Preview
CI|V537766
‘
Clomplaint in Intervention
Kasey C. Townsend (SBN 152992)
Katelyn M. Knight (SBN 264573) Illllllllllllllllllllllllllllllllllll
MURCHISON & CUMMING, LLP
Suite 850
275
San
Battery
Francisco,
Street,
California 94111 FILED
8“" MATEO counw
Telephone: (415) 524-4305
(415) 524-4477 “
Facsimile: 391-2058 SEP 8
(415) 2017
E-Mail:
(DOONGUI-fiQN—i
ktownsend@murchisonlawcom
kknight@murchisionlaw.com
Attorneys for lntervenor, CENTURY COMPANY
on behalf of KERWIN ROCKWELL GREEN
CONSTRUCTION, INC, asuspended
California corporation,
SUPERIOR COURT OF THE STATE OF CALIFORNIA
A—L—x
N—flo COUNTY OF SAN MATEO
13 TENLEY STEPHENSON AND JOHN CASE NO. CIV537766
PIMENTEL,
Plaintiffs, CENTURY SURETY COMPANY’S
[proposed] COMPLAINT-IN-
vs. INTERVENTION (ON BEHALF OF
KERWIN ROCKWELL GREEN
MICHAEL J. KERWIN, an individual; CONSTRUCTION, INC., a suspended
KERWIN ROCKWELL GREEN, lNC., a California corporation)
California corporation; AND does 1—20,
inclusive, [Filed concurrently with Stipulation for filing of
Complaint-in—lntervention [proposed] Order
Defendants.
Action Filed: March 14, 2016
Trial Date: None Set
TO ALL PARTIES, THEIR ATTORNEYS OF RECORD, AND TO THIS
HONORABLE COURT:
By leave of court, comes now Century Surety Company ("CENTURY”or
“INTERVENOR”) and pursuant to California Code of Civil Procedure § 387(b) intervenes in this
action as follows:
.1
CENTURY SURETY COMPANY'S [proposed] COMPLAINT-lN—lNTERVENTION
lNTRODUCTlON
1. CENTURY is, and at all times herein mentioned was, an eligible insurer in the
.
State of California. .
2. Plaintiffs filed their action against Kerwin Rockwell Green, inc. and Michael J.
Ken/Vin,
mooszmme-wN-A
an individual (collectively “KRG”), among others, on March 14, 2016.
3. CENTURY issued commercial general liability policy(s) to KRG. Based on the
general allegations of the pleadings, it ispossible that KRG’s alleged liability in this action is
covered by the CENTURY policy or policies. CENTURY expressly reserves all of its rights
under all applicable insurance policies and applicable law to dispute the facts and amount of
A coverage for any judgment rendered in this action against the KRG. CENTURY will not be
.3
litigating any coverage defenses in this action, but instead expressly reserves its rights to
.4 assert all defenses to coverage in any subsequent collection or enforcement action, or in
A any other action in which coverage under the applicable policy or policies for any judgment
rendered in this action against isat issue. By intervening in this action, CENTURY isnot
.3‘4
waiving any of those rights and is instead expressly reserving all of its rights.
—L
4. CENTURY is informed and believes that KRG is a suspended corporation.
.3
Pursuant to California Revenue & Tax Code § 23301, KRG is barred from defending itself
.3
against these claims. CENTURY intervenes in this action on the grounds that it issued
.x
commercial general liability and commercial excess liabilitypolicies under which CENTURY
OONmm-bUN-éOCDCONOCfi-w—éo
M may be obligated to discharge certain liabilities of its insured. CENTURY has a direct and
N immediate interest in the matter in litigation within the meaning of California Code of Civil
N Procedure § 387(a) because it wishes to contest the liability of KRG for the damages
N claimed by Plaintiffs and/or any other party in this action.
N 5. Under current law, California Revenue & Tax Code § 19719, and the California
N Court of Appeal case, Reliance Ins. Co. v. Superior Court (2000) 84 Cal.App.4th 383,
N CENTURY may protect its interests in the defense of its insured, KRG, via a Complaint in
N Intervention to litigate procedural and substantive defenses, as to KRG.
N
,
2
CENTURY SURETY COMPANY‘S [proposed] COMPLAlNT-lN-INTERVENTION
6. CENTURY intervenes pursuant to the terms of its insurance policies and
applicable California law including, without limitation, California Code of Civil Procedure §
387(a), California Revenue and Taxation Code §§ 1971?, 19719, Reliance Ins. Co. v.
