Preview
MARK S. ARMIJO, Bar No. 152802
KULUVA, ARMIJO & GARCIA FT LD
7700 Irvine Center Drive, Suite 275 SUPERIOR COURT OFCALIFORNIA
Irvine, CA 92618-3020 pera I hee
(714) 913-4800 AN 04 2018
(714) 913-4816 Fax m ane
/Y35
EXECUTIVE OFFICER & CLERK
By: C. Waggoner, Deputy
Attorneys for Cross-Defendant
Fenceworks, Inc.,dba Golden State Fence Co.
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF PLACER
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11
LORRAINE JUNE, AN INDIVIDUAL, et al., CASE NO. S-CV-0039640
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Plaintiffs,
ANSWER OF FENCE WORKS, INC., dba
13
vs. GOLDEN STATE FENCE CO., erroneously
14 sued herein as Fenceworks, Inc., aCalifornia
me eGo ie) corporation TO THE CROSS-COMPLAINT OF
15 , ; CENTEX HOMES, a Nevada General
Defendants. Partnership
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CENTEX HOMES, A NEVADA GENERAL
PARTNERSHIP,
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Cross-Complainant, BY fF AX
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vs.
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ADLAND VENTURE, A CALIFORNIA
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LIMITED PARTNERSHIP, et al.,
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Cross-Defendants.
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COMES NOW Cross-Defendant Fenceworks, Inc.,dba Golden State Fence Co. (referred to
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hereafter as “Fenceworks”), erroneously sued herein as Fenceworks, Inc., a California corporation,
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and answering Cross-Complainant Centex Homes, aNevada General Partnership’s (referred to
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ANSWER OF FENCEWORKS, INC., dba GOLDEN STATE FENCE CO., erroneously sued herein as
Fenceworks, Inc.,a California corporation TO THE CROSS-COMPLAINT OF CENTEX HOMES, aNevada
General Partnership
hereafter as “Centex”’) Cross-Complaint on file herein, admits, denies and alleges as follows:
1. Under the provisions of Code of Civil Procedure section 431.30(d), Cross-Defendant
Fenceworks denies both generally and specifically each, every, and all of the allegations contained in
said Cross-Complaint, and the whole thereof, including each and every purported cause of action
contained therein, and denies that the Cross-Complainant Centex sustained or will sustain damages in
the sum or sums alleged, or in any other sum or sums, at all.
Z. Further answering the Cross-Complaint, Cross-Defendant Fenceworks denies that
Cross-Complainant Centex sustained any injury, damage or loss by reason of any act or omission or
breach of warranty, either express or implied, on the part of Cross-Defendant Fenceworks, or any
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11 agent, servant, or employee.
12 FIRST AFFIRMATIVE DEFENSE
13 (Failure to State a Cause of Action)
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3. As a separate affirmative defense, Cross-Defendant Fenceworks alleges that the Cross-
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Complaint and each cause of action contained therein failsto state a cause of action against Cross-
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Defendant Fenceworks.
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SECOND AFFIRMATIVE DEFENSE
19 (Act of God)
20 4. As a separate and further affirmative defense, Cross-Defendant Fenceworks alleges
21 that any damages and injuries as set forth in the Cross-Complainant Centex’s Cross-Complaint were
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caused by an act of God.
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THIRD AFFIRMATIVE DEFENSE
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(Contribution)
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26 5. As a separate and further affirmative defense, Cross-Defendant Fenceworks is
27 informed and believes and thereon alleges that the incidents described in the Cross-Complaint and
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ANSWER OF FENCEWORKS, INC., dba GOLDEN STATE FENCE CO., erroneously sued herein as
Fenceworks, Inc.,a California corporation TO THE CROSS-COMPLAINT OF CENTEX HOMES, a Nevada
General Partnership
any damages allegedly sustained by Cross-Complainant Centex, were wholly or partially contributed
to and proximately caused by Cross-Complainant Centex’s own acts, omissions and activities,
including and resulting incarelessness, recklessness, and/or negligence by the Cross-Complainant
Centex, thereby completely or partially barring recovery herein.
FOURTH AFFIRMATIVE DEFENSE
(Contribution by Others)
6. As a separate and further affirmative defense, Cross-Defendant Fenceworks is
informed and believes and thereon alleges that Cross-Complainant Centex’s damages, ifany, were
proximately caused by, and due in whole or in part to,the acts, omissions and activities, including
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11 and resulting in strict liability,breach of warranty, breach of contract, carelessness, recklessness,
12 and/or negligence, of parties, persons and/or entities other than Cross-Defendant Fenceworks.
13 FIFTH AFFIRMATIVE DEFENSE
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(Statute of Limitations)
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7. As a separate and further affirmative defense, Cross-Defendant Fenceworks alleges
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that Cross-Complainant Centex’s Cross-Complaint is barred by the applicable statute of limitations
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including, but not limited to, California Code of Civil Procedure sections 337, 337.1, 337.15, 338,
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19 338.2, 338.3, 338.4, 339, 339.1, 340 and/or 343.
20 SIXTH AFFIRMATIVE DEFENSE
21 (Doctrine of Laches)
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8. As a separate and further affirmative defense, Cross-Defendant Fenceworks is
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informed and believes and thereon alleges that Cross-Complainant Centex, has unreasonably delayed
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in filing itsCross-Complaint and in notifying Cross-Defendant Fenceworks of the alleged defects in
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the subject property and the bases for the cause of the action alleged against it,all of which has duly
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ANSWER OF FENCEWORKS, INC., dba GOLDEN STATE FENCE CO., erroneously sued herein as
Fenceworks, Inc.,a California corporation TO THE CROSS-COMPLAINT OF CENTEX HOMES, a Nevada
General Partnership
and severely prejudiced Cross-Defendant in itsdefense of the action, thereby barring or diminishing
Cross-Complainant’s recovery herein under the doctrine of laches.
SEVENTH AFFIRMATIVE DEFENSE
(Doctrine of Estoppel)
9. As a separate and further affirmative defense, Cross-Defendant Fenceworks is
informed and believes and thereon alleges that Cross-Complainant Centex, has unreasonably delayed
in filing itsCross-Complaint and in notifying Cross-Defendant Fenceworks of the alleged defects in
the subject property and the bases for the cause of action alleged against it,allof which has unduly
and severely prejudiced Cross-Defendant Fenceworks in itsdefense of the action, thereby barring or
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11 diminishing Cross-Complainant Centex’s recovery herein under the doctrine of estoppel.
