Preview
1 Peter J. Linn, State Bar No. 178697
plinn@bishop-barry.com
2 Bruce A. Trevithick, State Bar No. 115373
btrevithick@bishop-barry.com
3 BISHOP | BARRY 6/15/2020
A Professional Law Corporation
4 6001 Shellmound Street, Suite 875
Emeryville, California 94608
5 Telephone: (510) 596-0888
Facsimile: (510) 596-0899
6
Attorneys for Kevin Gee dba Tri-Line Construction Co.
7
8
9 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
10 IN AND FOR THE COUNTY OF SAN MATEO
FACSIMILE : (510) 596-0899
11
6001 S HELLMOUND S TREET , S UITE 875
12 BANKERS STANDARD INSURANCE Case No. 17CIV04316
E MERYVILLE , C ALIFORNIA 94608
COMPANY,
BISHOP | BARRY
13 CROSS-DEFENDANT KEVIN GEE DBA TRI-
Plaintiff, LINE CONSTRUCTION CO.’S ANSWER TO
14 UNVERIFIED CROSS-COMPLAINT OF JEFF
T ELEPHONE : (510) 596-0888
v. R. TOWNSEND DBA ONSITE CUSTOM
15 HOMES
TT LEE CORPORATION, a California
16 corporation; JEFF R TOWNSEND, an
individual; ONSITE CUSTOM HOMES, a
17 California business; and DOES 1 through
100,
18
Defendants.
19
20 AND RELATED CROSS-ACTIONS.
21
Cross-Defendant KEVIN GEE dba TRI-LINE CONSTRUCTION CO., identified as ROE 2
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(hereinafter“Cross-Defendant” or “Answering Party”), for itself and no others, hereby responds to
23
Cross-Complainant JEFF R. TOWNSEND dba ONSITE CUSTOM HOMES CONSTRUCTION’S
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unverified Cross-Complaint, as follows:
25
GENERAL DENIAL
26
By virtue of the provisions of Code of Civil Procedure § 431.30, Cross-Defendant denies
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each and every allegation contained in the Cross-Complaint and each purported cause of action
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30 1
CROSS-DEFENDANT KEVIN GEE DBA TRI-LINE CONSTRUCTION CO.’S ANSWER TO
31 UNVERIFIED CROSS-COMPLAINT OF JEFF R. TOWNSEND DBA ONSITE CUSTOM HOMES
1 contained therein, and further deny that Cross-Complainant sustained damages in the sums alleged,
2 or in any sum, or at all, by reason of any act, breach, or omission on the part of any Cross-
3 Defendant, or on the part of any agent, servant, representative, employee, predecessor, or successor
4 of any Cross-Defendant.
5 AFFIRMATIVE DEFENSES
6 Without assuming the burden of proof of any issue for which Cross-Complainant bears the
7 burden at trial,Cross-Defendant asserts the following affirmative defenses in connection with its
8 Answer:
9 AFFIRMATIVE DEFENSE NO. 1
10 (Failure to State a Cause of Action)
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11 1. The Cross-Complaint fails to state facts sufficient to constitute a cause of action
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12 upon which relief can be granted against Cross-Defendant. The Cross-Complaint also seeks relief
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13 against Cross-Defendant that is not properly recoverable by Cross-Complainant, and Cross-
14 Complainant is therefore barred from any recovery against Cross-Defendant.
T ELEPHONE : (510) 596-0888
15 AFFIRMATIVE DEFENSE NO. 2
16 (Statutes of Limitation)
17 2. Cross-Complainant’s Cross-Complaint, and the allegations contained therein, are
18 barred or diminished, in whole or in part, by the applicable statutes of limitation, including but not
19 limited to, Code of Civil Procedure §§ 337(1) and (2), 337.1, 337.15, 338, 339, 340 and 343.
20 AFFIRMATIVE DEFENSE NO. 3
21 (Unclean Hands)
22 3. Cross-Complainant, through its conduct, acts, and omissions, is barred by the
23 doctrine of unclean hands from recovering any damages or other relief herein against Cross-
24 Defendant.
25 AFFIRMATIVE DEFENSE NO. 4
26 (Estoppel)
27 4. Cross-Complainant, through its conduct, acts, and omissions, is estopped from
28 asserting or recovering under any of its causes of actions alleged against Cross-Defendant in the
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1 Cross-Complaint because of its own conduct at the subject property at issue in this action. Cross-
2 Defendant alleges that Cross-Complainant knew or should have known of the damages claimed in
3 its Cross-Complaint, if any there are, but failed to take any corrective measures and failed to notify
4 any other party of the need for such corrective measures, thereby estopping Cross-Complainant
5 from claiming damages as a result of these purported conditions, defect, or otherwise, if any.
6 AFFIRMATIVE DEFENSE NO. 5
7 (Waiver)
8 5. Cross-Complainant, though its conduct, acts, and omissions, has waived its causes
9 of action and any recovery against Cross-Defendant alleged in its Cross-Complaint.
10 AFFIRMATIVE DEFENSE NO. 6
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11 (Laches)
6001 S HELLMOUND S TREET , S UITE 875
12 6. Cross-Complainant’s claims alleged in its Cross-Complaint against Cross-
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13 Defendant are barred or diminished by the doctrine of laches.
14 AFFIRMATIVE DEFENSE NO. 7
T ELEPHONE : (510) 596-0888
15 (Failure to Mitigate)
16 7. Without peril to Cross-Defendant’s denial of the existence of each and every alleged
17 defect and claimed damage, Cross-Defendant alleges that Cross-Complainant, while knowing of
18 the purported defects and damages complained of, if any, failed to undertake to mitigate its
19 damages and/or increased its damages, if any. Accordingly, if Cross-Complainant suffered any
20 damages proximately caused by Cross-Defendant, which Cross-Defendant expressly denies, such
21 damages should have been mitigated by reasonable efforts on the part of Cross-Complainant.
22 AFFIRMATIVE DEFENSE NO. 8
23 (Unjust Enrichment)
24 8. The Cross-Complaint and each cause of action contained therein are barred by the
25 doctrine of unjust enrichment.
26 AFFIRMATIVE DEFENSE NO. 9
27 (Assumption of the Risk)
28 9. The injuries and damages, if any, of which Cross-Complainant complains were
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1 directly and proximately caused and contributed to by a risk(s) known to Cross-Complainant and of
2 which Cross-Complainant appreciated the danger and magnitude, but which Cross-Complainant
3 nevertheless voluntarily assumed, thus barring Cross-Complainant from recovery herein and/or
4 reducing Cross-Complainant’s recovery thereby.
5 AFFIRMATIVE DEFENSE NO. 10
6 (Defective Performance)
7 10. Cross-Complainant’s failure to perform pursuant to the agreements, if any, between
8 the parties excused Cross-Defendant from performing any obligations allegedly not performed, if
9 any.
10 AFFIRMATIVE DEFENSE NO. 11
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11 (Non-Performance)
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12 11. To the extent there is any enforceable agreement or agreements as to Cross-
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13 Defendant, Cross-Complainant was obligated to perform certain conditions in order to enforce any
14 rights thereunder. Cross-Complainant failed to perform the conditions as required, thereby
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15 discharging Cross-Defendant from any obligations thereunder, if any.
