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Suparhl' Cau bf Clnmll
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BOBBY DALE SIMS, JR. (SBN 202622)
GREGORY ESTABROOK (SBN 179228) Count! 0f Bum
l
SIMS, LAWRENCE & ARRUTI
2261 Lava Ridge Court L 5/4/2020
Roseville, CA 95661
Telephone: (916) 797-8881 E
Facsimile: (916) 253-1544
By Emu!Zr écw; FILED
Attorneys for Defendants,
PERFECTION POOLS & SPAS, INC.
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF BUTTE
10
11 RONALD MARTIN FRAME and DONNA Case No. 20CV00754
FRAME,
12 ANSWER TO COMPLAINT
Plaintiffs,
13
vs.
14
PERFECTION POOLS & SPAS, INC., OLD
15 REPUBLIC SURETY COMPANY, DOES 1-10,
et a1.
16
Defendants.
17
18
19 Defendant PERFECTION POOLS & SPAS, INC. hereby answers RONALD MARTIN
20 FRAME and DONNA FRAME’s Complaint on le herein, and admits, denies, and alleges as follows:
21 GENERAL DENIAL
22 Defendant denies each and every, all and singular, generally and specically, all of the
23 allegations contained in said Complaint, insofar as they pertain to this answering Defendant; denies
24 liability under the theories alleged or in any manner set forth in said Complaint, or at all; and denies
25 that there is any injury or damage as a result of the alleged conduct of this answering Defendant, or at
26 all.
27 ///
28 ///
ANSWER TO COMPLAINT
AFFIRMATIVE DEFENSES
1. No Cause of Action
AS A SEPARATE AFFIRMATIVE DEFENSE, this answering Defendant alleges that this
Complaint fails to state facts sufcient to constitute a cause of action, or any cause of action, against
this answering Defendant.
2. Statutes of Limitations
AS A SEPARATE AFFIRMATIVE DEFENSE, this answering Defendant alleges that the
claims asserted by the Complainant are barred by the State of California's applicable statutes of
limitation, set forth in the California Code of Civil Procedure beginning with Section 335 and
10 continuing through Section 349.4, and more particularly, but not limited to, the following: Sections
11 337(1), 337.1, 337.15, 338, 339, 340, and 343; and by Sections 2607(3)(a), 2725(1) and (2) of the
12 Uniform Commercial Code of the State of California.
13 3. Laches
14 AS A SEPARATE AFFIRMATIVE DEFENSE, this answering Defendant alleges that
15 Complainant has unreasonably delayed in bringing this action to the prejudice of this answering
16 Defendant and is therefore barred om bringing this action by the doctrine of laches.
17 4. Carelessness of Complainant
18 AS A SEPARATE AFFIRMATIVE DEFENSE, this answering Defendant alleges that the
19 Complainant was careless and negligent in and about the matter set forth in said Complaint, and that
20 said carelessness and negligence contributed to and proximately caused any and all damages, if any,
21 alleged in said Complaint.
22 5. No Liability For Acts Of Others
23 AS A SEPARATE AFFIRMATIVE DEFENSE, this answering Defendant alleges that,
24 without admitting any allegation of the Complaint, some of the acts, actions and activities, as alleged,
25 were committed, if at all, by independent, non-afliated persons who were not acting on behalf of, or
26 within the course and scope of any relationship with this answering Defendant during the time
27 referred to in the Complaint.
28 ///
ANSWER TO COMPLAINT
6. Proposition 51
AS A SEPARATE AFFIRMATIVE DEFENSE, this answering Defendant alleges that the
alleged injuries sustained by Complainant were either wholly or in part caused by persons, rms,
corporations or entities other than this answering Defendant, and the negligence and/or fault of said
parties comparatively reduces the percentage of negligence or fault, if any, by this answering
Defendant.
AS A FURTHER AFFIRMATIVE DEFENSE, this answering Defendant alleges that its
responsibility, if any, and/or liability, if any, as to non-economic damages, if any, shall be limited to
the percentage of fault attributable, if any, to this answering Defendant, and that a separate judgment
10 shall be so rendered.
11 7. Indemnication
12 AS A SEPARATE AFFIRMATIVE DEFENSE, this answering Defendant alleges that should
13 Complainant recover om this answering Defendant, Defendant is entitled to indemnication, either
14 in Whole or in part, om all persons or entities whose negligence and/or fault proximately contributed
15 to Complainant's damages, if any there are.
16 8. Estoppel
17 AS A SEPARATE AFFIRMATIVE DEFENSE, this answering Defendant alleges that
18 Complainant has directed, ordered, approved and ratied Defendant's conduct and Complainant is
19 therefore estopped om asserting any claim based thereon.
20 9. Unclean Hands
21 AS A SEPARATE AFFIRMATIVE DEFENSE, this answering Defendant alleges that the
22 Complaint is barred by virtue of Complainant's conduct in causing the damage alleged by the
23 Complaint under the doctrine ofunclean hands.
24 10. Failure to Mitigate
25 AS A SEPARATE AFFIRMATIVE DEFENSE, this answering Defendant alleges that any
26 injury, damage, or loss, if any sustained by Complainant, was aggravated by Complainant's failure to
27 use reasonable diligence to mitigate and minimize the same.