12 EIGHTH AFFIRMATIVE DEFENSE
13 (Doctrine of Waiver)
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10. As a separate and further affirmative defense, Cross-Defendant Fenceworks is
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informed and believes and thereon alleges that Cross-Complainant Centex, has unreasonably delayed
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in filing its Cross-Complaint and in notifying Cross-Defendant Fenceworks of the alleged defects in
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the subject property and the bases for the cause of action alleged against it,allof which has unduly
19 and severely prejudiced Cross-Defendant Fenceworks in itsdefense of the action, thereby barring or
20 diminishing Cross-Complainant Centex’s recovery herein under the doctrine of waiver.
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NINTH AFFIRMATIVE DEFENSE
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(Proportionate Liability)
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11. Asaseparate and further affirmative defense, Cross-Defendant Fenceworks is
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informed and believes and thereon alleges that itis not legally responsible in any fashion with respect
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to damages and injuries claimed by the Cross-Complainant Centex, in its Cross-Complaint or by the
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27 underlying Complaint; however, without constituting any admission of wrong-doing and that Cross-
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ANSWER OF FENCEWORKS, INC., dba GOLDEN STATE FENCE CO., erroneously sued herein as
Fenceworks, Inc.,a California corporation TO THE CROSS-COMPLAIN T OF CENTEX HOMES, a Nevada
General Partnership
Defendant Fenceworks issubjected to any liabilityto the Plaintiffs herein, itwill be due, in whole or
in part, to the strict liability,breach of contract, breach of warranty, acts, omissions, activities,
carelessness, recklessness, and/or negligence of Plaintiffs and/or others; wherefore, any recovery
obtained by Plaintiffs herein against Cross-Defendant Fenceworks should be reduced in proportion to
the respective negligence and fault and legal responsibility of allother parties, persons and entities,
itsagents, servants and employees who contributed to and/or caused any such injury and/or damages,
in accordance with the law of comparative liability of Cross-Defendant Fenceworks, ifany, is limited
in direct proportion to the percentage of fault actually attributed to Cross-Defendant Fenceworks.
TENTH AFFIRMATIVE DEFENSE
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11 (Acts Outside Power, Authority or Control)
12 12. | Asaseparate and further affirmative defense, Cross-Defendant Fenceworks alleges
13 that any injury, damage or loss, ifany, sustained by Cross-Complainant Centex, arose as a result to
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the acts and/or omissions of said Cross-Complainant, over whom Cross-Defendant Fenceworks had
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no power, authority or control.
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ELEVENTH AFFIRMATIVE DEFENSE
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(Negligence)
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19 13. As a separate and further affirmative defense, Cross-Defendant Fenceworks alleges
20 that if Cross-Complainant Centex, suffered or sustained any loss or damages, the same was directly
21 and contributed to by the negligence of Cross-Complainant Centex, in that
and proximately caused
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Cross-Complainant Centex, was negligent in the manner in which itconstructed, developed,
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controlled, maintained, altered, repaired or restored the premises performed pursuant to contract
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involved in this action.
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26 TWELFTH AFFIRMATIVE DEFENSE
27 (Failure to Exercise Reasonable Care)
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28 FENCE CO., erroneously sued herein as
ANSWER OF FENCEWORKS, INC., dba GOLDEN STATE
Fenceworks, Inc.,a California corporation TO THE CROSS-COMPLAINT OF CENTEX HOMES, a Nevada
General Partnership
14. | As aseparate and further affirmative defense, without admitting the allegations of
Cross-Complainant Centex’s Cross-Complaint herein, Cross-Defendant Fenceworks alleges that any
and all injuries and damages, ifany, sustained or suffered by Cross-Complainant Centex, were
proximately caused or contributed to by the negligence, carelessness, recklessness, and/or affirmative
wrongful conduct on the part of Cross-Complainant Centex, and itsagents, servants and employees,
and each of them in that they failed to exercise ordinary reasonable care and caution in carrying out
their duties pursuant to contract and in connection with the construction of the alleged improvements.
THIRTEENTH AFFIRMATIVE DEFENSE
(Primary Conduct)
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11 15. | Asaseparate and further affirmative defense, Cross-Defendant Fenceworks is
12 informed and believes and upon such information and belief alleges that the conduct of Cross-
13 Complainant Centex, constituted active negligence, breach of contract and/or other wrongful conduct
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which proximately contributed to whatever damages Cross-Complainant Centex seeks and that
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purported causes of action for indemnity are barred by said act of primary conduct; that Cross-
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Defendant Fenceworks herein was not negligent or in any way at fault, and that the conduct of Cross-
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Defendant Fenceworks, ifany, was passive, indirect and secondary.
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19 FOURTEENTH AFFIRMATIVE DEFENSE
20 (Failure to Minimize Damages)
21 16. As a separate and further affirmative defense, Cross-Defendant Fenceworks is
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informed and believes and on that information and belief alleges, that at all times mentioned herein
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Cross-Complainant Centex, and each of its successors ininterest, and predecessors in interest, failed
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to use reasonable care to reduced and minimize, as much as reasonably possible, the damages, ifany,
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and that this failure is the direct and proximate cause of any and all damages, ifany, sustained by
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28 CO., erroneously sued herein as
ANSWER OF FENCEWORKS, INC., dba GOLDEN STATE FENCE
Fenceworks, Inc.,a California corporation TO THE CROSS-COMPLAINT OF CENTEX HOMES, a Nevada
General Partnership
Cross-Complainant Centex, therefore, Cross-Defendant Fenceworks is not liable to Cross-
Complainant Centex, for any damages.
FIFTEENTH AFFIRMATIVE DEFENSE
(Standing)
17. As a separate and further affirmative defense, Cross-Defendant Fenceworks is
informed and believes and on that information and belief alleges, that at all times mentioned herein,
Cross-Complainant Centex, had no standing to bring this action against Cross-Defendant Fenceworks
and lacks any legal cognizable contractual relationship with Cross-Defendant Fenceworks.
SIXTEENTH AFFIRMATIVE DEFENSE
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11 (Failure of Consideration, Waiver, Breach of Condition Precedent)
12 18. Asa separate and further affirmative defense, Cross-Defendant Fenceworks is
13 informed and believes and on that information and belief alleges, that if any contracts, obligations or
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agreements as alleged in the Cross-Complaint have been entered into, any duty or performance of
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Cross-Defendant Fenceworks is excused by reason of failure of consideration, waiver, breach of
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condition precedent, breach by Cross-Complainant Centex’s impossibility of performance, prevention
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by Cross-Complainant Centex, frustration of purpose and/or acceptance by Cross-Complainant
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19 Centex
20 SEVENTEENTH AFFIRMATIVE DEFENSE
21 (Contracts of Adhesion)
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19. | Asaseparate and further affirmative defense, Cross-Defendant Fenceworks is
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informed and believes and on that information and belief alleges, that if any contracts, obligations, or
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agreements as alleged in the Cross-Complaint have been entered into, said contracts, obligations or
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agreements are unenforceable and void as against public policy as adhesion contracts.