16 AFFIRMATIVE DEFENSE NO. 12
17 (Performance by Law)
18 12. Each claimed act or failure to act alleged by Cross-Complainant was performed or
19 not performed under the express authority of statute or pursuant to other requirements of law, and
20 therefore, the Cross-Complaint and each cause of action asserted against Cross-Defendant are
21 barred.
22 AFFIRMATIVE DEFENSE NO. 13
23 (Complete Performance)
24 13. Cross-Defendant has appropriately, completely, and fully performed and discharged
25 any and all obligations and legal duties arising out of the matters alleged in the Cross-Complaint.
26 AFFIRMATIVE DEFENSE NO. 14
27 (Failure to Fulfill Conditions Precedent)
28 14. Any recovery on Cross-Complainant’s Cross-Complaint, or any purported cause of
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1 action alleged therein, is barred on the ground that, as to each and every oral, implied, or other
2 contract alleged therein, Cross-Complainant failed to fulfill a condition or conditions precedent to
3 the enforcement of said contract.
4 AFFIRMATIVE DEFENSE NO. 15
5 (Compliance with Applicable Codes and Industry Standards)
6 15. The subject property was not designed or manufactured negligently and conformed
7 to all applicable codes and generally accepted industry standards and were and are safe for its
8 intended uses. At all relevant times, the subject project conformed to the “state of the art” in its
9 industry, and Cross-Defendant should not be held liable for any unknown and undiscoverable
10 dangers allegedly associated with the subject project, if any.
FACSIMILE : (510) 596-0899
11 AFFIRMATIVE DEFENSE NO. 16
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12 (No Liability for Non-Economic Damages)
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13 16. In the event a judgment is rendered against Cross-Defendant and in favor of Cross-
14 Complainant, Cross-Defendant can only be held responsible, if at all, for that portion of the “non-
T ELEPHONE : (510) 596-0888
15 economic” damages for which it is found liable by jury or judicial determination in direct
16 proportion to Cross-Defendant’s percentage of fault, pursuant to Civil Code § 1431.2, as the rule of
17 joint and several liability does not apply under such circumstances.
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19 AFFIRMATIVE DEFENSE NO. 17
20 (No Recovery in Tort for Economic Damages)
21 17. The economic loss doctrine precludes Cross-Complainant from recovering from
22 Cross-Defendant in tort economic losses which have not yet caused personal injury or physical
23 damage to other property.
24
25 AFFIRMATIVE DEFENSE NO. 18
26 (Satisfaction of Obligations)
27 18. The obligations and conditions of Cross-Defendant to any agreements between the
28 parties have been satisfied.
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1 AFFIRMATIVE DEFENSE NO. 19
2 (No Indemnity)
3 19. To the extent there is any enforceable indemnity agreement as to Cross-Defendant,
4 the existence of which Cross-Defendant denies in total, Cross-Complainant was obligated to
5 perform certain conditions in order to enforce any rights thereunder. Cross-Complainant failed to
6 perform the conditions as required, thereby discharging Cross-Defendant from any obligations
7 thereunder, if any.
8 AFFIRMATIVE DEFENSE NO. 20
9 (Indemnity Provision Unenforceable)
10 20. Civil Code §2782.05 bars Cross-Complainant from requiring this Cross-Defendant
FACSIMILE : (510) 596-0899
11 to indemnify, defend or insure Cross-Complainant for (1) claims of personal injury or property
6001 S HELLMOUND S TREET , S UITE 875
12 damage or other loss to the extent that the claims relate to the active negligence or willful
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13 misconduct of the Cross-Complainant, (2) claims that arise from any defects in designs provided
14 by the Cross-Complainant or (3) claims that do not arise out of the Cross-Defendant’s scope of
T ELEPHONE : (510) 596-0888
15 work set forth in the subcontract.
16 AFFIRMATIVE DEFENSE NO. 21
17 (Indemnification)
18 21. Cross-Defendant is entitled to the right of indemnification by apportionment against
19 all other parties and persons whose negligence contributed proximately to the happening of the
20 claimed accident or alleged injuries.
21 AFFIRMATIVE DEFENSE NO. 22
22 (Statute of Frauds)
23 22. To the extent that Cross-Complainant requests relief based upon an oral contract or
24 agreement, Cross-Complainant’s claims are barred by the applicable statute of frauds.
25 AFFIRMATIVE DEFENSE NO. 23
26 (Negligence of Others)
27 23. Damages and claims for which Cross-Complainant seeks indemnity, apportionment,
28 and declaratory relief in its Cross-Complaint, if any, were caused by the acts, errors, or omissions
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1 of Cross-Complainant and/or third parties and/or contributed to and/or caused by the acts, errors,
2 omissions, or negligence of Cross-Complainant and/or third parties, for whose conduct Cross-
3 Defendant is not responsible.
4 AFFIRMATIVE DEFENSE NO. 24
5 (Comparative Negligence of Cross-Complainant)
6 24. Cross-Complainant failed to exercise ordinary care on its own behalf, which
7 negligence and carelessness was a proximate cause of some portion, up to and including the whole
8 thereof, of the injuries and damages complained of in this action. Cross-Complainant’s recovery,
9 therefore, against Cross-Defendant should be barred or reduced according to principles of
10 comparative negligence.
FACSIMILE : (510) 596-0899
11 AFFIRMATIVE DEFENSE NO. 25
6001 S HELLMOUND S TREET , S UITE 875
12 (Comparative Negligence of Other Defendant(s))
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13 25. Other cross-defendant(s) failed to exercise ordinary care on its own behalf, which
14 negligence and carelessness was a proximate cause of some portion, up to and including the whole
T ELEPHONE : (510) 596-0888
15 thereof, of the injuries and damages complained of by Cross-Complainant in this action. The fault,
16 if any, of Cross-Defendant should be compared with the fault of such other cross-defendant(s) and
17 damages, if any, should be apportioned among such other cross-defendant(s) in direct relation to
18 each other cross-defendant(s)’ comparative fault. Cross-Defendant should be obligated to pay only
19 such damages, if any, which are directly attributable to its percentage of comparative fault. To
20 require Cross-Defendant to pay any more than its percentage of comparative fault violates the
21 Equal Protection and Due Process clauses of the United States Constitution and State of California
22 Constitution.
23 AFFIRMATIVE DEFENSE NO. 26
24 (Superseding Cause)
25 26. If Cross-Complainant suffered any damage, which is denied, then any such damage
26 was proximately caused by the intervening and superseding actions of others, which bar Cross-
27 Complainant’s recovery, if any, against Cross-Defendant.
28 ///
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1 AFFIRMATIVE DEFENSE NO. 27
2 (Independent Causes)
3 27. The alleged injuries, damages, or loss, if any, for which Cross-Complainant seek
4 recovery were the result of causes independent of any purported acts or omissions on the part of
5 Cross-Defendant or any of its agents, representatives, or employees, thereby eliminating or
6 reducing the alleged liability of Cross-Defendant.
