
20 9. As a further and separate affirmative defense to the Cross-Complaint, this answering
21 Cross-Defendant alleges that the Cross-Complaint and each purported cause of action stated therein
22 are barred under the doctrine of waiver.
23 TENTH AFFIRMATIVE DEFENSE
24 10. As a further and separate affirmative defense to the Cross-Complaint, this answering
25 Cross-Defendant alleges that the Cross-Complaint and each purported cause of action stated therein is
26 barred by the doctrine of laches.
27 ELEVENTH AFFIRMATIVE DEFENSE
28 11. As a further and separate affirmative defense to the Cross-Complaint, this answering
VAN DE POEL, LEVY,
THOMAS LLP
3
ATTORNEYS AT LAW
1600 South Main Plaza
Suite 325 BERGER CONCRETE INC.’S ANSWER TO HOLLY CONSTRUCTION, INC. fka HOLLY & ASSOCIATES
Walnut Creek, CA 94596
Telephone: (925) 934-6102 JANVER C. HOLLY, RICHARD HOLLY, JUSTIN HUNTER’S CROSS-COMPLAINT
Facsimile: (925) 934-6060
4867-9842-2951, v. 2
1 Cross-Defendant alleges that the Cross-Complaint and each purported cause of action stated therein is
2 barred under the doctrine of res judicata.
3 TWELFTH AFFIRMATIVE DEFENSE
4 12. As a further and separate affirmative defense to the Cross-Complaint, this answering
5 Cross-Defendant alleges that the Cross-Complaint and each purported cause of action stated therein is
6 barred under the doctrine of estoppel.
7 THIRTEENTH AFFIRMATIVE DEFENSE
8 13. As a further and separate affirmative defense to the Cross-Complaint, this answering
9 Cross-Defendant alleges that the Cross-Complaint and each purported cause of action stated therein is
10 barred as a result of the Plaintiff’s and Cross-Complainants’ failure to mitigate their damages, if any
11 were suffered, and by their gratuitously incurring expenses that were not justified.
12 FOURTEENTH AFFIRMATIVE DEFENSE
13 14. As a further and separate affirmative defense to said Cross-Complaint, this answering
14 Cross-Defendant alleges by way of a plea of comparative negligence that the Cross-Complainants
15 were negligent in and about the matters and activities alleged in the Cross-Complaint, that its
16 negligence contributed to and was a proximate cause of its alleged injuries and damages, if any, and
17 that any recovery by Cross-Complainants against this answering Cross-Defendant be diminished in
18 proportion to the fault attributable to Cross-Complainants.
19 FIFTEENTH AFFIRMATIVE DEFENSE
20 15. As a further and separate affirmative defense to said Cross-Complaint, this answering
21 Cross-Defendant is informed and believes, and therefore alleges, that it is entitled to indemnification
22 by apportionment against all other parties and persons whose negligence contributed to the alleged
23 damages.
24 SIXTEENTH AFFIRMATIVE DEFENSE
25 16. As a further and separate affirmative defense to said Cross-Complaint, this answering
26 Cross-Defendant is informed and believes, and therefore alleges, that the duties imposed it and/or its
27 agents or employees allegedly breached were actually executed with reasonable diligence.
28 ///
VAN DE POEL, LEVY,
THOMAS LLP
4
ATTORNEYS AT LAW
1600 South Main Plaza
Suite 325 BERGER CONCRETE INC.’S ANSWER TO HOLLY CONSTRUCTION, INC. fka HOLLY & ASSOCIATES
Walnut Creek, CA 94596
Telephone: (925) 934-6102 JANVER C. HOLLY, RICHARD HOLLY, JUSTIN HUNTER’S CROSS-COMPLAINT
Facsimile: (925) 934-6060
4867-9842-2951, v. 2
1 SEVENTEENTH AFFIRMATIVE DEFENSE
2 17. As a further and separate affirmative defense to said Cross-Complaint, this answering
3 Cross-Defendant is informed and believes, and therefore alleges, that it is not vicariously liable for
4 any damages caused by the acts or omissions of other cross-defendants.
5 EIGHTEENTH AFFIRMATIVE DEFENSE
6 18. As a further and separate affirmative defense to said Cross-Complaint, this answering
7 Cross-Defendant is informed and believes, and therefore alleges, that the injuries and damages
8 complained of by the Cross-Complainants, if there were any, are properly attributable to a
9 modification, alteration or other change in some manner to the work for which this answering Cross-
10 Defendant is legally responsible, which modification, alteration or change was not performed by or
11 participated in or consented to or approved by this answering Cross-Defendant, or any of its agents,
12 servants or employees. Accordingly, any recovery against this answering Cross-Defendant should be
13 barred or otherwise diminished.
14 NINETEENTH AFFIRMATIVE DEFENSE
15 19. As a further and separate affirmative defense to said Cross-Complaint, this answering
16 Cross-Defendant is informed and believes, and therefore alleges, that the Cross-Complaint is barred
17 by the applicable statute of limitations contained in Code of Civil Procedures sections 337, 337.1,
18 337.15, 338, 340.8, and 343 among others.
19 TWENTIETH AFFIRMATIVE DEFENSE
20 20. As a further and separate affirmative defense to said Cross-Complaint, this answering
21 Cross-Defendant is informed and believes, and therefore alleges, that Cross-Complainants or others
22 failed to perform the degree and type of maintenance necessary to protect the property at issue from
23 deterioration. Such failure to maintain the property bars or otherwise diminishes the claim or
24 recovery of Cross-Complainants.
25 TWENTY-FIRST AFFIRMATIVE DEFENSE
26 21. As a further and separate affirmative defense to said Cross-Complaint, this answering
27 Cross-Defendant is informed and believes, and therefore alleges, that it has appropriately, completely
28 and fully performed and discharged any and all obligations and legal duties arising out of the matters
VAN DE POEL, LEVY,
THOMAS LLP
5
ATTORNEYS AT LAW
1600 South Main Plaza
Suite 325 BERGER CONCRETE INC.’S ANSWER TO HOLLY CONSTRUCTION, INC. fka HOLLY & ASSOCIATES
Walnut Creek, CA 94596
Telephone: (925) 934-6102 JANVER C. HOLLY, RICHARD HOLLY, JUSTIN HUNTER’S CROSS-COMPLAINT
Facsimile: (925) 934-6060
4867-9842-2951, v. 2
1 alleged in the Cross-Complaint.