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27
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28 FENCE CO., erroneously sued herein as
ANSWER OF FENCEWORKS, INC., dba GOLDEN STATE
Fenceworks, Inc.,a California corporation TO THE CROSS-COMPL AINT OF CENTEX HOMES, a Nevada
General Partnership
EIGHTEENTH AFFIRMATIVE DEFENSE
(Misrepresentation)
20. As a separate and further affirmative defense, Cross-Defendant Fenceworks is
informed and believes and based thereon alleges that Cross-Complainant Centex, knew or should
have known of material information affecting the condition of the property in question and either
intentionally and/or negligently misrepresented said material information to Cross-Defendant
Fenceworks; that Cross-Complainant Centex’s liability arises in whole or in part from said
misrepresentation and therefore, any obligation that did, does or may exist for Cross-Defendant
Fenceworks to indemnify Cross-Complainant Centex, including but not limited to contract, tort, or
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11 equity is voided, eliminated, terminated, or unenforceable.
12 NINETEENTH AFFIRMATIVE DEFENSE
13 (Justifiable Controversy)
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21. As a Separate and further affirmative defense, Cross-Defendant Fenceworks is
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informed and believes and thereon alleges that the Cross-Complaint and each purported cause of
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action contained therein, does not state a justifiable controversy.
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TWENTIETH AFFIRMATIVE DEFENSE
19 (Privity)
20 22. As a separate and further affirmative defense, Cross-Defendant Fenceworks is
21 informed and believes and thereon alleges that the Cross-Complaint and each purported cause of
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action contained therein must fail as there is no privity between Cross-Complainant Centex, and
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Cross-Defendant Fenceworks.
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TWENTY-FIRST AFFIRMATIVE DEFENSE
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(Negligent Spoliation of Evidence)
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28 as
ANSWER OF FENCEWORKS, INC., dba GOLDEN STATE FENCE CO., erroneously sued herein
Fenceworks, Inc.,a California corporation TO THE CROSS-COMPLAIN T OF CENTEX HOMES, a Nevada
General Partnership
23: As a separate and further affirmative defense, thisanswering Cross-Defendant is
informed and believes that Cross-Complainant has undertaken repairs atthe subject property. Cross-
Complainant failed to notify Cross-Defendant of the repairs, and failed to preserve evidence of
original conditions while intending to pursue Cross-Defendant inlitigation. In so doing, Cross-
Complainant negligently spoiled evidence and should be barred from recovery.
TWENTY-SECOND AFFIRMATIVE DEFENSE
(Lack of Standing Pursuant to CCP §383)
24. As a separate and further affirmative defense, Cross-Defendant Fenceworks is
informed and believes that the claims of Cross-Complainant Centex, are precluded because the
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11 Cross-Complainant Centex, lacks standing to pursue claims related to Cross-Defendant Fenceworks’s
12 work atthe project pursuant to CCP §383.
13 TWENTY-THIRD AFFIRMATIVE DEFENSE
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(Lack of Physical Damage)
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25. As a separate and further affirmative defense, Cross-Defendant Fenceworks is
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informed and believes that the claims of Cross-Complainant Centex, are precluded because Cross-
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Complainant Centex’s claims relating to the work of Cross-Defendant Fenceworks at the project are
19 barred pursuant to the holdings in Aas v. Superior Court, (2000) 24 Cal.4" 627; 12P.3d 1125; San
20 Francisco Unified School Dist. v. W.R. Grace & Co. (1995) 37 Cal.App.4" 1318, 1326; and
21 Sacramento Regional Transit Dist. v.Grumman Flexible (1984) 158 Cal.App.3d 289, 298-300.
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TWENTY-FOURTH AFFIRMATIVE DEFENSE
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(Failure To Give Notice)
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26. Cross-Complainant Centex, in the main action failed to give adequate notice to Cross-
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Defendant Fenceworks within a reasonable time after said Cross-Complainant Centex, knew or
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27 should have known of the alleged breach by Cross-Defendant Fenceworks of any of the warranties as
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28 herein as
ANSWER OF FENCEWORKS, INC., dba GOLDEN STATE FENCE CO., erroneously sued
Fenceworks, Inc.,a California corporation TO THE CROSS-COMPLAIN T OF CENTEX HOMES, a Nevada
General Partnership
set forth inthe Cross-Complaint.
TWENTY-FIFTH AFFIRMATIVE DEFENSE
(Prior Knowledge)
27. If there was any defect in any real property as alleged, then Cross-Defendant
Fenceworks is informed and believes, and thereon alleges that Cross-Complainant Centex, knew or
should have known of the alleged defect, and therefore, Cross-Complainant Centex, were negligent
or otherwise at fault, wholly or in part, and barred from seeking recovery from Cross-Defendant
Fenceworks.
TWENTY-SIXTH AFFIRMATIVE DEFENSE
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11 (Conditions Precedent)
12 28. Cross-Defendant Fenceworks alleges that any recovery on the Cross-Complaint or any
13 purported cause of action alleged therein is barred on the ground that, as to each and every oral,
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implied, written or other contract alleged therein, Cross-Complainant Centex, failed to fulfill
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conditions precedent to the enforcement of any such contract.
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TWENTY-SEVENTH AFFIRMATIVE DEFENSE
17
(Failure of Consideration)
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19 29. Cross-Defendant Fenceworks alleges that any recovery on the Cross-Complaint or any
20 purported cause of action alleged therein is barred on the ground that, as to each and every oral,
21 or other contract alleged therein, there is a failure of consideration.
implied, written,
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TWENTY-EIGHTH AFFIRMATIVE DEFENSE
23
(Prior Breach)
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30. Cross-Defendant Fenceworks alleges that any recovery on the Cross-Complaint or any
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purported cause of action alleged therein is barred on the ground that, as to each and every oral,
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27
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28 erroneously sued herein as
ANSWER OF FENCEWORKS, INC., dba GOLDEN STATE FENCE CO.,
Fenceworks, Inc.,a California corporation TO THE CROSS-COMPL AINT OF CENTEX HOMES, a Nevada
General Partnership
implied, written, or other contract alleged therein, Cross-Complainant Centex, committed a prior
breach thereof, excusing any duty of any further performance by Cross-Defendant Fenceworks.
TWENTY-NINTH AFFIRMATIVE DEFENSE
(Several — Non-Economic General Damages)
31. As a separate and further affirmative defense, Cross-Defendant Fenceworks is
informed and believes and thereon alleges that itsliability, ifany, for non-economic general damages
is several only and not joint pursuant to California Code of Civil Procedure § 1431.2.