28 ///
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ANSWER TO COMPLAINT
11. Waiver and Release
AS A SEPARATE AFFIRMATIVE DEFENSE, this answering Defendant alleges that the
Complaint and each of its causes of action are barred because plaintiff and Complainant, through
statements, actions and conduct, voluntarily and knowingly waived and released allrights, claims and
causes of action, if any, against this answering Defendant in this action.
12. Civil Code §1473
AS A SEPARATE AFFIRMATIVE DEFENSE, this answering Defendant alleges that prior
to the commencement of this action, this answering Defendant duly performed, satised and
discharged all duties and obligations it may have owed to the Complainant arising out of any and all
10 agreements, representations or contracts made by it or on behalf of this answering Defendant and this
11 action is therefore barred by the provisions of California Civil Code §1473.
12 13. Civil Code §1474-1477
13 AS A SEPARATE AFFIRMATIVE DEFENSE, this answering Defendant alleges that the
14 Complaint, and each alleged cause of action therein, is absolutely barred by the provisions of Civil
15 Code Sections 1474, 1475, 1476, 1477, and each ofthem.
16 14. Misuse and Abuse
17 AS A SEPARATE AFFIRMATIVE DEFENSE, this answering Defendant alleges that
18 Complainant and others unrelated to this answering Defendant modied, altered, abused and/or
19 misused the materials and/or equipment provided by this answering Defendant, and such conduct
20 caused and contributed to the damages which are alleged in this lawsuit.
21 15. Breach of Contract
22 AS A SEPARATE AFFIRMATIVE DEFENSE, this answering Defendant alleges that by the
23 terms of its contract, this answering Defendant is not responsible for the method or means of
24 construction used by the Complainant, nor is this answering Defendant responsible for Complainant's
25 failure to carry out the work in accordance with contract documents.
26 l6. UCC Codes
27 AS A SEPARATE AFFIRMATIVE DEFENSE, this answering Defendant alleges that the
28 Complainant's Complaint is barred by the following provisions of the Uniform Commercial Code:
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ANSWER TO COMPLAINT
Sections 1201(25)(c), 2601, 2602(1), 2513(1)(3), 2510(1), 2605(1)(a) and (b), 2606(1)(a) and (b),
2607, 271 5(2)(a), and 2719(3).
17. Civil Code §2782
AS A SEPARATE AFFIRMATIVE DEFENSE, this answering Defendant alleges that the
Complainant's Complaint is barred by the provisions of California Civil Code Sections 2782-2784.
18. No Privity
AS A SEPARATE AFFIRMATIVE DEFENSE, this answering Defendant alleges that the
Complaint, and each cause of action thereof, fails to state a cause of action as there is no privity
between Complainant and Defendants.
10 19. No Notice
11 AS A SEPARATE AFFIRMATIVE DEFENSE, this answering Defendant alleges that the
12 Complaint, and each cause of action thereof, fails to state a cause of action in that Complainant failed
13 to give timely and proper notice of breach of warranty.
14 20. Assumption of Risk
15 AS A SEPARATE AFFIRMATIVE DEFENSE, this answering Defendant alleges that
16 Complainant acted with the full knowledge of all of the facts and circumstances surrounding its
17 alleged injury and thus assumed the risk of injury, if any.
18 21. No Joint/Several Liability
19 AS A SEPARATE AFFIRMATIVE DEFENSE, this answering Defendant alleges that the
20 Complaint and each alleged cause of action appearing therein, fails to state facts, or to allege claims,
21 which would impose joint and several liability for any of the damages claimed by any party against
22 this answering Defendant. Any liability of this answering Defendant, which liability is expressly
23 denied, would therefore be limited to those injuries, losses or damages, if any there were, for which
24 this answering Defendant's actionable conduct, if any, was a primary contributing factor.
25 22. No Cause for Indemnity
26 AS A SEPARATE AFFIRMATIVE DEFENSE, this answering Defendant alleges that the
27 Complaint, and each alleged cause of action therein, fails to state facts sufcient to constitute a cause
28 of action for indemnity or contribution when based on strict liability, breach of contract, rescission,
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ANSWER TO COMPLAmT
'aud, or negligent misrepresentation.
23. No Cause for Indemnity — Sole Acts / Contractual Obligations
AS A SEPARATE AFFIRMATIVE DEFENSE, this answering Defendant alleges that
Complainant cannot recover in indemnity for its own sole acts or breach of contractual obligations,
including breach of express and implied warranties, breach of express and implied contractual
indemnity, negligence, and breach of contract.
24. No Cause For Indemnity — Failure to Tender
AS A SEPARATE AFFIRMATIVE DEFENSE, this answering Defendant alleges that the
Complaint, and each alleged cause of action therein, fails to state facts sufcient to constitute a cause
10 of action for indemnity due to Complainant’s failure to tender its defense.
11 25. No Cause For Indemnity — Sole Negligence / Intentional Torts
12 AS A SEPARATE AFFIRMATIVE DEFENSE, this answering Defendant alleges that the
13 Complaint, and each alleged cause of action therein, fails to state facts sufcient to constitute a cause
14 of action for indemnity for Complainant’s sole acts, including breach of contract, 'audulent
15 concealment, and negligent misrepresentation.
16 26. No Cause for Breach of Implied Warranty
17 AS A SEPARATE AFFIRMATIVE DEFENSE, this answering Defendant alleges that the
18 Complaint, and each alleged cause of action therein, fails to state facts sufcient to constitute a cause
19 of action for breach of implied warranty against this answering Defendant.
