Preview
1 Michael J. Boland, Esq. (Bar No. 98343) Email:
mboland@itkc.com
2 Theodore T. Cordery, Esq. (Bar No. 114730) Email:
tcordery@itkc.com
3 Imai, Tadlock, Keeney & Cordery, LLP 1660 South Amphlett
Blvd, Suite 300
4 San Mateo, CA 94402
Telephone: (415) 260-4595
5 Facsimile: (415) 329-2244
6 Attorneys for Defendant and Cross-Defendant
RODAN BUILDERS, INC.
7
IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
8
IN AND FOR THE COUNTY OF SAN MATEO
9
UNLIMITED JURISDICTION
10
LEXINGTON INSURANCE COMPANY, CASE NO.: 23-CIV-05063
IMAI, TADLOCK, KEENEY & CORDERY, LLP
11
1660 South Amphlett Blvd, Suite 300, San Mateo, CA 94402
Assigned for all purposes to Judge Susan
12 Plaintiffs, Greenberg in Department 3
13 v. DEFENDANT AND CROSS-DEFENDANT
RODAN BUILDERS, INC.’S ANSWER TO
(415) 260-4595
CROSS-COMPLAINT
LAW O FF ICES
14
CAW ARCHITECTS, INC., et al. ,
15 Complaint Filed: 10/24/2023
Cross-Complaint Filed: 12/14/2023
16 Defendants.
17 and all related CROSS ACTIONS
18 COMES NOW Defendant and Cross-Defendant RODAN BUILDERS, INC., (hereinafter
19 “this Cross-Defendant”) and answers the Cross-Complaint of Cross-Complainant CAW
20 ARCHITECTS, INC. (hereinafter “this Cross-Complainant”) on file herein denying each and
21 every, all and singular, generally and specifically, the allegations of said Cross-Complaint and
22 each cause of action therein, and further denies that Cross-Complainant has been damaged in any
23 sum or amount or at all.
24 Furthermore, this Cross-Defendant alleges each of the following affirmative defenses:
25 FIRST AFFIRMATIVE DEFENSE
26 The Cross-Complaint in its entirety and each and every cause of action therein, fails to
27 state facts sufficient to constitute a cause of action against this answering Cross-Defendant.
28 ///
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CROSS-DEFENDANT RODAN BUILDERS, INC.’S ANSWER TO CROSS-COMPLAINT
_________________________
1 SECOND AFFIRMATIVE DEFENSE
2 As a further and separate affirmative defense to the Cross-Complaint, this answering
3 Cross-Defendant alleges that any damage or injury allegedly suffered by Cross-Complainant was
4 proximately caused or contributed to by the negligence or fault of Cross-Complainant’s agents,
5 representatives and/or employees and this answering Cross-Defendant is informed and believes
6 and thereon alleges that said party was careless and negligent. Thus, if Cross-Complainant is
7 entitled to recover at all for any damages alleged, such recovery must be diminished to the extent
8 that said damages are attributable to the negligence of Cross-Complainant’s agents,
9 representatives and/or employees.
10 THIRD AFFIRMATIVE DEFENSE
IMAI, TADLOCK, KEENEY & CORDERY, LLP
11 As a further and separate affirmative defense to the Cross-Complaint, this answering
1660 South Amphlett Blvd, Suite 300, San Mateo, CA 94402
12 Cross-Defendant alleges that any injuries and damages suffered by Cross-Complainant, other
13 parties, or any of them, was caused or contributed to by the negligence or fault of persons or
(415) 260-4595
LAW O FF ICES
14 entities other than this answering Cross-Defendant, thereby entitling this answering Cross-
15 Defendant to an appropriate proration of damages in accordance with the provisions of the law
16 applicable thereto.
17 FOURTH AFFIRMATIVE DEFENSE
18 As a further and separate affirmative defense to the Cross-Complaint, this answering
19 Cross-Defendant alleges that the injuries and damages alleged and for which Cross-Complainant
20 seeks recovery were the result of causes independent of any purported acts or omissions on the
21 part of this answering Cross-Defendant, thereby eliminating or reducing the alleged liability of
22 this answering Cross-Defendant.
23 FIFTH AFFIRMATIVE DEFENSE
24 As a further and separate affirmative defense to the Cross-Complaint, this answering
25 Cross-Defendant alleges that any and all of the injuries and damages asserted by Cross-
26 Complainant was caused or contributed to, in whole or in part, by the negligence or fault of
27 Cross-Complainant or others, and said acts and omissions entitle this answering Cross-Defendant
28 to contribution from said individuals and entities, and each of them.