THIRTIETH AFFIRMATIVE DEFENSE
(Contract Defenses)
10
11 32. | Asaseparate and further affirmative defense, Cross-Defendant Fenceworks is
12 informed and believes and thereon alleges that ifany contracts, obligations or agreements as alleged
13
in the Cross-Complaint have been entered into,any duty of performance by Cross-Defendant
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Fenceworks isexcused by reason of failure of consideration, breach of condition precedent,
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impossibility of purpose, waiver by Cross-Defendant Fenceworks and/or acceptance by Cross-
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Complainant Centex
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18 THIRTY-FIRST AFFIRMATIVE DEFENSE
19 (Spoliation)
20 33. As a separate and further affirmative defense, Cross-Defendant Fenceworks is
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informed and believes and thereon alleges that Cross-Complainant Centex, had proceeded with, and
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contracted out with others for remedial work to correct said alleged defects to the subject property, all
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of which has unduly and severely prejudiced Cross-Defendant Fenceworks in itsdefense of this
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action, thereby barring or diminishing Cross-Complainant Centex’s recovery herein under the
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26 doctrine of spoliation of evidence.
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ANSWER OF FENCEWORKS, INC., dba GOLDEN STATE FENCE CO., erroneously sued herein as
Fenceworks, Inc.,a California corporation TO THE CROSS-COMPLAINT OF CENTEX HOMES, a Nevada
General Partnership
THIRTY-SECOND AFFIRMATIVE DEFENSE
(Design Defects)
34. That the alleged incident, events, occurrences and damages, and each of them,
complained of by Cross-Complainant Centex, herein, were proximately caused by “Design Defects”
within the plans and specifications as provided by Cross-Complainant Centex, and/or agents of
Cross-Complainant, and that Cross-Complainant are hereby barred.
THIRTY-THIRD AFFIRMATIVE DEFENSE
(Compliance with Code and Plans)
35. That any and all labor, supervision and materials provided by this Cross-Defendant
10
11 Fenceworks pursuant to itscontract, was performed in strictaccordance with all applicable Codes and
12 standard custom and practice of the building trades industry. However, and without admitting any
13 non-compliances with same Codes and practices, this Cross-Defendant Fenceworks alleges any such
14
non-compliances were proximately caused and justified by the plans, specifications and direct
15
supervision provided by Cross-Complainant Centex, and/or itsagents.
16
THIRTY-FOURTH AFFIRMATIVE DEFENSE
17
(Release and Discharge of Obligations)
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19 36. As aseparate and distinct defense to the Cross-Complaint, and each purported cause
20 of action therein, Cross-Defendant Fenceworks alleges that any action against it isbarred based on a
21 release and discharge of any obligations owed by Cross-Defendant Fenceworks.
22
THIRTY-FIFTH AFFIRMATIVE DEFENSE
23
(Opportunity to Inspect)
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3). As a separate and distinct defense to the Cross-Complaint, and each purported cause
25
of action therein, Cross-Defendant Fenceworks isinformed and believes and thereon alleges that,
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27 prior to entering into the contract regarding their residence, Cross-Complainant Centex, herein (1)
12
28 CO., erroneously sued herein as
ANSWER OF FENCEWORKS, INC., dba GOLDEN STATE FENCE
Fenceworks, Inc.,a California corporation TO THE CROSS-COMPLAINT OF CENTEX HOMES, a Nevada
General Partnership
knew or should have known of the type and nature of the materials used in the construction of the
building and the appurtenances and other materials referred to in itsCross-Complaint; (2) inspected
or had a reasonable opportunity to inspect any and all such items; and (3) inspected or had a
reasonable opportunity to inspect the plans and specifications in connection with the design
characteristics of the buildings. On that basis of the forgoing, Cross-Complainant Centex, are
estopped from asserting allor any part of the claims set forth intheir Cross-Complaint.
THIRTY-SIXTH AFFIRMATIVE DEFENSE
(Void Contract)
38. | Asaseparate and further affirmative defense, Cross-Defendant Fenceworks is
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11 informed and believes and based thereon alleges that there isno contractual agreement existing
12 between the parties hereto, either oral or written, or in the alternative, any such agreement isvoid or
13 voidable, upon which any cause of action can be based.
14
THIRTY-SEVENTH AFFIRMATIVE DEFENSE
15
(Material Breach)
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39. | Asaseparate and further affirmative defense, Cross-Defendant Fenceworks is
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informed and believes and based thereon alleges that as to those causes of action relating to alleged
19 agreements/representations, that Cross-Complainant Centex, without justification or excuse,
20 materially breached the alleged written or oral agreements, if any, and thus, Cross-Defendant
21 Fenceworks isdischarged from performing any obligations under agreements/representations.
22
THIRTY-EIGHTH AFFIRMATIVE DEFENSE
23
(Full Performance and Discharge)
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40. As a separate and further affirmative defense, Cross-Defendant Fenceworks is
25
26 informed and believes and based thereon alleges that ithas performed and fully discharged any and
27 all legal duties and obligations arising out of the matters alleged in the Cross-Complaint.
13
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ANSWER OF FENCEWORKS, INC., dba GOLDEN STATE FENCE CO., erroneously sued herein as
Fenceworks, Inc.,a California corporation TO THE CROSS-COMPLAINT OF CENTEX HOMES, a Nevada
General Partnership
THIRTY-NINTH AFFIRMATIVE DEFENSE
(Compliance with Custom and Practice)
41. As a separate affirmative defense to each and every cause of action, Cross-Defendant
Fenceworks is informed and believes and based thereon alleges that itsconducts relative to the
matters alleged inthe subject lawsuit was reasonable and that the design, layout, plans,
improvements, construction and other aspects of Cross-Defendant Fenceworks’s conduct relative to
the matters alleged in the subject lawsuit met the standards, customs and knowledge atthe time of the
original approval of the construction and improvements undertaken by Cross-Defendant Fenceworks.
10 FORTIETH AFFIRMATIVE DEFENSE
11 (Splitting Causes of Action)
12
42. As a separate and further affirmative defense, Cross-Defendant Fenceworks is
13
informed and believes and thereon alleges that Cross-Complainant Centex, was reimbursed for a
14
portion of the claimed damages by a third party; Cross-Defendant Fenceworks is informed and
15
believes and thereon alleges that Cross-Complainant Centex, has subrogated that third party to a
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17 portion of the damages claimed herein; Cross-Defendant Fenceworks is informed and believes and
18 thereon alleged that by virtue of the aforementioned subrogation, Cross-Complainant Centex, has
19 failed to name indispensable parties, and has violated the rule against splitting causes of action, thus
20
barring Cross-Complainant Centex’s recovery herein.