Superior Court (2000) 84 Cal.App.4th 383, and Kaufman & Broad Cmtys. v. Performance
Plastering (2006) 136 CaI.App.4th 212.
7.
coco-46:01pm»;
Should trial prove necessary, at trial, CENTURY seeks to appear under the name
of its insured, KRG, in order to comply with California Evidence Code § 1155.
8. CENTURY and/or KRG hereby reserve the right to amend this answer to cross-
complaint to assert further substantive defenses.
9. CENTURY hereby appears and answers the cross-complaint, as alleged against
KRG, and each and every cause of action set forth therein as follows:
GENERAL DENlAL
10. Pursuant to California Code of Civil Procedure§ 431.30, KRG or Intervenor
'
generally and specifically deny each and every allegation contained in the complaint, and
each and every part thereof, and each and every cause of action therein. KRG or Intervenor
further denies any and allwrongful conduct, whether or not alleged in Plaintiffs’ Complaint.
KRG or lntervenor also deny that Plaintiffs have suffered or incurred, or will incur or will
suffer, any injury,
NMNNNNNNNAA-AAAAA—LA.‘
loss or damages by reason of any act or omission by KRG or Intervenor or
their agents, servants and/or employees, and further deny Plaintiffs are entitled to any relief
oo-qmmbcoN—xocoocummAwN-Ao
whatsoever.
FIRST AFFIRMATIVE DEFENSE
11. Plaintiffs’ claims are barred, in whole or in part, to the extent that
Plaintiffs have failed to state a claim against KRG or Intervenor on which relief may be
granted.
//l
//l
III
III
3
CENTURY SURETY COMPANY'S [proposed] COMPLAlNT—lN-INTERVENTlON
SECOND AFFIRMATIVE DEFENSE
12. Plaintiffs' claims are barred, in whole or in part, to the extent that Plaintiffs have
failed to state facts sufficient to constitute a cause of action against KRG or Intervenor.
THIRD AFFIRMATIVE DEFENSE
13. Plaintiffs’ claims are barred by applicable statutes of limitations including, but not
coooumcnt—x
necessarily limited to, Code of Civil Procedure §§ 337, 338, 339, and 343.
FOURTH AFFIRMATIVE DEFENSE
14. Plaintiffs’ claims are barred, in whole or in part, to the extent the doctrine of
waiver applies.
FIFTH AFFIRMATIVE DEFENSE
15. Plaintiffs’ claims are barred, in whole or in part, to the extent that Plaintiffs have
failed to exercise reasonable diligence to mitigate their damages.
SIXTH AFFIRMATIVE DEFENSE
16. Plaintiffs’ or lntervenor allege if the damages complained of by Plaintiffs, if any,
which are expressly denied by KRG or lntervener or, were proximately caused by Plaintiffs’
own negligence, Cross—Complainants are barred from any recovery from KRG or lntervener.
SEVENTH AFFIRMATIVE DEFENSE
17. KRG or lntervenor allege if the damages complained of by Plaintiffs, if any, which
are expressly denied
NNNMNNNNNAAAAAAAAAA
ODw-P-WN—BOLDOD‘Jmm-w—JO
by KRG or lntervener, were proximately caused by the negligence
and/or other fault or acts of persons or entities other than KRG or Intervenor. Plaintiffs are
barred from any recovery from KRG or Intervenor.
EIGHTH AFFIRMATIVE DEFENSE
18. KRG or lntervener allege the damages complained of by Plaintiffs, if any, which
are expressly denied by KRG or lntervener, were proximately caused by Plaintiffs own
negligence, and that such negligence comparatively reduces the percentage of any
negligence attributable to KRG or Intervenor. if it should be found that KRG or lntervener
was negligent, which KRG or lntervener expressly denies.
///
4
CENTURY SURETY COMPANY'S [proposed] COMPLAINT-IN-INTERVENTION
NINTH AFFIRMATIVE DEFENSE
19. KRG or lntervenor allege the damages complained of by Plaintiffs, if any, which
are expressly denied by KRG or lntervenor, were proximately caused by the negligence
and/or other fault or acts of firms, persons corporations, or entities other than KRG or
lntervenor,
CDCO‘IOU'I-bOJN—‘K
and that such acts, negligence and/or fault comparatively reduce the percentage
of any negligence, fault or liability attributable to KRG or lntervenor, if it should be found that
KRG or lntervenor was negligent or otherwise at fault, which KRG or lntervenor expressly
deny.