7 AFFIRMATIVE DEFENSE NO. 28
8 (No Proximate Cause)
9 28. The acts and/or omissions, if any, of Cross-Defendant were not the proximate cause
10 of the losses, damage, or injuries alleged in the Cross-Complaint.
FACSIMILE : (510) 596-0899
11 AFFIRMATIVE DEFENSE NO. 29
6001 S HELLMOUND S TREET , S UITE 875
12 (Act of God)
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BISHOP | BARRY
13 29. The damages and defects of which Cross-Complainant complains, if any, were
14 caused by acts of God for which Cross-Defendant has no responsibility.
T ELEPHONE : (510) 596-0888
15 AFFIRMATIVE DEFENSE NO. 30
16 (Unavoidable Conditions)
17 30. The alleged injuries, damages, or loss, if any, for which Cross-Complainant seeks
18 recovery were the direct and proximate result of unavoidable accidents or conditions without fault
19 or liability on the part of Cross-Defendant.
20 AFFIRMATIVE DEFENSE NO. 31
21 (Natural Causes)
22 31. The alleged injuries, damages, or loss, if any, for which Cross-Complainant seeks
23 recovery were the direct and proximate result of natural deterioration, wear and tear, or other
24 natural causes which were unforeseeable without fault or liability on the part of Cross-Defendant.
25 AFFIRMATIVE DEFENSE NO. 32
26 (Subsequent Modification)
27 32. The subject property was modified, changed, or altered so as to change its character
28 with respect to the defects complained of in the Cross-Complaint. Any defect in the subject
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1 construction and/or product, if any, resulted solely from modification, change, or alteration of the
2 products, and not from any act or omission on the part of Cross-Defendant. Furthermore, the
3 defects created by the aforesaid alteration, change, or modification, if any, were the sole and
4 proximate cause of damages, if any, alleged in the Cross-Complaint.
5 AFFIRMATIVE DEFENSE NO. 33
6 (Subsequent Misuse)
7 33. Cross-Complainant’s claimed damages resulted from misuse of the subject
8 construction and products incorporated therein. If there was any defect in the product or property
9 referred to in the Cross-Complaint at the time of said damages, such defect did not exist at the time
10 said product or property left the possession or control of Cross-Defendant and was caused by the
FACSIMILE : (510) 596-0899
11 misuse, abuse, changes, modification improper maintenance, and alterations of others, including
6001 S HELLMOUND S TREET , S UITE 875
12 Cross-Complainant herein, and that said damages were caused by such misuse, abuse, changes,
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13 alterations, lack of maintenance, and modifications. The misuse was without Cross-Defendant’s
14 knowledge, approval, or consent. This misuse was not reasonably foreseeable to Cross-Defendant
T ELEPHONE : (510) 596-0888
15 either before the time of the sale or construction of the lot or house or at any time prior to the
16 manifestation of the alleged defects, if any. Said misuse of the subject construction lots and
17 products completely bars, if not proportionately reduces, any ultimate recovery against Cross-
18 Defendant.
19 AFFIRMATIVE DEFENSE NO. 34
20 (Passive Acts)
21 34. If Cross-Defendant is found to have been negligent or liable in any manner, such
22 negligence or liability was passive and secondary while the negligence or liability of Cross-
23 Complainant and/or others was active and primary, and such active and primary negligence and
24 liability bars, in whole or in part, the recovery requested, or any recovery, against Cross-Defendant.
25 AFFIRMATIVE DEFENSE NO. 35
26 (Intentional Conduct)
27 35. The Cross-Complaint and each cause of action alleged therein are barred by Cross-
28 Complainant’s intentional conduct.
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1 AFFIRMATIVE DEFENSE NO. 36
2 (Justified Conduct)
3 36. The conduct of Cross-Defendant with respect to the matters alleged in the Cross-
4 Complaint was justified, and by reason of the foregoing, Cross-Complainant is barred from any
5 recovery against Cross-Defendant.
6 AFFIRMATIVE DEFENSE NO. 37
7 (Acquiescence)
8 37. Cross-Complainant acquiesced to any conduct engaged in by Cross-Defendant.
9 AFFIRMATIVE DEFENSE NO. 38
10 (Ratification)
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11 38. Cross-Complainant expressly ordered, approved, authorized, participated in, and
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12 ratified the actions and transactions complained of and the actions upon which recovery is
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13 allegedly sought, and Cross-Complainant are accordingly precluded from recovery.
14 AFFIRMATIVE DEFENSE NO. 39
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15 (Express Consent)
16 39. Cross-Complainant expressly consented to the actions alleged to have caused it
17 damages.
18 AFFIRMATIVE DEFENSE NO. 40
19 (Implied Consent)
20 40. Cross-Complainant impliedly consented to the actions alleged to have caused it
21 damages.
22 AFFIRMATIVE DEFENSE NO. 41
23 (Lack of Notice)
24 41. The Cross-Complaint and each cause of action alleged therein are barred by Cross-
25 Complainant’s failure to timely notify Cross-Defendant of the alleged defects, breach, and/or
26 damages, if any, which any party may have sustained.
27 ///
28 ///
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1 AFFIRMATIVE DEFENSE NO. 42
2 (No Reliance)
3 42. Cross-Complainant did not rely on any representations or conduct of Cross-
4 Defendant, and therefore, Cross-Defendant is not responsible for any damages, if any exist.
5 AFFIRMATIVE DEFENSE NO. 43
6 (Excuse)
7 43. Cross-Complainant’s failure to perform pursuant to the agreements, if any, between
8 the parties excused Cross-Defendant from performing any obligations it did not perform, if there
9 was any such performance due.
10 AFFIRMATIVE DEFENSE NO. 44
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11 (Setoff)
6001 S HELLMOUND S TREET , S UITE 875
12 44. By virtue of the acts, omissions, and misrepresentations of Cross-Complainant,
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13 Cross-Defendant has incurred damages and expenses, all in amounts to be ascertained and applied
14 as an offset against the claims of Cross-Complainant.
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15 AFFIRMATIVE DEFENSE NO. 45
16 (No Breach of Warranties)
17 45. Cross-Defendant did not breach any warranties, express or implied, and no
18 warranties, express or implied, arose in the instant situation
19 AFFIRMATIVE DEFENSE NO. 46
20 (Disclaimer)
21 46. All implied warranties were properly disclaimed by Cross-Defendant and/or its
22 predecessor in its express warranty.
23 AFFIRMATIVE DEFENSE NO. 47
24 (Waiver of Implied Warranty)
25 47. All implied warranties were waived by Cross-Complainant.
26 AFFIRMATIVE DEFENSE NO. 48
27 (Lack of Privity)
28 48. Cross-Complainant did not stand in privity with Cross-Defendant.
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1 AFFIRMATIVE DEFENSE NO. 49
2 (Lack of Standing)
3 49. Cross-Complainant lacks standing to seek the relief against Cross-Defendant that it
4 pursues in its Cross-Complaint.