21
FORTY-FIRST AFFIRMATIVE DEFENSE
22
23 (Duty to Perform Excused)
24 43. As a separate and further affirmative defense, Cross-Defendant Fenceworks is
25 informed and believes and based thereon alleges that ifany contracts, obligations or agreements as
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alleged in the Cross-
Preview
MARK S. ARMIJO, Bar No. 152802 KULUVA, ARMIJO & GARCIA FT LD 7700 Irvine Center Drive, Suite 275 SUPERIOR COURT OFCALIFORNIA Irvine, CA 92618-3020 pera I hee (714) 913-4800 AN 04 2018 (714) 913-4816 Fax m ane /Y35 EXECUTIVE OFFICER & CLERK By: C. Waggoner, Deputy Attorneys for Cross-Defendant Fenceworks, Inc.,dba Golden State Fence Co. SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF PLACER 10 11 LORRAINE JUNE, AN INDIVIDUAL, et al., CASE NO. S-CV-0039640 12 Plaintiffs, ANSWER OF FENCE WORKS, INC., dba 13 vs. GOLDEN STATE FENCE CO., erroneously 14 sued herein as Fenceworks, Inc., aCalifornia me eGo ie) corporation TO THE CROSS-COMPLAINT OF 15 , ; CENTEX HOMES, a Nevada General Defendants. Partnership 16 17 CENTEX HOMES, A NEVADA GENERAL PARTNERSHIP, 18 Cross-Complainant, BY fF AX 19 vs. 20 ADLAND VENTURE, A CALIFORNIA 21 LIMITED PARTNERSHIP, et al., 22 Cross-Defendants. 23 24 COMES NOW Cross-Defendant Fenceworks, Inc.,dba Golden State Fence Co. (referred to 25 hereafter as “Fenceworks”), erroneously sued herein as Fenceworks, Inc., a California corporation, 26 and answering Cross-Complainant Centex Homes, aNevada General Partnership’s (referred to 27 1 28 ANSWER OF FENCEWORKS, INC., dba GOLDEN STATE FENCE CO., erroneously sued herein as Fenceworks, Inc.,a California corporation TO THE CROSS-COMPLAINT OF CENTEX HOMES, aNevada General Partnership hereafter as “Centex”’) Cross-Complaint on file herein, admits, denies and alleges as follows: 1. Under the provisions of Code of Civil Procedure section 431.30(d), Cross-Defendant Fenceworks denies both generally and specifically each, every, and all of the allegations contained in said Cross-Complaint, and the whole thereof, including each and every purported cause of action contained therein, and denies that the Cross-Complainant Centex sustained or will sustain damages in the sum or sums alleged, or in any other sum or sums, at all. Z. Further answering the Cross-Complaint, Cross-Defendant Fenceworks denies that Cross-Complainant Centex sustained any injury, damage or loss by reason of any act or omission or breach of warranty, either express or implied, on the part of Cross-Defendant Fenceworks, or any 10 11 agent, servant, or employee. 12 FIRST AFFIRMATIVE DEFENSE 13 (Failure to State a Cause of Action) 14 3. As a separate affirmative defense, Cross-Defendant Fenceworks alleges that the Cross- 15 Complaint and each cause of action contained therein failsto state a cause of action against Cross- 16 Defendant Fenceworks. 17 18 SECOND AFFIRMATIVE DEFENSE 19 (Act of God) 20 4. As a separate and further affirmative defense, Cross-Defendant Fenceworks alleges 21 that any damages and injuries as set forth in the Cross-Complainant Centex’s Cross-Complaint were 22 caused by an act of God. 23 THIRD AFFIRMATIVE DEFENSE 24 (Contribution) 25 26 5. As a separate and further affirmative defense, Cross-Defendant Fenceworks is 27 informed and believes and thereon alleges that the incidents described in the Cross-Complaint and 2 28 ANSWER OF FENCEWORKS, INC., dba GOLDEN STATE FENCE CO., erroneously sued herein as Fenceworks, Inc.,a California corporation TO THE CROSS-COMPLAINT OF CENTEX HOMES, a Nevada General Partnership any damages allegedly sustained by Cross-Complainant Centex, were wholly or partially contributed to and proximately caused by Cross-Complainant Centex’s own acts, omissions and activities, including and resulting incarelessness, recklessness, and/or negligence by the Cross-Complainant Centex, thereby completely or partially barring recovery herein. FOURTH AFFIRMATIVE DEFENSE (Contribution by Others) 6. As a separate and further affirmative defense, Cross-Defendant Fenceworks is informed and believes and thereon alleges that Cross-Complainant Centex’s damages, ifany, were proximately caused by, and due in whole or in part to,the acts, omissions and activities, including 10 11 and resulting in strict liability,breach of warranty, breach of contract, carelessness, recklessness, 12 and/or negligence, of parties, persons and/or entities other than Cross-Defendant Fenceworks. 13 FIFTH AFFIRMATIVE DEFENSE 14 (Statute of Limitations) 15 7. As a separate and further affirmative defense, Cross-Defendant Fenceworks alleges 16 that Cross-Complainant Centex’s Cross-Complaint is barred by the applicable statute of limitations 17 including, but not limited to, California Code of Civil Procedure sections 337, 337.1, 337.15, 338, 18 19 338.2, 338.3, 338.4, 339, 339.1, 340 and/or 343. 20 SIXTH AFFIRMATIVE DEFENSE 21 (Doctrine of Laches) 22 8. As a separate and further affirmative defense, Cross-Defendant Fenceworks is 23 informed and believes and thereon alleges that Cross-Complainant Centex, has unreasonably delayed 24 in filing itsCross-Complaint and in notifying Cross-Defendant Fenceworks of the alleged defects in 25 the subject property and the bases for the cause of the action alleged against it,all of which has duly 26 27 3 28 ANSWER OF FENCEWORKS, INC., dba GOLDEN STATE FENCE CO., erroneously sued herein as Fenceworks, Inc.,a California corporation TO THE CROSS-COMPLAINT OF CENTEX HOMES, a Nevada General Partnership and severely prejudiced Cross-Defendant in itsdefense of the action, thereby barring or diminishing Cross-Complainant’s recovery herein under the doctrine of laches. SEVENTH AFFIRMATIVE DEFENSE (Doctrine of Estoppel) 9. As a separate and further affirmative defense, Cross-Defendant Fenceworks is informed and believes and thereon alleges that Cross-Complainant Centex, has unreasonably delayed in filing itsCross-Complaint and in notifying Cross-Defendant Fenceworks of the alleged defects in the subject property and the bases for the cause of action alleged against it,allof which has unduly and severely prejudiced Cross-Defendant Fenceworks in itsdefense of the action, thereby barring or 10 11 diminishing Cross-Complainant Centex’s recovery herein under the doctrine of estoppel. 12 EIGHTH AFFIRMATIVE DEFENSE 13 (Doctrine of Waiver) 14 10. As a separate and further affirmative defense, Cross-Defendant Fenceworks is 15 informed and believes and thereon alleges that Cross-Complainant Centex, has unreasonably delayed 16 in filing its Cross-Complaint and in notifying Cross-Defendant Fenceworks of the alleged defects in 17 18 the subject property and the bases for the cause of action alleged against it,allof which has unduly 19 and severely prejudiced Cross-Defendant Fenceworks in itsdefense of the action, thereby barring or 20 diminishing Cross-Complainant Centex’s recovery herein under the doctrine of waiver. 