Preview
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Andrew V. Stearns, SBN 164849
Gaurav D. Sharma, SBN 269123
ROBARDS & STEARNS, PC
Twin Parks
718 University Avenue, Suite 216
Los Gatos, CA 95032
Telephone: (408) 214-6432
Facsimile: (408) 560-9592
AStearns@RobardsStearns.com
GSharma@RobardsStearns.com
Attorneys for defendants:
ROEM BUILDERS, INC. and
AMERICAN CONTRACTORS INDEMNITY
COMPANY
IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF SANTA CLARA
RK
TRAVERLERS PROPERTY CASUALTY ) Case No. 20CV366357
COMPANY OF AMERICA, a Connecticut )
Corporation licensed to do business in ) ANSWER TO UNVERIFIED
California, ) COMPLAINT
)
)
Plaintiff, )
) Complaint Filed: April 29, 2020
vs. )
)
ROEM BUILDERS, INC., a California )
corporation; AMERICAN CONTRACTORS | )
INDEMNITY COMPANY, a California )
corporation, as surety for ROEM )
BUILDERS, INC., a California corporation; —_)
and DOES | through 30, inclusive, )
)
)
Defendants. )
)
GENERAL DENIAL
Defendants ROEM BUILDERS, INC., a California corporation, and AMERICAN
CONTRACTORS INDEMNITY COMPANY, a California corporation, in answer to the Complaint
of Plaintiff hereby deny each and every, generally and specifically, allegation of said Complaint.
Further, Defendants specifically deny that Plaintiff has suffered any damages as a result of any
Page |
ANSWER TO UNVERIFIED COMPLAINTconduct, action, error, or omission on the part of Defendants or any of their agents, servants or
employees.
AFFIRMATIVE DEFENSES
Defendants assert the following separate and distinct affirmative defenses:
1. The Complaint, and each cause of action contained therein, has failed to set forth facts and
allegations sufficient to constitute a cause of action against defendants, their agents, servants and/or
employees.
2. Plaintiff has failed to mitigate its damages, if any are proven, and therefore any recovery
should be reduced by the amount they could have reasonably avoided or barred.
3. Plaintiffs claim is barred by the doctrine of laches.
4. Plaintiff's claim is barred by the doctrine of equitable estoppel.
5. The alleged injuries suffered by plaintiff, and for which plaintiff seeks relief, were the sole
and proximate result of the negligent and/or willful misconduct of parties other than defendants,
their agents, servants and/or employees.
6. Plaintiff, by its own acts, conduct and/or omissions, waived whatever rights it might have
had based upon the allegations in the Complaint against defendants.
7. The Complaint, and each cause of action contained therein, is barred in that the damages
allegedly suffered by plaintiffs, if any, were caused by the superseding, intervening and/or
independent negligence or intentional conduct of persons and entities, including plaintiff and its
agents, servants and/or employees and were not the result of any act, omission or conduct of
defendants.
8. Atall times mentioned in and about the matters and things alleged in the Complaint, which
plaintiff's carelessness, recklessness and/or negligence concurred in point of time with the alleged
negligence of defendants, if any there may have been, and legally caused and/or contributed to
whatever injury and/or damage plaintiff may have sustained, if any, any recovery by plaintiff, if
any, should be eliminated or proportionately reduced according to the percentage of fault of
plaintiff.
9. Plaintiff's claims are barred by the applicable statute of limitations found in the California
Page 2
ANSWER TO UNVERIFIED COMPLAINTee On
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Code of Civil Procedure, including, but not limited to, §§337 and 337.15.
10. Plaintiff has suffered no damages.
11. Defendants fully performed under the contract alleged in the Complaint.
12. Defendants did not breach any obligation or duty to plaintiff.
13. Defendants fully performed under the terms of any alleged warranty.
14. Plaintiff's damages, if any there be, are properly the obligation of parties other than
defendants.
15. Plaintiff is not entitled to attorneys’ fees.
16. Plaintiff has not described the claims in the Complaint with sufficient particularity and
certainty to enable defendants to determine what additional defenses may be available to it.