-2-
CROSS-DEFENDANT RODAN BUILDERS, INC.’S ANSWER TO CROSS-COMPLAINT
_________________________
1 SIXTH AFFIRMATIVE DEFENSE
2 As a further and separate affirmative defense to the Cross-Complaint, this answering
3 Cross-Defendant alleges that if this answering Cross-Defendant is found to have been negligent or
4 liable in any manner, such conduct was passive and secondary, while the negligence of Cross-
5 Complainant or others was active and primary, and such conduct bars, in whole or in part, the
6 recovery requested or any recovery at all, against this answering Cross-Defendant.
7 SEVENTH AFFIRMATIVE DEFENSE
8 As a further and separate affirmative defense to the Cross-Complaint, this answering
9 Cross-Defendant alleges that the negligence of Cross-Complainant or other parties or entities
10 constitutes an intervening and superseding cause of injuries and damages, if any, thereby barring
IMAI, TADLOCK, KEENEY & CORDERY, LLP
11 or reducing Cross-Complainant’s recovery herein.
1660 South Amphlett Blvd, Suite 300, San Mateo, CA 94402
12 EIGHTH AFFIRMATIVE DEFENSE
13 As a further and separate affirmative defense to the Cross-Complaint, this answering
(415) 260-4595
LAW O FF ICES
14 Cross-Defendant alleges that the Cross-Complaint on file herein is barred in whole or in part by
15 reason of Cross-Complainant’s inequitable conduct and/or unclean hands, and the court should
16 not give Cross-Complainant relief based upon the facts alleged.
17 NINTH AFFIRMATIVE DEFENSE
18 As a further and separate affirmative defense to the Cross-Complaint, this answering
19 Cross-Defendant alleges that the Cross-Complaint and each purported cause of action stated
20 therein is barred under the doctrine of waiver.
21 TENTH AFFIRMATIVE DEFENSE
22 As a further and separate affirmative defense to the Cross-Complaint, this answering
23 Cross-Defendant alleges that Cross-Complainant, and each purported cause of action stated
24 therein, are barred by the doctrine of laches.
25 ELEVENTH AFFIRMATIVE DEFENSE
26 As a further and separate affirmative defense to the Cross-Complaint, this answering
27 Cross-Defendant alleges that the Cross-Complaint and each purported cause of action stated
28 therein is barred under the doctrine of res judicata.
-3-
CROSS-DEFENDANT RODAN BUILDERS, INC.’S ANSWER TO CROSS-COMPLAINT
_________________________
1 TWELFTH AFFIRMATIVE DEFENSE
2 As a further and separate affirmative defense to the Cross-Complaint, this answering
3 Cross-Defendant alleges that the Cross-Complaint and each purported cause of action stated
4 therein is barred under the doctrine of estoppel.
5 THIRTEENTH AFFIRMATIVE DEFENSE
6 As a further and separate affirmative defense to the Cross-Complaint, this answering
7 Cross-Defendant alleges that the Cross-Complaint, and each purported cause of action stated
8 therein, are barred as a result of the Cross-Complainant’s and Cross-Complainant’s failure to
9 mitigate its damages, if any were suffered, and by its gratuitously incurring expenses that were
10 not justified.
IMAI, TADLOCK, KEENEY & CORDERY, LLP
11 FOURTEENTH AFFIRMATIVE DEFENSE
1660 South Amphlett Blvd, Suite 300, San Mateo, CA 94402
12 As a further and separate affirmative defense to said Cross-Complaint, this answering
13 Cross-Defendant alleges by way of a plea of comparative negligence that the Cross-Complainant
(415) 260-4595
LAW O FF ICES
14 was negligent in and about the matters and activities alleged in said Cross-Complaint, that said
15 negligence contributed to and was a proximate cause of Cross-Complainant’s alleged injuries and
16 damages, if any, and that if the Cross-Complainant is entitled to recover damages against this
17 answering Cross-Defendant, this answering Cross-Defendant prays that said recovery be
18 diminished by reason of the Cross-Complainant’s actions in proportion to the degree of fault
19 attributable to Cross-Complainant.
20 FIFTEENTH AFFIRMATIVE DEFENSE
21 As a further and separate affirmative defense to said Cross-Complaint, this answering
22 Cross-Defendant is informed and believes, and therefore alleges, that this answering Cross-
23 Defendant is entitled to the right of indemnification by apportionment against all other parties and
24 persons whose negligence contributed to the alleged damages.