20 27. No Cause for Breach of Express Warranty
21 AS A SEPARATE AFFIRMATIVE DEFENSE, this answering Defendant alleges that the
22 Complaint, and each alleged cause of action therein, fails to state facts sufcient to constitute a cause
23 of action for breach of express warranty against this answering Defendant.
24 28. Res Judicata / Collateral Estoppel
25 AS A SEPARATE AFFIRMATIVE DEFENSE, this answering Defendant alleges that the
26 issues and claims currently raised have been fully and fairly litigated in a prior action, and are
27 precluded by the doctrines of res judicata and collateral estoppel.
28 ///
ANSWER TO COMPLAINT
29. CCP §580a, §580b, and §580c
AS A SEPARATE AFFIRMATIVE DEFENSE, this answering Defendant alleges that
plaintiff‘s recovery, if any, is forbidden or otherwise limited by the application of the anti-deciency
statutes.
30. Contract Documents
AS A SEPARATE AFFIRMATIVE DEFENSE, this answering Defendant alleges that by the
terms of its contract, this answering Defendant is not responsible for defects and/or errors in the
plans, specications, or other contract documents.
31. Alteration of Product
10 AS A SEPARATE AFFIRMATIVE DEFENSE, this answering Defendant alleges that
11 Complainant and/or others may have altered the product involved, proximately causing the events
12 and damages, if any there were, and recovery is therefore barred or proportionately reduced
13 accordingly.
14 32. Misuse of Product
15 AS A SEPARATE AFFIRMATIVE DEFENSE, this answering Defendant alleges that
16 Complainant and/or others may have improperly used or improperly maintained the product involved
17 herein, proximately causing the events and damages, if any there were, and recovery is therefore
18 barred, or proportionately reduced accordingly.
19 33. Active/Passive Conduct
20 AS A SEPARATE AFFIRMATIVE DEFENSE, this answering Defendant alleges that if it is
21 determined that this answering Defendant was negligent, said negligence was secondary and passive,
22 as contrasted with the active and primary negligence of other parties to this lawsuit, and therefore,
— as a matter of law — entitled to
23 Complainant is not recovery 'om this answering Defendant on any
24 theory of indemnity.
25 34. Apportionment
26 AS A SEPARATE AFFIRMATIVE DEFENSE, this answering Defendant alleges that if the
27 matters and damages alleged in the Complaint were proximately caused by the conduct of more than
28 one party, any recovery must be apportioned as to the fault of each party.
ANSWER TO COMPLAINT
35. Spoliation of Evidence
AS A SEPARATE AFFIRMATIVE DEFENSE, this answering Defendant alleges that
plaintiff, Complainant, or others, either intentionally or negligently failed to preserve the primary
evidence relevant to this litigation, thus failing to give this answering Defendant an opportunity to
inspect said evidence and thereby damaging and prejudicing a defense. Complainant therefore should
be barred om introducing secondary or lesser evidence, and any recovery should be diminished
accordingly.
36. Lack of Standing
AS A SEPARATE AFFIRMATIVE DEFENSE, this answering Defendant alleges that the
10 Complaint fails to state a cause of action because Complainant lacks standing in this action.
11 37. (Civil Code § 945(b) - Homeowner Unreasonableness)
12 AS A SEPARATE AFFIRMATIVE DEFENSE, this answering cross-defendant is excused,
13 in whole or in part, from any obligation, damage, loss or liability as same was caused by a
14 homeowner's unreasonable failure to minimize or prevent those damages in a timely manner,
15 including the failure of the homeowner to allow reasonable and timely access for inspections and
16 repairs in accordance with provisions as set forth in Civil Code § 896 through § 945.5, which
17 includes failure to give timely notice to the Builder after discovery of a violation.
18 38. (Civil Code § 945.5(c) - Failure to Maintain)
19 This answering cross-defendant is excused, in whole or in part, 'om any obligation,
20 damage, loss or liability alleged as same was cause by the homeowner or his or her agent,
21 employee, general contractor, subcontractor, independent contractor, or consultant by virtue of
22 their failure to follow the Builder's of manufacturer's recommendations, or commonly accepted
23 homeowner obligations.
24 39. (Civil Code § 945.5(d) - Alterations/Misuse)
25 This answering cross-defendant is excused, in whole or in part, om any obligation,
26 damage, loss or liability as same was caused by the homeowner or his or her agent's, or an
27 independent third party's alterations, ordinary wear and tear, misuse, abuse, or neglect, or by the
28 structure's use for something other than its intended purpose.
ANSWER TO COMPLAINT
40. (Civil Code § 945.5(e) - Statute Of Limitations)
This
N
answering cross-defendant is excused, in whole or in part, from any obligation,
damage, loss or liability alleged to the extent that the time period for ling actions bars the
claimed violation.
41. (Civil Code § 945.5(t) - Release)
This answering cross-defendant is excused, in whole or in part, from any obligation,
damage, loss or liability alleged as to a particular violation for which the Builder has obtained a
valid release.
42. (Civil Code § 945.5(g) - Repair Successful)
10 This answering cross-defendant is excused, in whole or in part, from any obligation,
11 damage, loss or liability to the extent that the Builder's repair was successful in correcting the
12 particular violation of the applicable Standard.