TENTH AFFIRMATIVE DEFENSE
20. KRG or lntervenor allege that if liabilityis found to Plaintiffs, which KRG or
lntervenor deny, and Plaintiffs are also liable, that, as a result, the damages sustained by
Plaintiffs, if any, must be apportioned between Plaintiffs and KRG or lntervenor based on
the principles of comparative negligence, pursuant to California Civil Code§ 1431 et seq.
and allother applicable law.
ELEVENTH AFFIRMATIVE DEFENSE
21. KRG or lntervenor allege that to the extent independent, intervening and/or
superseding causes approximately caused or contributed to Plaintiffs’ damages, if any,
NNNNNNNNN—L—l—LA—‘L—Ld-A—‘n—i
Plaintiffs’ claims are barred against KRG or lntervenor.
mummt—xommummAwM—ao
TWELFTH AFFIRMATIVE DEFENSE
22. KRG or lntervenor allege that it isentitled to indemnification by apportionment
against all parties and persons whose negligence or other acts contributed to the
occurrence of the claimed incident or alleged damages.
THIRTEENTH AFFlRMATlVE DEFENSE
23. KRG or lntervenor allege that itis entitled to contribution from any person or
entity whose negligence or other acts contributed to the occurrence of the alleged incident
or damages.
IN
IN
5
CENTURY SURETY COMPANY'S [proposed] COMPLAINT—lN-lNTERVENTlON
FOURTEENTH AFFIRMATIVE DEFENSE
24. KRG or lntervenor allege that to the extent Plaintiffs knowingly assumed the risk
of the injuries or damages alleged in the Complaint, if any, Plaintiffs' claims are therefore
barred in their entirety.
mmflmmt—x
FIFTEENTH AFFIRMATIVE DEFENSE
25. The damages sustained by Plaintiffs, if any, was the result of acts or omissions
of others, which acts or omissions were not and could not be foreseen by KRG or
lntervenor.
SIXTEENTH AFFIRMATIVE DEFENSE
26. Plaintiffs have failed to join all persons and parties needed for a just adjudication
of this action.
SEVENTEENTH AFFIRMATIVE DEFENSE
27. KRG or lntervenor is entitled to set off any settlements, judgments, or similar
amounts received by Plaintiffs against anyjudgment rendered against KRG or lntervenor in
Plaintiffs’ favor herein.
ElGHTEENTH AFFIRMATIVE DEFENSE
28. KRG or lntervener is informed and believes and thereupon alleges that Plaintiffs
did not reasonably rely on any act, omission, or representation of KRG or lntervener, if any.
mummt-Aococoummt—xo
NlNETEENTH AFFIRMATIVE DEFENSE
29. The
NNNNNNNNN—x—xaaggdaag
damages sustained by Cross-Complainant, if any, were the result of
occurrences for which KRG is not liable.
TWENTlETH AFFIRMATIVE DEFENSE
30. KRG or lntervener specifically reserves its right to assert further and additional
affirmative defenses based on information which may be provided in discovery or
other investigation in the course of this litigation.
IN
//l
//l
6
CENTURY SURETY COMPANY'S [proposed] COMPLAINT-lN-lNTERVENTlON
WHEREFORE, having fully answered the Complaint—in—lntervention and having
asserted its affirmative defenses hereto, KRG or lntervenor respectfully prays forjudgment
i
against Plaintiffs as follows:
1. That Plaintiffs take nothing by reason of the Complaint on fileherein;
2. That the Plaintiffs be ordered dismissed with prejudice;
COOO‘IQU'I-t—l
3. That the Court adjudge, determine, and decree that KRG or lntervenor is not
obligated to compensate Plaintiffs for any of the claimed damages;
4. That the Court, adjudge, determine, and decree that KRG or lntervenor is
entitled to costs and disbursements in this action, including, but not limited to, reasonable
attorneys‘ fees, and
3. For such other and further relief as the Court deems just and proper.
DATED: Septembelg, 2017 MURCHISON & CUMMING, LLP
M
is?” f” , /
By: f/iry’QQ/Zw/é’f : 7/v’lrjgflw
Kasey Towsfind Esq.
