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  • Sena, Chris et al vs. Centex Homes et alCivil-Roseville document preview
  • Sena, Chris et al vs. Centex Homes et alCivil-Roseville document preview
  • Sena, Chris et al vs. Centex Homes et alCivil-Roseville document preview
  • Sena, Chris et al vs. Centex Homes et alCivil-Roseville document preview
  • Sena, Chris et al vs. Centex Homes et alCivil-Roseville document preview
  • Sena, Chris et al vs. Centex Homes et alCivil-Roseville document preview
  • Sena, Chris et al vs. Centex Homes et alCivil-Roseville document preview
  • Sena, Chris et al vs. Centex Homes et alCivil-Roseville document preview
						
                                

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| MARK D. SHIELDS, Bar No. 220428 |KULUVA, ARMIJO & GARCIA 9655 Granite Ridge Drive, Suite 450 San Diego, CA 92123 |Telephone: (858) 492-6500 Se eeR COUNTYSURTOF OFC PLAGER ONS Facsimile: (855) 627-9849 . OCT 16 2017 SES JAKE CHATTERS ‘Attorneys for Cross-Defendant, EXECUTIVE OFFICER & CLERK By: C. Vallan-Brown, Deputy Fenceworks, Inc., dba Golden State Fence Co. BL CVG SUPERIOR COURT FOR THE STATE OF CALIFORNIA FOR THE COUNTY OF PLACER 10 |: 11. - CHRIS SENA, ET AL., CASE NO. S-CV-0037923 T/C JUDGE: HON. MICHAEL JACQUES 12 Plaintiffs, DEPT. 40 13. vs. 14 CENTEX HOMES, A NEVADA GENERAL CROSS-DEFENDANT FENCEWORKS, INC., 16 _ PARTNERSHIP, AND DOES 1-1000, DBA GOLDEN STATE FENCE CO.’S INCLUSIVE ANSWER TO CROSS-COMPLAINT BY 16 a CENTEX HOMES, A NEVADA GENERAL PARTNERSHIP 17 18 CENTEX HOMES, A NEVADA GENERAL || PARTNERSHIP, 19 Cross-Complainant, BY F AX. 20: VS. 21 - ADLAND VENTURE; ET AL., 22. Cross-Defendants. 23 24 COMES NOW Cross-Defendant Fenceworks, Inc., dba Golden State Fence Co. (referred to 25 || herein as “Cross-Defendant”) and answering Cross-Complainant Centex Homes, A Nevada General 26 |}Partnership’s (referred to herein as “Cross-Complainant”) Cross-Complaint on file herein, admits, gt a denies and alleges as follows: 28 1 2 | CROSS-DEFENDANT FENCEWORKS, INC., DBA GOLDEN STATE FENCE CO.’S ANSWER TO CROSS- COMPLAINT BY CENTEX HOMES, A NEVADA GENERAL PARTNERSHIP | © oO 1. Under the provisions of Code of Civil Procedure section 431.30(d), Cross-Defendant 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 sustained or will sustain damages inthe sum or sums | alleged, or inany other sum or sums, at all. 2. Further answering the Cross-Complaint, Cross-Defendant denies that Cross- Complainant 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, or any agent, servant, or employee. 10 FIRST AFFIRMATIVE DEFENSE 11 (Failure to State a Cause of Action) 12 3: As a separate affirmative defense, Cross-Defendant alleges that the Cross-Complaint 13 and each cause of action contained therein failsto statea cause of action against Cross-Defendant. 14 SECOND AFFIRMATIVE DEFENSE 15 (Act of God) 16 4. As a separate and further affirmative defense, Cross-Defendant alleges that any 17 damages and injuries as set forth in the Cross-Complainant’s Cross-Complaint were caused by an act 18 of God. 19 THIRD AFFIRMATIVE DEFENSE 20 (Contribution) 21 5. As a separate and further affirmative defense, Cross-Defendant is informed and 22 believes and thereon alleges that the incidents described inthe Cross-Complaint and any damages 23 allegedly sustained by Cross-Complainant were wholly or partially contributed to and proximately 24 caused by Cross-Complainant’s own acts, omissions and activities, including and resulting in 25 carelessness, recklessness, and/or negligence by the Cross-Complainant, thereby completely or 26 partially barring recovery herein. 