13 43. (Breach of Purchase Agreement - Civil Code §§ 896 - 945.5)
14 Plaintiffs are in breach of the residential purchase agreement, including certain addenda
15 thereto, which require non-adversarial procedures as set forth in Civil Code § 896 through § 945.5
16 to resolve disputes including, but not limited to, providing defendants with a detailed notice of
17 claim, a notice of defects, if any, a reasonable opportunity to cure any alleged defects, mediation,
18 and an opportunity to otherwise reach a settlement with Plaintiffs prior to their ling of the instant
19 amended complaint.
20 44. Offset
21 AS A SEPARATE AFFIRMATIVE DEFENSE, this answering Defendant alleges that the
22 Complaint, and each alleged applicable cause of action therein, fails to state facts sufcient to
23 constitute a cause of action in that Defendant denies that it has unlawfully failed to perform their
24 duties under the contract or has otherwise acted improperly. However, any entitlement that
25 Plaintiffs may have to damages, on information and belief, subject to an offset for payments or
26 benets that Plaintiffs may have received or receive om Defendant.
27 ///
28 ///
ANSWER TO COMPLAINT
45. Work of Others
AS A SEPARATE AFFIRMATIVE DEFENSE to the Complaint and each cause of action
b3
Defendant is for the method of construction used by
Uu
stated therein, not responsible or means the
nor is Defendant responsible for subcontractors’
4>
subcontractors, or subsequent contractors failure
to carry out the work in accordance with its contract documents.
Lh
46. Other Afrmative Defenses
Ch
AS A SEPARATE AFFIRMATIVE DEFENSE to the Complaint and each cause of action
stated therein, Defendant asserts and alleges that because the Complaint is couched in conclusions,
Defendant cannot fully anticipate all of the afrmative defenses that might be applicable to this
10 Complaint. Accordingly, Defendant hereby reserves the right to assert additional afrmative
11 defenses, if and to the extent such afrmative defenses, when known, are applicable.
12 PRAYER
13 WHEREFORE, Defendant PERFECTION POOLS & SPAS, INC. prays that:
14 1. This lawsuit be tried before a jury;
15 2. Complainant's request for relief, in all respects, be denied and that Complainant take
16 nothing by this action;
17 3. Judgment be entered dismissing the Complaint and each cause of action alleged
18 against this answering Defendant;
19 4. Defendant be awarded costs of suit incurred in this action, including reasonable
20 attorneys’ fees; and
21 5. The Court grant such other lrther relief as may be deemed just and proper.
22 Dated: May 4, 2020 SIMS, LAWRENCE & RRUTI
23
24
OBBY DALE SI ,JR.
25 GREGORY EST OO
Attorneys for Defendant,
26 PERFECTION POOLS & SPAS, INC.
27
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ANSWER TO COMPLAINT
PROOF OF SERVICE
I,SHELBY JONES, certify and declare as follows:
I am over the age of 18 years, and not a party to this action. My business address is 2261 Lava
Ridge Court —
Roseville, CA. 1am employed in the County of Placer where this service occurs.
A
On the date set forth below, following ordinary business practice, I served a true copy ofthe
foregoing document(s) described as:
PERFECTION POOLS & SPAS. lNC.’S ANSWER TO COMPLAINT
I.
(BY FAX) I transmitted via facsimile transmission from a facsimile transmission machine/ service
called FAXWAVE whose business facsimile number is (916) 253-1544 to the following fax
number(s), as stated on the attached service list, on this date before 5:00 p.m.
The above-described transmission was reported as complete without error by a transmission report
10 issued by the facsimile upon which the said transmission was made immediately following the
transmission. A true and correct copy of the said transmission report is attached hereto and
11
incorporated herein by this reference.
12
(BY MAIL) I am readily familiar with my employer's normal business practice for collection and
13
processing of correspondence for mailing with the U.S. Postal Service. Correspondence so
collected and processed is deposited with the U.S. Postal Service that same day in the ordinary
14
course of business. Iplaced for deposit in the United States Postal Service in a sealed envelope,
15 with postage fully prepaid, to the addressee(s) below.
16 (BY PERSONAL SERVICE) I personally delivered the above document(s) by hand between 9:00
am. and 5:00 p.m. to the ofce of the addressee(s) below.
17
18 (BY OVERNIGHT DELIVERY) I deposited in a box or other facility regularly maintained by
Federal Express an express service carrier, or delivered to a courier or driver authorized by said
19 express service carrier to receive such envelope(s) to be delivered by overnight delivery, with
delivery fees paid or provided for, addressed to the person(s) on whom it is to be served below.
20
21 (BY ELECTRONIC SERVICE) Itransmitted via electronic service through LexisNexis to the
ofces ofthe addressee(s) below as stated on the attached service list on this date before 5:00 pm.
22
SEE ATTA CHED SER VICE LIST
23
24 (State) I certify and declare under penalty of perjury under the laws of the State of California that
the foregoing is true and correct.
25
26 Executed on: May 4, 2020
27 SWY JoN'Es (/
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ANSWER TO COMPLAINT
SERVICE LIST
Stephan R. Wattenberg Attorneys for Plaintiffs
Claire E. Greene
LAW OFFICE OF STEPHAN R.