Attorneys for lntervenor, CENTUé Y SURETY
COMPANY on behalf of KERWIN
ROCKWELL GREEN, Inc., a suspended
California corporation
oo-qmmt-xocoooumms-wN—tc
NNNNNNNMMAAA—LA—AAAAJ
7
CENTURY SURETY COMPANY'S [proposed] COMPLAINT—lN—INTERVENTION
PROOF OF SERVICE
STATE OF CALIFORNIA, COUNTY OF SAN FRANCISCO
At the time of service, I was over 18 years of age and not a party to this action. I am
employed in the County of San Francisco, State of California. My business address is 275
Battery Street, Suite 850, San Francisco, California 94111.
(DWVmU'I-hOJN—‘b
On September 8, 2017, Iserved true copies of the following document(s) described
as CENTURY SURETY COMPANY'S [PROPOSED] COMPLAINT-IN-INTERVENTION
(ON BEHALF OF KERWIN ROCKWELL GREEN CONSTRUCTION, INC., A SUSPENDED
CALIFORNIA CORPORATION) on the interested parties in this action as follows:
SEE ATTACHED LIST
BY MAIL: lenclosed the document(s) in a sealed envelope or package addressed to the
persons at the addresses listed in the Service List and placed the envelope for collection
and mailing, following our ordinary business practices. I am readily familiar with Murchison
& Cumming‘s practice for collecting and processing correspondence for mailing. Iam aware
that on motion of the party served, service is presumed invalid ifthe postal cancellation date
or postage meter date is more than one business day after the date of deposit for mailing in
this declaration.
Ideclare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct.
Executed on September 8, 2017, at San Francisco, California.
w i”Mg:93/
MeuyS. aechao
.
......
mummn—soomuamzxwm—xo
NNNNNNNNNAAAAAAAA—t—x
CENTURY SURETY COMPANY'S [proposed] COMPLAINT—lN—INTERVENTION
SERVICE LIST
Tenley Stephenson, et. al.vs. Michael J. Kerwin, et. al.
William C. Last, Jr., Esq. Attorneys for Plaintiffs
Last & Faoro
520 South El Camino Real
Suite 430
San Mateo, CA 94402
Telephone: 650-696-8350
Facsimile:
mcowmmt-x
650-696-8365
Todd A. Jones, Esq. Michael Kerwin
Mokri Vanis & Jones, LLP
333 University Avenue. Suite 200
Sacramento, CA 95825
Telephone: 916-565-7653
Facsimile: 916-565-7642
NMNNNNNNNA—A—L-A—I—L—‘L—LAni
mummt—aomooummhuN—xo
CENTURY SURETY COMPANY'S [proposed] COMPLAINT-lN-INTERVENTION
Preview
CI|V537766 ‘ Clomplaint in Intervention Kasey C. Townsend (SBN 152992) Katelyn M. Knight (SBN 264573) Illllllllllllllllllllllllllllllllllll MURCHISON & CUMMING, LLP Suite 850 275 San Battery Francisco, Street, California 94111 FILED 8“" MATEO counw Telephone: (415) 524-4305 (415) 524-4477 “ Facsimile: 391-2058 SEP 8 (415) 2017 E-Mail: (DOONGUI-fiQN—i ktownsend@murchisonlawcom kknight@murchisionlaw.com Attorneys for lntervenor, CENTURY COMPANY on behalf of KERWIN ROCKWELL GREEN CONSTRUCTION, INC, asuspended California corporation, SUPERIOR COURT OF THE STATE OF CALIFORNIA A—L—x N—flo COUNTY OF SAN MATEO 13 TENLEY STEPHENSON AND JOHN CASE NO. CIV537766 PIMENTEL, Plaintiffs, CENTURY SURETY COMPANY’S [proposed] COMPLAINT-IN- vs. INTERVENTION (ON BEHALF OF KERWIN ROCKWELL GREEN MICHAEL J. KERWIN, an individual; CONSTRUCTION, INC., a suspended KERWIN ROCKWELL GREEN, lNC., a California corporation) California corporation; AND does 1—20, inclusive, [Filed concurrently with Stipulation for filing of Complaint-in—lntervention [proposed] Order Defendants. Action Filed: March 14, 2016 Trial Date: None Set TO ALL PARTIES, THEIR ATTORNEYS OF RECORD, AND TO THIS HONORABLE COURT: By leave of court, comes now Century Surety Company ("CENTURY”or “INTERVENOR”) and pursuant to California Code of Civil Procedure § 387(b) intervenes in this action as follows: .1 CENTURY SURETY COMPANY'S [proposed] COMPLAINT-lN—lNTERVENTION lNTRODUCTlON 1. CENTURY is, and at all times herein mentioned was, an eligible insurer in the . State of California. . 2. Plaintiffs filed their action against Kerwin Rockwell Green, inc. and Michael J. Ken/Vin, mooszmme-wN-A an individual (collectively “KRG”), among others, on March 14, 2016. 