27 Mt 28 Mt 2 CROSS-DEFENDANT FENCEWORKS, INC., DBA GOLDEN STATE FENCE CO.’S ANSWER TO CROSS- COMPLAINT BY CENTEX HOMES, A NEVADA GENERAL PARTNERSHIP . © © FOURTH AFFIRMATIVE DEFENSE (Contribution by Others) 6. As a separate and further affirmative defense, Cross-Defendant is informed and believes and thereon alleges that Cross-Complainant’s damages, if any, were proximately caused by, and due in whole or in part to, the acts, omissions and activities, including and resulting instrict liability,breach of warranty, breach of contract, carelessness, recklessness, and/or negligence, of patties, persons and/or entities other than Cross-Defendant. FIFTH AFFIRMATIVE DEFENSE (Statute of Limitations) 10 7. As a separate and further affirmative defense, Cross-Defendant alleges that Cross- 4 Complainant’s Cross-Complaint is barred by the applicable statute of limitations including, but not 12 limited to, California Code of Civil Procedure sections 337, 337.1, 337.15, 338, 338.2, 338.3, 338.4, 13 339, 339.1, 340 and/or 343. 14 SIXTH AFFIRMATIVE DEFENSE 15 (Doctrine of Laches) 16 8. As a separate and further affirmative defense, Cross-Defendant is informed and 17 believes and thereon alleges that Cross-Complainant has unreasonably delayed in filing its Cross- 18 Complaint and in notifying Cross-Defendant of the alleged defects in the subject property and the 19 bases for the cause of the action alleged against it,allof which has duly and severely prejudiced 20 Cross-Defendant in its defense of the action, thereby barring or diminishing Cross-Complainant’s 24 recovery herein under the doctrine of laches. 22 SEVENTH AFFIRMATIVE DEFENSE 23 (Doctrine of Estoppel) 24 9. As a separate and further affirmative defense, Cross-Defendant is informed and 25 believes and thereon alleges that Cross-Complainant has unreasonably delayed in filing its Cross- 26 Complaint and in notifying Cross-Defendant of the alleged defects in the subject property and the 27 bases for the cause of action alleged against it,allof which has unduly and severely prejudiced 28 3 CROSS-DEFENDANT FENCEWORKS, INC., DBA GOLDEN STATE FENCE CO.’S ANSWER TO CROSS- " COMPLAINT BY CENTEX HOMES, A NEVADA GENERAL PARTNERSHIP ; © © Cross-Defendant in its defense of the action, thereby barring or diminishing Cross-Complainant’s recovery herein under the doctrine of estoppel. EIGHTH AFFIRMATIVE DEFENSE (Doctrine of Waiver) 10. As a separate and further affirmative defense, Cross-Defendant is informed and believes and thereon alleges that Cross-Complainant has unreasonably delayed in filing its Cross- Complaint and in notifying Cross-Defendant 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 in its defense of the action, thereby barring or diminishing Cross-Complainant’s 10 recovery herein under the doctrine of waiver. 1 NINTH AFFIRMATIVE DEFENSE 12 (Proportionate Liability) 13 11. Asa separate and further affirmative defense, Cross-Defendant is informed and 14 believes and thereon alleges that itisnot legally responsible in any fashion with respect to damages 15 and injuries claimed by the Cross-Complainant in its Cross-Complaint or by the underlying 16 Complaint; however, without constituting any admission of wrong-doing and that Cross-Defendant is 7 subjected to any liabilityto the Plaintiffs herein, itwill be due, in whole or in part, to the strict 18 liability,breach of contract, breach of warranty, acts, omissions, activities, carelessness, recklessness, 19 and/or negligence of Plaintiffs and/or others; wherefore, any recovery obtained by Plaintiffs herein 20 against Cross-Defendant should be reduced in proportion to the respective negligence and fault and 21 legal responsibility of allother parties, persons and entities, itsagents, servants and employees who 22 contributed to and/or caused any such injury and/or damages, in accordance with the law of 23 comparative liability of Cross-Defendant, ifany, is limited indirect proportion to the percentage of 24 fault actually attributed to Cross-Defendant. 