WATTENBERG
1074 East Ave, Ste C
Chico, CA 95926
T: (530) 342-8930
F: (530) 342-5625
srwattny@pacbell.net
Douglas B. Jacobs Personal Counsel for Perfection Pools & Spas,
10
Jacobs, Anderson, Potter & Chaplin, LLP Inc,
20 Independence Circle
11 Chico, CA 95973
T: (530) 342-6144
12 djacobs@japc-law.com
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ANSWER TO COMPLAINT
Preview
Suparhl' Cau bf Clnmll gum—-11 BOBBY DALE SIMS, JR. (SBN 202622) GREGORY ESTABROOK (SBN 179228) Count! 0f Bum l SIMS, LAWRENCE & ARRUTI 2261 Lava Ridge Court L 5/4/2020 Roseville, CA 95661 Telephone: (916) 797-8881 E Facsimile: (916) 253-1544 By Emu!Zr écw; FILED Attorneys for Defendants, PERFECTION POOLS & SPAS, INC. SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF BUTTE 10 11 RONALD MARTIN FRAME and DONNA Case No. 20CV00754 FRAME, 12 ANSWER TO COMPLAINT Plaintiffs, 13 vs. 14 PERFECTION POOLS & SPAS, INC., OLD 15 REPUBLIC SURETY COMPANY, DOES 1-10, et a1. 16 Defendants. 17 18 19 Defendant PERFECTION POOLS & SPAS, INC. hereby answers RONALD MARTIN 20 FRAME and DONNA FRAME’s Complaint on le herein, and admits, denies, and alleges as follows: 21 GENERAL DENIAL 22 Defendant denies each and every, all and singular, generally and specically, all of the 23 allegations contained in said Complaint, insofar as they pertain to this answering Defendant; denies 24 liability under the theories alleged or in any manner set forth in said Complaint, or at all; and denies 25 that there is any injury or damage as a result of the alleged conduct of this answering Defendant, or at 26 all. 27 /// 28 /// ANSWER TO COMPLAINT AFFIRMATIVE DEFENSES 1. No Cause of Action AS A SEPARATE AFFIRMATIVE DEFENSE, this answering Defendant alleges that this Complaint fails to state facts sufcient to constitute a cause of action, or any cause of action, against this answering Defendant. 2. Statutes of Limitations AS A SEPARATE AFFIRMATIVE DEFENSE, this answering Defendant alleges that the claims asserted by the Complainant are barred by the State of California's applicable statutes of limitation, set forth in the California Code of Civil Procedure beginning with Section 335 and 10 continuing through Section 349.4, and more particularly, but not limited to, the following: Sections 11 337(1), 337.1, 337.15, 338, 339, 340, and 343; and by Sections 2607(3)(a), 2725(1) and (2) of the 12 Uniform Commercial Code of the State of California. 13 3. Laches 14 AS A SEPARATE AFFIRMATIVE DEFENSE, this answering Defendant alleges that 15 Complainant has unreasonably delayed in bringing this action to the prejudice of this answering 16 Defendant and is therefore barred om bringing this action by the doctrine of laches. 17 4. Carelessness of Complainant 18 AS A SEPARATE AFFIRMATIVE DEFENSE, this answering Defendant alleges that the 19 Complainant was careless and negligent in and about the matter set forth in said Complaint, and that 20 said carelessness and negligence contributed to and proximately caused any and all damages, if any, 21 alleged in said Complaint. 22 5. No Liability For Acts Of Others 23 AS A SEPARATE AFFIRMATIVE DEFENSE, this answering Defendant alleges that, 24 without admitting any allegation of the Complaint, some of the acts, actions and activities, as alleged, 25 were committed, if at all, by independent, non-afliated persons who were not acting on behalf of, or 26 within the course and scope of any relationship with this answering Defendant during the time 27 referred to in the Complaint. 28 /// ANSWER TO COMPLAINT 6. Proposition 51 AS A SEPARATE AFFIRMATIVE DEFENSE, this answering Defendant alleges that the alleged injuries sustained by Complainant were either wholly or in part caused by persons, rms, corporations or entities other than this answering Defendant, and the negligence and/or fault of said parties comparatively reduces the percentage of negligence or fault, if any, by this answering Defendant. AS A FURTHER AFFIRMATIVE DEFENSE, this answering Defendant alleges that its responsibility, if any, and/or liability, if any, as to non-economic damages, if any, shall be limited to the percentage of fault attributable, if any, to this answering Defendant, and that a separate judgment 10 shall be so rendered. 11 7. Indemnication 12 AS A SEPARATE AFFIRMATIVE DEFENSE, this answering Defendant alleges that should 13 Complainant recover om this answering Defendant, Defendant is entitled to indemnication, either 14 in Whole or in part, om all persons or entities whose negligence and/or fault proximately contributed 15 to Complainant's damages, if any there are. 16 8. Estoppel 17 AS A SEPARATE AFFIRMATIVE DEFENSE, this answering Defendant alleges that 18 Complainant has directed, ordered, approved and ratied Defendant's conduct and Complainant is 19 therefore estopped om asserting any claim based thereon. 20 9. Unclean Hands 21 AS A SEPARATE AFFIRMATIVE DEFENSE, this answering Defendant alleges that the 22 Complaint is barred by virtue of Complainant's conduct in causing the damage alleged by the 23 Complaint under the doctrine ofunclean hands. 24 10. Failure to Mitigate 25 AS A SEPARATE AFFIRMATIVE DEFENSE, this answering Defendant alleges that any 26 injury, damage, or loss, if any sustained by Complainant, was aggravated by Complainant's failure to 27 use reasonable diligence to mitigate and minimize the same. 28 /// -3- ANSWER TO COMPLAINT 11. Waiver and Release AS A SEPARATE AFFIRMATIVE DEFENSE, this answering Defendant alleges that the Complaint and each of its causes of action are barred because plaintiff and Complainant, through statements, actions and conduct, voluntarily and knowingly waived and released allrights, claims and causes of action, if any, against this answering Defendant in this action. 