5 AFFIRMATIVE DEFENSE NO. 50
6 (Absence of Necessary Parties)
7 50. The purported claims and causes of action contained in the Cross-Complaint
8 require, for their complete adjudication, the joining of additional, necessary, or indispensable
9 parties, without whom the purported claims and causes of action cannot be fully, finally, and
10 completely resolved.
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11 AFFIRMATIVE DEFENSE NO. 51
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12 (Lack of Capacity to Sue)
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13 51. Cross-Complainant lacks the capacity to sue Cross-Defendant.
14 AFFIRMATIVE DEFENSE NO. 52
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15 (No Misrepresentation of Fact)
16 52. Cross-Defendant did not make any representation of fact or misrepresentation of
17 facts to Cross-Complainant and is, therefore, not responsible for any damages, if any exist.
18 AFFIRMATIVE DEFENSE NO. 53
19 (No Fiduciary Duty)
20 53. There does not exist, nor has there existed, a fiduciary relationship between Cross-
21 Complainant and Cross-Defendant.
22 AFFIRMATIVE DEFENSE NO. 54
23 (Arbitration and/or Judicial Reference Agreement)
24 54. To the extent that there is any agreement between the parties to utilize Alternative
25 Dispute Resolution (“ADR”) procedures to resolve any or all of the issues or disputes raised in
26 Cross-Complainant’s Cross-Complaint, Cross-Defendant expressly reserves the right to enforce
27 those ADR provisions and does not waive the right to enforce them by filing this Answer. ADR
28 procedures include, without limitation, arbitration, mediation, or a judicial reference.
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1 AFFIRMATIVE DEFENSE NO. 55
2 (Bar to Claims Pursuant to Civil Code § 945.5)
3 55. Cross-Complainant is barred, in whole or in part, from recovering alleged damages
4 pursuant to the affirmative defenses set forth in Civil Code §945.5, et seq. (SB 800).
5 AFFIRMATIVE DEFENSE NO. 56
6 (Preclusion from Recovery of Attorneys’ Fees)
7 56. Cross-Complainant is, in whole or in part, barred from recovering attorneys’ fees in
8 this matter based upon contractual, equitable, or other exclusions in law or equity.
9 AFFIRMATIVE DEFENSE NO. 57
10 (Unstated Additional Defenses)
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11 57. Cross-Defendant presently has insufficient knowledge and information on which to
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12 form a belief as to whether there exist additional, as yet unstated, affirmative defenses. Cross-
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13 Defendant reserves herein the right to assert additional affirmative defenses in the event that
14 discovery indicates that such a defense would be appropriate.
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15
16 PRAYER
17 WHEREFORE, Cross-Defendant respectfully prays for entry of judgment in its favor and
18 against Cross-Complainant as follows:
19 1. That Cross-Complainant take nothing by way of its Cross-Complaint;
20 2. That Cross-Complainant’s recovery against Cross-Defendant, if any, be diminished
21 by an amount equal to the degree of negligence or fault attributable to Cross-Complainant;
22 3. That Cross-Complainant’s recovery against Cross-Defendant, if any, be diminished
23 by an amount equal to the degree of negligence or fault attributable to parties, individuals, and/or
24 entities other than Cross-Defendant in this action;
25 4. For an award of reasonable attorneys’ fees;
26 5. The costs of suit incurred herein; and
27 ///
28 ///
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1
2 6. For any other and further relief as the Court may deem just and proper.
3 Dated: April 13, 2020 BISHOP | BARRY
A Professional Law Corporation
4
5
6 By: /s/ Bruce A. Trevithick
Peter J. Linn
7
Bruce A. Trevithick
8 Attorneys for Kevin Gee dba Tri-Line
Construction Co.
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FACSIMILE : (510) 596-0899
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6001 S HELLMOUND S TREET , S UITE 875
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E MERYVILLE , C ALIFORNIA 94608
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14 6/15/2020
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1 PROOF OF SERVICE
2 I am a citizen of the United States and employed in the County of Alameda, City of
3 Emeryville, California. I am over the age of eighteen years and not a party to the within action.
4 My business address is B IS H O P | B AR R Y , 6001 Shellmound Street, Suite 875, Emeryville,
5 California 94608.
6 I am familiar with B IS H OP | B AR R Y ’s practice whereby each document is placed in an
7 envelope, the envelope is sealed, the appropriate postage is placed thereon, and the sealed envelope
8 is placed in the office mail receptacle. Each day the mail is collected and deposited in a United
9 States Postal mailbox at or before the closed of business each day.
10 On the date below-written, I served the following document(s):
FACSIMILE : (510) 596-0899
11 CROSS-DEFENDANT KEVIN GEE DBA TRI-LINE CONSTRUCTION CO.’S
ANSWER TO UNVERIFIED CROSS-COMPLAINT OF JEFF R. TOWNSEND DBA
6001 S HELLMOUND S TREET , S UITE 875
12 ONSITE CUSTOM HOMES
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13 ( ) (BY REGULAR MAIL) By placing a true copy thereof enclosed in a sealed envelope with
postage thereon fully prepaid, in the designated area for outgoing mail at Emeryville,
14 California, addressed as set forth below:
T ELEPHONE : (510) 596-0888
15 ( ) (BY PERSONAL DELIVERY) By having a messenger personally deliver a true copy
thereof to the person and/or office of the person at the address set forth below:
16
( ) (BY OVERNIGHT DELIVERY) By placing a true copy thereof, enclosed in a sealed
17 envelope, with delivery charges to be billed to B IS HO P | B AR R Y to be delivered by
Federal Express, to the address(es) shown below:
18
( ) (BY FACSIMILE) By transmitting a true copy thereof by facsimile transmission from
19 facsimile number (510) 596-0899 to the interested parties to said action at the facsimile
number(s) shown below:
20
(X) (BY ELECTRONIC SERVICE) I caused such document(s) to be electronically mailed to
21 the addresses as set forth below:
22 SERVICE LIST ATTACHED
23 I declare under penalty of perjury under the laws of the State of California that the
24 foregoing is true and correct to the best of my knowledge. Executed on June 15, 2020, at