25 iif 26 Mt 27 Hf 28 4 CROSS-DEFENDANT FENCEWORKS, INC., DBA GOLDEN STATE FENCE CO.’S ANSWER TO CROSS- COMPLAINT BY CENTEX HOMES, A NEVADA GENERAL PARTNERSHIP © oO TENTH AFFIRMATIVE DEFENSE (Acts Outside Power, Authority or Control) 12. Asa separate and further affirmative defense, Cross-Defendant alleges that any injury, damage or loss, ifany, sustained by Cross-Complainant arose as a result to the acts and/or omissions of said Cross-Complainant, over whom Cross-Defendant had no power, authority or control. ELEVENTH AFFIRMATIVE DEFENSE (Negligence) 13. Asa separate and further affirmative defense, Cross-Defendant alleges that ifCross- Complainant suffered or sustained any loss or damages, the same was directly and proximately 10. caused and contributed to by the negligence of Cross-Complainant in that Cross-Complainant was 11 negligent inthe manner in which itconstructed, developed, controlled, maintained, altered, repaired 12 or restored the premises performed pursuant to contract involved in this action. 13 TWELFTH AFFIRMATIVE DEFENSE 44 (Failure to Exercise Reasonable Care) 15 14. Asa separate and further affirmative defense, without admitting the allegations of 16 Cross-Complainant’s Cross-Complaint herein, Cross-Defendant alleges that any and.all injuries and 17 damages, ifany, sustained or suffered by Cross-Complainant, were proximately caused or contributed 18 to by the negligence, carelessness, recklessness, and/or affirmative wrongful conduct on the part of 19 Cross-Complainant, and itsagents, servants and employees, and each of them in that they failed to 20 exercise ordinary reasonable care and caution in carrying out their duties pursuant to contract and in 21 -comnection with the construction of the alleged improvements. 22 THIRTEENTH AFFIRMATIVE DEFENSE 23 (Primary Conduct) 24 15. Asa separate and further affirmative defense, Cross-Defendant is informed and 25 believes and upon such information and belief alleges that the conduct of Cross-Complainant 26 constituted active negligence, breach of contract and/or other wrongful conduct which proximately 27 contributed to whatever damages Cross-Complainant seeks, and that purported causes of action for 28 indemnity are barred by said act of primary conduct; that Cross-Defendant herein was not negligent 5 CROSS-DEFENDANT FENCEWORKS, INC., DBA GOLDEN STATE FENCE CO.’S ANSWER TO CROSS- COMPLAINT BY CENTEX HOMES, A NEVADA GENERAL PARTNERSHIP . © ) or in any way at fault, and that the conduct of Cross-Defendant, if any, was passive, indirect and secondary. FOURTEENTH AFFIRMATIVE DEFENSE (Failure to Minimize Damages) 16. Asa separate and further affirmative defense, Cross-Defendant is informed and believes and on that information and belief alleges, that at alltimes mentioned herein Cross- Complainant and each of itssuccessors in interest, and predecessors in interest, failed to use reasonable care to reduce and minimize, as much as reasonably possible, the damages, ifany, and that this failure isthe direct and proximate cause of any and alldamages, if any, sustained by Cross- 10 Complainant, therefore, Cross-Defendant isnot liable to Cross-Complainant for any damages. 11 FIFTEENTH AFFIRMATIVE DEFENSE 12 (Standing) (3 17. Asa separate and further affirmative defense, Cross-Defendant is informed and 14 believes and on that information and belief alleges, that at alltimes mentioned herein, Cross- 16 Complainant had no standing to bring thisaction against Cross-Defendant and lacks any legal 16 co gnizable contractual relationship with Cross-Defendant. 