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LEONIDOU & ROSIN
Professional Corporation
JANETTE G. LEONIDOU (SBN 155257)
JULIANA SALFITI (SBN 204268)
777 Cuesta Drive, Suite 200
Mountain View, CA 94040
Telephone: (650) 691-2888
Attorneys for Defendant and Cross-Defendant
PROVEN MANAGEMENT, INC.
IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF SANTA CLARA
ECOLOGICAL CONCERNS, ) Case No.: 17CV321092
INCORPORATED, a California corporation. ;
a. ) GENERAL DENIAL TO COMPLAINT OF
Plaintiff, ) ECOLOGICAL CONCERNS,
) INCORPORATED
vs. )
)
PROVEN MANAGEMENT, INC., a )
California corporation, SAFECO ;
INSURANCE COMPANY OF AMERICA, a )
New Hampshire corporation; SANTA CLARA)
COUNTY WATER DISTRICT, a public )
entity; and DOES 1-25, ;
)
)
Defendants.
ANSWER -- GENERAL DENIAL
Pursuant to § 431.30 of the Code of Civil Procedure, Defendant ProVen Management, Inc.
(“Defendant”) generally denies and puts at issue each and every material allegation of the
Complaint of Ecological Concerns, Incorporated (“Plaintiff”).
As separate and independent defenses, Defendant alleges on information and belief as
follows:
AFFIRMATIVE DEFENSE
(Equitable Relief)
1. Defendant asserts that any equitable relief sought herein is barred because
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GENERAL DENIAL TO COMPLAINT OF ECOLOGICAL CONCERNS, INCORPORATED
SAALRDOCS\30145\35\00213667,.DOCXPlaintiff has an adequate remedy at law.
AFFIRMATIVE DEFENSE
(Failure to State a Cause of Action)
2. The Complaint fails to state facts sufficient to constitute a cause of action.
AFFIRMATIVE DEFENSE
(No Reliance)
3. Plaintiff did not rely on any representations or conduct of Defendant and therefore
Defendant is not responsible for any damages, if any exist.
AFFIRMATIVE DEFENSE
(Standing)
4. Plaintiff is not the owner of the claims that it purports to prosecute and lacks
standing to pursue such claims.
AFFIRMATIVE DEFENSE
(Statutes of Limitation)
5. Defendant is informed and believes that Plaintiffs claims are barred by the
applicable statutes of limitations as set forth in the California Code of Civil Procedure Sections
335 et seq., more particularly, but not limited to, Sections 337, 338, 339, 340, and 343; Uniform
Commercial Code Section 2725; and sections 8200 et. seq., 8400 et. seq., 8460, 8600 et. seq., 9300
et. seq. and 9558 of the California Civil Code.
AFFIRMATIVE DEFENSE
(Failure to Serve Proper Preliminary Notice)
6. Plaintiff's claims fail for failure to serve a proper preliminary notice pursuant to
California Code of Civil Procedure Section 415.20, Civil Code Section 9302 and all applicable
statutes. Defendant is informed and believes that Plaintiff's claims are barred due to Plaintiff's
failure to provide a Preliminary 20-Day Notice within the time prescribed and with the conditions
mandated under Civil Code Sections 9300 et seq., and to otherwise comply with the laws
governing claims arising from public works of improvement.
Mt
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GENERAL DENIAL TO COMPLAINT OF ECOLOGICAL CONCERNS, INCORPORATED
S:\ALRDOCS\30145\35\00213667.DOCXAFFIRMATIVE DEFENSE
(Unclean Hands)
i. Defendant is informed and believes that Plaintiffs unclean hands bar the purported
causes of action alleged in the Complaint.
AFFIRMATIVE DEFENSE
(Unjust Enrichment)
8. The Complaint and each cause of action contained therein are barred by the doctrine
of unjust enrichment.
AFFIRMATIVE DEFENSE
(Waiver, Laches and Estoppel)
9. Plaintiff has knowingly engaged in conduct that reasonably induced detrimental
reliance. Plaintiff's claims are therefore barred under the doctrines of waiver, laches, and estoppel.
AFFIRMATIVE DEFENSE
(Willful Overstatement)
10. Plaintiff's claims are barred by its willful overstatement of the amounts it has
sought.
AFFIRMATIVE DEFENSE
(Accord and Satisfaction/Modification of Agreement)
11. Plaintiff entered into an accord and satisfaction and written modification of the
agreement upon which it has filed suit. In that agreement, it waived the claims being pursued
herein. Plaintiff is in breach of the accord and satisfaction and written modification of the
agreement upon which it has brought suit. Accordingly, Plaintiff is barred from pursuing any
rights or remedies.
AFFIRMATIVE DEFENSE
(ADR Provisions)
12. To the extent that there is any agreement between the parties to utilize Alternate
Dispute Resolution (“ADR”) procedures to resolve any or all of the issues or disputes raised in
Plaintiff's Complaint, Defendant expressly reserves the right to enforce those ADR provisions and
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does not waive the right to enforce those ADR provisions by filing this answer. ADR procedures
include, without limitation, arbitration, mediation, or a judicial reference.
AFFIRMATIVE DEFENSE
(Breach of Covenant of Good Faith and Fair Dealing)
13. Plaintiff, by its acts, conduct, and/or omissions, has breached the implied covenant
of good faith and fair dealing with respect to all agreements, settlements and/or contracts made by
it or on its behalf.