25 SIXTEENTH AFFIRMATIVE DEFENSE
26 As a further and separate affirmative defense to said Cross-Complaint, this answering
27 Cross-Defendant is informed and believes, and therefore alleges, that any and all mandatory
28 duties imposed on this answering Cross-Defendant, and/or its agents or employees, the failure of
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CROSS-DEFENDANT RODAN BUILDERS, INC.’S ANSWER TO CROSS-COMPLAINT
_________________________
1 which allegedly created the condition at the time and place which is the subject of this Cross-
2 Complaint, were exercised with reasonable diligence and therefore, this answering Cross-
3 Defendant is not liable for the alleged damages.
4 SEVENTEENTH AFFIRMATIVE DEFENSE
5 As a further and separate affirmative defense to said Cross-Complaint, this answering
6 Cross-Defendant is informed and believes, and therefore alleges, that this answering Cross-
7 Defendant is not vicariously liable for the damages, if any, alleged in Cross-Complainant’s Cross-
8 Complaint, caused by the acts or omissions of the other Cross-Defendants.
9 EIGHTEENTH AFFIRMATIVE DEFENSE
10 As a further and separate affirmative defense to said Cross-Complaint, this answering
IMAI, TADLOCK, KEENEY & CORDERY, LLP
11 Cross-Defendant is informed and believes, and therefore alleges, that the injuries and damages
1660 South Amphlett Blvd, Suite 300, San Mateo, CA 94402
12 complained of by the Cross-Complainant, if there were any, are properly attributable to a
13 modification, alteration or other change in some manner to the installed work of improvement for
(415) 260-4595
LAW O FF ICES
14 which the Cross-Complainant herein seeks to hold this answering Cross-Defendant legally
15 responsible, which modification, alteration or change was not performed by or participated in or
16 consented to or approved by this answering Cross-Defendant, or any agent, servant or employee
17 of this answering Cross-Defendant. Accordingly, any recovery against this answering Cross-
18 Defendant should be barred or otherwise diminished.
19 NINETEENTH AFFIRMATIVE DEFENSE
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 the Cross-Complaint is
22 barred by the applicable statute of limitations contained in Code of Civil Procedures §§ 337,
23 337.1, 337.15, 338, 339, 340.1, 340.3, 340.8, 343, 350 and Commercial Code sections 2607,
24 2725.
25 TWENTIETH AFFIRMATIVE DEFENSE
26 As a further and separate affirmative defense to said Cross-Complaint, this answering
27 Cross-Defendant is informed and believes, and therefore alleges, that Cross-Complainant or
28 others failed to perform to the degree of maintenance on the work of improvement performed on
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CROSS-DEFENDANT RODAN BUILDERS, INC.’S ANSWER TO CROSS-COMPLAINT
_________________________
1 the property that is the subject matter of this action, necessary to protect such work of
2 improvement from deterioration from the elements. Such failure to maintain the said work of
3 improvement bars or otherwise diminishes the claim or recovery of Cross-Complainant.
4 TWENTY-FIRST AFFIRMATIVE DEFENSE
5 As a further and separate affirmative defense to said Cross-Complaint, this answering
6 Cross-Defendant is informed and believes, and therefore alleges that this answering Cross-
7 Defendant has appropriately, completely and fully performed and discharged any and all
8 obligations and legal duties arising out of the matters alleged in the Cross-Complaint.
9 TWENTY-SECOND AFFIRMATIVE DEFENSE
10 As a further and separate affirmative defense to said Cross-Complaint, this answering
IMAI, TADLOCK, KEENEY & CORDERY, LLP
11 Cross-Defendant is informed and believes, and therefore alleges that at the times and places
1660 South Amphlett Blvd, Suite 300, San Mateo, CA 94402
12 mentioned in the Cross-Complaint, the Cross-Complainant or others failed to exercise the quality
13 and quantity of care and caution which a reasonable person in the same or similar circumstances
(415) 260-4595
LAW O FF ICES
14 would have exercised for the protection of themselves and their property; said failure and
15 negligence by the Cross-Complainant or others proximately caused and contributed to the
16 damages, if any, sustained by the Cross-Complainant. Cross-Complainant’s recovery, therefore,
17 if any, should be reduced by an amount proportionate to the amount by which Cross-
18 Complainant’s or other’s negligence contributed
19 to the happening of the alleged accident, injury, damage and/or loss.
20 TWENTY-THIRD AFFIRMATIVE DEFENSE
21 As a further and separate affirmative defense to said Cross-Complaint, this answering
22 Cross-Defendant is informed and believes, and therefore alleges, that the Cross-Complainant was
23 already in breach of its alleged contractual relationships, if any, at or before the time of the
24 matters alleged to have arisen from acts or omissions by this answering Cross-Defendant and,
25 therefore, no act or omission of this answering Cross-Defendant was a direct or proximate cause
26 of any of the matters alleged in the Cross-Complaint.