2 TWENTY-SECOND AFFIRMATIVE DEFENSE
3 22. As a further and separate affirmative defense to said Cross-Complaint, this answering
4 Cross-Defendant is informed and believes, and therefore alleges, that at the times and places
5 mentioned in the Cross-Complaint, the Cross-Complainants or others failed to exercise the quality
6 and quantity of care and caution which a reasonable person in the same or similar circumstances
7 would have exercised for the protection of themselves and their property, and that its failure and
8 negligence proximately caused and contributed to the damages, if any, sustained by the Cross-
9 Complainants. Cross-Complainants’ recovery, if any, should therefore be reduced by an amount
10 proportionate to the amount by which Cross-Complainants’ or others’ negligence contributed to the
11 happening of the alleged accident, injury, damage and/or loss.
12 TWENTY-THIRD AFFIRMATIVE DEFENSE
13 23. As a further and separate affirmative defense to said Cross-Complaint, this answering
14 Cross-Defendant is informed and believes, and therefore alleges, that the Cross-Complainants were
15 already in breach of the contract at issue, if any, at or before the time of alleged breaches by this
16 answering Cross-Defendant and, therefore, no act or omission of this answering Cross-Defendant was
17 a direct or proximate cause of any damage to the Cross-Complainants.
18 TWENTY-FOURTH AFFIRMATIVE DEFENSE
19 24. As a further and separate affirmative defense to said Cross-Complaint, this answering
20 Cross-Defendant is informed and believes, and therefore alleges, that it performed each of its
21 obligations pursuant to any and all contracts and agreements described in the Cross-Complaint, if any
22 there were, except those obligations it was prevented and/or excused from performing by the acts
23 and/or omissions of Cross-Complainants and/or other individuals or entities.
24 TWENTY-FIFTH AFFIRMATIVE DEFENSE
25 25. As a further and separate affirmative defense to the Cross-Complaint, this answering
26 Cross-Defendant alleges that if it did not perform one or more obligations under any contract or
27 agreement, it is because Cross-Complainants did not perform obligations under the contract that were
28 a condition precedent to performance by this answering Cross-Defendant in each instance.
VAN DE POEL, LEVY,
THOMAS LLP
6
ATTORNEYS AT LAW
1600 South Main Plaza
Suite 325 BERGER CONCRETE INC.’S ANSWER TO HOLLY CONSTRUCTION, INC. fka HOLLY & ASSOCIATES
Walnut Creek, CA 94596
Telephone: (925) 934-6102 JANVER C. HOLLY, RICHARD HOLLY, JUSTIN HUNTER’S CROSS-COMPLAINT
Facsimile: (925) 934-6060
4867-9842-2951, v. 2
1 ///
2 TWENTY-SIXTH AFFIRMATIVE DEFENSE
3 26. As a further and separate affirmative defense to the Cross-Complaint, this answering
4 Cross-Defendant alleges that its acts or omissions which are set out in the Cross-Complaints were
5 justified as part of its regular course of business and the fulfillment of its contractual obligations.
6 TWENTY-SEVENTH AFFIRMATIVE DEFENSE
7 27. As a further and separate affirmative defense to the Cross-Complaint, this answering
8 Cross-Defendant alleges that the contractual relationship between this answering Cross-Defendant
9 and the Cross-Complainants alleged in the Cross-Complaint did not exist and that the absence of such
10 a contractual relationship acts to bar any recovery by the Cross-Complainants against this answering
11 Cross-Defendant for breach of contract.
12 TWENTY-EIGHTH AFFIRMATIVE DEFENSE
13 28. As a further and separate affirmative defense to the Cross-Complaint, this answering
14 Cross-Defendant alleges that the Cross-Complaint and each purported cause of action stated therein is
15 barred because Cross-Complainants failed to give this answering Cross-Defendant notice of the
16 alleged breaches of duty and/or an opportunity to fulfill its obligations.
17 TWENTY-NINTH AFFIRMATIVE DEFENSE
18 29. As a further and separate affirmative defense to the Cross-Complaint, this answering
19 Cross-Defendant alleges that any damages or injuries sustained by the Cross-Complainants were a
20 part of the business risk assumed by the Cross-Complainants upon entering into the alleged
21 contractual relationships.
22 THIRTIETH AFFIRMATIVE DEFENSE
23 30. As a further and separate affirmative defense to the Cross-Complaint, this answering
24 Cross-Defendant alleges that, at all material times, the Cross-Complainants knew the hazards
25 involved in the relationships and dealings set out in the Cross-Complaint, had full knowledge of the
26 conditions existing, appreciated the risks inherent therein, and voluntarily, knowingly, and
27 intelligently assumed said risks, and that the Cross-Complainants’ assumption of said risks was the
28 sole or partial proximate cause of the happenings which resulted in Cross-Complainants’ alleged
VAN DE POEL, LEVY,
THOMAS LLP
7
ATTORNEYS AT LAW
1600 South Main Plaza
Suite 325 BERGER CONCRETE INC.’S ANSWER TO HOLLY CONSTRUCTION, INC. fka HOLLY & ASSOCIATES
Walnut Creek, CA 94596
Telephone: (925) 934-6102 JANVER C. HOLLY, RICHARD HOLLY, JUSTIN HUNTER’S CROSS-COMPLAINT
Facsimile: (925) 934-6060
4867-9842-2951, v. 2
1 damages. Each risk encountered by the Cross-Complainants were a risk inherent in the activity in
2 question and were, therefore, a reasonable risk. The Cross-Complainants’ assumption of the risk
3 therefore acts as a complete bar to their recovery.
4 THIRTY-FIRST AFFIRMATIVE DEFENSE
5 31. As a further and separate affirmative defense to the Cross-Complaint, this answering
6 Cross-Defendant reserves the right to enforce all applicable statutory and/or contractual non-
7 adversarial procedures related to the claims raised by some or all of the plaintiffs, to the extent that
8 the provisions of Civil Code Section 895, et seq. (SB 800) apply.
9 WHEREFORE, this answering Cross-Defendant prays as follows:
10 1. That Cross-Complainants take nothing by reason of its Cross-Complaint;
11 2. For costs of suit incurred herein; and
12 3. For such other and further relief as the Court may deem just and proper.
13
14 DATED: March 21, 2024 VAN DE POEL, LEVY, THOMAS LLP
15
16 By:
JOHN VAN DE POEL
17 Attorney for Cross-Defendant,
BERGER CONCRETE, INC.