AFFIRMATIVE DEFENSE
(Complete Performance)
14. Defendant has appropriately, completely, and fully performed and discharged any
and all obligations and legal duties arising out of the matters alleged in the Complaint.
AFFIRMATIVE DEFENSE
(Damages Not Foreseeable)
15. The damages claimed by Plaintiff are not reasonably foreseeable based upon the
type of work and alleged nature of the purported issues involved.
AFFIRMATIVE DEFENSE
(Discharge by Acceptance of Benefits)
16. To the extent that Defendant would have owed any obligations to Plaintiff (which
Defendant denies), that purported obligation would have been discharged in whole or in part by
Plaintiff's agreement to accept payment from an insurance company in lieu of payment from
Defendant.
AFFIRMATIVE DEFENSE
(Disclaimer)
17. All implied warranties were properly disclaimed.
AFFIRMATIVE DEFENSE
(Excuse)
18. Plaintiff’s failure to perform pursuant to the agreements, if any, between the parties
excused Defendant from performing any obligations it did not perform, if there was any such
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performance due.
AFFIRMATIVE DEFENSE
(Failure to Commence Proceedings in a Timely Manner)
19. Defendant is informed and believes that Plaintiff failed to commence proceedings
in a timely manner, in accordance with the terms of applicable contracts.
AFFIRMATIVE DEFENSE
(Failure to Exhaust Contractually Required Remedies)
20. Plaintiff has failed to exhaust contractually required remedies and is therefore
barred from pursuing any claims or remedies.
AFFIRMATIVE DEFENSE
(Failure to Mitigate Damages)
21. Plaintiff has failed to mitigate its purported damages and have knowingly engaged
in conduct that would have aggravated its purported damages, if any had been sustained.
AFFIRMATIVE DEFENSE
(Failure to Notify)
22. Plaintiff failed to provide Defendant with timely notice of any requested claim and
has failed to meet the statutory pre-conditions to pursuing the claims in this action.
AFFIRMATIVE DEFENSE
(Willful Overstatement of Stop Notice)
23. ‘Plaintiff's claims are barred by its willful overstatement of the amounts it has
sought under its stop notice.
AFFIRMATIVE DEFENSE
(Improper Amounts Included in Stop Notice)
24, Plaintiff's stop notice willfully includes improper amounts, which renders the stop
notice void and unenforceable under Civil Code sections 9352, 9354, and 9454,
AFFIRMATIVE DEFENSE
(Illegality)
25. Pursuant to Section 2782 et seq. of the Civil Code, and other provisions of
5
GENERAL DENIAL TO COMPLAINT OF ECOLOGICAL CONCERNS, INCORPORATED
SAALRDOCS\30145\35\00213667.DOCXapplicable law, a party to a contract cannot be required to indemnify another party for that party’s
sole negligence, willful misconduct, design deficiencies, or active negligence; nor can a greater
duty to defend be imposed than permitted by law.
AFFIRMATIVE DEFENSE
(Material Breach)
26. Plaintiff's recovery is barred because of its material breach of the contract in
question.
AFFIRMATIVE DEFENSE
(Release)
27. Plaintiff agreed to release the claims upon which it has brought suit. Accordingly,
the claims are barred.
AFFIRMATIVE DEFENSE
(Satisfaction of Obligations)
28. The obligations and conditions of Defendant to any agreement between the parties
have been satisfied.
AFFIRMATIVE DEFENSE
(Set Off and Recoupment)
29. Defendant is entitled to a set off against Plaintiff's claims of any and all sums or
damages that Plaintiff may owe Defendant, including damages resulting from Plaintiff's breach
of its contractual obligations.
AFFIRMATIVE DEFENSE
(Civil Code § 2778)
30. As a separate and affirmative defense, Defendant is informed and believes and
based thereon alleges that Plaintiff's Complaint must fail pursuant to the provisions of California
Civil Code section 2772 through 2782.05, et seq.
AFFIRMATIVE DEFENSE
(Act of God)
31. The damages and defects of which Plaintiff complains, if any there are, were caused
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by acts of God for which Defendant has no responsibility.
AFFIRMATIVE DEFENSE
(Causation)
32. Defendant did not cause any of the damages alleged by Plaintiff.
AFFIRMATIVE DEFENSE
(Civil Code § 1431.2)
33. The liability of Defendant for non-economic (general) damage, if any, is several
only and not joint, pursuant to Civil Code Section 1431.2.
AFFIRMATIVE DEFENSE
(Comparative Fault)
34. Defendant is informed and believes that Plaintiff itself was responsible, in whole
or in part, for the purported damages it contends it has suffered, and Plaintiff was fully aware of
and assumed the risk of the purported circumstances and events alleged in the Complaint. Thus,
under principles of comparative fault, Plaintiffs recovery (if there be any) must be barred entirely
or reduced because of Cross-Complainant’s own culpability.
AFFIRMATIVE DEFENSE
(Diminution or Cost of Repair)
35. Any recovery by Plaintiff for property damage is limited to the diminution in value
of the property or the cost of repair, whichever is less.
AFFIRMATIVE DEFENSE
(Indemnification)
36. If Plaintiff receives any relief and/or recovers damages from Defendant, Defendant
is entitled to indemnification for the cost thereof to Defendant, either in whole or in part, from all
persons or entities whose negligence and/or fault proximately contributed to Plaintiff's alleged
injuries and/or damages, if any exist.