17 SIXTEENTH AFFIRMATIVE DEFENSE 18 (Failure of Consideration, Waiver, Breach of Condition Precedent) 19 18. As a separate and further affirmative defense, Cross-Defendant is informed and 20 believes and on that information and belief alleges, that ifany contracts, obligations or agreements as 21 alleged in the Cross-Complaint have been entered into,any duty or performance of Cross-Defendant 22 is excused by reason of failure of consideration, waiver, breach of condition precedent, breach by 23 Cross-Complainant, impossibility of performance, prevention by Cross-Complainant, frustration of 24 purpose and/or acceptance by Cross-Complainant. 25 SEVENTEENTH AFFIRMATIVE DEFENSE 26 (Contracts of Adhesion) 27 19. | Asaseparate and further affirmative defense, Cross-Defendant is informed and 28 believes and on that information and belief alleges, that ifany contracts, obligations, or agreements as 6 CROSS-DEFENDANT FENCEWORKS, INC., DBA GOLDEN STATE FENCE CO.’S ANSWER TO CROSS- COMPLAINT BY CENTEX HOMES, A NEVADA GENERAL PARTNERSHIP . oO oO alleged in the Cross-Complaint have been entered into,said contracts, obligations or agreements are unenforceable and void as against public policy as adhesion contracts. EIGHTEENTH AFFIRMATIVE DEFENSE (Misrepresentation) 20. As a separate and further affirmative defense, Cross-Defendant is informed and believes and based thereon alleges that Cross-Complainant 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; that Cross-Complainant’s liability arises in whole or in part from said misrepresentation and therefore, any obligation that did, 10 does or may exist for Cross-Defendant to indemnify Cross-Complainant, including but not limited to 11 contract, tort,or equity is voided, eliminated, terminated, or unenforceable. 12 NINETEENTH AFFIRMATIVE DEFENSE 13 (Justifiable Controversy) 14 21. As aseparate and further affirmative defense, Cross-Defendant is informed and 15 believes and thereon alleges that the Cross-Complaint and each purported cause of action contained 16 therein, does not state a justifiable controversy. 7 TWENTIETH AFFIRMATIVE DEFENSE 18 (Privity) 19 22. Asaseparate and further affirmative defense, Cross-Defendant is informed and 20 believes and thereon alleges that the Cross-Complaint and each purported cause of action contained 21 therein must fail as there isno privity between Cross-Complainant and Cross-Defendant. 22 TWENTY-FIRST AFFIRMATIVE DEFENSE 23 (Negligent Spoliation of Evidence) 24 23. As aseparate and further affirmative defense, this answering Cross-Defendant is 25 informed and believes that Cross-Complainant has undertaken repairs atthe subject property. Cross- 26 Complainant failed to notify Cross-Defendant of the repairs, and failed to preserve evidence of 27 original conditions while intending to pursue Cross-Defendant in litigation. In so doing, Cross- 28 Defendant negligently spoiled evidence and should be barred from recovery. 7 CROSS-DEFENDANT FENCEWORKS, INC., DBA GOLDEN STATE FENCE CO.’S ANSWER TO CROSS- COMPLAINT BY CENTEX HOMES, A NEVADA GENERAL PARTNERSHIP © © TWENTY-SECOND AFFIRMATIVE DEFENSE (Lack of Standing Pursuant to CCP §383) 24. Asa separate and further affirmative defense, Cross-Defendant is informed and believes that the claims of Cross-Complainant are precluded because the Cross-Complainant lacks standing to pursue claims related to Cross-Defendant’s work atthe project pursuant to CCP §383. TWENTY-THIRD AFFIRMATIVE DEFENSE (Lack of Physical Damage) 25. Asaseparate and further affirmative defense, Cross-Defendant is informed and believes that the claims of Cross-Complainant are precluded because Cross-Complainant’s claims 10 relating to the work of Cross-Defendant at the project are barred pursuant to the holdings in Aas v. 1 Superior Court, (2000) 24 Cal.4® 627; 12P.3d 1125; San Francisco Unified School Dist. v. W.R. 12 Grace & Co. (1995) 37 Cal.App.4™ 1318, 1326; and Sacramento Regional Transit Dist. v. Grumman 13 Flexible (1984) 158 Cal.App.3d 289, 298-300. 