12. Civil Code §1473 AS A SEPARATE AFFIRMATIVE DEFENSE, this answering Defendant alleges that prior to the commencement of this action, this answering Defendant duly performed, satised and discharged all duties and obligations it may have owed to the Complainant arising out of any and all 10 agreements, representations or contracts made by it or on behalf of this answering Defendant and this 11 action is therefore barred by the provisions of California Civil Code §1473. 12 13. Civil Code §1474-1477 13 AS A SEPARATE AFFIRMATIVE DEFENSE, this answering Defendant alleges that the 14 Complaint, and each alleged cause of action therein, is absolutely barred by the provisions of Civil 15 Code Sections 1474, 1475, 1476, 1477, and each ofthem. 16 14. Misuse and Abuse 17 AS A SEPARATE AFFIRMATIVE DEFENSE, this answering Defendant alleges that 18 Complainant and others unrelated to this answering Defendant modied, altered, abused and/or 19 misused the materials and/or equipment provided by this answering Defendant, and such conduct 20 caused and contributed to the damages which are alleged in this lawsuit. 21 15. Breach of Contract 22 AS A SEPARATE AFFIRMATIVE DEFENSE, this answering Defendant alleges that by the 23 terms of its contract, this answering Defendant is not responsible for the method or means of 24 construction used by the Complainant, nor is this answering Defendant responsible for Complainant's 25 failure to carry out the work in accordance with contract documents. 26 l6. UCC Codes 27 AS A SEPARATE AFFIRMATIVE DEFENSE, this answering Defendant alleges that the 28 Complainant's Complaint is barred by the following provisions of the Uniform Commercial Code: -4- ANSWER TO COMPLAINT Sections 1201(25)(c), 2601, 2602(1), 2513(1)(3), 2510(1), 2605(1)(a) and (b), 2606(1)(a) and (b), 2607, 271 5(2)(a), and 2719(3). 17. Civil Code §2782 AS A SEPARATE AFFIRMATIVE DEFENSE, this answering Defendant alleges that the Complainant's Complaint is barred by the provisions of California Civil Code Sections 2782-2784. 18. No Privity AS A SEPARATE AFFIRMATIVE DEFENSE, this answering Defendant alleges that the Complaint, and each cause of action thereof, fails to state a cause of action as there is no privity between Complainant and Defendants. 10 19. No Notice 11 AS A SEPARATE AFFIRMATIVE DEFENSE, this answering Defendant alleges that the 12 Complaint, and each cause of action thereof, fails to state a cause of action in that Complainant failed 13 to give timely and proper notice of breach of warranty. 14 20. Assumption of Risk 15 AS A SEPARATE AFFIRMATIVE DEFENSE, this answering Defendant alleges that 16 Complainant acted with the full knowledge of all of the facts and circumstances surrounding its 17 alleged injury and thus assumed the risk of injury, if any. 18 21. No Joint/Several Liability 19 AS A SEPARATE AFFIRMATIVE DEFENSE, this answering Defendant alleges that the 20 Complaint and each alleged cause of action appearing therein, fails to state facts, or to allege claims, 21 which would impose joint and several liability for any of the damages claimed by any party against 22 this answering Defendant. Any liability of this answering Defendant, which liability is expressly 23 denied, would therefore be limited to those injuries, losses or damages, if any there were, for which 24 this answering Defendant's actionable conduct, if any, was a primary contributing factor. 25 22. No Cause for Indemnity 26 AS A SEPARATE AFFIRMATIVE DEFENSE, this answering Defendant alleges that the 27 Complaint, and each alleged cause of action therein, fails to state facts sufcient to constitute a cause 28 of action for indemnity or contribution when based on strict liability, breach of contract, rescission, -5- ANSWER TO COMPLAmT 'aud, or negligent misrepresentation. 23. No Cause for Indemnity — Sole Acts / Contractual Obligations AS A SEPARATE AFFIRMATIVE DEFENSE, this answering Defendant alleges that Complainant cannot recover in indemnity for its own sole acts or breach of contractual obligations, including breach of express and implied warranties, breach of express and implied contractual indemnity, negligence, and breach of contract. 24. No Cause For Indemnity — Failure to Tender AS A SEPARATE AFFIRMATIVE DEFENSE, this answering Defendant alleges that the Complaint, and each alleged cause of action therein, fails to state facts sufcient to constitute a cause 10 of action for indemnity due to Complainant’s failure to tender its defense. 11 25. No Cause For Indemnity — Sole Negligence / Intentional Torts 12 AS A SEPARATE AFFIRMATIVE DEFENSE, this answering Defendant alleges that the 13 Complaint, and each alleged cause of action therein, fails to state facts sufcient to constitute a cause 14 of action for indemnity for Complainant’s sole acts, including breach of contract, 'audulent 15 concealment, and negligent misrepresentation. 16 26. No Cause for Breach of Implied Warranty 17 AS A SEPARATE AFFIRMATIVE DEFENSE, this answering Defendant alleges that the 18 Complaint, and each alleged cause of action therein, fails to state facts sufcient to constitute a cause 19 of action for breach of implied warranty against this answering Defendant. 