AFFIRMATIVE DEFENSE
(Independent Causes)
37. The alleged injuries, damages or loss, if any, for which Plaintiff seeks recovery
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were the result of causes independent of any purported acts or omissions on the part of Defendant,
or any of their agents, representatives or employees, thereby eliminating or reducing the alleged
liability of Defendant. The acts and/or omissions, if any, of Defendant were not the proximate
cause of the losses, damages or injury alleged in the Complaint.
AFFIRMATIVE DEFENSE
(intervention)
38. Plaintiff's damages, if any, are the result of the acts of Plaintiff or other persons or
entities, including nonparties to this action. Accordingly, liability or damages to Plaintiff, if any,
must be apportioned among all of such responsible persons or entities, including Plaintiff.
AFFIRMATIVE DEFENSE
(Justified Conduct)
39. The conduct of Defendant with respect to the matters alleged in the Complaint was
justified and, by reason of the foregoing, Plaintiff is barred from any recovery against Defendant.
AFFIRMATIVE DEFENSE
(Lack of Causation — Plaintiff’s Own Conduct as Cause of Purported Damages)
40. Plaintiffs purported damages, if any, would have been caused by Plaintiff's own
lack of care and diligence.
AFFIRMATIVE DEFENSE
(Natural Causes)
41. The alleged injuries, damages or loss, if any, for which Plaintiff seeks recovery
were the direct and proximate result of natural deterioration, wear and tear or other natural causes
which were unforeseeable without fault or liability on the part of Defendant.
AFFIRMATIVE DEFENSE
(Negligence of Others)
42. Damages and claims for which Plaintiff seeks indemnity, apportionment and
declaratory relief in the Complaint, if any, were caused by the acts, errors or omissions of
Plaintiff and/or third parties and/or contributed to and/or caused by the acts, errors, omissions or
negligence of Plaintiff and/or third parties, for whose conduct Defendant is not responsible.
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AFFIRMATIVE DEFENSE
(No Liability for Non-Economic Damages)
43. In the event a judgment is rendered against it and in favor of Plaintiff, Defendant
can only be held responsible, if at all, for that portion of the “non-economic” damages for which
they are found liable by jury or judicial determination in direct proportion to Defendant’s
percentage of fault, pursuant to Civil Code Section 1431.2 as the rule of joint and several liability
does not apply under such circumstances,
AFFIRMATIVE DEFENSE
(No Proximate Cause)
44. The acts and/or omissions, if any, of Defendant were not the proximate cause of the
losses, damages or injury alleged in the Complaint.
AFFIRMATIVE DEFENSE
(No Recovery in Tort for Economic Damages)
45, The economic loss doctrine precludes Plaintiff from recovering from Defendant in
tort economic losses that have not yet caused personal injury or physical damage to other
property.
AFFIRMATIVE DEFENSE
(Out-Of-Pocket Loss)
46. Allora portion of the relief requested by Plaintiff is barred by the out-of-pocket
loss rule.
AFFIRMATIVE DEFENSE
(Passive Acts)
47. If Defendant is found to have been negligent or liable in any manner, such
negligence or liability was passive and secondary while the negligence or liability of Plaintiff and
others was active and primary, and such active and primary negligence and liability bars, in whole
or in part, the recovery requested, or any recovery, against Defendant.
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GENERAL DENIAL TO COMPLAINT OF ECOLOGICAL CONCERNS, INCORPORATED
SAALRDOCS\30145\35\00213667.DOCXAFFIRMATIVE DEFENSE
(Proximate Cause and Contribution)
48. Defendant asserts that Plaintiff failed to exercise reasonable and ordinary care,
caution or prudence in order to avoid the damages alleged. The resulting damages, if any,
sustained by Plaintiff were proximately caused and contributed to by the negligent and/or willful
acts or omissions of Plaintiff or others, which said acts or omissions serve to bar or reduce any
claim for recovery.
AFFIRMATIVE DEFENSE
(Substantial Factor)
49, Defendant alleges that if injury or damage occurred as alleged in Plaintiff's
Complaint, or at all, Defendant’s alleged acts or omissions were not a substantial factor in causing
Plaintiffs injuries.
AFFIRMATIVE DEFENSE
(Unavoidable Conditions)
50. The alleged injuries, damages or loss, if any, for which Plaintiff seeks recovery
were the direct and proximate result of unavoidable accidents or conditions without fault or
liability on the part of Defendant.
AFFIRMATIVE DEFENSE
(intervening Superseding Causes)
51. The damage of which Plaintiff complains was proximately caused by or contributed
to by the acts of other defendants, persons and/or other entities, and said acts were an intervening
and superseding cause of the damages, if any, of which Plaintiff complains, thus barring Plaintiff
from any recovery against this answering Defendant.
AFFIRMATIVE DEFENSE
(Standard of Care)
52. Atno time prior to the filing of this action did Plaintiff or any agent, representative
or employee(s) thereof, notify this answering Defendant of any breach of any contract, warranty
or duty to Plaintiff. By reason of said failure to notify, Plaintiff is barred from any alleged right
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of recovery from this answering Defendant. Furthermore, this answering Defendant alleges that
Plaintiff is barred and precluded from any recovery in this action because of this answering
Defendant at all time compiled with the applicable standard of care required at the time and
location where the services were rendered.
AFFIRMATIVE DEFENSE
(Failure to Properly Plead a Claim for Expert Costs)
53. Plaintiff is barred from recovery for expert costs as Plaintiff has failed to properly
plead any basis for such a claim and has failed to identify such costs in a manner sufficient to put
Defendant on notice about such claims.