14 TWENTY-FOURTH AFFIRMATIVE DEFENSE 15 (Failure To Give Notice) 16 26. Cross-Complainant in the main action failed to give adequate notice to Cross- 17 Defendant within a reasonable time after said Cross-Complainant knew or should have known of the 18 alleged breach by Cross-Defendant of any of the warranties as set forth in the Cross-Complaint. 19 TWENTY-FIFTH AFFIRMATIVE DEFENSE 20 (Prior Knowledge) 21 27. Ifthere was any defect in any real property as alleged, then Cross-Defendant is 22 informed and believes, and thereon alleges that Cross-Complainant knew or should have known of 23 the alleged defect, and therefore, Cross-Complainant was negligent or otherwise at fault,wholly or in 24 part, and. barred from seeking recovery from Cross-Defendant. 25 TWENTY-SIXTH AFFIRMATIVE DEFENSE 26 (Conditions Precedent) 27 28. Cross-Defendant alleges that any recovery on the Cross-Complaint or any purported 28 cause of action alleged therein is barred on the ground that, as to each and every oral, implied, written 8 CROSS-DEFENDANT FENCEWORKS, INC., DBA GOLDEN STATE.FENCE CO.’S ANSWER TO CROSS- COMPLAINT BY CENTEX HOMES, A NEVADA GENERAL PARTNERSHIP © oO or other contract alleged therein, Cross-Complainant failed to fulfillconditions precedent to the enforcement of any such contract. TWENTY-SEVENTH AFFIRMATIVE DEFENSE (Failure of Consideration) 29. Cross-Defendant alleges that any recovery on the Cross-Complaint or any purported cause of action alleged thech is barred on the ground that, as to each and every oral, implied, written, or other contract dlleged therein, there isa failure of consideration. TWENTY-EIGHTH AFFIRMATIVE DEFENSE (Prior Breach) 10 30. Cross-Defendant alleges that any recovery on the Cross-Complaint or any purported 11 cause of action alleged therein is barred on the ground that, as to each and every oral, implied, 12 written, or other contract alleged therein, Cross-Complainant committed aprior breach thereof, 13 excusing any duty of any further performance by Cross-Defendant. 14 TWENTY-NINTH AFFIRMATIVE DEFENSE 15 (Several — Non-Economic General Damages) 16 31. Asa separate and further affirmative defense, Cross-Defendant is informed and 7 believes and thereon alleges that itsliability,if any, for non-economic general damages is several 18 only and not joint pursuant to California Code of Civil Procedure §1431.2. 19 THIRTIETH AFFIRMATIVE DEFENSE 20 (Contract Defenses) 21 32. Asa separate and further affirmative defense, Cross-Defendant is informed and 22 believes and. thereon alleges that ifany contracts, obligations or agreements as alleged in the Cross- 23 Complaint have been entered into, any duty of performance by Cross-Defendant isexcused by reason 24 of failure of consideration, breach of condition precedent, impossibility of purpose, waiver by Cross- 25 Defendant and/or acceptance by Cross-Complainant. 26 Mit 27 if 28 Ht 9 CROSS-DEFENDANT FENCEWORKS, INC., DBA GOLDEN STATE FENCE CO.’S ANSWER TO CROSS- COMPLAINT BY CENTEX HOMES, A NEVADA GENERAL PARTNERSHIP , © © THIRTY-FIRST AFFIRMATIVE DEFENSE (Spoliation) 33. Asa separate and further affirmative defense, Cross-Defendant is informed and believes and thereon alleges that Cross-Complainant had proceeded with, and contracted out with others for remedial work to correct said alleged defects to the subject property, all of which has unduly and severely prejudiced Cross-Defendant in its defense of this action, thereby barring or diminishing Cross-Complainant’s recovery herein under the doctrine of spoliation of evidence. THIRTY-SECOND AFFIRMATIVE DEFENSE (Design Defects) 10 34. That the alleged incident, events, occurrences and damages, and each of them, 14 complained of by Cross-Complainant herein, were proximately caused by “Design Defects” within 12 the plans and specifications as provided by Cross-Complainant and/or agents of Cross-Complainant, 13 and that Cross-Complainant is hereby barred. 