21 NINTH AFFIRMATIVE DEFENSE 22 (Proportionate Liability) 23 11. Asaseparate and further affirmative defense, Cross-Defendant Fenceworks is 24 informed and believes and thereon alleges that itis not legally responsible in any fashion with respect 25 to damages and injuries claimed by the Cross-Complainant Centex, in its Cross-Complaint or by the 26 27 underlying Complaint; however, without constituting any admission of wrong-doing and that Cross- 4 28 ANSWER OF FENCEWORKS, INC., dba GOLDEN STATE FENCE CO., erroneously sued herein as Fenceworks, Inc.,a California corporation TO THE CROSS-COMPLAIN T OF CENTEX HOMES, a Nevada General Partnership Defendant Fenceworks issubjected to any liabilityto the Plaintiffs herein, itwill be due, in whole or in part, to the strict liability,breach of contract, breach of warranty, acts, omissions, activities, carelessness, recklessness, and/or negligence of Plaintiffs and/or others; wherefore, any recovery obtained by Plaintiffs herein against Cross-Defendant Fenceworks should be reduced in proportion to the respective negligence and fault and legal responsibility of allother parties, persons and entities, itsagents, servants and employees who contributed to and/or caused any such injury and/or damages, in accordance with the law of comparative liability of Cross-Defendant Fenceworks, ifany, is limited in direct proportion to the percentage of fault actually attributed to Cross-Defendant Fenceworks. TENTH AFFIRMATIVE DEFENSE 10 11 (Acts Outside Power, Authority or Control) 12 12. | Asaseparate and further affirmative defense, Cross-Defendant Fenceworks alleges 13 that any injury, damage or loss, ifany, sustained by Cross-Complainant Centex, arose as a result to 14 the acts and/or omissions of said Cross-Complainant, over whom Cross-Defendant Fenceworks had 15 no power, authority or control. 16 ELEVENTH AFFIRMATIVE DEFENSE 17 (Negligence) 18 19 13. As a separate and further affirmative defense, Cross-Defendant Fenceworks alleges 20 that if Cross-Complainant Centex, suffered or sustained any loss or damages, the same was directly 21 and contributed to by the negligence of Cross-Complainant Centex, in that and proximately caused 22 Cross-Complainant Centex, was negligent in the manner in which itconstructed, developed, 23 controlled, maintained, altered, repaired or restored the premises performed pursuant to contract 24 involved in this action. 25 26 TWELFTH AFFIRMATIVE DEFENSE 27 (Failure to Exercise Reasonable Care) 5 28 FENCE CO., erroneously sued herein as ANSWER OF FENCEWORKS, INC., dba GOLDEN STATE Fenceworks, Inc.,a California corporation TO THE CROSS-COMPLAINT OF CENTEX HOMES, a Nevada General Partnership 14. | As aseparate and further affirmative defense, without admitting the allegations of Cross-Complainant Centex’s Cross-Complaint herein, Cross-Defendant Fenceworks alleges that any and all injuries and damages, ifany, sustained or suffered by Cross-Complainant Centex, were proximately caused or contributed to by the negligence, carelessness, recklessness, and/or affirmative wrongful conduct on the part of Cross-Complainant Centex, and itsagents, servants and employees, and each of them in that they failed to exercise ordinary reasonable care and caution in carrying out their duties pursuant to contract and in connection with the construction of the alleged improvements. THIRTEENTH AFFIRMATIVE DEFENSE (Primary Conduct) 10 11 15. | Asaseparate and further affirmative defense, Cross-Defendant Fenceworks is 12 informed and believes and upon such information and belief alleges that the conduct of Cross- 13 Complainant Centex, constituted active negligence, breach of contract and/or other wrongful conduct 14 which proximately contributed to whatever damages Cross-Complainant Centex seeks and that 15 purported causes of action for indemnity are barred by said act of primary conduct; that Cross- 16 Defendant Fenceworks herein was not negligent or in any way at fault, and that the conduct of Cross- 17 Defendant Fenceworks, ifany, was passive, indirect and secondary. 18 19 FOURTEENTH AFFIRMATIVE DEFENSE 20 (Failure to Minimize Damages) 21 16. As a separate and further affirmative defense, Cross-Defendant Fenceworks is 22 informed and believes and on that information and belief alleges, that at all times mentioned herein 23 Cross-Complainant Centex, and each of its successors ininterest, and predecessors in interest, failed 24 to use reasonable care to reduced and minimize, as much as reasonably possible, the damages, ifany, 25 and that this failure is the direct and proximate cause of any and all damages, ifany, sustained by 26 27 6 28 CO., erroneously sued herein as ANSWER OF FENCEWORKS, INC., dba GOLDEN STATE FENCE Fenceworks, Inc.,a California corporation TO THE CROSS-COMPLAINT OF CENTEX HOMES, a Nevada General Partnership Cross-Complainant Centex, therefore, Cross-Defendant Fenceworks is not liable to Cross- Complainant Centex, for any damages. FIFTEENTH AFFIRMATIVE DEFENSE (Standing) 17. As a separate and further affirmative defense, Cross-Defendant Fenceworks is informed and believes and on that information and belief alleges, that at all times mentioned herein, Cross-Complainant Centex, had no standing to bring this action against Cross-Defendant Fenceworks and lacks any legal cognizable contractual relationship with Cross-Defendant Fenceworks. SIXTEENTH AFFIRMATIVE DEFENSE 10 11 (Failure of Consideration, Waiver, Breach of Condition Precedent) 12 18. Asa separate and further affirmative defense, Cross-Defendant Fenceworks is 13 informed and believes and on that information and belief alleges, that if any contracts, obligations or 14 agreements as alleged in the Cross-Complaint have been entered into, any duty or performance of 15 Cross-Defendant Fenceworks is excused by reason of failure of consideration, waiver, breach of 16 condition precedent, breach by Cross-Complainant Centex’s impossibility of performance, prevention 17 by Cross-Complainant Centex, frustration of purpose and/or acceptance by Cross-Complainant 18 19 Centex 20 SEVENTEENTH AFFIRMATIVE DEFENSE 21 (Contracts of Adhesion) 22 19. | Asaseparate and further affirmative defense, Cross-Defendant Fenceworks is 23 informed and believes and on that information and belief alleges, that if any contracts, obligations, or 24 agreements as alleged in the Cross-Complaint have been entered into, said contracts, obligations or 25 agreements are unenforceable and void as against public policy as adhesion contracts. 