25 Emeryville, California.
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_____________________________________
27 Laura E. Hopkins
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PROOF OF SERVICE
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1 Peter J. Linn, State Bar No. 178697 plinn@bishop-barry.com 2 Bruce A. Trevithick, State Bar No. 115373 btrevithick@bishop-barry.com 3 BISHOP | BARRY 6/15/2020 A Professional Law Corporation 4 6001 Shellmound Street, Suite 875 Emeryville, California 94608 5 Telephone: (510) 596-0888 Facsimile: (510) 596-0899 6 Attorneys for Kevin Gee dba Tri-Line Construction Co. 7 8 9 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 IN AND FOR THE COUNTY OF SAN MATEO FACSIMILE : (510) 596-0899 11 6001 S HELLMOUND S TREET , S UITE 875 12 BANKERS STANDARD INSURANCE Case No. 17CIV04316 E MERYVILLE , C ALIFORNIA 94608 COMPANY, BISHOP | BARRY 13 CROSS-DEFENDANT KEVIN GEE DBA TRI- Plaintiff, LINE CONSTRUCTION CO.’S ANSWER TO 14 UNVERIFIED CROSS-COMPLAINT OF JEFF T ELEPHONE : (510) 596-0888 v. R. TOWNSEND DBA ONSITE CUSTOM 15 HOMES TT LEE CORPORATION, a California 16 corporation; JEFF R TOWNSEND, an individual; ONSITE CUSTOM HOMES, a 17 California business; and DOES 1 through 100, 18 Defendants. 19 20 AND RELATED CROSS-ACTIONS. 21 Cross-Defendant KEVIN GEE dba TRI-LINE CONSTRUCTION CO., identified as ROE 2 22 (hereinafter“Cross-Defendant” or “Answering Party”), for itself and no others, hereby responds to 23 Cross-Complainant JEFF R. TOWNSEND dba ONSITE CUSTOM HOMES CONSTRUCTION’S 24 unverified Cross-Complaint, as follows: 25 GENERAL DENIAL 26 By virtue of the provisions of Code of Civil Procedure § 431.30, Cross-Defendant denies 27 each and every allegation contained in the Cross-Complaint and each purported cause of action 28 30 1 CROSS-DEFENDANT KEVIN GEE DBA TRI-LINE CONSTRUCTION CO.’S ANSWER TO 31 UNVERIFIED CROSS-COMPLAINT OF JEFF R. TOWNSEND DBA ONSITE CUSTOM HOMES 1 contained therein, and further deny that Cross-Complainant sustained damages in the sums alleged, 2 or in any sum, or at all, by reason of any act, breach, or omission on the part of any Cross- 3 Defendant, or on the part of any agent, servant, representative, employee, predecessor, or successor 4 of any Cross-Defendant. 5 AFFIRMATIVE DEFENSES 6 Without assuming the burden of proof of any issue for which Cross-Complainant bears the 7 burden at trial,Cross-Defendant asserts the following affirmative defenses in connection with its 8 Answer: 9 AFFIRMATIVE DEFENSE NO. 1 10 (Failure to State a Cause of Action) FACSIMILE : (510) 596-0899 11 1. The Cross-Complaint fails to state facts sufficient to constitute a cause of action 6001 S HELLMOUND S TREET , S UITE 875 12 upon which relief can be granted against Cross-Defendant. The Cross-Complaint also seeks relief E MERYVILLE , C ALIFORNIA 94608 BISHOP | BARRY 13 against Cross-Defendant that is not properly recoverable by Cross-Complainant, and Cross- 14 Complainant is therefore barred from any recovery against Cross-Defendant. T ELEPHONE : (510) 596-0888 15 AFFIRMATIVE DEFENSE NO. 2 16 (Statutes of Limitation) 17 2. Cross-Complainant’s Cross-Complaint, and the allegations contained therein, are 18 barred or diminished, in whole or in part, by the applicable statutes of limitation, including but not 19 limited to, Code of Civil Procedure §§ 337(1) and (2), 337.1, 337.15, 338, 339, 340 and 343. 20 AFFIRMATIVE DEFENSE NO. 3 21 (Unclean Hands) 22 3. Cross-Complainant, through its conduct, acts, and omissions, is barred by the 23 doctrine of unclean hands from recovering any damages or other relief herein against Cross- 24 Defendant. 25 AFFIRMATIVE DEFENSE NO. 4 26 (Estoppel) 27 4. Cross-Complainant, through its conduct, acts, and omissions, is estopped from 28 asserting or recovering under any of its causes of actions alleged against Cross-Defendant in the 30 2 31 1 Cross-Complaint because of its own conduct at the subject property at issue in this action. Cross- 2 Defendant alleges that Cross-Complainant knew or should have known of the damages claimed in 3 its Cross-Complaint, if any there are, but failed to take any corrective measures and failed to notify 4 any other party of the need for such corrective measures, thereby estopping Cross-Complainant 5 from claiming damages as a result of these purported conditions, defect, or otherwise, if any. 6 AFFIRMATIVE DEFENSE NO. 5 7 (Waiver) 8 5. Cross-Complainant, though its conduct, acts, and omissions, has waived its causes 9 of action and any recovery against Cross-Defendant alleged in its Cross-Complaint. 10 AFFIRMATIVE DEFENSE NO. 6 FACSIMILE : (510) 596-0899 11 (Laches) 6001 S HELLMOUND S TREET , S UITE 875 12 6. Cross-Complainant’s claims alleged in its Cross-Complaint against Cross- E MERYVILLE , C ALIFORNIA 94608 BISHOP | BARRY 13 Defendant are barred or diminished by the doctrine of laches. 14 AFFIRMATIVE DEFENSE NO. 7 T ELEPHONE : (510) 596-0888 15 (Failure to Mitigate) 16 7. Without peril to Cross-Defendant’s denial of the existence of each and every alleged 17 defect and claimed damage, Cross-Defendant alleges that Cross-Complainant, while knowing of 18 the purported defects and damages complained of, if any, failed to undertake to mitigate its 19 damages and/or increased its damages, if any. Accordingly, if Cross-Complainant suffered any 20 damages proximately caused by Cross-Defendant, which Cross-Defendant expressly denies, such 21 damages should have been mitigated by reasonable efforts on the part of Cross-Complainant. 22 AFFIRMATIVE DEFENSE NO. 8 23 (Unjust Enrichment) 24 8. The Cross-Complaint and each cause of action contained therein are barred by the 25 doctrine of unjust enrichment. 26 AFFIRMATIVE DEFENSE NO. 9 27 (Assumption of the Risk) 28 9. The injuries and damages, if any, of which Cross-Complainant complains were 30 3 31 1 directly and proximately caused and contributed to by a risk(s) known to Cross-Complainant and of 2 which Cross-Complainant appreciated the danger and magnitude, but which Cross-Complainant 3 nevertheless voluntarily assumed, thus barring Cross-Complainant from recovery herein and/or 4 reducing Cross-Complainant’s recovery thereby. 5 AFFIRMATIVE DEFENSE NO. 10 6 (Defective Performance) 7 10. Cross-Complainant’s failure to perform pursuant to the agreements, if any, between 8 the parties excused Cross-Defendant from performing any obligations allegedly not performed, if 9 any. 10 AFFIRMATIVE DEFENSE NO. 11 FACSIMILE : (510) 596-0899 11 (Non-Performance) 6001 S HELLMOUND S TREET , S UITE 875 12 11. To the extent there is any enforceable agreement or agreements as to Cross- E MERYVILLE , C ALIFORNIA 94608 BISHOP | BARRY 13 Defendant, Cross-Complainant was obligated to perform certain conditions in order to enforce any 14 rights thereunder. Cross-Complainant failed to perform the conditions as required, thereby T ELEPHONE : (510) 596-0888 15 discharging Cross-Defendant from any obligations thereunder, if any. 16 AFFIRMATIVE DEFENSE NO. 12 17 (Performance by Law) 18 12. Each claimed act or failure to act alleged by Cross-Complainant was performed or 19 not performed under the express authority of statute or pursuant to other requirements of law, and 20 therefore, the Cross-Complaint and each cause of action asserted against Cross-Defendant are 21 barred. 