3. CENTURY issued commercial general liability policy(s) to KRG. Based on the general allegations of the pleadings, it ispossible that KRG’s alleged liability in this action is covered by the CENTURY policy or policies. CENTURY expressly reserves all of its rights under all applicable insurance policies and applicable law to dispute the facts and amount of A coverage for any judgment rendered in this action against the KRG. CENTURY will not be .3 litigating any coverage defenses in this action, but instead expressly reserves its rights to .4 assert all defenses to coverage in any subsequent collection or enforcement action, or in A any other action in which coverage under the applicable policy or policies for any judgment rendered in this action against isat issue. By intervening in this action, CENTURY isnot .3‘4 waiving any of those rights and is instead expressly reserving all of its rights. —L 4. CENTURY is informed and believes that KRG is a suspended corporation. .3 Pursuant to California Revenue & Tax Code § 23301, KRG is barred from defending itself .3 against these claims. CENTURY intervenes in this action on the grounds that it issued .x commercial general liability and commercial excess liabilitypolicies under which CENTURY OONmm-bUN-éOCDCONOCfi-w—éo M may be obligated to discharge certain liabilities of its insured. CENTURY has a direct and N immediate interest in the matter in litigation within the meaning of California Code of Civil N Procedure § 387(a) because it wishes to contest the liability of KRG for the damages N claimed by Plaintiffs and/or any other party in this action. N 5. Under current law, California Revenue & Tax Code § 19719, and the California N Court of Appeal case, Reliance Ins. Co. v. Superior Court (2000) 84 Cal.App.4th 383, N CENTURY may protect its interests in the defense of its insured, KRG, via a Complaint in N Intervention to litigate procedural and substantive defenses, as to KRG. N , 2 CENTURY SURETY COMPANY‘S [proposed] COMPLAlNT-lN-INTERVENTION 6. CENTURY intervenes pursuant to the terms of its insurance policies and applicable California law including, without limitation, California Code of Civil Procedure § 387(a), California Revenue and Taxation Code §§ 1971?, 19719, Reliance Ins. Co. v. Superior Court (2000) 84 Cal.App.4th 383, and Kaufman & Broad Cmtys. v. Performance Plastering (2006) 136 CaI.App.4th 212. 7. coco-46:01pm»; Should trial prove necessary, at trial, CENTURY seeks to appear under the name of its insured, KRG, in order to comply with California Evidence Code § 1155. 8. CENTURY and/or KRG hereby reserve the right to amend this answer to cross- complaint to assert further substantive defenses. 9. CENTURY hereby appears and answers the cross-complaint, as alleged against KRG, and each and every cause of action set forth therein as follows: GENERAL DENlAL 10. Pursuant to California Code of Civil Procedure§ 431.30, KRG or Intervenor ' generally and specifically deny each and every allegation contained in the complaint, and each and every part thereof, and each and every cause of action therein. KRG or Intervenor further denies any and allwrongful conduct, whether or not alleged in Plaintiffs’ Complaint. KRG or lntervenor also deny that Plaintiffs have suffered or incurred, or will incur or will suffer, any injury, NMNNNNNNNAA-AAAAA—LA.‘ loss or damages by reason of any act or omission by KRG or Intervenor or their agents, servants and/or employees, and further deny Plaintiffs are entitled to any relief oo-qmmbcoN—xocoocummAwN-Ao whatsoever. FIRST AFFIRMATIVE DEFENSE 11. Plaintiffs’ claims are barred, in whole or in part, to the extent that Plaintiffs have failed to state a claim against KRG or Intervenor on which relief may be granted. //l //l III III 3 CENTURY SURETY COMPANY'S [proposed] COMPLAlNT—lN-INTERVENTlON SECOND AFFIRMATIVE DEFENSE 12. Plaintiffs' claims are barred, in whole or in part, to the extent that Plaintiffs have failed to state facts sufficient to constitute a cause of action against KRG or Intervenor. THIRD AFFIRMATIVE DEFENSE 13. Plaintiffs’ claims are barred by applicable statutes