AFFIRMATIVE DEFENSE
(Active/Passive Conduct)
54. Defendant alleges that if it is determined that this answering Defendant was
negligent, said negligence was secondary and passive, as contrasted with the active and primary
negligence of other parties to this lawsuit, and therefore, Plaintiff is not — as a matter of law —
entitled to recovery from this answering Defendant on any theory of indemnity.
AFFIRMATIVE DEFENSE
(Failure to Commence Proceedings in a Timely Manner — Payment Bond on Public Work)
55. Defendant is informed and believes that Plaintiff failed to commence proceedings
in a timely manner, in accordance with California Civil Code § 9558.
AFFIRMATIVE DEFENSE
(Scope of Bond)
56. With respect to the bond cause of action, the bond covers only those acts of the
bond principal/licensee that are within the scope of the licensed business.
AFFIRMATIVE DEFENSE
(Scope of Obligations)
57. The bond issued does not impose obligations with respect to some or all of the
damages for which Plaintiff has sought to recover.
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GENERAL DENIAL TO COMPLAINT OF ECOLOGICAL CONCERNS, INCORPORATED
SAALRDOCS\30145\35\00213667,DOCXAFFIRMATIVE DEFENSE
(Time Period of Bonds)
58. With respect to the bond cause of action, the bond covers only those acts which
occur during the period of time that the bond was effective.
AFFIRMATIVE DEFENSE
(Bond Penalty)
59. Defendant is informed and believes and based thereon allege that any alleged
liability on the payment bond furnished is limited to the penal sum set forth therein, and should
valid claims on the alleged bond exceed the penal sums, such claims may only be satisfied on a
pro-rated basis up to the penal sum of the alleged bond.
AFFIRMATIVE DEFENSE
(Principal’s Defenses)
60. Defendant is informed and believes and based thereon allege that any liability is
premised upon the bond furnished and, as a result, Defendant is entitled to assert all defenses to
Plaintiff's claims that may be asserted by the principal on the bond.
AFFIRMATIVE DEFENSE
(Other Defenses)
61. Defendant reserves all rights to supplement this answer with additional denials
and/or affirmative defenses, as further facts are discovered in this litigation.
WHEREFORE, Defendant prays for judgment as follows:
1, That Plaintiff take nothing by its Complaint and that judgment be entered
accordingly;
2. That Plaintiffs stop notice be forfeited and/or released;
3. For attorney’s fees pursuant to the written subcontract between Plaintiff and
Defendant;
4. To the extent permitted by law for costs of suit incurred herein; and
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5. For such other and further relief as the Court may deem just and proper.
Dated: April 16, 2018
LEONIDOU & ROSIN
Professional Corporation
By.
Attornéys for Defendant
PROVEN MANAGEMENT, INC.
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PROOF OF SERVICE
I am a resident of the State of California, over the age of eighteen years, and not a
party to the within action. My business address is Leonidou & Rosin, 777 Cuesta Drive, Suite
200, Mountain View, CA 94040. On April 16, 2018, I served the within documents:
GENERAL DENIAL TO COMPLAINT OF ECOLOGICAL CONCERNS,
INCORPORATED
by transmitting via electronic mail the document(s) listed above to the email
address(es) set forth below on this date.
by transmitting via facsimile the document(s) listed above to the fax number(s) set
forth below on this date before 5:00 p.m.
by placing the document(s) listed above in a sealed envelope with postage thereon
fully prepaid, in the United States mail at Mountain View, California addressed as
set forth below.
by causing such documents to be delivered to UPS / Federal Express for overnight}
courier service to the office(s) of the address(es) set forth below.
by causing a messenger to personally deliver the document(s) listed above to the
person(s) at the address(es) set forth below.
William C. Last, Jr., Esq.
Jonathan M. Bowne, Esq.
Last & Faoro
520 South El Camino Real, Suite 430
San Mateo, CA 94402
Attorneys for Ecological Concerns, Incorporation
I am readily familiar with the firm’s practice of collection and processing,
correspondence for mailing. Under that practice it would be deposited with the U.S. postal
service on that same day with postage thereon fully prepaid in the ordinary course of business.
I declare under penalty of perjury under the laws of the State of California that the}
above is true and correct.
Executed on April 16, 2018, at Mountain Viey Ca ifornia.