14 THIRTY-THIRD AFFIRMATIVE DEFENSE 15 (Compliance with Code and Plans) 16 35. That any and all labor, supervision and materials provided by this Cross-Defendant 17 pursuant to itscontract, was performed in strict accordance with all applicable Codes and standard 18 custom and practice of the building trades industry. However, and without admitting any non- 19 compliances with same Codes and practices, Cross-Defendant alleges any such non-compliances 20 were proximately caused and justified by the plans, specifications and direct supervision provided by 21 Cross-Complainant and/or its agents. 22 THIRTY-FOURTH AFFIRMATIVE DEFENSE 23 (Release and Discharge of Obligations) 24 36. Asa separate and distinct defense to the Cross-Complaint, and each purported cause 25 of action therein, Cross-Defendant alleges that any action against it isbarred based on a release and 26. discharge of any obligations owed by Cross-Defendant. 27 Mf 28 Mt 10 CROSS-DEFENDANT FENCEWORKS, INC., DBA GOLDEN STATE FENCE CO.’S ANSWER TO CROSS- COMPLAINT BY CENTEX HOMES, A NEVADA GENERAL PARTNERSHIP . © © THIRTY-FIFTH AFFIRMATIVE DEFENSE (Opportunity to Inspect) 37. Asaseparate and distinct defense to the Cross-Complaint, and each purported cause of action therein, Cross-Defendant isinformed and believes and thereon alleges.that, prior to-entering into the contract regarding their residence, Cross-Complainant herein (1) 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 allsuch items; and (3) inspected or had a reasonable opportunity to inspect the plans and specifications inconnection with the design characteristics of the buildings. On that basis 10 of the forgoing, Cross-Complainant is estopped from asserting all or any part of the claims set forth 1 in itsCross-Complaint. 12 THIRTY-SIXTH AFFIRMATIVE DEFENSE 13 (Void Contract) = 14 38. As a separate and further affirmative defense, Cross-Defendant is informed and 15 believes and based thereon alleges that there is no contractual agreement existing between the parties 16 hereto, either oral or written, or in the alternative, any such agreement isvoid or voidable, upon 7 which any cause of action can be based. 18 THIRTY-SEVENTH AFFIRMATIVE DEFENSE 19 (Material Breach) 20 39. As a separate and further affirmative defense, Cross-Defendant is informed and 21 believes and based thereon alleges that as to those causes of action relating to alleged 22 agréements/representations, that Cross-Complainant, without justification or excuse, materially 23 breached the alleged written or oral agreements, ifany, and thus, Cross-Defendant is discharged from 24 performing any obligations under agreements/representations. 25 Mit 26 Mit 27 Ml . 28 Mt 11 CROSS-DEFENDANT FENCEWORKS, INC., DBA GOLDEN STATE FENCE CO.’S ANSWER TO CROSS- COMPLAINT BY CENTEX HOMES, A NEVADA GENERAL PARTNERSHIP . © O THIRTY-EIGHTH AFFIRMATIVE DEFENSE (Full Performance and Discharge) 40. Asa separate and further affirmative defense, Cross-Defendant is informed and believes and based thereon alleges that ithas performed and fully discharged any and alllegal duties and obligations arising out of the matters alleged in the Cross-Complaint. THIRTY-NINTH AFFIRMATIVE DEFENSE (Compliance with Custom and Practice) 41. As a-separate affirmative defense to each and every cause of action, Cross-Defendant is informed and believes and based thereon alleges that itsconducts relative to the matters alleged in 10 the subject lawsuit was reasonable and that the design, layout, plans, improvements, construction and 1 other aspects of Cross-Defendant’s conducts relative to the matters alleged in the subject lawsuit met 12 the standards, customs and knowledge at the time of the original approval of the construction and 13 improvements undertaken by Cross-Defendant. 