20 27. No Cause for Breach of Express Warranty 21 AS A SEPARATE AFFIRMATIVE DEFENSE, this answering Defendant alleges that the 22 Complaint, and each alleged cause of action therein, fails to state facts sufcient to constitute a cause 23 of action for breach of express warranty against this answering Defendant. 24 28. Res Judicata / Collateral Estoppel 25 AS A SEPARATE AFFIRMATIVE DEFENSE, this answering Defendant alleges that the 26 issues and claims currently raised have been fully and fairly litigated in a prior action, and are 27 precluded by the doctrines of res judicata and collateral estoppel. 28 /// ANSWER TO COMPLAINT 29. CCP §580a, §580b, and §580c AS A SEPARATE AFFIRMATIVE DEFENSE, this answering Defendant alleges that plaintiff‘s recovery, if any, is forbidden or otherwise limited by the application of the anti-deciency statutes. 30. Contract Documents AS A SEPARATE AFFIRMATIVE DEFENSE, this answering Defendant alleges that by the terms of its contract, this answering Defendant is not responsible for defects and/or errors in the plans, specications, or other contract documents. 31. Alteration of Product 10 AS A SEPARATE AFFIRMATIVE DEFENSE, this answering Defendant alleges that 11 Complainant and/or others may have altered the product involved, proximately causing the events 12 and damages, if any there were, and recovery is therefore barred or proportionately reduced 13 accordingly. 14 32. Misuse of Product 15 AS A SEPARATE AFFIRMATIVE DEFENSE, this answering Defendant alleges that 16 Complainant and/or others may have improperly used or improperly maintained the product involved 17 herein, proximately causing the events and damages, if any there were, and recovery is therefore 18 barred, or proportionately reduced accordingly. 19 33. Active/Passive Conduct 20 AS A SEPARATE AFFIRMATIVE DEFENSE, this answering Defendant alleges that if it is 21 determined that this answering Defendant was negligent, said negligence was secondary and passive, 22 as contrasted with the active and primary negligence of other parties to this lawsuit, and therefore, — as a matter of law — entitled to 23 Complainant is not recovery 'om this answering Defendant on any 24 theory of indemnity. 25 34. Apportionment 26 AS A SEPARATE AFFIRMATIVE DEFENSE, this answering Defendant alleges that if the 27 matters and damages alleged in the Complaint were proximately caused by the conduct of more than 28 one party, any recovery must be apportioned as to the fault of each party. ANSWER TO COMPLAINT 35. Spoliation of Evidence AS A SEPARATE AFFIRMATIVE DEFENSE, this answering Defendant alleges that plaintiff, Complainant, or others, either intentionally or negligently failed to preserve the primary evidence relevant to this litigation, thus failing to give this answering Defendant an opportunity to inspect said evidence and thereby damaging and prejudicing a defense. Complainant therefore should be barred om introducing secondary or lesser evidence, and any recovery should be diminished accordingly. 36. Lack of Standing AS A SEPARATE AFFIRMATIVE DEFENSE, this answering Defendant alleges that the 10 Complaint fails to state a cause of action because Complainant lacks standing in this action. 11 37. (Civil Code § 945(b) - Homeowner Unreasonableness) 12 AS A SEPARATE AFFIRMATIVE DEFENSE, this answering cross-defendant is excused, 13 in whole or in part, from any obligation, damage, loss or liability as same was caused by a 14 homeowner's unreasonable failure to minimize or prevent those damages in a timely manner, 15 including the failure of the homeowner to allow reasonable and timely access for inspections and 16 repairs in accordance with provisions as set forth in Civil Code § 896 through § 945.5, which 17 includes failure to give timely notice to the Builder after discovery of a violation. 18 38. (Civil Code § 945.5(c) - Failure to Maintain) 19 This answering cross-defendant is excused, in whole or in part, 'om any obligation, 20 damage, loss or liability alleged as same was cause by the homeowner or his or her agent, 21 employee, general contractor, subcontractor, independent contractor, or consultant by virtue of 22 their failure to follow the Builder's of manufacturer's recommendations, or commonly accepted 23 homeowner obligations. 24 39. (Civil Code § 945.5(d) - Alterations/Misuse) 25 This answering cross-defendant is excused, in whole or in part, om any obligation, 26 damage, loss or liability as same was caused by the homeowner or his or her agent's, or an 27 independent third party's alterations, ordinary wear and tear, misuse, abuse, or neglect, or by the 28 structure's use for something other than its intended purpose. ANSWER TO COMPLAINT 40. (Civil Code § 945.5(e) - Statute Of Limitations) This N answering cross-defendant is excused, in whole or in part, from any obligation, damage, loss or liability alleged to the extent that the time period for ling actions bars the claimed violation. 41. (Civil Code § 945.5(t) - Release) This answering cross-defendant is excused, in whole or in part, from any obligation, damage, loss or liability alleged as to a particular violation for which the Builder has obtained a valid release. 42. (Civil Code § 945.5(g) - Repair Successful) 10 This answering cross-defendant is excused, in whole or in part, from any obligation, 11 damage, loss or liability to the extent that the Builder's repair was successful in correcting the 12 particular violation of the applicable Standard. 