26 27 7 28 FENCE CO., erroneously sued herein as ANSWER OF FENCEWORKS, INC., dba GOLDEN STATE Fenceworks, Inc.,a California corporation TO THE CROSS-COMPL AINT OF CENTEX HOMES, a Nevada General Partnership EIGHTEENTH AFFIRMATIVE DEFENSE (Misrepresentation) 20. As a separate and further affirmative defense, Cross-Defendant Fenceworks is informed and believes and based thereon alleges that Cross-Complainant Centex, knew or should have known of material information affecting the condition of the property in question and either intentionally and/or negligently misrepresented said material information to Cross-Defendant Fenceworks; that Cross-Complainant Centex’s liability arises in whole or in part from said misrepresentation and therefore, any obligation that did, does or may exist for Cross-Defendant Fenceworks to indemnify Cross-Complainant Centex, including but not limited to contract, tort, or 10 11 equity is voided, eliminated, terminated, or unenforceable. 12 NINETEENTH AFFIRMATIVE DEFENSE 13 (Justifiable Controversy) 14 21. As a Separate and further affirmative defense, Cross-Defendant Fenceworks is 15 informed and believes and thereon alleges that the Cross-Complaint and each purported cause of 16 action contained therein, does not state a justifiable controversy. 17 18 TWENTIETH AFFIRMATIVE DEFENSE 19 (Privity) 20 22. As a separate and further affirmative defense, Cross-Defendant Fenceworks is 21 informed and believes and thereon alleges that the Cross-Complaint and each purported cause of 22 action contained therein must fail as there is no privity between Cross-Complainant Centex, and 23 Cross-Defendant Fenceworks. 24 TWENTY-FIRST AFFIRMATIVE DEFENSE 25 26 (Negligent Spoliation of Evidence) 27 8 28 as ANSWER OF FENCEWORKS, INC., dba GOLDEN STATE FENCE CO., erroneously sued herein Fenceworks, Inc.,a California corporation TO THE CROSS-COMPLAIN T OF CENTEX HOMES, a Nevada General Partnership 23: As a separate and further affirmative defense, thisanswering Cross-Defendant is informed and believes that Cross-Complainant has undertaken repairs atthe subject property. Cross- Complainant failed to notify Cross-Defendant of the repairs, and failed to preserve evidence of original conditions while intending to pursue Cross-Defendant inlitigation. In so doing, Cross- Complainant negligently spoiled evidence and should be barred from recovery. TWENTY-SECOND AFFIRMATIVE DEFENSE (Lack of Standing Pursuant to CCP §383) 24. As a separate and further affirmative defense, Cross-Defendant Fenceworks is informed and believes that the claims of Cross-Complainant Centex, are precluded because the 10 11 Cross-Complainant Centex, lacks standing to pursue claims related to Cross-Defendant Fenceworks’s 12 work atthe project pursuant to CCP §383. 13 TWENTY-THIRD AFFIRMATIVE DEFENSE 14 (Lack of Physical Damage) 15 25. As a separate and further affirmative defense, Cross-Defendant Fenceworks is 16 informed and believes that the claims of Cross-Complainant Centex, are precluded because Cross- 17 18 Complainant Centex’s claims relating to the work of Cross-Defendant Fenceworks at the project are 19 barred pursuant to the holdings in Aas v. Superior Court, (2000) 24 Cal.4" 627; 12P.3d 1125; San 20 Francisco Unified School Dist. v. W.R. Grace & Co. (1995) 37 Cal.App.4" 1318, 1326; and 21 Sacramento Regional Transit Dist. v.Grumman Flexible (1984) 158 Cal.App.3d 289, 298-300. 22 TWENTY-FOURTH AFFIRMATIVE DEFENSE 23 (Failure To Give Notice) 24 26. Cross-Complainant Centex, in the main action failed to give adequate notice to Cross- 25 Defendant Fenceworks within a reasonable time after said Cross-Complainant Centex, knew or 26 27 should have known of the alleged breach by Cross-Defendant Fenceworks of any of the warranties as 9 28 herein as ANSWER OF FENCEWORKS, INC., dba GOLDEN STATE FENCE CO., erroneously sued Fenceworks, Inc.,a California corporation TO THE CROSS-COMPLAIN T OF CENTEX HOMES, a Nevada General Partnership set forth inthe Cross-Complaint. TWENTY-FIFTH AFFIRMATIVE DEFENSE (Prior Knowledge) 27. If there was any defect in any real property as alleged, then Cross-Defendant Fenceworks is informed and believes, and thereon alleges that Cross-Complainant Centex, knew or should have known of the alleged defect, and therefore, Cross-Complainant Centex, were negligent or otherwise at fault, wholly or in part, and barred from seeking recovery from Cross-Defendant Fenceworks. TWENTY-SIXTH AFFIRMATIVE DEFENSE 10 11 (Conditions Precedent) 12 28. Cross-Defendant Fenceworks alleges that any recovery on the Cross-Complaint or any 13 purported cause of action alleged therein is barred on the ground that, as to each and every oral, 14 implied, written or other contract alleged therein, Cross-Complainant Centex, failed to fulfill 15 conditions precedent to the enforcement of any such contract. 16 TWENTY-SEVENTH AFFIRMATIVE DEFENSE 17 (Failure of Consideration) 18 19 29. Cross-Defendant Fenceworks alleges that any recovery on the Cross-Complaint or any 20 purported cause of action alleged therein is barred on the ground that, as to each and every oral, 21 or other contract alleged therein, there is a failure of consideration. implied, written, 22 TWENTY-EIGHTH AFFIRMATIVE DEFENSE 23 (Prior Breach) 24 30. Cross-Defendant Fenceworks alleges that any recovery on the Cross-Complaint or any 25 purported cause of action alleged therein is barred on the ground that, as to each and every oral, 26 27 10 28 erroneously sued herein as ANSWER OF FENCEWORKS, INC., dba GOLDEN STATE FENCE CO., Fenceworks, Inc.,a California corporation TO THE CROSS-COMPL AINT OF CENTEX HOMES, a Nevada General Partnership implied, written, or other contract alleged therein, Cross-Complainant Centex, committed a prior breach thereof, excusing any duty of any further performance by Cross-Defendant Fenceworks. TWENTY-NINTH AFFIRMATIVE DEFENSE (Several — Non-Economic General Damages) 31. As a separate and further affirmative defense, Cross-Defendant Fenceworks is informed and believes and thereon alleges that itsliability, ifany, for non-economic general damages is several only and not joint pursuant to California Code of Civil Procedure § 1431.2. THIRTIETH AFFIRMATIVE DEFENSE (Contract Defenses) 10 11 32. | Asaseparate and further affirmative defense, Cross-Defendant Fenceworks is 12 informed and believes and thereon alleges that ifany contracts, obligations or agreements as alleged 13 in the Cross-Complaint have been entered into,any duty of performance by Cross-Defendant 14 Fenceworks isexcused by reason of failure of consideration, breach of condition precedent, 15 impossibility of purpose, waiver by Cross-Defendant Fenceworks and/or acceptance by Cross- 16 Complainant Centex 17 18 THIRTY-FIRST AFFIRMATIVE DEFENSE 19 (Spoliation) 20 33. As a separate and further affirmative defense, Cross-Defendant Fenceworks is 21 informed and believes and thereon alleges that Cross-Complainant Centex, had proceeded with, and 22 contracted out with others for remedial work to correct said alleged defects to the subject property, all 23 of which has unduly and severely prejudiced Cross-Defendant Fenceworks in itsdefense of this 24 action, thereby barring or diminishing Cross-Complainant Centex’s recovery herein under the 25 26 doctrine of spoliation of evidence. 