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VAN DE POEL, LEVY,
THOMAS LLP
8
ATTORNEYS AT LAW
1600 South Main Plaza
Suite 325 BERGER CONCRETE INC.’S ANSWER TO HOLLY CONSTRUCTION, INC. fka HOLLY & ASSOCIATES
Walnut Creek, CA 94596
Telephone: (925) 934-6102 JANVER C. HOLLY, RICHARD HOLLY, JUSTIN HUNTER’S CROSS-COMPLAINT
Facsimile: (925) 934-6060
4867-9842-2951, v. 2
1 PROOF OF SERVICE
2 I am employed in the County of Contra Costa, State of California. I am over the age of 18
and am not a party to the within action. My business address is at Van De Poel, Levy, Thomas
3 LLP, 1600 South Main Plaza, Suite 325, Walnut Creek, CA 94596.
4 On March 21, 2024, I served the foregoing document(s) described as:
5 BERGER CONCRETE INC.’S ANSWER TO HOLLY CONSTRUCTION, INC. fka
HOLLY & ASSOCIATES JANVER C. HOLLY, RICHARD HOLLY, JUSTIN HUNTER’S
6 CROSS-COMPLAINT
7 on all other parties and/or their attorney(s) of record to this action as follows:
8 *** SEE ATTACHED SERVICE LIST ***
9
[] By United States Postal Service: I am a resident of, or employed in, the county where
10 the mailing occurs; I am over the age of 18 years and am not a party to the cause. I am
readily familiar with the business' practice for collection and processing of
11 correspondence for mailing with the United States Postal Service. The envelope was
placed for deposit in the United States Postal Service at Van De Poel, Levy, Thomas
12 LLP, in Walnut Creek, California on March 21, 2024. The envelope was sealed and
placed for collection and mailing with first-class prepaid postage on that date following
13 ordinary business practices. Service made pursuant to CCP § 1013a(3), upon motion of a
party served, shall be presumed invalid if the postal cancellation date or postage meter
14 date on the envelope is more than one day after the date of deposit for mailing contained
in the affidavit.
15
[X] By Electronic Service: My electronic business address is kriordan@vanlevylaw.com
16 and I caused such documents (s) to be electronically served by e-mailing the attached
document(s) to the person(s) at the e-mail address(es) listed below on March 21, 2024,
17 pursuant to Code of Civil Procedure § 1010.6 (e). No electronic message or other
indication that the transmission was unsuccessful was received within a reasonable
18 time.
19 [ ] By Facsimile: By faxing a copy of the above-referenced document(s) to the addressee
at the number set forth beneath their above-listed address. At the completion of the
20 transmission, a Transmission Report was generated, confirming transmission and
receipt by the address(es).
21
22 I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct to the best of my knowledge.
23
Executed on March 21, 2024, at Walnut Creek, Contra Costa County, California.
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Katey Riordan
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VAN DE POEL, LEVY,
THOMAS LLP
ATTORNEYS AT LAW
1600 South Main Plaza
1
Suite 325
Walnut Creek, CA 94596
Telephone: (925) 934-6102 Proof of Service
Facsimile: (925) 934-6060
4891-6112-6823, v. 1
1 SERVICE LIST
2 Case: Holly & Associates, Inc. v. Lee Novich, et al.
Court: Sonoma County Superior Court Case Number: SCV-271287
3 Represent: Cross-Defendant, Berger Concrete, Inc.
4 A. Robert Rosin, Esq. Lee J. Novich, Esq.
Michael M. Lum, Esq. THE CONSTRUCTION LAW GROUP
5 Tony Stavjanik, Esq. 587 Cavedale Road
LEONIDOU & ROSIN Sonoma, CA 95476-3038
6 PROFESSIONAL CORP. Telephone: (415) 793-4000
777 Cuesta Dr Ste 200 Email: lnovich@constructionlg.com
7 Mountain View, CA 94040-3765 lnovich@pacbell.net
Telephone: (650) 691-2888
8 Facsimile: (650) 691-2889
Email: arrosin@alr-law.com; Attorneys for Defendants/Cross-
9 mlum@alr-law.com Complainants LEE NOVICH AND
tstavjanik@alr-law.com RENEE NOVICE, TRUSTEES OF THE
10 mleon@alr-law.com NOVICH FAMILY TRUST
11 Attorneys for Plaintiff
HOLLY & ASSOCIATES, INC.
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David Davidson, Esq. Lawrence S. Zucker II, Esq.
13 O'HAGAN MEYER LLP M. Jason Aniel, Esq.
32000 Park Center Drive, Suite 700 HAIGHT BROWN & BONESTEEL LLP,
14 Costa Mesa, CA 92626 402 W Broadway Ste 1850
Telephone: (949) 942-8500 San Diego, CA 92101-3576
15 Facsimile: (949) 942-8510 Telephone: (619) 961-4805
Email ddavidson@ohaganmeyer.com Facsimile: (619) 595-7873
16 agurzenski@ohaganmeyer.com Email: lzucker@hbblaw.com
mjaniel@hbblaw.com
17 Attorney for Cross-Defendants/Cross-
Complainants Attorney for Cross-Defendant,
18 HOLLY CONSTRUCTION, INC. fka HOLLEY TRI-COUNTY GARAGE DOOR INC.
& ASSOCIATES, INC.; JANVER C. HOLLY;
19 RICHARD HOLLY; JUSTIN HUNTER
20 James L. McCormick, Esq. Ian R. Feldman, Esq.
GOODMAN NEUMAN HAMILTON LLP Tyler M. Costanzo, Esq.
21 100 Bush St, Ste 1800 CLAUSEN MILLER P.C.
San Francisco, CA 94104-3920 27285 Las Ramblas Ste 200
22 Telephone: (415)705-0418 Mission Viejo, CA 92691-6325
Email: jmccormick@gnhllp.com Telephone: (949) 260-3100
23 Facsimile: (949)260-3190
Attorney for Cross-Defendants, Email: ifeldman@clausen.com
24 STEWART BUILDERS, INC. dba STEWART tcostanzo@clausen.com
CONSTRUCTION SERVICES and VERDIN bdorsey@clausen.com
25 INSULATION
Attorney for Cross-Defendant,
26 PACIFIC SCREEN& SHADE, INC. dba
BURRIS WINDOW SHADES
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VAN DE POEL, LEVY,
THOMAS LLP
ATTORNEYS AT LAW
1600 South Main Plaza
2
Suite 325
Walnut Creek, CA 94596
Telephone: (925) 934-6102 Proof of Service
Facsimile: (925) 934-6060
4891-6112-6823, v. 1
1
Amber N. Kim, Esq. Clark H. Cameron, Esq.
2 LANAK & HANNA PC. HUMPHREY BERGER &
1851 E 1st St, Ste 700 ASSOCIATES LLP
3 Santa Ana, CA 92705-4064 23901 Calabasas Rd Ste 1069
Telephone: (714) 620-2350 Calabasas, CA 91302-1583
4 Facsimile: (714) 703-1610 Telephone: (818) 871-0111
Email: ankim@lanak-hanna.com Facsimile: (818) 871-0765
5 Email: clark@hbalaw.com
Attorney for Cross-Defendant,
6 AMERICAN CONTRACTOR’S INDEMNITY Attorney for Cross-Defendant,
COMPANY HUDSON INSURANCE COMPANY
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David A. Harris, Esq. Paul B. Walsh, Esq.