Jessica Sainez
1
PROOF OF SERVICE
SAALRDOCS\30145\35\00213836.DOCX
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oem IN DHA BF WN wb NY NY NY NY NY NY NY VN KF FY —& SF FF FP KF SF SY = on AA FF YB YN F&F SO we IN DH RB Bw N KF CS LEONIDOU & ROSIN Professional Corporation JANETTE G. LEONIDOU (SBN 155257) JULIANA SALFITI (SBN 204268) 777 Cuesta Drive, Suite 200 Mountain View, CA 94040 Telephone: (650) 691-2888 Attorneys for Defendant and Cross-Defendant PROVEN MANAGEMENT, INC. IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SANTA CLARA ECOLOGICAL CONCERNS, ) Case No.: 17CV321092 INCORPORATED, a California corporation. ; a. ) GENERAL DENIAL TO COMPLAINT OF Plaintiff, ) ECOLOGICAL CONCERNS, ) INCORPORATED vs. ) ) PROVEN MANAGEMENT, INC., a ) California corporation, SAFECO ; INSURANCE COMPANY OF AMERICA, a ) New Hampshire corporation; SANTA CLARA) COUNTY WATER DISTRICT, a public ) entity; and DOES 1-25, ; ) ) Defendants. ANSWER -- GENERAL DENIAL Pursuant to § 431.30 of the Code of Civil Procedure, Defendant ProVen Management, Inc. (“Defendant”) generally denies and puts at issue each and every material allegation of the Complaint of Ecological Concerns, Incorporated (“Plaintiff”). As separate and independent defenses, Defendant alleges on information and belief as follows: AFFIRMATIVE DEFENSE (Equitable Relief) 1. Defendant asserts that any equitable relief sought herein is barred because 1 GENERAL DENIAL TO COMPLAINT OF ECOLOGICAL CONCERNS, INCORPORATED SAALRDOCS\30145\35\00213667,.DOCXPlaintiff has an adequate remedy at law. AFFIRMATIVE DEFENSE (Failure to State a Cause of Action) 2. The Complaint fails to state facts sufficient to constitute a cause of action. AFFIRMATIVE DEFENSE (No Reliance) 3. Plaintiff did not rely on any representations or conduct of Defendant and therefore Defendant is not responsible for any damages, if any exist. AFFIRMATIVE DEFENSE (Standing) 4. Plaintiff is not the owner of the claims that it purports to prosecute and lacks standing to pursue such claims. AFFIRMATIVE DEFENSE (Statutes of Limitation) 5. Defendant is informed and believes that Plaintiffs claims are barred by the applicable statutes of limitations as set forth in the California Code of Civil Procedure Sections 335 et seq., more particularly, but not limited to, Sections 337, 338, 339, 340, and 343; Uniform Commercial Code Section 2725; and sections 8200 et. seq., 8400 et. seq., 8460, 8600 et. seq., 9300 et. seq. and 9558 of the California Civil Code. AFFIRMATIVE DEFENSE (Failure to Serve Proper Preliminary Notice) 6. Plaintiff's claims fail for failure to serve a proper preliminary notice pursuant to California Code of Civil Procedure Section 415.20, Civil Code Section 9302 and all applicable statutes. Defendant is informed and believes that Plaintiff's claims are barred due to Plaintiff's failure to provide a Preliminary 20-Day Notice within the time prescribed and with the conditions mandated under Civil Code Sections 9300 et seq., and to otherwise comply with the laws governing claims arising from public works of improvement. Mt 2 GENERAL DENIAL TO COMPLAINT OF ECOLOGICAL CONCERNS, INCORPORATED S:\ALRDOCS\30145\35\00213667.DOCXAFFIRMATIVE DEFENSE (Unclean Hands) i. Defendant is informed and believes that Plaintiffs unclean hands bar the purported causes of action alleged in the Complaint. AFFIRMATIVE DEFENSE (Unjust Enrichment) 8. The Complaint and each cause of action contained therein are barred by the doctrine of unjust enrichment. AFFIRMATIVE DEFENSE (Waiver, Laches and Estoppel) 9. Plaintiff has knowingly engaged in conduct that reasonably induced detrimental reliance. Plaintiff's claims are therefore barred under the doctrines of waiver, laches, and estoppel. AFFIRMATIVE DEFENSE (Willful Overstatement) 10. Plaintiff's claims are barred by its willful overstatement of the amounts it has sought. AFFIRMATIVE DEFENSE (Accord and Satisfaction/Modification of Agreement) 11. Plaintiff entered into an accord and satisfaction and written modification of the agreement upon which it has filed suit. In that agreement, it waived the claims being pursued herein. Plaintiff is in breach of the accord and satisfaction and written modification of the agreement upon which it has brought suit. Accordingly, Plaintiff is barred from pursuing any rights or remedies. AFFIRMATIVE DEFENSE (ADR Provisions) 12. To the extent that there is any agreement between the parties to utilize Alternate Dispute Resolution (“ADR”) procedures to resolve any or all of the issues or disputes raised in Plaintiff's Complaint, Defendant expressly reserves the right to enforce those ADR provisions and 3 GENERAL DENIAL TO COMPLAINT OF ECOLOGICAL CONCERNS, INCORPORATED S:\ALRDOCS\30145\35\00213667.DOCXom YD HW BF WN Nw NY NY KY NY NY N KY KN Kf Se See Be See Be Se Se ow aA A Bo NH SF SO we ND KH FW NH KF SO does not waive the right to enforce those ADR provisions by filing this answer. ADR procedures include, without limitation, arbitration, mediation, or a judicial reference. AFFIRMATIVE DEFENSE (Breach of Covenant of Good Faith and Fair Dealing) 13. Plaintiff, by its acts, conduct, and/or omissions, has breached the implied covenant of good faith and fair dealing with respect to all agreements, settlements and/or contracts made by it or on its behalf. AFFIRMATIVE DEFENSE (Complete Performance) 14. Defendant has appropriately, completely, and fully performed and discharged any and all obligations and legal duties arising out of the matters alleged in the Complaint. AFFIRMATIVE DEFENSE (Damages Not