Defendant therefore reserves the right to assert all defenses which may be pertinent to, or arising
from said Complaint, once the precise nature of such claims and causes of action are ascertained
through discovery.
The following specific affirmative defenses apply to the surety, AMERICAN
CONTRACTORS INDEMNITY COMPANY:
17. These defendants have no independent liability to plaintiff.
18. Plaintiff's claim on the bond is improper.
19. The surety stands in the shoes of principal and asserts all the same affirmative
defenses as the principal.
20. A bond is not a cash nor is the bond any way an insurance policy. Any recovery
against a bond is conditioned upon a proven violation by the principal. Furthermore, such recovery
is limited to the penal sum of such a bond.
21. A bond only covers those acts of the bond principal/licensee that are within the scope|
of the licensed business.
22. A bond covers only those acts which occur during the period of time that the bond
was effective.
23. A bond, pursuant to its terms, is only effective and covers only those acts that occur
while the license for which it was issued is active.
Page 3
ANSWER TO UNVERIFIED COMPLAINT24. The liability of the surety, if any, is limited in the aggregate to the penal sum of any
bond it may have issued, irrespective of the number of claims brought against said bond. Any such
liability is reducible from the maximum penal sum by payments made in good faith to any other
claimants who have, or will bring, claims or lawsuits against any such bond issued by the surety.
25. Any act of the plaintiff constituting an alteration of its original relationship with
surety’s principal without notice to surety would serve to exonerate surety under Civil Code §2819.
26. The liability of surety, if any, on the bond issued to its bond principal/licensee is
secondary to the liability principal/licensee.
WHEREFORE, defendants pray that:
A. Plaintiff takes nothing by way of his Complaint;
B The Complaint be dismissed with prejudice;
Cc. For costs of suit incurred herein, including attorneys’ fees, expert fees and costs;
D. All other relief the Court deems necessary and appropriate to accord substantial
justice.
DATED: July 23, 2020 ROBARDS & STEARNS, PC
Al
ANDREW V. STEARNS, on behalf of defendants
ROEM BUILDERS, INC. and AMERICAN
CONTRACTORS INDEMNITY COMPANY
Page 4
ANSWER TO UNVERIFIED COMPLAINTCASE NAME: Travelers Property Casualty Company of America v. ROEM Builders, Inc., et al.
VENUE: Santa Clara County Superior Court
ACTION NO.: 20CV366357
PROOF OF SERVICE
STATE OF CALIFORNIA, COUNTY OF SANTA CLARA
Tam a citizen of the United States. My business address is 718 University Avenue, Suite 216, Los Gatos,
California 95032. I am employed in the County of Santa Clara where this service occurs. I am over the age of
18 years and not a party to the within action or cause. I am readily familiar with my employer’s normal business
practice for collection and processing of documents for mailing with the U.S. Postal Service, and that practice is
that documents are deposited with the U.S. Postal Services the same day as the day of collection in the ordinary
course of business.
On the date set forth below, following ordinary business practice, I served the foregoing document(s)
described as:
Answer to Complaint; Cross-Complaint
on said date at my place of business, a true copy thereof, on the following parties by enclosing said copies in a
sealed envelope in the ordinary course of business, addressed to the parties as follow
Benjamin W. Blaisdell, Esq. Attorneys for Plaintiff
Law Offices of John A. Baird
P.O. Box 64093
St. Paul MN 55164-0093
bblaisde@travelers.com
—X] (BY MAIL) I caused such envelope(s) with postage thereon fully prepaid to be placed in the U.S. mail in
Los Gatos, California.
(BY EMAIL) I caused such documents to be delivered by email this date to the offices of the addressee(s),
to the email address noted herein.
(BY PERSONAL SERVICE) I caused such envelope(s) to be delivered by hand this date to the offices of
the addressee(s).
[] (BY OVERNIGHT DELIVERY) I caused such envelope(s) to be delivered to an overnight delivery
carrier with delivery fees provide for, addressed to the person(s) on whom it is to be served.
(STATE) I declare under penalty of perjury under the laws of the State of California that the foregoing is
true and correct.