27 11 28 ANSWER OF FENCEWORKS, INC., dba GOLDEN STATE FENCE CO., erroneously sued herein as Fenceworks, Inc.,a California corporation TO THE CROSS-COMPLAINT OF CENTEX HOMES, a Nevada General Partnership THIRTY-SECOND AFFIRMATIVE DEFENSE (Design Defects) 34. That the alleged incident, events, occurrences and damages, and each of them, complained of by Cross-Complainant Centex, herein, were proximately caused by “Design Defects” within the plans and specifications as provided by Cross-Complainant Centex, and/or agents of Cross-Complainant, and that Cross-Complainant are hereby barred. THIRTY-THIRD AFFIRMATIVE DEFENSE (Compliance with Code and Plans) 35. That any and all labor, supervision and materials provided by this Cross-Defendant 10 11 Fenceworks pursuant to itscontract, was performed in strictaccordance with all applicable Codes and 12 standard custom and practice of the building trades industry. However, and without admitting any 13 non-compliances with same Codes and practices, this Cross-Defendant Fenceworks alleges any such 14 non-compliances were proximately caused and justified by the plans, specifications and direct 15 supervision provided by Cross-Complainant Centex, and/or itsagents. 16 THIRTY-FOURTH AFFIRMATIVE DEFENSE 17 (Release and Discharge of Obligations) 18 19 36. As aseparate and distinct defense to the Cross-Complaint, and each purported cause 20 of action therein, Cross-Defendant Fenceworks alleges that any action against it isbarred based on a 21 release and discharge of any obligations owed by Cross-Defendant Fenceworks. 22 THIRTY-FIFTH AFFIRMATIVE DEFENSE 23 (Opportunity to Inspect) 24 3). As a separate and distinct defense to the Cross-Complaint, and each purported cause 25 of action therein, Cross-Defendant Fenceworks isinformed and believes and thereon alleges that, 26 27 prior to entering into the contract regarding their residence, Cross-Complainant Centex, herein (1) 12 28 CO., erroneously sued herein as ANSWER OF FENCEWORKS, INC., dba GOLDEN STATE FENCE Fenceworks, Inc.,a California corporation TO THE CROSS-COMPLAINT OF CENTEX HOMES, a Nevada General Partnership knew or should have known of the type and nature of the materials used in the construction of the building and the appurtenances and other materials referred to in itsCross-Complaint; (2) inspected or had a reasonable opportunity to inspect any and all such items; and (3) inspected or had a reasonable opportunity to inspect the plans and specifications in connection with the design characteristics of the buildings. On that basis of the forgoing, Cross-Complainant Centex, are estopped from asserting allor any part of the claims set forth intheir Cross-Complaint. THIRTY-SIXTH AFFIRMATIVE DEFENSE (Void Contract) 38. | Asaseparate and further affirmative defense, Cross-Defendant Fenceworks is 10 11 informed and believes and based thereon alleges that there isno contractual agreement existing 12 between the parties hereto, either oral or written, or in the alternative, any such agreement isvoid or 13 voidable, upon which any cause of action can be based. 14 THIRTY-SEVENTH AFFIRMATIVE DEFENSE 15 (Material Breach) 16 39. | Asaseparate and further affirmative defense, Cross-Defendant Fenceworks is 17 18 informed and believes and based thereon alleges that as to those causes of action relating to alleged 19 agreements/representations, that Cross-Complainant Centex, without justification or excuse, 20 materially breached the alleged written or oral agreements, if any, and thus, Cross-Defendant 21 Fenceworks isdischarged from performing any obligations under agreements/representations. 22 THIRTY-EIGHTH AFFIRMATIVE DEFENSE 23 (Full Performance and Discharge) 24 40. As a separate and further affirmative defense, Cross-Defendant Fenceworks is 25 26 informed and believes and based thereon alleges that ithas performed and fully discharged any and 27 all legal duties and obligations arising out of the matters alleged in the Cross-Complaint. 13 28 ANSWER OF FENCEWORKS, INC., dba GOLDEN STATE FENCE CO., erroneously sued herein as Fenceworks, Inc.,a California corporation TO THE CROSS-COMPLAINT OF CENTEX HOMES, a Nevada General Partnership THIRTY-NINTH AFFIRMATIVE DEFENSE (Compliance with Custom and Practice) 41. As a separate affirmative defense to each and every cause of action, Cross-Defendant Fenceworks is informed and believes and based thereon alleges that itsconducts relative to the matters alleged inthe subject lawsuit was reasonable and that the design, layout, plans, improvements, construction and other aspects of Cross-Defendant Fenceworks’s conduct relative to the matters alleged in the subject lawsuit met the standards, customs and knowledge atthe time of the original approval of the construction and improvements undertaken by Cross-Defendant Fenceworks. 10 FORTIETH AFFIRMATIVE DEFENSE 11 (Splitting Causes of Action) 12 42. As a separate and further affirmative defense, Cross-Defendant Fenceworks is 13 informed and believes and thereon alleges that Cross-Complainant Centex, was reimbursed for a 14 portion of the claimed damages by a third party; Cross-Defendant Fenceworks is informed and 15 believes and thereon alleges that Cross-Complainant Centex, has subrogated that third party to a 16 17 portion of the damages claimed herein; Cross-Defendant Fenceworks is informed and believes and 18 thereon alleged that by virtue of the aforementioned subrogation, Cross-Complainant Centex, has 19 failed to name indispensable parties, and has violated the rule against splitting causes of action, thus 20 barring Cross-Complainant Centex’s recovery herein. 21 FORTY-FIRST AFFIRMATIVE DEFENSE 22 23 (Duty to Perform Excused) 24 43. As a separate and further affirmative defense, Cross-Defendant Fenceworks is 25 informed and believes and based thereon alleges that ifany contracts, obligations or agreements as 26 alleged in the Cross-