22 AFFIRMATIVE DEFENSE NO. 13 23 (Complete Performance) 24 13. Cross-Defendant has appropriately, completely, and fully performed and discharged 25 any and all obligations and legal duties arising out of the matters alleged in the Cross-Complaint. 26 AFFIRMATIVE DEFENSE NO. 14 27 (Failure to Fulfill Conditions Precedent) 28 14. Any recovery on Cross-Complainant’s Cross-Complaint, or any purported cause of 30 4 31 1 action alleged therein, is barred on the ground that, as to each and every oral, implied, or other 2 contract alleged therein, Cross-Complainant failed to fulfill a condition or conditions precedent to 3 the enforcement of said contract. 4 AFFIRMATIVE DEFENSE NO. 15 5 (Compliance with Applicable Codes and Industry Standards) 6 15. The subject property was not designed or manufactured negligently and conformed 7 to all applicable codes and generally accepted industry standards and were and are safe for its 8 intended uses. At all relevant times, the subject project conformed to the “state of the art” in its 9 industry, and Cross-Defendant should not be held liable for any unknown and undiscoverable 10 dangers allegedly associated with the subject project, if any. FACSIMILE : (510) 596-0899 11 AFFIRMATIVE DEFENSE NO. 16 6001 S HELLMOUND S TREET , S UITE 875 12 (No Liability for Non-Economic Damages) E MERYVILLE , C ALIFORNIA 94608 BISHOP | BARRY 13 16. In the event a judgment is rendered against Cross-Defendant and in favor of Cross- 14 Complainant, Cross-Defendant can only be held responsible, if at all, for that portion of the “non- T ELEPHONE : (510) 596-0888 15 economic” damages for which it is found liable by jury or judicial determination in direct 16 proportion to Cross-Defendant’s percentage of fault, pursuant to Civil Code § 1431.2, as the rule of 17 joint and several liability does not apply under such circumstances. 18 19 AFFIRMATIVE DEFENSE NO. 17 20 (No Recovery in Tort for Economic Damages) 21 17. The economic loss doctrine precludes Cross-Complainant from recovering from 22 Cross-Defendant in tort economic losses which have not yet caused personal injury or physical 23 damage to other property. 24 25 AFFIRMATIVE DEFENSE NO. 18 26 (Satisfaction of Obligations) 27 18. The obligations and conditions of Cross-Defendant to any agreements between the 28 parties have been satisfied. 30 5 31 1 AFFIRMATIVE DEFENSE NO. 19 2 (No Indemnity) 3 19. To the extent there is any enforceable indemnity agreement as to Cross-Defendant, 4 the existence of which Cross-Defendant denies in total, Cross-Complainant was obligated to 5 perform certain conditions in order to enforce any rights thereunder. Cross-Complainant failed to 6 perform the conditions as required, thereby discharging Cross-Defendant from any obligations 7 thereunder, if any. 8 AFFIRMATIVE DEFENSE NO. 20 9 (Indemnity Provision Unenforceable) 10 20. Civil Code §2782.05 bars Cross-Complainant from requiring this Cross-Defendant FACSIMILE : (510) 596-0899 11 to indemnify, defend or insure Cross-Complainant for (1) claims of personal injury or property 6001 S HELLMOUND S TREET , S UITE 875 12 damage or other loss to the extent that the claims relate to the active negligence or willful E MERYVILLE , C ALIFORNIA 94608 BISHOP | BARRY 13 misconduct of the Cross-Complainant, (2) claims that arise from any defects in designs provided 14 by the Cross-Complainant or (3) claims that do not arise out of the Cross-Defendant’s scope of T ELEPHONE : (510) 596-0888 15 work set forth in the subcontract. 16 AFFIRMATIVE DEFENSE NO. 21 17 (Indemnification) 18 21. Cross-Defendant is entitled to the right of indemnification by apportionment against 19 all other parties and persons whose negligence contributed proximately to the happening of the 20 claimed accident or alleged injuries. 21 AFFIRMATIVE DEFENSE NO. 22 22 (Statute of Frauds) 23 22. To the extent that Cross-Complainant requests relief based upon an oral contract or 24 agreement, Cross-Complainant’s claims are barred by the applicable statute of frauds. 25 AFFIRMATIVE DEFENSE NO. 23 26 (Negligence of Others) 27 23. Damages and claims for which Cross-Complainant seeks indemnity, apportionment, 28 and declaratory relief in its Cross-Complaint, if any, were caused by the acts, errors, or omissions 30 6 31 1 of Cross-Complainant and/or third parties and/or contributed to and/or caused by the acts, errors, 2 omissions, or negligence of Cross-Complainant and/or third parties, for whose conduct Cross- 3 Defendant is not responsible. 4 AFFIRMATIVE DEFENSE NO. 24 5 (Comparative Negligence of Cross-Complainant) 6 24. Cross-Complainant failed to exercise ordinary care on its own behalf, which 7 negligence and carelessness was a proximate cause of some portion, up to and including the whole 8 thereof, of the injuries and damages complained of in this action. Cross-Complainant’s recovery, 9 therefore, against Cross-Defendant should be barred or reduced according to principles of 10 comparative negligence. FACSIMILE : (510) 596-0899 11 AFFIRMATIVE DEFENSE NO. 25 6001 S HELLMOUND S TREET , S UITE 875 12 (Comparative Negligence of Other Defendant(s)) E MERYVILLE , C ALIFORNIA 94608 BISHOP | BARRY 13 25. Other cross-defendant(s) failed to exercise ordinary care on its own behalf, which 14 negligence and carelessness was a proximate cause of some portion, up to and including the whole T ELEPHONE : (510) 596-0888 15 thereof, of the injuries and damages complained of by Cross-Complainant in this action. The fault, 16 if any, of Cross-Defendant should be compared with the fault of such other cross-defendant(s) and 17 damages, if any, should be apportioned among such other cross-defendant(s) in direct relation to 18 each other cross-defendant(s)’ comparative fault. Cross-Defendant should be obligated to pay only 19 such damages, if any, which are directly attributable to its percentage of comparative fault. To 20 require Cross-Defendant to pay any more than its percentage of comparative fault violates the 21 Equal Protection and Due Process clauses of the United States Constitution and State of California 22 Constitution. 23 AFFIRMATIVE DEFENSE NO. 26 24 (Superseding Cause) 25 26. If Cross-Complainant suffered any damage, which is denied, then any such damage 26 was proximately caused by the intervening and superseding actions of others, which bar Cross- 27 Complainant’s recovery, if any, against Cross-Defendant. 