ANDREW V. STEARNS
Executed on July 23, 2020 in Los Gatos, California.
Preview
ROE ON OS oe ho) PN’ YP NY YN NH NY KY Be Be ew Be ew ew eB Ee DW x» ya DH FB NH =F So we ARIA AA BGBH BS Andrew V. Stearns, SBN 164849 Gaurav D. Sharma, SBN 269123 ROBARDS & STEARNS, PC Twin Parks 718 University Avenue, Suite 216 Los Gatos, CA 95032 Telephone: (408) 214-6432 Facsimile: (408) 560-9592 AStearns@RobardsStearns.com GSharma@RobardsStearns.com Attorneys for defendants: ROEM BUILDERS, INC. and AMERICAN CONTRACTORS INDEMNITY COMPANY IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SANTA CLARA RK TRAVERLERS PROPERTY CASUALTY ) Case No. 20CV366357 COMPANY OF AMERICA, a Connecticut ) Corporation licensed to do business in ) ANSWER TO UNVERIFIED California, ) COMPLAINT ) ) Plaintiff, ) ) Complaint Filed: April 29, 2020 vs. ) ) ROEM BUILDERS, INC., a California ) corporation; AMERICAN CONTRACTORS | ) INDEMNITY COMPANY, a California ) corporation, as surety for ROEM ) BUILDERS, INC., a California corporation; —_) and DOES | through 30, inclusive, ) ) ) Defendants. ) ) GENERAL DENIAL Defendants ROEM BUILDERS, INC., a California corporation, and AMERICAN CONTRACTORS INDEMNITY COMPANY, a California corporation, in answer to the Complaint of Plaintiff hereby deny each and every, generally and specifically, allegation of said Complaint. Further, Defendants specifically deny that Plaintiff has suffered any damages as a result of any Page | ANSWER TO UNVERIFIED COMPLAINTconduct, action, error, or omission on the part of Defendants or any of their agents, servants or employees. AFFIRMATIVE DEFENSES Defendants assert the following separate and distinct affirmative defenses: 1. The Complaint, and each cause of action contained therein, has failed to set forth facts and allegations sufficient to constitute a cause of action against defendants, their agents, servants and/or employees. 2. Plaintiff has failed to mitigate its damages, if any are proven, and therefore any recovery should be reduced by the amount they could have reasonably avoided or barred. 3. Plaintiffs claim is barred by the doctrine of laches. 4. Plaintiff's claim is barred by the doctrine of equitable estoppel. 5. The alleged injuries suffered by plaintiff, and for which plaintiff seeks relief, were the sole and proximate result of the negligent and/or willful misconduct of parties other than defendants, their agents, servants and/or employees. 6. Plaintiff, by its own acts, conduct and/or omissions, waived whatever rights it might have had based upon the allegations in the Complaint against defendants. 7. The Complaint, and each cause of action contained therein, is barred in that the damages allegedly suffered by plaintiffs, if any, were caused by the superseding, intervening and/or independent negligence or intentional conduct of persons and entities, including plaintiff and its agents, servants and/or employees and were not the result of any act, omission or conduct of defendants. 8. Atall times mentioned in and about the matters and things alleged in the Complaint, which plaintiff's carelessness, recklessness and/or negligence concurred in point of time with the alleged negligence of defendants, if any there may have been, and legally caused and/or contributed to whatever injury and/or damage plaintiff may have sustained, if any, any recovery by plaintiff, if any, should be eliminated or proportionately reduced according to the percentage of fault of plaintiff. 9. Plaintiff's claims are barred by the applicable statute of limitations found in the California Page 2 ANSWER TO UNVERIFIED COMPLAINTee On © © 10 i 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 IR Code of Civil Procedure, including, but not limited to, §§337 and 337.15. 10. Plaintiff has suffered no damages. 11. Defendants fully performed under the contract alleged in the Complaint. 12. Defendants did not breach any obligation or duty to plaintiff. 13. Defendants fully performed under the terms of any alleged warranty. 14. Plaintiff's damages, if any there be, are properly the obligation of parties other than defendants. 