Foreseeable) 15. The damages claimed by Plaintiff are not reasonably foreseeable based upon the type of work and alleged nature of the purported issues involved. AFFIRMATIVE DEFENSE (Discharge by Acceptance of Benefits) 16. To the extent that Defendant would have owed any obligations to Plaintiff (which Defendant denies), that purported obligation would have been discharged in whole or in part by Plaintiff's agreement to accept payment from an insurance company in lieu of payment from Defendant. AFFIRMATIVE DEFENSE (Disclaimer) 17. All implied warranties were properly disclaimed. AFFIRMATIVE DEFENSE (Excuse) 18. Plaintiff’s failure to perform pursuant to the agreements, if any, between the parties excused Defendant from performing any obligations it did not perform, if there was any such 4 GENERAL DENIAL TO COMPLAINT OF ECOLOGICAL CONCERNS, INCORPORATED S:\ALRDOCS\30145\35\00213667.DOCXCo em XY DA BF WN NY N NY N NY NY NY NY NO —~ | Be Se KF Fe Fe ee eS eS oN A A FF YW NH KF GOD we ADH BF BN KF SO performance due. AFFIRMATIVE DEFENSE (Failure to Commence Proceedings in a Timely Manner) 19. Defendant is informed and believes that Plaintiff failed to commence proceedings in a timely manner, in accordance with the terms of applicable contracts. AFFIRMATIVE DEFENSE (Failure to Exhaust Contractually Required Remedies) 20. Plaintiff has failed to exhaust contractually required remedies and is therefore barred from pursuing any claims or remedies. AFFIRMATIVE DEFENSE (Failure to Mitigate Damages) 21. Plaintiff has failed to mitigate its purported damages and have knowingly engaged in conduct that would have aggravated its purported damages, if any had been sustained. AFFIRMATIVE DEFENSE (Failure to Notify) 22. Plaintiff failed to provide Defendant with timely notice of any requested claim and has failed to meet the statutory pre-conditions to pursuing the claims in this action. AFFIRMATIVE DEFENSE (Willful Overstatement of Stop Notice) 23. ‘Plaintiff's claims are barred by its willful overstatement of the amounts it has sought under its stop notice. AFFIRMATIVE DEFENSE (Improper Amounts Included in Stop Notice) 24, Plaintiff's stop notice willfully includes improper amounts, which renders the stop notice void and unenforceable under Civil Code sections 9352, 9354, and 9454, AFFIRMATIVE DEFENSE (Illegality) 25. Pursuant to Section 2782 et seq. of the Civil Code, and other provisions of 5 GENERAL DENIAL TO COMPLAINT OF ECOLOGICAL CONCERNS, INCORPORATED SAALRDOCS\30145\35\00213667.DOCXapplicable law, a party to a contract cannot be required to indemnify another party for that party’s sole negligence, willful misconduct, design deficiencies, or active negligence; nor can a greater duty to defend be imposed than permitted by law. AFFIRMATIVE DEFENSE (Material Breach) 26. Plaintiff's recovery is barred because of its material breach of the contract in question. AFFIRMATIVE DEFENSE (Release) 27. Plaintiff agreed to release the claims upon which it has brought suit. Accordingly, the claims are barred. AFFIRMATIVE DEFENSE (Satisfaction of Obligations) 28. The obligations and conditions of Defendant to any agreement between the parties have been satisfied. AFFIRMATIVE DEFENSE (Set Off and Recoupment) 29. Defendant is entitled to a set off against Plaintiff's claims of any and all sums or damages that Plaintiff may owe Defendant, including damages resulting from Plaintiff's breach of its contractual obligations. AFFIRMATIVE DEFENSE (Civil Code § 2778) 30. As a separate and affirmative defense, Defendant is informed and believes and based thereon alleges that Plaintiff's Complaint must fail pursuant to the provisions of California Civil Code section 2772 through 2782.05, et seq. AFFIRMATIVE DEFENSE (Act of God) 31. The damages and defects of which Plaintiff complains, if any there are, were caused 6 GENERAL DENIAL TO COMPLAINT OF ECOLOGICAL CONCERNS, INCORPORATED SAALRDOCS\30145\35\00213667.DOCXoem YW Dw BF Ww YH Rw MN NY NY NY NN KY SY Be Se Be Be Se Be RB oR A A FB YW NHN fF DOD eID DH BF YW N KF SO by acts of God for which Defendant has no responsibility. AFFIRMATIVE DEFENSE (Causation) 32. Defendant did not cause any of the damages alleged by Plaintiff. AFFIRMATIVE DEFENSE (Civil Code § 1431.2) 33. The liability of Defendant for non-economic (general) damage, if any, is several only and not joint, pursuant to Civil Code Section 1431.2. AFFIRMATIVE DEFENSE (Comparative Fault) 34. Defendant is informed and believes that Plaintiff itself was responsible, in whole or in part, for the purported damages it contends it has suffered, and Plaintiff was fully aware of and assumed the risk of the purported circumstances and events alleged in the Complaint. Thus, under principles of comparative fault, Plaintiffs recovery (if there be any) must be barred entirely or reduced because of Cross-Complainant’s own culpability. AFFIRMATIVE DEFENSE (Diminution or Cost of Repair) 35. Any recovery by Plaintiff for property damage is limited to the diminution in value of the property or the cost of repair, whichever is less. AFFIRMATIVE DEFENSE (Indemnification) 36. If Plaintiff receives any relief and/or recovers damages from Defendant, Defendant is entitled to indemnification for the cost thereof to Defendant, either in whole or in part, from all persons or entities whose negligence and/or fault proximately contributed to Plaintiff's alleged injuries and/or damages, if any exist. AFFIRMATIVE DEFENSE (Independent Causes) 37. The alleged injuries, damages or loss, if any, for which Plaintiff seeks recovery 