27 ///
28 ///
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CROSS-DEFENDANT RODAN BUILDERS, INC.’S ANSWER TO CROSS-COMPLAINT
_________________________
1 TWENTY-FOURTH AFFIRMATIVE DEFENSE
2 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 performed each of its
4 obligations pursuant to any and all contracts and agreements described in the Cross-Complaint, if
5 any there were, except those obligations this answering Cross-Defendant was prevented and/or
6 excused from performing by the acts and/or omissions of Cross-Complainant, and/or other
7 individuals or entities not named as Cross-Defendants in the Cross-Complaint herein.
8 TWENTY-FIFTH AFFIRMATIVE DEFENSE
9 As a further and separate affirmative defense to the Cross-Complaint, this answering
10 Cross-Defendant alleges that if it is determined that this answering Cross-Defendant did not
IMAI, TADLOCK, KEENEY & CORDERY, LLP
11 perform one or more obligations under any contract or agreement, this answering Cross-
1660 South Amphlett Blvd, Suite 300, San Mateo, CA 94402
12 Defendant contends that Cross-Complainant does not perform its obligations under each contract
13 or agreement as aforesaid, and that those obligations were a condition precedent to any
(415) 260-4595
LAW O FF ICES
14 performance by this answering Cross-Defendant in each instance.
15 TWENTY-SIXTH AFFIRMATIVE DEFENSE
16 As a further and separate affirmative defense to the Cross-Complaint, this answering
17 Cross-Defendant alleges that the acts or omissions alleged to have been committed by this
18 answering Cross-Defendant was justified as part of the regular course of business and the
19 fulfillment of its own contractual obligations.
20 TWENTY-SEVENTH AFFIRMATIVE DEFENSE
21 As a further and separate affirmative defense to the Cross-Complaint, this answering
22 Cross-Defendant alleges that a valid contractual relationship, of the nature and scope alleged by
23 the Cross-Complainant, did not exist between this answering Cross-Defendant and the Cross-
24 Complainant and that the absence of such a contractual relationship acts to bar any recovery by
25 the Cross-Complainant against this answering Cross-Defendant.
26 TWENTY-EIGHTH AFFIRMATIVE DEFENSE
27 As a further and separate affirmative defense to the Cross-Complaint, this answering
28 Cross-Defendant alleges that the Cross-Complaint, and each purported cause of action stated
-7-
CROSS-DEFENDANT RODAN BUILDERS, INC.’S ANSWER TO CROSS-COMPLAINT
_________________________
1 therein, are barred because Cross-Complainant failed to give this answering Cross-Defendant
2 proper notice, in a timely and reasonable manner, of any such alleged breach, nor was this
3 answering Cross-Defendant afforded any opportunity to fulfill its obligations in each instance.
4 TWENTY-NINTH AFFIRMATIVE DEFENSE
5 As a further and separate affirmative defense to the Cross-Complaint, this answering
6 Cross-Defendant alleges that any damages or injuries sustained by the Cross-Complainant, was a
7 part of the business risk assumed by the Cross-Complainant upon entering into its alleged
8 contractual relationships.
9 THIRTIETH AFFIRMATIVE DEFENSE
10 As a further and separate affirmative defense to the Cross-Complaint, this answering
IMAI, TADLOCK, KEENEY & CORDERY, LLP
11 Cross-Defendant alleges that, at all material times, the Cross-Complainant knew the hazards
1660 South Amphlett Blvd, Suite 300, San Mateo, CA 94402
12 involved as related in the Cross-Complaint, had full knowledge of the conditions existing,
13 appreciated the danger thereof, and voluntarily, knowingly, and intelligently assumed said risks,
(415) 260-4595
LAW O FF ICES
14 and the Cross-Complainant’s assumption of said risks was the sole or partial proximate cause of
15 the alleged incidents from which the Cross-Complainant claim of damages purportedly arise. The
16 risk encountered by the Cross-Complainant was one inherent in the activity in question and was,
17 therefore, a reasonable risk. The Cross-Complainant’s assumption of the risk therefore acts as a
18 complete bar to its recovery.