28 /// 30 7 31 1 AFFIRMATIVE DEFENSE NO. 27 2 (Independent Causes) 3 27. The alleged injuries, damages, or loss, if any, for which Cross-Complainant seek 4 recovery were the result of causes independent of any purported acts or omissions on the part of 5 Cross-Defendant or any of its agents, representatives, or employees, thereby eliminating or 6 reducing the alleged liability of Cross-Defendant. 7 AFFIRMATIVE DEFENSE NO. 28 8 (No Proximate Cause) 9 28. The acts and/or omissions, if any, of Cross-Defendant were not the proximate cause 10 of the losses, damage, or injuries alleged in the Cross-Complaint. FACSIMILE : (510) 596-0899 11 AFFIRMATIVE DEFENSE NO. 29 6001 S HELLMOUND S TREET , S UITE 875 12 (Act of God) E MERYVILLE , C ALIFORNIA 94608 BISHOP | BARRY 13 29. The damages and defects of which Cross-Complainant complains, if any, were 14 caused by acts of God for which Cross-Defendant has no responsibility. T ELEPHONE : (510) 596-0888 15 AFFIRMATIVE DEFENSE NO. 30 16 (Unavoidable Conditions) 17 30. The alleged injuries, damages, or loss, if any, for which Cross-Complainant seeks 18 recovery were the direct and proximate result of unavoidable accidents or conditions without fault 19 or liability on the part of Cross-Defendant. 20 AFFIRMATIVE DEFENSE NO. 31 21 (Natural Causes) 22 31. The alleged injuries, damages, or loss, if any, for which Cross-Complainant seeks 23 recovery were the direct and proximate result of natural deterioration, wear and tear, or other 24 natural causes which were unforeseeable without fault or liability on the part of Cross-Defendant. 25 AFFIRMATIVE DEFENSE NO. 32 26 (Subsequent Modification) 27 32. The subject property was modified, changed, or altered so as to change its character 28 with respect to the defects complained of in the Cross-Complaint. Any defect in the subject 30 8 31 1 construction and/or product, if any, resulted solely from modification, change, or alteration of the 2 products, and not from any act or omission on the part of Cross-Defendant. Furthermore, the 3 defects created by the aforesaid alteration, change, or modification, if any, were the sole and 4 proximate cause of damages, if any, alleged in the Cross-Complaint. 5 AFFIRMATIVE DEFENSE NO. 33 6 (Subsequent Misuse) 7 33. Cross-Complainant’s claimed damages resulted from misuse of the subject 8 construction and products incorporated therein. If there was any defect in the product or property 9 referred to in the Cross-Complaint at the time of said damages, such defect did not exist at the time 10 said product or property left the possession or control of Cross-Defendant and was caused by the FACSIMILE : (510) 596-0899 11 misuse, abuse, changes, modification improper maintenance, and alterations of others, including 6001 S HELLMOUND S TREET , S UITE 875 12 Cross-Complainant herein, and that said damages were caused by such misuse, abuse, changes, E MERYVILLE , C ALIFORNIA 94608 BISHOP | BARRY 13 alterations, lack of maintenance, and modifications. The misuse was without Cross-Defendant’s 14 knowledge, approval, or consent. This misuse was not reasonably foreseeable to Cross-Defendant T ELEPHONE : (510) 596-0888 15 either before the time of the sale or construction of the lot or house or at any time prior to the 16 manifestation of the alleged defects, if any. Said misuse of the subject construction lots and 17 products completely bars, if not proportionately reduces, any ultimate recovery against Cross- 18 Defendant. 19 AFFIRMATIVE DEFENSE NO. 34 20 (Passive Acts) 21 34. If Cross-Defendant is found to have been negligent or liable in any manner, such 22 negligence or liability was passive and secondary while the negligence or liability of Cross- 23 Complainant and/or others was active and primary, and such active and primary negligence and 24 liability bars, in whole or in part, the recovery requested, or any recovery, against Cross-Defendant. 25 AFFIRMATIVE DEFENSE NO. 35 26 (Intentional Conduct) 27 35. The Cross-Complaint and each cause of action alleged therein are barred by Cross- 28 Complainant’s intentional conduct. 30 9 31 1 AFFIRMATIVE DEFENSE NO. 36 2 (Justified Conduct) 3 36. The conduct of Cross-Defendant with respect to the matters alleged in the Cross- 4 Complaint was justified, and by reason of the foregoing, Cross-Complainant is barred from any 5 recovery against Cross-Defendant. 6 AFFIRMATIVE DEFENSE NO. 37 7 (Acquiescence) 8 37. Cross-Complainant acquiesced to any conduct engaged in by Cross-Defendant. 9 AFFIRMATIVE DEFENSE NO. 38 10 (Ratification) FACSIMILE : (510) 596-0899 11 38. Cross-Complainant expressly ordered, approved, authorized, participated in, and 6001 S HELLMOUND S TREET , S UITE 875 12 ratified the actions and transactions complained of and the actions upon which recovery is E MERYVILLE , C ALIFORNIA 94608 BISHOP | BARRY 13 allegedly sought, and Cross-Complainant are accordingly precluded from recovery. 14 AFFIRMATIVE DEFENSE NO. 39 T ELEPHONE : (510) 596-0888 15 (Express Consent) 16 39. Cross-Complainant expressly consented to the actions alleged to have caused it 17 damages. 18 AFFIRMATIVE DEFENSE NO. 40 19 (Implied Consent) 20 40. Cross-Complainant impliedly consented to the actions alleged to have caused it 21 damages. 22 AFFIRMATIVE DEFENSE NO. 41 23 (Lack of Notice) 24 41. The Cross-Complaint and each cause of action alleged therein are barred by Cross- 25 Complainant’s failure to timely notify Cross-Defendant of the alleged defects, breach, and/or 26 damages, if any, which any party may have sustained. 27 /// 28 /// 30 10 31 1 AFFIRMATIVE DEFENSE NO. 42 2 (No Reliance) 3 42. Cross-Complainant did not rely on any representations or conduct of Cross- 4 Defendant, and therefore, Cross-Defendant is not responsible for any damages, if any exist. 5 AFFIRMATIVE DEFENSE NO. 43 6 (Excuse) 7 43. Cross-Complainant’s failure to perform pursuant to the agreements, if any, between 8 the parties excused Cross-Defendant from performing any obligations it did not perform, if there 9 was any such performance due. 10 AFFIRMATIVE DEFENSE NO. 44 FACSIMILE : (510) 596-0899 11 (Setoff) 6001 S HELLMOUND S TREET , S UITE 875 12 44. By virtue of the acts, omissions, and misrepresentations of Cross-Complainant, E MERYVILLE , C ALIFORNIA 94608 BISHOP | BARRY 13 Cross-Defendant has incurred damages and expenses, all in amounts to be ascertained and applied 14 as an offset against the claims of Cross-Complainant. T ELEPHONE : (510) 596-0888 15 AFFIRMATIVE DEFENSE NO. 45 16 (No Breach of Warranties) 17 45. Cross-Defendant did not breach any warranties, express or implied, and no 18 warranties, express or implied, arose in the instant situation 19 AFFIRMATIVE DEFENSE NO. 46 20 (Disclaimer) 21 46. All implied warranties were properly disclaimed by Cross-Defendant and/or its 22 predecessor in its express warranty. 