8 SANTANA, VIERRA, STEVENSON,, & HARRIS Stephen D. Bays, Esq.
PO Box 7218 PAUL WALSH LAW, APC.
9 London, KY 40742-7218 2397 Shattuck Avenue, Suite 212
Telephone: (415) 777-1308 Berkeley, CA 94704-1567
10 Facsimile: (415) 896-6063 Telephone: (925) 391-9414
Email: David.harris01@libertymutual.com Facsimile: (925) 309-3041
11 sfmail@libertymutual.com Email: paul@paulwalshlaw.com
palmira.aguilar@libertymutual.com stephen@paulwalshlaw.com
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Attorney for Cross-Defendant, Attorney for Cross Defendants
13 CALIFORNIA SHOWER DOOR VALLEY COMFORT HEATING AND
CORPORATION dba CALIFORNIA AIR, INC. and STEVEN RENE ROGERS
14 SHOWER DOOR dba ROGERS RADIANT HEATING &
PLUMBING
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Glenn M. Smith, Esq. Jacqueline F. Stein, Esq.
16 David J. Leonard, Esq. Brandy P. Tyler, Esq.
SMITH DOLLAR PC SKANE MILLS LLP
17 418 B Street, Fourth Floor 501 W. Broadway, Suite 1470
Santa Rosa, CA 95401 San Diego, CA 92101
18 Telephone: (707) 522-1100 Telephone: (619) 702-1635
Facsimile: (707) 522-1101 Facsimile: (619) 702-1645
19 Email: gsmith@smithdollar.com Email: jstein@skanemills.com
dleonard@smithdollar.com btyler@skanemills.com
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Attorneys for Cross-Defendant Attorneys for Cross-Defendant
21 RCX, INC., a California corporation ALPHA FIRE SUPPRESSIONS
SYSTEMS, INC.
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Cynthia Shambaugh, Esq. David B. Madariaga, Esq.
23 RODMAN & ASSOCIATES PC FOWLER LAW GROUP
3562 Round Barn Circle, Suite 216 11845 West Olympic Blvd., Suite 710
24 Santa Rosa, CA 95403 Los Angeles, CA 90064
Telephone: (707) 278-9878 Telephone: (310) 446-3900
25 Facsimile: (707) 278-9880 Facsimile: (310) 446-0030
Email: cshambaugh@rodman-law.com Email:
26 sbuckner@rodman-law.com dmadariaga@fowlerlawgroup.com
mmcmanus@rodman-law.com
27 Attorneys for Cross-Defendant
Attorneys for Cross-Defendant KRIST ELECTRIC, INC.
28 IRON DOG FABRICATION, INC.
VAN DE POEL, LEVY,
THOMAS LLP
ATTORNEYS AT LAW
1600 South Main Plaza
3
Suite 325
Walnut Creek, CA 94596
Telephone: (925) 934-6102 Proof of Service
Facsimile: (925) 934-6060
4891-6112-6823, v. 1
1
Elmira R. Howard, Esq.
2 ANDERSON, McPHARLIN & CONNERS LLP
707 Wilshire Blvd., Suite 4000
3 Los Angeles, CA 90017
Telephone: (213) 688-0080
4 Facsimile: (213) 622-7594
Email: erh@amclaw.com
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Attorneys for Cross-Defendant/Cross-
6 Complainant
SURETEC INSURANCE COMPANY
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VAN DE POEL, LEVY,
THOMAS LLP
ATTORNEYS AT LAW
1600 South Main Plaza
4
Suite 325
Walnut Creek, CA 94596
Telephone: (925) 934-6102 Proof of Service
Facsimile: (925) 934-6060
4891-6112-6823, v. 1
Preview
1 John Van De Poel (SBN 112151) VAN DE POEL, LEVY, THOMAS LLP 2 1600 South Main Plaza, Suite 325 Walnut Creek, California 94596 3 Telephone: (925) 934-6102 Facsimile: (925) 934-6060 4 Email: jay@vanlevylaw.com 5 Attorney for Cross-Defendant, BERGER CONCRETE, INC. 6 7 8 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 IN AND FOR THE COUNTY OF SONOMA 10 11 HOLLY CONSTRUCTION, INC. fka CASE NO.: SCV-271287 HOLLY & ASSOCIATES, INC., a 12 California corporation; JANVER C. HOLLY, an individual; RICHARD BERGER CONCRETE INC.’S 13 HOLLY, an individual; JUSTIN HUNTER, ANSWER TO HOLLY an individual, CONSTRUCTION, INC. fka HOLLY & 14 ASSOCIATES JANVER C. HOLLY, Plaintiffs, RICHARD HOLLY, JUSTIN 15 HUNTER’S CROSS-COMPLAINT vs. 16 LEE NOVICH, RENEE NOVICH, et al. Complaint Filed: July 29, 2022 17 Cross-Comp. Filed: November 17, 2023 Defendants. 18 19 ALL RELATED ACTIONS. 20 21 Cross-Defendant BERGER CONCRETE, INC. (hereinafter referred to as “this answering 22 Cross-Defendant”), answering for itself alone, hereby answers the Cross-Complaint of Cross- 23 Complainants HOLLY CONSTRUCTION, INC. fka HOLLY & ASSOCIATES JANVER C. 24 HOLLY, RICHARD HOLLY, JUSTIN HUNTER (hereinafter, “Cross-Complainants”), as follows: 25 GENERAL DENIAL 26 Pursuant to the provisions of Code of Civil Procedure section 431.30, this answering Cross- 27 Defendant denies generally and specifically each and every allegation contained in each cause of 28 action of the Cross-Complaint and further denies that Cross-Complainants have been damaged in any VAN DE POEL, LEVY, THOMAS LLP 1 ATTORNEYS AT LAW 1600 South Main Plaza Suite 325 BERGER CONCRETE INC.’S ANSWER TO HOLLY CONSTRUCTION, INC. fka HOLLY & ASSOCIATES Walnut Creek, CA 94596 Telephone: (925) 934-6102 JANVER C. HOLLY, RICHARD HOLLY, JUSTIN HUNTER’S CROSS-COMPLAINT Facsimile: (925) 934-6060 4867-9842-2951, v. 2 1 sums whatsoever, or at all. 2 FIRST AFFIRMATIVE DEFENSE 3 1. The Cross-Complaint in its entirety and each and every cause of action therein, fails to 4 state facts sufficient to constitute a cause of action against this answering Cross-Defendant. 5 SECOND AFFIRMATIVE DEFENSE 6 2. As a further and separate affirmative defense to the Cross-Complaint, this answering 7 Cross-Defendant alleges that any damage or injury allegedly suffered by Cross-Complainants were 8 proximately caused or contributed to by the negligence or fault of Cross-Complainants’ agents, 9 representatives and/or employees; and this answering Cross-Defendant is informed and believes and 10 thereon alleges that said party was careless and negligent. Thus, if Cross-Complainants are entitled 11 to recover at all for any damages alleged, such recovery must be diminished to the extent that said 12 damages are attributable to the negligence of Cross-Complainants’ agents, representatives and/or 13 employees. 