7 GENERAL DENIAL TO COMPLAINT OF ECOLOGICAL CONCERNS, INCORPORATED SAALRDOCS\30145\35\00213667.DOCXCem nd DHA BF YW DN = NN YN YN NN NY He Be Be Be Be Be Be Be Se Se oN AAW FF BHF Do we ADH BF WN KF CS were the result of causes independent of any purported acts or omissions on the part of Defendant, or any of their agents, representatives or employees, thereby eliminating or reducing the alleged liability of Defendant. The acts and/or omissions, if any, of Defendant were not the proximate cause of the losses, damages or injury alleged in the Complaint. AFFIRMATIVE DEFENSE (intervention) 38. Plaintiff's damages, if any, are the result of the acts of Plaintiff or other persons or entities, including nonparties to this action. Accordingly, liability or damages to Plaintiff, if any, must be apportioned among all of such responsible persons or entities, including Plaintiff. AFFIRMATIVE DEFENSE (Justified Conduct) 39. The conduct of Defendant with respect to the matters alleged in the Complaint was justified and, by reason of the foregoing, Plaintiff is barred from any recovery against Defendant. AFFIRMATIVE DEFENSE (Lack of Causation — Plaintiff’s Own Conduct as Cause of Purported Damages) 40. Plaintiffs purported damages, if any, would have been caused by Plaintiff's own lack of care and diligence. AFFIRMATIVE DEFENSE (Natural Causes) 41. The alleged injuries, damages or loss, if any, for which Plaintiff seeks recovery were the direct and proximate result of natural deterioration, wear and tear or other natural causes which were unforeseeable without fault or liability on the part of Defendant. AFFIRMATIVE DEFENSE (Negligence of Others) 42. Damages and claims for which Plaintiff seeks indemnity, apportionment and declaratory relief in the Complaint, if any, were caused by the acts, errors or omissions of Plaintiff and/or third parties and/or contributed to and/or caused by the acts, errors, omissions or negligence of Plaintiff and/or third parties, for whose conduct Defendant is not responsible. 8 GENERAL DENIAL TO COMPLAINT OF ECOLOGICAL CONCERNS, INCORPORATED SAALRDOCS\30145\35\00213667.DOCXOo Om YN DH FF WN | NY NM YN NY NY NNN ee Be Be ee se Be eS oN AW KR YBN F&F SOD we DDH BF BN = S AFFIRMATIVE DEFENSE (No Liability for Non-Economic Damages) 43. In the event a judgment is rendered against it and in favor of Plaintiff, Defendant can only be held responsible, if at all, for that portion of the “non-economic” damages for which they are found liable by jury or judicial determination in direct proportion to Defendant’s percentage of fault, pursuant to Civil Code Section 1431.2 as the rule of joint and several liability does not apply under such circumstances, AFFIRMATIVE DEFENSE (No Proximate Cause) 44. The acts and/or omissions, if any, of Defendant were not the proximate cause of the losses, damages or injury alleged in the Complaint. AFFIRMATIVE DEFENSE (No Recovery in Tort for Economic Damages) 45, The economic loss doctrine precludes Plaintiff from recovering from Defendant in tort economic losses that have not yet caused personal injury or physical damage to other property. AFFIRMATIVE DEFENSE (Out-Of-Pocket Loss) 46. Allora portion of the relief requested by Plaintiff is barred by the out-of-pocket loss rule. AFFIRMATIVE DEFENSE (Passive Acts) 47. If Defendant is found to have been negligent or liable in any manner, such negligence or liability was passive and secondary while the negligence or liability of Plaintiff and others was active and primary, and such active and primary negligence and liability bars, in whole or in part, the recovery requested, or any recovery, against Defendant. Mit Mt 9 GENERAL DENIAL TO COMPLAINT OF ECOLOGICAL CONCERNS, INCORPORATED SAALRDOCS\30145\35\00213667.DOCXAFFIRMATIVE DEFENSE (Proximate Cause and Contribution) 48. Defendant asserts that Plaintiff failed to exercise reasonable and ordinary care, caution or prudence in order to avoid the damages alleged. The resulting damages, if any, sustained by Plaintiff were proximately caused and contributed to by the negligent and/or willful acts or omissions of Plaintiff or others, which said acts or omissions serve to bar or reduce any claim for recovery. AFFIRMATIVE DEFENSE (Substantial Factor) 49, Defendant alleges that if injury or damage occurred as alleged in Plaintiff's Complaint, or at all, Defendant’s alleged acts or omissions were not a substantial factor in causing Plaintiffs injuries. AFFIRMATIVE DEFENSE (Unavoidable Conditions) 50. The alleged injuries, damages or loss, if any, for which Plaintiff seeks recovery were the direct and proximate result of unavoidable accidents or conditions without fault or liability on the part of Defendant. AFFIRMATIVE DEFENSE (intervening Superseding Causes) 51. The damage of which Plaintiff complains was proximately caused by or contributed to by the acts of other defendants, persons and/or other entities, and said acts were an intervening and superseding cause of the damages, if any, of which Plaintiff complains, thus barring Plaintiff from any recovery against this answering Defendant. AFFIRMATIVE DEFENSE (Standard of Care) 52. Atno time prior to the filing of this action did Plaintiff or any agent, representative or employee(s) thereof, notify this answering Defendant of any breach of any contract, warranty or duty to Plaintiff. By reason of said failure to notify, Plaintiff is barred from any alleged right 10 GENERAL DENIAL TO COMPLAINT OF ECOLOGICAL CONCERNS, INCORPORATED SAALRDOCS\30145\35\00213667.DOCXow yt Dn wW BF WN Rw RM YN NY