19 THIRTY-FIRST AFFIRMATIVE DEFENSE
20 As a further and separate affirmative defense to the Cross-Complaint, this answering
21 Cross-Defendant is informed and believes, and therefore alleges, that the Cross-Complaint is
22 barred by the waiver of subrogation and/or waiver of assignment provision(s) in the primary
23 contract and/or subcontract between C
Preview
1 Michael J. Boland, Esq. (Bar No. 98343) Email: mboland@itkc.com 2 Theodore T. Cordery, Esq. (Bar No. 114730) Email: tcordery@itkc.com 3 Imai, Tadlock, Keeney & Cordery, LLP 1660 South Amphlett Blvd, Suite 300 4 San Mateo, CA 94402 Telephone: (415) 260-4595 5 Facsimile: (415) 329-2244 6 Attorneys for Defendant and Cross-Defendant RODAN BUILDERS, INC. 7 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA 8 IN AND FOR THE COUNTY OF SAN MATEO 9 UNLIMITED JURISDICTION 10 LEXINGTON INSURANCE COMPANY, CASE NO.: 23-CIV-05063 IMAI, TADLOCK, KEENEY & CORDERY, LLP 11 1660 South Amphlett Blvd, Suite 300, San Mateo, CA 94402 Assigned for all purposes to Judge Susan 12 Plaintiffs, Greenberg in Department 3 13 v. DEFENDANT AND CROSS-DEFENDANT RODAN BUILDERS, INC.’S ANSWER TO (415) 260-4595 CROSS-COMPLAINT LAW O FF ICES 14 CAW ARCHITECTS, INC., et al. , 15 Complaint Filed: 10/24/2023 Cross-Complaint Filed: 12/14/2023 16 Defendants. 17 and all related CROSS ACTIONS 18 COMES NOW Defendant and Cross-Defendant RODAN BUILDERS, INC., (hereinafter 19 “this Cross-Defendant”) and answers the Cross-Complaint of Cross-Complainant CAW 20 ARCHITECTS, INC. (hereinafter “this Cross-Complainant”) on file herein denying each and 21 every, all and singular, generally and specifically, the allegations of said Cross-Complaint and 22 each cause of action therein, and further denies that Cross-Complainant has been damaged in any 23 sum or amount or at all. 24 Furthermore, this Cross-Defendant alleges each of the following affirmative defenses: 25 FIRST AFFIRMATIVE DEFENSE 26 The Cross-Complaint in its entirety and each and every cause of action therein, fails to 27 state facts sufficient to constitute a cause of action against this answering Cross-Defendant. 28 /// -1- CROSS-DEFENDANT RODAN BUILDERS, INC.’S ANSWER TO CROSS-COMPLAINT _________________________ 1 SECOND AFFIRMATIVE DEFENSE 2 As a further and separate affirmative defense to the Cross-Complaint, this answering 3 Cross-Defendant alleges that any damage or injury allegedly suffered by Cross-Complainant was 4 proximately caused or contributed to by the negligence or fault of Cross-Complainant’s agents, 5 representatives and/or employees and this answering Cross-Defendant is informed and believes 6 and thereon alleges that said party was careless and negligent. Thus, if Cross-Complainant is 7 entitled to recover at all for any damages alleged, such recovery must be diminished to the extent 8 that said damages are attributable to the negligence of Cross-Complainant’s agents, 9 representatives and/or employees. 10 THIRD AFFIRMATIVE DEFENSE IMAI, TADLOCK, KEENEY & CORDERY, LLP 11 As a further and separate affirmative defense to the Cross-Complaint, this answering 1660 South Amphlett Blvd, Suite 300, San Mateo, CA 94402 12 Cross-Defendant alleges that any injuries and damages suffered by Cross-Complainant, other 13 parties, or any of them, was caused or contributed to by the negligence or fault of persons or (415) 260-4595 LAW O FF ICES 14 entities other than this answering Cross-Defendant, thereby entitling this answering Cross- 15 Defendant to an appropriate proration of damages in accordance with the provisions of the law 16 applicable thereto. 17 FOURTH AFFIRMATIVE DEFENSE 18 As a further and separate affirmative defense to the Cross-Complaint, this answering 19 Cross-Defendant alleges that the injuries and damages alleged and for which Cross-Complainant 20 seeks recovery were the result of causes independent of any purported acts or omissions on the 21 part of this answering Cross-Defendant, thereby eliminating or reducing the alleged liability of 22 this answering Cross-Defendant. 