14 THIRD AFFIRMATIVE DEFENSE 15 3. As a further and separate affirmative defense to the Cross-Complaint, this answering 16 Cross-Defendant alleges that any injury or damage suffered by Cross-Complainants, other parties, or 17 any of them, was caused or contributed to by the negligence or fault of persons or entities other than 18 this answering Cross-Defendant, thereby entitling this answering Cross-Defendant to an appropriate 19 proration of damages in accordance with the provisions of California law. 20 FOURTH AFFIRMATIVE DEFENSE 21 4. As a further and separate affirmative defense to the Cross-Complaint, this answering 22 Cross-Defendant alleges that the alleged injuries and damages for which Cross-Complainants seek 23 recovery were the result of causes independent of any acts or omissions by of this answering Cross- 24 Defendant, thereby eliminating or reducing the liability of this answering Cross-Defendant. 25 FIFTH AFFIRMATIVE DEFENSE 26 5. As a further and separate affirmative defense to the Cross-Complaint, this answering 27 Cross-Defendant alleges that the injuries and damages asserted by Cross-Complainants were caused 28 or contributed to, in whole or in part, by the negligence or fault of Cross-Complainants or others, VAN DE POEL, LEVY, THOMAS LLP 2 ATTORNEYS AT LAW 1600 South Main Plaza Suite 325 BERGER CONCRETE INC.’S ANSWER TO HOLLY CONSTRUCTION, INC. fka HOLLY & ASSOCIATES Walnut Creek, CA 94596 Telephone: (925) 934-6102 JANVER C. HOLLY, RICHARD HOLLY, JUSTIN HUNTER’S CROSS-COMPLAINT Facsimile: (925) 934-6060 4867-9842-2951, v. 2 1 which entitles this answering Cross-Defendant to contribution from said individuals and entities, and 2 each of them. 3 SIXTH AFFIRMATIVE DEFENSE 4 6. As a further and separate affirmative defense to the Cross-Complaint, this answering 5 Cross-Defendant alleges that if it is found to have been negligent or liable in any manner, such 6 conduct was passive and secondary, while the negligence of Cross-Complainants or others was active 7 and primary, which bars, in whole or in part, the recovery requested or any recovery at all, against 8 this answering Cross-Defendant. 9 SEVENTH AFFIRMATIVE DEFENSE 10 7. As a further and separate affirmative defense to the Cross-Complaint, this answering 11 Cross-Defendant alleges that the negligence of Cross-Complainants or other parties or entities 12 constitutes an intervening and superseding cause of the injuries and damages, if any, thereby barring 13 or reducing Cross-Complainants’ recovery herein. 14 EIGHTH AFFIRMATIVE DEFENSE 15 8. As a further and separate affirmative defense to the Cross-Complaint, this answering 16 Cross-Defendant alleges that the Cross-Complaint is barred in whole or in part by reason of Cross- 17 Complainants’ inequitable conduct and/or unclean hands, and the court should not give Cross- 18 Complainants relief based upon the facts alleged. 19 NINTH AFFIRMATIVE DEFENSE 20 9. As a further and separate affirmative defense to the Cross-Complaint, this answering 21 Cross-Defendant alleges that the Cross-Complaint and each purported cause of action stated therein 22 are barred under the doctrine of waiver. 23 TENTH AFFIRMATIVE DEFENSE 24 10. As a further and separate affirmative defense to the Cross-Complaint, this answering 25 Cross-Defendant alleges that the Cross-Complaint and each purported cause of action stated therein is 26 barred by the doctrine of laches. 27 ELEVENTH AFFIRMATIVE DEFENSE 28 11. As a further and separate affirmative defense to the Cross-Complaint, this answering VAN DE POEL, LEVY, THOMAS LLP 3 ATTORNEYS AT LAW 1600 South Main Plaza Suite 325 BERGER CONCRETE INC.’S ANSWER TO HOLLY CONSTRUCTION, INC. fka HOLLY & ASSOCIATES Walnut Creek, CA 94596 Telephone: (925) 934-6102 JANVER C. HOLLY, RICHARD HOLLY, JUSTIN HUNTER’S CROSS-COMPLAINT Facsimile: (925) 934-6060 4867-9842-2951, v. 2 1 Cross-Defendant alleges that the Cross-Complaint and each purported cause of action stated therein is 2 barred under the doctrine of res judicata. 3 TWELFTH AFFIRMATIVE DEFENSE 4 12. As a further and separate affirmative defense to the Cross-Complaint, this answering 5 Cross-Defendant alleges that the Cross-Complaint and each purported cause of action stated therein is 6 barred under the doctrine of estoppel. 7 THIRTEENTH AFFIRMATIVE DEFENSE 8 13. As a further and separate affirmative defense to the Cross-Complaint, this answering 9 Cross-Defendant alleges that the Cross-Complaint and each purported cause of action stated therein is 10 barred as a result of the Plaintiff’s and Cross-Complainants’ failure to mitigate their damages, if any 11 were suffered, and by their gratuitously incurring expenses that were not justified. 12 FOURTEENTH AFFIRMATIVE DEFENSE 13 14. As a further and separate affirmative defense to said Cross-Complaint, this answering 14 Cross-Defendant alleges by way of a plea of comparative negligence that the Cross-Complainants 15 were negligent in and about the matters and activities alleged in the Cross-Complaint, that its 16 negligence contributed to and was a proximate cause of its alleged injuries and damages, if any, and 17 that any recovery by Cross-Complainants against this answering Cross-Defendant be diminished in 18 proportion to the fault attributable to Cross-Complainants. 19 FIFTEENTH AFFIRMATIVE DEFENSE 20 15. As a further and separate affirmative defense to said Cross-Complaint, this answering 21 Cross-Defendant is informed and believes, and therefore alleges, that it is entitled to indemnification 22 by apportionment against all other parties and persons whose negligence contributed to the alleged 23 damages. 24 SIXTEENTH AFFIRMATIVE DEFENSE 25 16. As a further and separate affirmative defense to said Cross-Complaint, this answering 26 Cross-Defendant is informed and believes, and therefore alleges, that the duties imposed it and/or its 27 agents or employees allegedly breached were actually executed with reasonable diligence. 