of limitations including, but not coooumcnt—x necessarily limited to, Code of Civil Procedure §§ 337, 338, 339, and 343. FOURTH AFFIRMATIVE DEFENSE 14. Plaintiffs’ claims are barred, in whole or in part, to the extent the doctrine of waiver applies. FIFTH AFFIRMATIVE DEFENSE 15. Plaintiffs’ claims are barred, in whole or in part, to the extent that Plaintiffs have failed to exercise reasonable diligence to mitigate their damages. SIXTH AFFIRMATIVE DEFENSE 16. Plaintiffs’ or lntervenor allege if the damages complained of by Plaintiffs, if any, which are expressly denied by KRG or lntervener or, were proximately caused by Plaintiffs’ own negligence, Cross—Complainants are barred from any recovery from KRG or lntervener. SEVENTH AFFIRMATIVE DEFENSE 17. KRG or lntervenor allege if the damages complained of by Plaintiffs, if any, which are expressly denied NNNMNNNNNAAAAAAAAAA ODw-P-WN—BOLDOD‘Jmm-w—JO by KRG or lntervener, were proximately caused by the negligence and/or other fault or acts of persons or entities other than KRG or Intervenor. Plaintiffs are barred from any recovery from KRG or Intervenor. EIGHTH AFFIRMATIVE DEFENSE 18. KRG or lntervener allege the damages complained of by Plaintiffs, if any, which are expressly denied by KRG or lntervener, were proximately caused by Plaintiffs own negligence, and that such negligence comparatively reduces the percentage of any negligence attributable to KRG or Intervenor. if it should be found that KRG or lntervener was negligent, which KRG or lntervener expressly denies. /// 4 CENTURY SURETY COMPANY'S [proposed] COMPLAINT-IN-INTERVENTION NINTH AFFIRMATIVE DEFENSE 19. KRG or lntervenor allege the damages complained of by Plaintiffs, if any, which are expressly denied by KRG or lntervenor, were proximately caused by the negligence and/or other fault or acts of firms, persons corporations, or entities other than KRG or lntervenor, CDCO‘IOU'I-bOJN—‘K and that such acts, negligence and/or fault comparatively reduce the percentage of any negligence, fault or liability attributable to KRG or lntervenor, if it should be found that KRG or lntervenor was negligent or otherwise at fault, which KRG or lntervenor expressly deny. TENTH AFFIRMATIVE DEFENSE 20. KRG or lntervenor allege that if liabilityis found to Plaintiffs, which KRG or lntervenor deny, and Plaintiffs are also liable, that, as a result, the damages sustained by Plaintiffs, if any, must be apportioned between Plaintiffs and KRG or lntervenor based on the principles of comparative negligence, pursuant to California Civil Code§ 1431 et seq. and allother applicable law. ELEVENTH AFFIRMATIVE DEFENSE 21. KRG or lntervenor allege that to the extent independent, intervening and/or superseding causes approximately caused or contributed to Plaintiffs’ damages, if any, NNNNNNNNN—L—l—LA—‘L—Ld-A—‘n—i Plaintiffs’ claims are barred against KRG or lntervenor. mummt—xommummAwM—ao TWELFTH AFFIRMATIVE DEFENSE 22. KRG or lntervenor allege that it isentitled to indemnification by apportionment against all parties and persons whose negligence or other acts contributed to the occurrence of the claimed incident or alleged damages. THIRTEENTH AFFlRMATlVE DEFENSE 23. KRG or lntervenor allege that itis entitled to contribution from any person or entity whose negligence or other acts contributed to the occurrence of the alleged incident or damages. IN IN 5 CENTURY SURETY COMPANY'S [proposed] COMPLAINT—lN-lNTERVENTlON FOURTEENTH AFFIRMATIVE DEFENSE 24. KRG or lntervenor allege that to the extent Plaintiffs knowingly assumed the risk of the injuries or damages alleged in the Complaint, if any, Plaintiffs' claims are therefore barred in their entirety. mmflmmt—x FIFTEENTH AFFIRMATIVE DEFENSE 25. The damages sustained by Plaintiffs, if any, was the result of acts or omissions of others, which acts or omissions were not and could not be foreseen by KRG or lntervenor. SIXTEENTH AFFIRMATIVE DEFENSE 26. Plaintiffs have failed to join all persons and parties needed for a just adjudication of this