23 FIFTH AFFIRMATIVE DEFENSE 24 As a further and separate affirmative defense to the Cross-Complaint, this answering 25 Cross-Defendant alleges that any and all of the injuries and damages asserted by Cross- 26 Complainant was caused or contributed to, in whole or in part, by the negligence or fault of 27 Cross-Complainant or others, and said acts and omissions entitle this answering Cross-Defendant 28 to contribution from said individuals and entities, and each of them. -2- CROSS-DEFENDANT RODAN BUILDERS, INC.’S ANSWER TO CROSS-COMPLAINT _________________________ 1 SIXTH AFFIRMATIVE DEFENSE 2 As a further and separate affirmative defense to the Cross-Complaint, this answering 3 Cross-Defendant alleges that if this answering Cross-Defendant is found to have been negligent or 4 liable in any manner, such conduct was passive and secondary, while the negligence of Cross- 5 Complainant or others was active and primary, and such conduct bars, in whole or in part, the 6 recovery requested or any recovery at all, against this answering Cross-Defendant. 7 SEVENTH AFFIRMATIVE DEFENSE 8 As a further and separate affirmative defense to the Cross-Complaint, this answering 9 Cross-Defendant alleges that the negligence of Cross-Complainant or other parties or entities 10 constitutes an intervening and superseding cause of injuries and damages, if any, thereby barring IMAI, TADLOCK, KEENEY & CORDERY, LLP 11 or reducing Cross-Complainant’s recovery herein. 1660 South Amphlett Blvd, Suite 300, San Mateo, CA 94402 12 EIGHTH AFFIRMATIVE DEFENSE 13 As a further and separate affirmative defense to the Cross-Complaint, this answering (415) 260-4595 LAW O FF ICES 14 Cross-Defendant alleges that the Cross-Complaint on file herein is barred in whole or in part by 15 reason of Cross-Complainant’s inequitable conduct and/or unclean hands, and the court should 16 not give Cross-Complainant relief based upon the facts alleged. 17 NINTH AFFIRMATIVE DEFENSE 18 As a further and separate affirmative defense to the Cross-Complaint, this answering 19 Cross-Defendant alleges that the Cross-Complaint and each purported cause of action stated 20 therein is barred under the doctrine of waiver. 21 TENTH AFFIRMATIVE DEFENSE 22 As a further and separate affirmative defense to the Cross-Complaint, this answering 23 Cross-Defendant alleges that Cross-Complainant, and each purported cause of action stated 24 therein, are barred by the doctrine of laches. 25 ELEVENTH AFFIRMATIVE DEFENSE 26 As a further and separate affirmative defense to the Cross-Complaint, this answering 27 Cross-Defendant alleges that the Cross-Complaint and each purported cause of action stated 28 therein is barred under the doctrine of res judicata. -3- CROSS-DEFENDANT RODAN BUILDERS, INC.’S ANSWER TO CROSS-COMPLAINT _________________________ 1 TWELFTH AFFIRMATIVE DEFENSE 2 As a further and separate affirmative defense to the Cross-Complaint, this answering 3 Cross-Defendant alleges that the Cross-Complaint and each purported cause of action stated 4 therein is barred under the doctrine of estoppel. 5 THIRTEENTH AFFIRMATIVE DEFENSE 6 As a further and separate affirmative defense to the Cross-Complaint, this answering 7 Cross-Defendant alleges that the Cross-Complaint, and each purported cause of action stated 8 therein, are barred as a result of the Cross-Complainant’s and Cross-Complainant’s failure to 9 mitigate its damages, if any were suffered, and by its gratuitously incurring expenses that were 10 not justified. IMAI, TADLOCK, KEENEY & CORDERY, LLP 11 FOURTEENTH AFFIRMATIVE DEFENSE 1660 South Amphlett Blvd, Suite 300, San Mateo, CA 94402 12 As a further and separate affirmative defense to said Cross-Complaint, this answering 13 Cross-Defendant alleges by way of a plea of comparative negligence that the Cross-Complainant (415) 260-4595 LAW O FF ICES 14 was negligent in and about the matters and activities alleged in said Cross-Complaint, that said 15 negligence contributed to and was a proximate cause of Cross-Complainant’s alleged injuries and 16 damages, if any, and that if the Cross-Complainant is entitled to recover damages against this 17 answering Cross-Defendant, this answering Cross-Defendant prays that said recovery be 18 diminished by reason of the Cross-Complainant’s actions in proportion to the degree of fault 19 attributable to Cross-Complainant. 20 FIFTEENTH AFFIRMATIVE DEFENSE 21 As a further and separate affirmative defense to said Cross-Complaint, this answering 22 Cross-Defendant is informed and believes, and therefore alleges, that this answering Cross- 23 Defendant is entitled to the right of indemnification by apportionment against all other parties and 24 persons whose negligence contributed to the alleged damages. 