23 AFFIRMATIVE DEFENSE NO. 47 24 (Waiver of Implied Warranty) 25 47. All implied warranties were waived by Cross-Complainant. 26 AFFIRMATIVE DEFENSE NO. 48 27 (Lack of Privity) 28 48. Cross-Complainant did not stand in privity with Cross-Defendant. 30 11 31 1 AFFIRMATIVE DEFENSE NO. 49 2 (Lack of Standing) 3 49. Cross-Complainant lacks standing to seek the relief against Cross-Defendant that it 4 pursues in its Cross-Complaint. 5 AFFIRMATIVE DEFENSE NO. 50 6 (Absence of Necessary Parties) 7 50. The purported claims and causes of action contained in the Cross-Complaint 8 require, for their complete adjudication, the joining of additional, necessary, or indispensable 9 parties, without whom the purported claims and causes of action cannot be fully, finally, and 10 completely resolved. FACSIMILE : (510) 596-0899 11 AFFIRMATIVE DEFENSE NO. 51 6001 S HELLMOUND S TREET , S UITE 875 12 (Lack of Capacity to Sue) E MERYVILLE , C ALIFORNIA 94608 BISHOP | BARRY 13 51. Cross-Complainant lacks the capacity to sue Cross-Defendant. 14 AFFIRMATIVE DEFENSE NO. 52 T ELEPHONE : (510) 596-0888 15 (No Misrepresentation of Fact) 16 52. Cross-Defendant did not make any representation of fact or misrepresentation of 17 facts to Cross-Complainant and is, therefore, not responsible for any damages, if any exist. 18 AFFIRMATIVE DEFENSE NO. 53 19 (No Fiduciary Duty) 20 53. There does not exist, nor has there existed, a fiduciary relationship between Cross- 21 Complainant and Cross-Defendant. 22 AFFIRMATIVE DEFENSE NO. 54 23 (Arbitration and/or Judicial Reference Agreement) 24 54. To the extent that there is any agreement between the parties to utilize Alternative 25 Dispute Resolution (“ADR”) procedures to resolve any or all of the issues or disputes raised in 26 Cross-Complainant’s Cross-Complaint, Cross-Defendant expressly reserves the right to enforce 27 those ADR provisions and does not waive the right to enforce them by filing this Answer. ADR 28 procedures include, without limitation, arbitration, mediation, or a judicial reference. 30 12 31 1 AFFIRMATIVE DEFENSE NO. 55 2 (Bar to Claims Pursuant to Civil Code § 945.5) 3 55. Cross-Complainant is barred, in whole or in part, from recovering alleged damages 4 pursuant to the affirmative defenses set forth in Civil Code §945.5, et seq. (SB 800). 5 AFFIRMATIVE DEFENSE NO. 56 6 (Preclusion from Recovery of Attorneys’ Fees) 7 56. Cross-Complainant is, in whole or in part, barred from recovering attorneys’ fees in 8 this matter based upon contractual, equitable, or other exclusions in law or equity. 9 AFFIRMATIVE DEFENSE NO. 57 10 (Unstated Additional Defenses) FACSIMILE : (510) 596-0899 11 57. Cross-Defendant presently has insufficient knowledge and information on which to 6001 S HELLMOUND S TREET , S UITE 875 12 form a belief as to whether there exist additional, as yet unstated, affirmative defenses. Cross- E MERYVILLE , C ALIFORNIA 94608 BISHOP | BARRY 13 Defendant reserves herein the right to assert additional affirmative defenses in the event that 14 discovery indicates that such a defense would be appropriate. T ELEPHONE : (510) 596-0888 15 16 PRAYER 17 WHEREFORE, Cross-Defendant respectfully prays for entry of judgment in its favor and 18 against Cross-Complainant as follows: 19 1. That Cross-Complainant take nothing by way of its Cross-Complaint; 20 2. That Cross-Complainant’s recovery against Cross-Defendant, if any, be diminished 21 by an amount equal to the degree of negligence or fault attributable to Cross-Complainant; 22 3. That Cross-Complainant’s recovery against Cross-Defendant, if any, be diminished 23 by an amount equal to the degree of negligence or fault attributable to parties, individuals, and/or 24 entities other than Cross-Defendant in this action; 25 4. For an award of reasonable attorneys’ fees; 26 5. The costs of suit incurred herein; and 27 /// 28 /// 30 13 31 1 2 6. For any other and further relief as the Court may deem just and proper. 3 Dated: April 13, 2020 BISHOP | BARRY A Professional Law Corporation 4 5 6 By: /s/ Bruce A. Trevithick Peter J. Linn 7 Bruce A. Trevithick 8 Attorneys for Kevin Gee dba Tri-Line Construction Co. 9 10 FACSIMILE : (510) 596-0899 11 6001 S HELLMOUND S TREET , S UITE 875 12 E MERYVILLE , C ALIFORNIA 94608 BISHOP | BARRY 13 14 6/15/2020 T ELEPHONE : (510) 596-0888 15 16 17 18 19 20 21 22 23 24 25 26 27 28 30 14 31 1 PROOF OF SERVICE 2 I am a citizen of the United States and employed in the County of Alameda, City of 3 Emeryville, California. I am over the age of eighteen years and not a party to the within action. 4 My business address is B IS H O P | B AR R Y , 6001 Shellmound Street, Suite 875, Emeryville, 5 California 94608. 6 I am familiar with B IS H OP | B AR R Y ’s practice whereby each document is placed in an 7 envelope, the envelope is sealed, the appropriate postage is placed thereon, and the sealed envelope 8 is placed in the office mail receptacle. Each day the mail is collected and deposited in a United 9 States Postal mailbox at or before the closed of business each day. 10 On the date below-written, I served the following document(s): FACSIMILE : (510) 596-0899 11 CROSS-DEFENDANT KEVIN GEE DBA TRI-LINE CONSTRUCTION CO.’S ANSWER TO UNVERIFIED CROSS-COMPLAINT OF JEFF R. TOWNSEND DBA 6001 S HELLMOUND S TREET , S UITE 875 12 ONSITE CUSTOM HOMES E MERYVILLE , C ALIFORNIA 94608 BISHOP | BARRY 13 ( ) (BY REGULAR MAIL) By placing a true copy thereof enclosed in a sealed envelope with postage thereon fully prepaid, in the designated area for outgoing mail at Emeryville, 14 California, addressed as set forth below: T ELEPHONE : (510) 596-0888 15 ( ) (BY PERSONAL DELIVERY) By having a messenger personally deliver a true copy thereof to the person and/or office of the person at the address set forth below: 16 ( ) (BY OVERNIGHT DELIVERY) By placing a true copy thereof, enclosed in a sealed 17 envelope, with delivery charges to be billed to B IS HO P | B AR R Y to be delivered by Federal Express, to the address(es) shown below: 18 ( ) (BY FACSIMILE) By transmitting a true copy thereof by facsimile transmission from 19 facsimile number (510) 596-0899 to the interested parties to said action at the facsimile number(s) shown below: 20 (X) (BY ELECTRONIC SERVICE) I caused such document(s) to be electronically mailed to 21 the addresses as set forth below: 22 SERVICE LIST ATTACHED 23 I declare under penalty of perjury under the laws of the State of California that the 24 foregoing is true and correct to the best of my knowledge. Executed on June 15, 2020, at 25 Emeryville, California. 26 _____________________________________ 27 Laura E. Hopkins 28 30 1 PROOF OF SERVICE 31 1