action. SEVENTEENTH AFFIRMATIVE DEFENSE 27. KRG or lntervenor is entitled to set off any settlements, judgments, or similar amounts received by Plaintiffs against anyjudgment rendered against KRG or lntervenor in Plaintiffs’ favor herein. ElGHTEENTH AFFIRMATIVE DEFENSE 28. KRG or lntervener is informed and believes and thereupon alleges that Plaintiffs did not reasonably rely on any act, omission, or representation of KRG or lntervener, if any. mummt-Aococoummt—xo NlNETEENTH AFFIRMATIVE DEFENSE 29. The NNNNNNNNN—x—xaaggdaag damages sustained by Cross-Complainant, if any, were the result of occurrences for which KRG is not liable. TWENTlETH AFFIRMATIVE DEFENSE 30. KRG or lntervener specifically reserves its right to assert further and additional affirmative defenses based on information which may be provided in discovery or other investigation in the course of this litigation. IN //l //l 6 CENTURY SURETY COMPANY'S [proposed] COMPLAINT-lN-lNTERVENTlON WHEREFORE, having fully answered the Complaint—in—lntervention and having asserted its affirmative defenses hereto, KRG or lntervenor respectfully prays forjudgment i against Plaintiffs as follows: 1. That Plaintiffs take nothing by reason of the Complaint on fileherein; 2. That the Plaintiffs be ordered dismissed with prejudice; COOO‘IQU'I-t—l 3. That the Court adjudge, determine, and decree that KRG or lntervenor is not obligated to compensate Plaintiffs for any of the claimed damages; 4. That the Court, adjudge, determine, and decree that KRG or lntervenor is entitled to costs and disbursements in this action, including, but not limited to, reasonable attorneys‘ fees, and 3. For such other and further relief as the Court deems just and proper. DATED: Septembelg, 2017 MURCHISON & CUMMING, LLP M is?” f” , / By: f/iry’QQ/Zw/é’f : 7/v’lrjgflw Kasey Towsfind Esq. Attorneys for lntervenor, CENTUé Y SURETY COMPANY on behalf of KERWIN ROCKWELL GREEN, Inc., a suspended California corporation oo-qmmt-xocoooumms-wN—tc NNNNNNNMMAAA—LA—AAAAJ 7 CENTURY SURETY COMPANY'S [proposed] COMPLAINT—lN—INTERVENTION PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF SAN FRANCISCO At the time of service, I was over 18 years of age and not a party to this action. I am employed in the County of San Francisco, State of California. My business address is 275 Battery Street, Suite 850, San Francisco, California 94111. (DWVmU'I-hOJN—‘b On September 8, 2017, Iserved true copies of the following document(s) described as CENTURY SURETY COMPANY'S [PROPOSED] COMPLAINT-IN-INTERVENTION (ON BEHALF OF KERWIN ROCKWELL GREEN CONSTRUCTION, INC., A SUSPENDED CALIFORNIA CORPORATION) on the interested parties in this action as follows: SEE ATTACHED LIST BY MAIL: lenclosed the document(s) in a sealed envelope or package addressed to the persons at the addresses listed in the Service List and placed the envelope for collection and mailing, following our ordinary business practices. I am readily familiar with Murchison & Cumming‘s practice for collecting and processing correspondence for mailing. Iam aware that on motion of the party served, service is presumed invalid ifthe postal cancellation date or postage meter date is more than one business day after the date of deposit for mailing in this declaration. Ideclare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on September 8, 2017, at San Francisco, California. w i”Mg:93/ MeuyS. aechao . ...... mummn—soomuamzxwm—xo NNNNNNNNNAAAAAAAA—t—x CENTURY SURETY COMPANY'S [proposed] COMPLAINT—lN—INTERVENTION SERVICE LIST Tenley Stephenson, et. al.vs. Michael J. Kerwin, et. al. William C. Last, Jr., Esq. Attorneys for Plaintiffs Last & Faoro 520 South El Camino Real Suite 430 San Mateo, CA 94402 Telephone: 650-696-8350 Facsimile: mcowmmt-x 650-696-8365 Todd A. Jones, Esq. Michael Kerwin Mokri Vanis & Jones, LLP 333 University Avenue. Suite 200 Sacramento, CA 95825 Telephone: 916-565-7653 Facsimile: 916-565-7642 NMNNNNNNNA—A—L-A—I—L—‘L—LAni mummt—aomooummhuN—xo CENTURY SURETY COMPANY'S [proposed] COMPLAINT-lN-INTERVENTION