13 43. (Breach of Purchase Agreement - Civil Code §§ 896 - 945.5) 14 Plaintiffs are in breach of the residential purchase agreement, including certain addenda 15 thereto, which require non-adversarial procedures as set forth in Civil Code § 896 through § 945.5 16 to resolve disputes including, but not limited to, providing defendants with a detailed notice of 17 claim, a notice of defects, if any, a reasonable opportunity to cure any alleged defects, mediation, 18 and an opportunity to otherwise reach a settlement with Plaintiffs prior to their ling of the instant 19 amended complaint. 20 44. Offset 21 AS A SEPARATE AFFIRMATIVE DEFENSE, this answering Defendant alleges that the 22 Complaint, and each alleged applicable cause of action therein, fails to state facts sufcient to 23 constitute a cause of action in that Defendant denies that it has unlawfully failed to perform their 24 duties under the contract or has otherwise acted improperly. However, any entitlement that 25 Plaintiffs may have to damages, on information and belief, subject to an offset for payments or 26 benets that Plaintiffs may have received or receive om Defendant. 27 /// 28 /// ANSWER TO COMPLAINT 45. Work of Others AS A SEPARATE AFFIRMATIVE DEFENSE to the Complaint and each cause of action b3 Defendant is for the method of construction used by Uu stated therein, not responsible or means the nor is Defendant responsible for subcontractors’ 4> subcontractors, or subsequent contractors failure to carry out the work in accordance with its contract documents. Lh 46. Other Afrmative Defenses Ch AS A SEPARATE AFFIRMATIVE DEFENSE to the Complaint and each cause of action stated therein, Defendant asserts and alleges that because the Complaint is couched in conclusions, Defendant cannot fully anticipate all of the afrmative defenses that might be applicable to this 10 Complaint. Accordingly, Defendant hereby reserves the right to assert additional afrmative 11 defenses, if and to the extent such afrmative defenses, when known, are applicable. 12 PRAYER 13 WHEREFORE, Defendant PERFECTION POOLS & SPAS, INC. prays that: 14 1. This lawsuit be tried before a jury; 15 2. Complainant's request for relief, in all respects, be denied and that Complainant take 16 nothing by this action; 17 3. Judgment be entered dismissing the Complaint and each cause of action alleged 18 against this answering Defendant; 19 4. Defendant be awarded costs of suit incurred in this action, including reasonable 20 attorneys’ fees; and 21 5. The Court grant such other lrther relief as may be deemed just and proper. 22 Dated: May 4, 2020 SIMS, LAWRENCE & RRUTI 23 24 OBBY DALE SI ,JR. 25 GREGORY EST OO Attorneys for Defendant, 26 PERFECTION POOLS & SPAS, INC. 27 28 -10- ANSWER TO COMPLAINT PROOF OF SERVICE I,SHELBY JONES, certify and declare as follows: I am over the age of 18 years, and not a party to this action. My business address is 2261 Lava Ridge Court — Roseville, CA. 1am employed in the County of Placer where this service occurs. A On the date set forth below, following ordinary business practice, I served a true copy ofthe foregoing document(s) described as: PERFECTION POOLS & SPAS. lNC.’S ANSWER TO COMPLAINT I. (BY FAX) I transmitted via facsimile transmission from a facsimile transmission machine/ service called FAXWAVE whose business facsimile number is (916) 253-1544 to the following fax number(s), as stated on the attached service list, on this date before 5:00 p.m. The above-described transmission was reported as complete without error by a transmission report 10 issued by the facsimile upon which the said transmission was made immediately following the transmission. A true and correct copy of the said transmission report is attached hereto and 11 incorporated herein by this reference. 12 (BY MAIL) I am readily familiar with my employer's normal business practice for collection and 13 processing of correspondence for mailing with the U.S. Postal Service. Correspondence so collected and processed is deposited with the U.S. Postal Service that same day in the ordinary 14 course of business. Iplaced for deposit in the United States Postal Service in a sealed envelope, 15 with postage fully prepaid, to the addressee(s) below. 16 (BY PERSONAL SERVICE) I personally delivered the above document(s) by hand between 9:00 am. and 5:00 p.m. to the ofce of the addressee(s) below. 17 18 (BY OVERNIGHT DELIVERY) I deposited in a box or other facility regularly maintained by Federal Express an express service carrier, or delivered to a courier or driver authorized by said 19 express service carrier to receive such envelope(s) to be delivered by overnight delivery, with delivery fees paid or provided for, addressed to the person(s) on whom it is to be served below. 20 21 (BY ELECTRONIC SERVICE) Itransmitted via electronic service through LexisNexis to the ofces ofthe addressee(s) below as stated on the attached service list on this date before 5:00 pm. 22 SEE ATTA CHED SER VICE LIST 23 24 (State) I certify and declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. 25 26 Executed on: May 4, 2020 27 SWY JoN'Es (/ 28 -11- ANSWER TO COMPLAINT SERVICE LIST Stephan R. Wattenberg Attorneys for Plaintiffs Claire E. Greene LAW OFFICE OF STEPHAN R. WATTENBERG 1074 East Ave, Ste C Chico, CA 95926 T: (530) 342-8930 F: (530) 342-5625 srwattny@pacbell.net Douglas B. Jacobs Personal Counsel for Perfection Pools & Spas, 10 Jacobs, Anderson, Potter & Chaplin, LLP Inc, 20 Independence Circle 11 Chico, CA 95973 T: (530) 342-6144 12 djacobs@japc-law.com 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -12- ANSWER TO COMPLAINT