28 /// VAN DE POEL, LEVY, THOMAS LLP 4 ATTORNEYS AT LAW 1600 South Main Plaza Suite 325 BERGER CONCRETE INC.’S ANSWER TO HOLLY CONSTRUCTION, INC. fka HOLLY & ASSOCIATES Walnut Creek, CA 94596 Telephone: (925) 934-6102 JANVER C. HOLLY, RICHARD HOLLY, JUSTIN HUNTER’S CROSS-COMPLAINT Facsimile: (925) 934-6060 4867-9842-2951, v. 2 1 SEVENTEENTH AFFIRMATIVE DEFENSE 2 17. As a further and separate affirmative defense to said Cross-Complaint, this answering 3 Cross-Defendant is informed and believes, and therefore alleges, that it is not vicariously liable for 4 any damages caused by the acts or omissions of other cross-defendants. 5 EIGHTEENTH AFFIRMATIVE DEFENSE 6 18. As a further and separate affirmative defense to said Cross-Complaint, this answering 7 Cross-Defendant is informed and believes, and therefore alleges, that the injuries and damages 8 complained of by the Cross-Complainants, if there were any, are properly attributable to a 9 modification, alteration or other change in some manner to the work for which this answering Cross- 10 Defendant is legally responsible, which modification, alteration or change was not performed by or 11 participated in or consented to or approved by this answering Cross-Defendant, or any of its agents, 12 servants or employees. Accordingly, any recovery against this answering Cross-Defendant should be 13 barred or otherwise diminished. 14 NINETEENTH AFFIRMATIVE DEFENSE 15 19. As a further and separate affirmative defense to said Cross-Complaint, this answering 16 Cross-Defendant is informed and believes, and therefore alleges, that the Cross-Complaint is barred 17 by the applicable statute of limitations contained in Code of Civil Procedures sections 337, 337.1, 18 337.15, 338, 340.8, and 343 among others. 19 TWENTIETH AFFIRMATIVE DEFENSE 20 20. As a further and separate affirmative defense to said Cross-Complaint, this answering 21 Cross-Defendant is informed and believes, and therefore alleges, that Cross-Complainants or others 22 failed to perform the degree and type of maintenance necessary to protect the property at issue from 23 deterioration. Such failure to maintain the property bars or otherwise diminishes the claim or 24 recovery of Cross-Complainants. 25 TWENTY-FIRST AFFIRMATIVE DEFENSE 26 21. As a further and separate affirmative defense to said Cross-Complaint, this answering 27 Cross-Defendant is informed and believes, and therefore alleges, that it has appropriately, completely 28 and fully performed and discharged any and all obligations and legal duties arising out of the matters VAN DE POEL, LEVY, THOMAS LLP 5 ATTORNEYS AT LAW 1600 South Main Plaza Suite 325 BERGER CONCRETE INC.’S ANSWER TO HOLLY CONSTRUCTION, INC. fka HOLLY & ASSOCIATES Walnut Creek, CA 94596 Telephone: (925) 934-6102 JANVER C. HOLLY, RICHARD HOLLY, JUSTIN HUNTER’S CROSS-COMPLAINT Facsimile: (925) 934-6060 4867-9842-2951, v. 2 1 alleged in the Cross-Complaint. 2 TWENTY-SECOND AFFIRMATIVE DEFENSE 3 22. As a further and separate affirmative defense to said Cross-Complaint, this answering 4 Cross-Defendant is informed and believes, and therefore alleges, that at the times and places 5 mentioned in the Cross-Complaint, the Cross-Complainants or others failed to exercise the quality 6 and quantity of care and caution which a reasonable person in the same or similar circumstances 7 would have exercised for the protection of themselves and their property, and that its failure and 8 negligence proximately caused and contributed to the damages, if any, sustained by the Cross- 9 Complainants. Cross-Complainants’ recovery, if any, should therefore be reduced by an amount 10 proportionate to the amount by which Cross-Complainants’ or others’ negligence contributed to the 11 happening of the alleged accident, injury, damage and/or loss. 12 TWENTY-THIRD AFFIRMATIVE DEFENSE 13 23. As a further and separate affirmative defense to said Cross-Complaint, this answering 14 Cross-Defendant is informed and believes, and therefore alleges, that the Cross-Complainants were 15 already in breach of the contract at issue, if any, at or before the time of alleged breaches by this 16 answering Cross-Defendant and, therefore, no act or omission of this answering Cross-Defendant was 17 a direct or proximate cause of any damage to the Cross-Complainants. 18 TWENTY-FOURTH AFFIRMATIVE DEFENSE 19 24. As a further and separate affirmative defense to said Cross-Complaint, this answering 20 Cross-Defendant is informed and believes, and therefore alleges, that it performed each of its 21 obligations pursuant to any and all contracts and agreements described in the Cross-Complaint, if any 22 there were, except those obligations it was prevented and/or excused from performing by the acts 23 and/or omissions of Cross-Complainants and/or other individuals or entities. 24 TWENTY-FIFTH AFFIRMATIVE DEFENSE 25 25. As a further and separate affirmative defense to the Cross-Complaint, this answering 26 Cross-Defendant alleges that if it did not perform one or more obligations under any contract or 27 agreement, it is because Cross-Complainants did not perform obligations under the contract that were 28 a condition precedent to performance by this answering Cross-Defendant in each instance. VAN DE POEL, LEVY, THOMAS LLP 6 ATTORNEYS AT LAW 1600 South Main Plaza Suite 325 BERGER CONCRETE INC.’S ANSWER TO HOLLY CONSTRUCTION, INC. fka HOLLY & ASSOCIATES Walnut Creek, CA 94596 Telephone: (925) 934-6102 JANVER C. HOLLY, RICHARD HOLLY, JUSTIN HUNTER’S CROSS-COMPLAINT Facsimile: (925) 934-6060 4867-9842-2951, v. 2 1 /// 2 TWENTY-SIXTH AFFIRMATIVE DEFENSE 3 26. As a further and separate affirmative defense to the Cross-Complaint, this answering 4 Cross-Defendant alleges that its acts or omissions which are set out in the Cross-Complaints were 5 justified as part of its regular course of business and the fulfillment of its contractual obligations. 