25 SIXTEENTH AFFIRMATIVE DEFENSE 26 As a further and separate affirmative defense to said Cross-Complaint, this answering 27 Cross-Defendant is informed and believes, and therefore alleges, that any and all mandatory 28 duties imposed on this answering Cross-Defendant, and/or its agents or employees, the failure of -4- CROSS-DEFENDANT RODAN BUILDERS, INC.’S ANSWER TO CROSS-COMPLAINT _________________________ 1 which allegedly created the condition at the time and place which is the subject of this Cross- 2 Complaint, were exercised with reasonable diligence and therefore, this answering Cross- 3 Defendant is not liable for the alleged damages. 4 SEVENTEENTH AFFIRMATIVE DEFENSE 5 As a further and separate affirmative defense to said Cross-Complaint, this answering 6 Cross-Defendant is informed and believes, and therefore alleges, that this answering Cross- 7 Defendant is not vicariously liable for the damages, if any, alleged in Cross-Complainant’s Cross- 8 Complaint, caused by the acts or omissions of the other Cross-Defendants. 9 EIGHTEENTH AFFIRMATIVE DEFENSE 10 As a further and separate affirmative defense to said Cross-Complaint, this answering IMAI, TADLOCK, KEENEY & CORDERY, LLP 11 Cross-Defendant is informed and believes, and therefore alleges, that the injuries and damages 1660 South Amphlett Blvd, Suite 300, San Mateo, CA 94402 12 complained of by the Cross-Complainant, if there were any, are properly attributable to a 13 modification, alteration or other change in some manner to the installed work of improvement for (415) 260-4595 LAW O FF ICES 14 which the Cross-Complainant herein seeks to hold this answering Cross-Defendant legally 15 responsible, which modification, alteration or change was not performed by or participated in or 16 consented to or approved by this answering Cross-Defendant, or any agent, servant or employee 17 of this answering Cross-Defendant. Accordingly, any recovery against this answering Cross- 18 Defendant should be barred or otherwise diminished. 19 NINETEENTH AFFIRMATIVE DEFENSE 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 the Cross-Complaint is 22 barred by the applicable statute of limitations contained in Code of Civil Procedures §§ 337, 23 337.1, 337.15, 338, 339, 340.1, 340.3, 340.8, 343, 350 and Commercial Code sections 2607, 24 2725. 25 TWENTIETH AFFIRMATIVE DEFENSE 26 As a further and separate affirmative defense to said Cross-Complaint, this answering 27 Cross-Defendant is informed and believes, and therefore alleges, that Cross-Complainant or 28 others failed to perform to the degree of maintenance on the work of improvement performed on -5- CROSS-DEFENDANT RODAN BUILDERS, INC.’S ANSWER TO CROSS-COMPLAINT _________________________ 1 the property that is the subject matter of this action, necessary to protect such work of 2 improvement from deterioration from the elements. Such failure to maintain the said work of 3 improvement bars or otherwise diminishes the claim or recovery of Cross-Complainant. 4 TWENTY-FIRST AFFIRMATIVE DEFENSE 5 As a further and separate affirmative defense to said Cross-Complaint, this answering 6 Cross-Defendant is informed and believes, and therefore alleges that this answering Cross- 7 Defendant has appropriately, completely and fully performed and discharged any and all 8 obligations and legal duties arising out of the matters alleged in the Cross-Complaint. 9 TWENTY-SECOND AFFIRMATIVE DEFENSE 10 As a further and separate affirmative defense to said Cross-Complaint, this answering IMAI, TADLOCK, KEENEY & CORDERY, LLP 11 Cross-Defendant is informed and believes, and therefore alleges that at the times and places 1660 South Amphlett Blvd, Suite 300, San Mateo, CA 94402 12 mentioned in the Cross-Complaint, the Cross-Complainant or others failed to exercise the quality 13 and quantity of care and caution which a reasonable person in the same or similar circumstances (415) 260-4595 LAW O FF ICES 14 would have exercised for the protection of themselves and their property; said failure and 15 negligence by the Cross-Complainant or others proximately caused and contributed to the 16 damages, if any, sustained by the Cross-Complainant. Cross-Complainant’s recovery, therefore, 17 if any, should be reduced by an amount proportionate to the amount by which Cross- 18 Complainant’s or other’s negligence contributed 19 to the happening of the alleged accident, injury, damage and/or loss. 20 TWENTY-THIRD AFFIRMATIVE DEFENSE 21 As a further and separate affirmative defense to said Cross-Complaint, this answering 22 Cross-Defendant is informed and believes, and therefore alleges, that the Cross-Complainant was 23 already in breach of its alleged contractual relationships, if any, at or before the time of the 24 matters alleged to have arisen from acts or omissions by this answering Cross-Defendant and, 25 therefore, no act or omission of this answering Cross-Defendant was a direct or proximate cause 26 of any of the matters alleged in the Cross-Complaint. 