NY NN NY eee Be Be ee Be eB oN A AWA BF YBN F&F SOD we IY DH BF BW N HF SO of recovery from this answering Defendant. Furthermore, this answering Defendant alleges that Plaintiff is barred and precluded from any recovery in this action because of this answering Defendant at all time compiled with the applicable standard of care required at the time and location where the services were rendered. AFFIRMATIVE DEFENSE (Failure to Properly Plead a Claim for Expert Costs) 53. Plaintiff is barred from recovery for expert costs as Plaintiff has failed to properly plead any basis for such a claim and has failed to identify such costs in a manner sufficient to put Defendant on notice about such claims. AFFIRMATIVE DEFENSE (Active/Passive Conduct) 54. Defendant alleges that if it is determined that this answering Defendant was negligent, said negligence was secondary and passive, as contrasted with the active and primary negligence of other parties to this lawsuit, and therefore, Plaintiff is not — as a matter of law — entitled to recovery from this answering Defendant on any theory of indemnity. AFFIRMATIVE DEFENSE (Failure to Commence Proceedings in a Timely Manner — Payment Bond on Public Work) 55. Defendant is informed and believes that Plaintiff failed to commence proceedings in a timely manner, in accordance with California Civil Code § 9558. AFFIRMATIVE DEFENSE (Scope of Bond) 56. With respect to the bond cause of action, the bond covers only those acts of the bond principal/licensee that are within the scope of the licensed business. AFFIRMATIVE DEFENSE (Scope of Obligations) 57. The bond issued does not impose obligations with respect to some or all of the damages for which Plaintiff has sought to recover. Ml 11 GENERAL DENIAL TO COMPLAINT OF ECOLOGICAL CONCERNS, INCORPORATED SAALRDOCS\30145\35\00213667,DOCXAFFIRMATIVE DEFENSE (Time Period of Bonds) 58. With respect to the bond cause of action, the bond covers only those acts which occur during the period of time that the bond was effective. AFFIRMATIVE DEFENSE (Bond Penalty) 59. Defendant is informed and believes and based thereon allege that any alleged liability on the payment bond furnished is limited to the penal sum set forth therein, and should valid claims on the alleged bond exceed the penal sums, such claims may only be satisfied on a pro-rated basis up to the penal sum of the alleged bond. AFFIRMATIVE DEFENSE (Principal’s Defenses) 60. Defendant is informed and believes and based thereon allege that any liability is premised upon the bond furnished and, as a result, Defendant is entitled to assert all defenses to Plaintiff's claims that may be asserted by the principal on the bond. AFFIRMATIVE DEFENSE (Other Defenses) 61. Defendant reserves all rights to supplement this answer with additional denials and/or affirmative defenses, as further facts are discovered in this litigation. WHEREFORE, Defendant prays for judgment as follows: 1, That Plaintiff take nothing by its Complaint and that judgment be entered accordingly; 2. That Plaintiffs stop notice be forfeited and/or released; 3. For attorney’s fees pursuant to the written subcontract between Plaintiff and Defendant; 4. To the extent permitted by law for costs of suit incurred herein; and M/ it 12 GENERAL DENIAL TO COMPLAINT OF ECOLOGICAL CONCERNS, INCORPORATED SAALRDOCS\30145\35\00213667.DOCX0 Oo YN DH FF WN NY NNN NY NN NN BS ee Be Be Be Be Be Se oN A A KR Yo NH F&F SGD we IRD UH BF BN KF SD 5. For such other and further relief as the Court may deem just and proper. Dated: April 16, 2018 LEONIDOU & ROSIN Professional Corporation By. Attornéys for Defendant PROVEN MANAGEMENT, INC. 13 GENERAL DENIAL TO COMPLAINT OF ECOLOGICAL CONCERNS, INCORPORATED SAALRDOCS\30145\35\00213667.DOCXCem YN DH HA BF Ww NY Nw N NY NY NY N N YN DN eee we oN AA KF OB NF SOD we IY DH BF WN KF PROOF OF SERVICE I am a resident of the State of California, over the age of eighteen years, and not a party to the within action. My business address is Leonidou & Rosin, 777 Cuesta Drive, Suite 200, Mountain View, CA 94040. On April 16, 2018, I served the within documents: GENERAL DENIAL TO COMPLAINT OF ECOLOGICAL CONCERNS, INCORPORATED by transmitting via electronic mail the document(s) listed above to the email address(es) set forth below on this date. by transmitting via facsimile the document(s) listed above to the fax number(s) set forth below on this date before 5:00 p.m. by placing the document(s) listed above in a sealed envelope with postage thereon fully prepaid, in the United States mail at Mountain View, California addressed as set forth below. by causing such documents to be delivered to UPS / Federal Express for overnight} courier service to the office(s) of the address(es) set forth below. by causing a messenger to personally deliver the document(s) listed above to the person(s) at the address(es) set forth below. William C. Last, Jr., Esq. Jonathan M. Bowne, Esq. Last & Faoro 520 South El Camino Real, Suite 430 San Mateo, CA 94402 Attorneys for Ecological Concerns, Incorporation I am readily familiar with the firm’s practice of collection and processing, correspondence for mailing. Under that practice it would be deposited with the U.S. postal service on that same day with postage thereon fully prepaid in the ordinary course of business. I declare under penalty of perjury under the laws of the State of California that the} above is true and correct. Executed on April 16, 2018, at Mountain Viey Ca ifornia. Jessica Sainez 1 PROOF OF SERVICE SAALRDOCS\30145\35\00213836.DOCX