15. Plaintiff is not entitled to attorneys’ fees. 16. Plaintiff has not described the claims in the Complaint with sufficient particularity and certainty to enable defendants to determine what additional defenses may be available to it. Defendant therefore reserves the right to assert all defenses which may be pertinent to, or arising from said Complaint, once the precise nature of such claims and causes of action are ascertained through discovery. The following specific affirmative defenses apply to the surety, AMERICAN CONTRACTORS INDEMNITY COMPANY: 17. These defendants have no independent liability to plaintiff. 18. Plaintiff's claim on the bond is improper. 19. The surety stands in the shoes of principal and asserts all the same affirmative defenses as the principal. 20. A bond is not a cash nor is the bond any way an insurance policy. Any recovery against a bond is conditioned upon a proven violation by the principal. Furthermore, such recovery is limited to the penal sum of such a bond. 21. A bond only covers those acts of the bond principal/licensee that are within the scope| of the licensed business. 22. A bond covers only those acts which occur during the period of time that the bond was effective. 23. A bond, pursuant to its terms, is only effective and covers only those acts that occur while the license for which it was issued is active. Page 3 ANSWER TO UNVERIFIED COMPLAINT24. The liability of the surety, if any, is limited in the aggregate to the penal sum of any bond it may have issued, irrespective of the number of claims brought against said bond. Any such liability is reducible from the maximum penal sum by payments made in good faith to any other claimants who have, or will bring, claims or lawsuits against any such bond issued by the surety. 25. Any act of the plaintiff constituting an alteration of its original relationship with surety’s principal without notice to surety would serve to exonerate surety under Civil Code §2819. 26. The liability of surety, if any, on the bond issued to its bond principal/licensee is secondary to the liability principal/licensee. WHEREFORE, defendants pray that: A. Plaintiff takes nothing by way of his Complaint; B The Complaint be dismissed with prejudice; Cc. For costs of suit incurred herein, including attorneys’ fees, expert fees and costs; D. All other relief the Court deems necessary and appropriate to accord substantial justice. DATED: July 23, 2020 ROBARDS & STEARNS, PC Al ANDREW V. STEARNS, on behalf of defendants ROEM BUILDERS, INC. and AMERICAN CONTRACTORS INDEMNITY COMPANY Page 4 ANSWER TO UNVERIFIED COMPLAINTCASE NAME: Travelers Property Casualty Company of America v. ROEM Builders, Inc., et al. VENUE: Santa Clara County Superior Court ACTION NO.: 20CV366357 PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF SANTA CLARA Tam a citizen of the United States. My business address is 718 University Avenue, Suite 216, Los Gatos, California 95032. I am employed in the County of Santa Clara where this service occurs. I am over the age of 18 years and not a party to the within action or cause. I am readily familiar with my employer’s normal business practice for collection and processing of documents for mailing with the U.S. Postal Service, and that practice is that documents are deposited with the U.S. Postal Services the same day as the day of collection in the ordinary course of business. On the date set forth below, following ordinary business practice, I served the foregoing document(s) described as: Answer to Complaint; Cross-Complaint on said date at my place of business, a true copy thereof, on the following parties by enclosing said copies in a sealed envelope in the ordinary course of business, addressed to the parties as follow Benjamin W. Blaisdell, Esq. Attorneys for Plaintiff Law Offices of John A. Baird P.O. Box 64093 St. Paul MN 55164-0093 bblaisde@travelers.com —X] (BY MAIL) I caused such envelope(s) with postage thereon fully prepaid to be placed in the U.S. mail in Los Gatos, California. (BY EMAIL) I caused such documents to be delivered by email this date to the offices of the addressee(s), to the email address noted herein. (BY PERSONAL SERVICE) I caused such envelope(s) to be delivered by hand this date to the offices of the addressee(s). [] (BY OVERNIGHT DELIVERY) I caused such envelope(s) to be delivered to an overnight delivery carrier with delivery fees provide for, addressed to the person(s) on whom it is to be served. (STATE) I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. ANDREW V. STEARNS Executed on July 23, 2020 in Los Gatos, California.