6 TWENTY-SEVENTH AFFIRMATIVE DEFENSE 7 27. As a further and separate affirmative defense to the Cross-Complaint, this answering 8 Cross-Defendant alleges that the contractual relationship between this answering Cross-Defendant 9 and the Cross-Complainants alleged in the Cross-Complaint did not exist and that the absence of such 10 a contractual relationship acts to bar any recovery by the Cross-Complainants against this answering 11 Cross-Defendant for breach of contract. 12 TWENTY-EIGHTH AFFIRMATIVE DEFENSE 13 28. As a further and separate affirmative defense to the Cross-Complaint, this answering 14 Cross-Defendant alleges that the Cross-Complaint and each purported cause of action stated therein is 15 barred because Cross-Complainants failed to give this answering Cross-Defendant notice of the 16 alleged breaches of duty and/or an opportunity to fulfill its obligations. 17 TWENTY-NINTH AFFIRMATIVE DEFENSE 18 29. As a further and separate affirmative defense to the Cross-Complaint, this answering 19 Cross-Defendant alleges that any damages or injuries sustained by the Cross-Complainants were a 20 part of the business risk assumed by the Cross-Complainants upon entering into the alleged 21 contractual relationships. 22 THIRTIETH AFFIRMATIVE DEFENSE 23 30. As a further and separate affirmative defense to the Cross-Complaint, this answering 24 Cross-Defendant alleges that, at all material times, the Cross-Complainants knew the hazards 25 involved in the relationships and dealings set out in the Cross-Complaint, had full knowledge of the 26 conditions existing, appreciated the risks inherent therein, and voluntarily, knowingly, and 27 intelligently assumed said risks, and that the Cross-Complainants’ assumption of said risks was the 28 sole or partial proximate cause of the happenings which resulted in Cross-Complainants’ alleged VAN DE POEL, LEVY, THOMAS LLP 7 ATTORNEYS AT LAW 1600 South Main Plaza Suite 325 BERGER CONCRETE INC.’S ANSWER TO HOLLY CONSTRUCTION, INC. fka HOLLY & ASSOCIATES Walnut Creek, CA 94596 Telephone: (925) 934-6102 JANVER C. HOLLY, RICHARD HOLLY, JUSTIN HUNTER’S CROSS-COMPLAINT Facsimile: (925) 934-6060 4867-9842-2951, v. 2 1 damages. Each risk encountered by the Cross-Complainants were a risk inherent in the activity in 2 question and were, therefore, a reasonable risk. The Cross-Complainants’ assumption of the risk 3 therefore acts as a complete bar to their recovery. 4 THIRTY-FIRST AFFIRMATIVE DEFENSE 5 31. As a further and separate affirmative defense to the Cross-Complaint, this answering 6 Cross-Defendant reserves the right to enforce all applicable statutory and/or contractual non- 7 adversarial procedures related to the claims raised by some or all of the plaintiffs, to the extent that 8 the provisions of Civil Code Section 895, et seq. (SB 800) apply. 9 WHEREFORE, this answering Cross-Defendant prays as follows: 10 1. That Cross-Complainants take nothing by reason of its Cross-Complaint; 11 2. For costs of suit incurred herein; and 12 3. For such other and further relief as the Court may deem just and proper. 13 14 DATED: March 21, 2024 VAN DE POEL, LEVY, THOMAS LLP 15 16 By: JOHN VAN DE POEL 17 Attorney for Cross-Defendant, BERGER CONCRETE, INC. 18 19 20 21 22 23 24 25 26 27 28 VAN DE POEL, LEVY, THOMAS LLP 8 ATTORNEYS AT LAW 1600 South Main Plaza Suite 325 BERGER CONCRETE INC.’S ANSWER TO HOLLY CONSTRUCTION, INC. fka HOLLY & ASSOCIATES Walnut Creek, CA 94596 Telephone: (925) 934-6102 JANVER C. HOLLY, RICHARD HOLLY, JUSTIN HUNTER’S CROSS-COMPLAINT Facsimile: (925) 934-6060 4867-9842-2951, v. 2 1 PROOF OF SERVICE 2 I am employed in the County of Contra Costa, State of California. I am over the age of 18 and am not a party to the within action. My business address is at Van De Poel, Levy, Thomas 3 LLP, 1600 South Main Plaza, Suite 325, Walnut Creek, CA 94596. 4 On March 21, 2024, I served the foregoing document(s) described as: 5 BERGER CONCRETE INC.’S ANSWER TO HOLLY CONSTRUCTION, INC. fka HOLLY & ASSOCIATES JANVER C. HOLLY, RICHARD HOLLY, JUSTIN HUNTER’S 6 CROSS-COMPLAINT 7 on all other parties and/or their attorney(s) of record to this action as follows: 8 *** SEE ATTACHED SERVICE LIST *** 9 [] By United States Postal Service: I am a resident of, or employed in, the county where 10 the mailing occurs; I am over the age of 18 years and am not a party to the cause. I am readily familiar with the business' practice for collection and processing of 11 correspondence for mailing with the United States Postal Service. The envelope was placed for deposit in the United States Postal Service at Van De Poel, Levy, Thomas 12 LLP, in Walnut Creek, California on March 21, 2024. The envelope was sealed and placed for collection and mailing with first-class prepaid postage on that date following 13 ordinary business practices. Service made pursuant to CCP § 1013a(3), upon motion of a party served, shall be presumed invalid if the postal cancellation date or postage meter 14 date on the envelope is more than one day after the date of deposit for mailing contained in the affidavit. 15 [X] By Electronic Service: My electronic business address is kriordan@vanlevylaw.com 16 and I caused such documents (s) to be electronically served by e-mailing the attached document(s) to the person(s) at the e-mail address(es) listed below on March 21, 2024, 17 pursuant to Code of Civil Procedure § 1010.6 (e). No electronic message or other indication that the transmission was unsuccessful was received within a reasonable 18 time. 19 [ ] By Facsimile: By faxing a copy of the above-referenced document(s) to the addressee at the number set forth beneath their above-listed address. At the completion of the 20 transmission, a Transmission Report was generated, confirming transmission and receipt by the address(es). 