27 /// 28 /// -6- CROSS-DEFENDANT RODAN BUILDERS, INC.’S ANSWER TO CROSS-COMPLAINT _________________________ 1 TWENTY-FOURTH AFFIRMATIVE DEFENSE 2 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 performed each of its 4 obligations pursuant to any and all contracts and agreements described in the Cross-Complaint, if 5 any there were, except those obligations this answering Cross-Defendant was prevented and/or 6 excused from performing by the acts and/or omissions of Cross-Complainant, and/or other 7 individuals or entities not named as Cross-Defendants in the Cross-Complaint herein. 8 TWENTY-FIFTH AFFIRMATIVE DEFENSE 9 As a further and separate affirmative defense to the Cross-Complaint, this answering 10 Cross-Defendant alleges that if it is determined that this answering Cross-Defendant did not IMAI, TADLOCK, KEENEY & CORDERY, LLP 11 perform one or more obligations under any contract or agreement, this answering Cross- 1660 South Amphlett Blvd, Suite 300, San Mateo, CA 94402 12 Defendant contends that Cross-Complainant does not perform its obligations under each contract 13 or agreement as aforesaid, and that those obligations were a condition precedent to any (415) 260-4595 LAW O FF ICES 14 performance by this answering Cross-Defendant in each instance. 15 TWENTY-SIXTH AFFIRMATIVE DEFENSE 16 As a further and separate affirmative defense to the Cross-Complaint, this answering 17 Cross-Defendant alleges that the acts or omissions alleged to have been committed by this 18 answering Cross-Defendant was justified as part of the regular course of business and the 19 fulfillment of its own contractual obligations. 20 TWENTY-SEVENTH AFFIRMATIVE DEFENSE 21 As a further and separate affirmative defense to the Cross-Complaint, this answering 22 Cross-Defendant alleges that a valid contractual relationship, of the nature and scope alleged by 23 the Cross-Complainant, did not exist between this answering Cross-Defendant and the Cross- 24 Complainant and that the absence of such a contractual relationship acts to bar any recovery by 25 the Cross-Complainant against this answering Cross-Defendant. 26 TWENTY-EIGHTH AFFIRMATIVE DEFENSE 27 As a further and separate affirmative defense to the Cross-Complaint, this answering 28 Cross-Defendant alleges that the Cross-Complaint, and each purported cause of action stated -7- CROSS-DEFENDANT RODAN BUILDERS, INC.’S ANSWER TO CROSS-COMPLAINT _________________________ 1 therein, are barred because Cross-Complainant failed to give this answering Cross-Defendant 2 proper notice, in a timely and reasonable manner, of any such alleged breach, nor was this 3 answering Cross-Defendant afforded any opportunity to fulfill its obligations in each instance. 4 TWENTY-NINTH AFFIRMATIVE DEFENSE 5 As a further and separate affirmative defense to the Cross-Complaint, this answering 6 Cross-Defendant alleges that any damages or injuries sustained by the Cross-Complainant, was a 7 part of the business risk assumed by the Cross-Complainant upon entering into its alleged 8 contractual relationships. 9 THIRTIETH AFFIRMATIVE DEFENSE 10 As a further and separate affirmative defense to the Cross-Complaint, this answering IMAI, TADLOCK, KEENEY & CORDERY, LLP 11 Cross-Defendant alleges that, at all material times, the Cross-Complainant knew the hazards 1660 South Amphlett Blvd, Suite 300, San Mateo, CA 94402 12 involved as related in the Cross-Complaint, had full knowledge of the conditions existing, 13 appreciated the danger thereof, and voluntarily, knowingly, and intelligently assumed said risks, (415) 260-4595 LAW O FF ICES 14 and the Cross-Complainant’s assumption of said risks was the sole or partial proximate cause of 15 the alleged incidents from which the Cross-Complainant claim of damages purportedly arise. The 16 risk encountered by the Cross-Complainant was one inherent in the activity in question and was, 17 therefore, a reasonable risk. The Cross-Complainant’s assumption of the risk therefore acts as a 18 complete bar to its recovery. 19 THIRTY-FIRST AFFIRMATIVE DEFENSE 20 As a further and separate affirmative defense to the Cross-Complaint, this answering 21 Cross-Defendant is informed and believes, and therefore alleges, that the Cross-Complaint is 22 barred by the waiver of subrogation and/or waiver of assignment provision(s) in the primary 23 contract and/or subcontract between C