21 22 I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct to the best of my knowledge. 23 Executed on March 21, 2024, at Walnut Creek, Contra Costa County, California. 24 25 Katey Riordan 26 27 28 VAN DE POEL, LEVY, THOMAS LLP ATTORNEYS AT LAW 1600 South Main Plaza 1 Suite 325 Walnut Creek, CA 94596 Telephone: (925) 934-6102 Proof of Service Facsimile: (925) 934-6060 4891-6112-6823, v. 1 1 SERVICE LIST 2 Case: Holly & Associates, Inc. v. Lee Novich, et al. Court: Sonoma County Superior Court Case Number: SCV-271287 3 Represent: Cross-Defendant, Berger Concrete, Inc. 4 A. Robert Rosin, Esq. Lee J. Novich, Esq. Michael M. Lum, Esq. THE CONSTRUCTION LAW GROUP 5 Tony Stavjanik, Esq. 587 Cavedale Road LEONIDOU & ROSIN Sonoma, CA 95476-3038 6 PROFESSIONAL CORP. Telephone: (415) 793-4000 777 Cuesta Dr Ste 200 Email: lnovich@constructionlg.com 7 Mountain View, CA 94040-3765 lnovich@pacbell.net Telephone: (650) 691-2888 8 Facsimile: (650) 691-2889 Email: arrosin@alr-law.com; Attorneys for Defendants/Cross- 9 mlum@alr-law.com Complainants LEE NOVICH AND tstavjanik@alr-law.com RENEE NOVICE, TRUSTEES OF THE 10 mleon@alr-law.com NOVICH FAMILY TRUST 11 Attorneys for Plaintiff HOLLY & ASSOCIATES, INC. 12 David Davidson, Esq. Lawrence S. Zucker II, Esq. 13 O'HAGAN MEYER LLP M. Jason Aniel, Esq. 32000 Park Center Drive, Suite 700 HAIGHT BROWN & BONESTEEL LLP, 14 Costa Mesa, CA 92626 402 W Broadway Ste 1850 Telephone: (949) 942-8500 San Diego, CA 92101-3576 15 Facsimile: (949) 942-8510 Telephone: (619) 961-4805 Email ddavidson@ohaganmeyer.com Facsimile: (619) 595-7873 16 agurzenski@ohaganmeyer.com Email: lzucker@hbblaw.com mjaniel@hbblaw.com 17 Attorney for Cross-Defendants/Cross- Complainants Attorney for Cross-Defendant, 18 HOLLY CONSTRUCTION, INC. fka HOLLEY TRI-COUNTY GARAGE DOOR INC. & ASSOCIATES, INC.; JANVER C. HOLLY; 19 RICHARD HOLLY; JUSTIN HUNTER 20 James L. McCormick, Esq. Ian R. Feldman, Esq. GOODMAN NEUMAN HAMILTON LLP Tyler M. Costanzo, Esq. 21 100 Bush St, Ste 1800 CLAUSEN MILLER P.C. San Francisco, CA 94104-3920 27285 Las Ramblas Ste 200 22 Telephone: (415)705-0418 Mission Viejo, CA 92691-6325 Email: jmccormick@gnhllp.com Telephone: (949) 260-3100 23 Facsimile: (949)260-3190 Attorney for Cross-Defendants, Email: ifeldman@clausen.com 24 STEWART BUILDERS, INC. dba STEWART tcostanzo@clausen.com CONSTRUCTION SERVICES and VERDIN bdorsey@clausen.com 25 INSULATION Attorney for Cross-Defendant, 26 PACIFIC SCREEN& SHADE, INC. dba BURRIS WINDOW SHADES 27 28 VAN DE POEL, LEVY, THOMAS LLP ATTORNEYS AT LAW 1600 South Main Plaza 2 Suite 325 Walnut Creek, CA 94596 Telephone: (925) 934-6102 Proof of Service Facsimile: (925) 934-6060 4891-6112-6823, v. 1 1 Amber N. Kim, Esq. Clark H. Cameron, Esq. 2 LANAK & HANNA PC. HUMPHREY BERGER & 1851 E 1st St, Ste 700 ASSOCIATES LLP 3 Santa Ana, CA 92705-4064 23901 Calabasas Rd Ste 1069 Telephone: (714) 620-2350 Calabasas, CA 91302-1583 4 Facsimile: (714) 703-1610 Telephone: (818) 871-0111 Email: ankim@lanak-hanna.com Facsimile: (818) 871-0765 5 Email: clark@hbalaw.com Attorney for Cross-Defendant, 6 AMERICAN CONTRACTOR’S INDEMNITY Attorney for Cross-Defendant, COMPANY HUDSON INSURANCE COMPANY 7 David A. Harris, Esq. Paul B. Walsh, Esq. 8 SANTANA, VIERRA, STEVENSON,, & HARRIS Stephen D. Bays, Esq. PO Box 7218 PAUL WALSH LAW, APC. 9 London, KY 40742-7218 2397 Shattuck Avenue, Suite 212 Telephone: (415) 777-1308 Berkeley, CA 94704-1567 10 Facsimile: (415) 896-6063 Telephone: (925) 391-9414 Email: David.harris01@libertymutual.com Facsimile: (925) 309-3041 11 sfmail@libertymutual.com Email: paul@paulwalshlaw.com palmira.aguilar@libertymutual.com stephen@paulwalshlaw.com 12 Attorney for Cross-Defendant, Attorney for Cross Defendants 13 CALIFORNIA SHOWER DOOR VALLEY COMFORT HEATING AND CORPORATION dba CALIFORNIA AIR, INC. and STEVEN RENE ROGERS 14 SHOWER DOOR dba ROGERS RADIANT HEATING & PLUMBING 15 Glenn M. Smith, Esq. Jacqueline F. Stein, Esq. 16 David J. Leonard, Esq. Brandy P. Tyler, Esq. SMITH DOLLAR PC SKANE MILLS LLP 17 418 B Street, Fourth Floor 501 W. Broadway, Suite 1470 Santa Rosa, CA 95401 San Diego, CA 92101 18 Telephone: (707) 522-1100 Telephone: (619) 702-1635 Facsimile: (707) 522-1101 Facsimile: (619) 702-1645 19 Email: gsmith@smithdollar.com Email: jstein@skanemills.com dleonard@smithdollar.com btyler@skanemills.com 20 Attorneys for Cross-Defendant Attorneys for Cross-Defendant 21 RCX, INC., a California corporation ALPHA FIRE SUPPRESSIONS SYSTEMS, INC. 22 Cynthia Shambaugh, Esq. David B. Madariaga, Esq. 23 RODMAN & ASSOCIATES PC FOWLER LAW GROUP 3562 Round Barn Circle, Suite 216 11845 West Olympic Blvd., Suite 710 24 Santa Rosa, CA 95403 Los Angeles, CA 90064 Telephone: (707) 278-9878 Telephone: (310) 446-3900 25 Facsimile: (707) 278-9880 Facsimile: (310) 446-0030 Email: cshambaugh@rodman-law.com Email: 26 sbuckner@rodman-law.com dmadariaga@fowlerlawgroup.com mmcmanus@rodman-law.com 27 Attorneys for Cross-Defendant Attorneys for Cross-Defendant KRIST ELECTRIC, INC. 28 IRON DOG FABRICATION, INC. VAN DE POEL, LEVY, THOMAS LLP ATTORNEYS AT LAW 1600 South Main Plaza 3 Suite 325 Walnut Creek, CA 94596 Telephone: (925) 934-6102 Proof of Service Facsimile: (925) 934-6060 4891-6112-6823, v. 1 1 Elmira R. Howard, Esq. 2 ANDERSON, McPHARLIN & CONNERS LLP 707 Wilshire Blvd., Suite 4000 3 Los Angeles, CA 90017 Telephone: (213) 688-0080 4 Facsimile: (213) 622-7594 Email: erh@amclaw.com 5 Attorneys for Cross-Defendant/Cross- 6 Complainant SURETEC INSURANCE COMPANY 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 VAN DE POEL, LEVY, THOMAS LLP ATTORNEYS AT LAW 1600 South Main Plaza 4 Suite 325 Walnut Creek, CA 94596 Telephone: (925) 934-6102 Proof of Service Facsimile: (925) 934-6060 4891-6112-6823, v. 1