14 FORTIETH AFFIRMATIVE DEFENSE 15 (Splitting Causes of Action) 16 42. Asa separate and further affirmative defense, Cross-Defendant is informed and 17 believes and thereon alleges that Cross-Complainant was reimbursed for a portion of the claimed 18 damages by a third party; Cross-Defendant isinformed and believes and thereon alleges that Cross- 19 Complainant has subrogated that third party to a portion of the damages claimed herein; Cross- 20 Defendant is informed and believes and thereon alleged that by virtue of the aforementioned 21 subrogation, Cross-Complainant has failed to name indispensable parties, and has violated the rule 22 against splitting causes of action, thus barring Cross-Complainant’s recovery herein. 23 FORTY-FIRST AFFIRMATIVE DEFENSE 24 (Duty to Perform Excused) 25 43. Asa separate and further affirmative defense, Cross-Defendant is informed and 26 believes and based thereon alleges that ifany contracts, obligations or agreements as alleged in the 27, Cross-Complaint have been entered into, any duty of performance by Cross-Defendant is excused by 28 12 CROSS-DEFENDANT FENCEWORKS, INC., DBA GOLDEN STATE FENCE CO.’S ANSWER TO CROSS- COMPLAINT BY CENTEX HOMES, A NEVADA GENERAL PARTNERSHIP © © reason of failure of consideration, breach of condition precedent, impossibility of performance, prevent by Cross-Complainant, frustration of purpose, waiver by Cross-Complainant and/or acceptance by Cross-Complainant. FORTY-SECOND AFFIRMATIVE DEFENSE (Failure of Consideration) 44. As aseparate and further affirmative defense, Cross-Defendant is informed and believes and based thereon alleges that there was no consideration for any alleged promise or agreement of indemnity or warranty, said terms which were included were boilerplate provisions in the preprinted form submitted by Cross-Complainant and ancillary to the agreement between the 10 parties. 11 FORTY-THIRD AFFIRMATIVE DEFENSE 12 (No Contract) 13 45. As aseparate and further affirmative defense, Cross-Defendant is informed and 14 believes and based thereon alleges that the terms and conditions of any contract purportedly entered 15 into between Cross-Complainant and Cross-Defendant is not specifically set forth and- cannot be 16 ascertained, thus barring or diminishing Cross-Complainant’s recovery herein. 7 FORTY-FOURTH AFFIRMATIVE DEFENSE 18 (Equitable Indemnity Barred) 19 46. Asa separate and further affirmative defense, Cross-Defendant is informed and 20 believes and based thereon alleges that Cross-Complainant isbarred from theories of equitable 21 indemnity by entering a contract containing an express indemnity provision. 22 FORTY- FIFTH AFFIRMATIVE DEFENSE 23 (Doctrine of Unclean Hands) 24 47. Asaseparate and further affirmative defense, Cross-Defendant isinformed and 25 believes and thereon alleges that Cross-Complainant isbarred and precluded from recovery in this 26 action by virtue of the doctrine of unclean hands. 27 Mf 28 Mf » 13 CROSS-DEFENDANT FENCEWORKS, INC., DBA GOLDEN STATE FENCE CO.’S ANSWER TO CROSS- COMPLAINT BY CENTEX HOMES, A NEVADA GENERAL PARTNERSHIP 3 © © FORTY-SIXTH AFFIRMATIVE DEFENSE (No Good Faith Belief or Justifiable Controversy) 48. | Asa separate and further affirmative defense, without admitting any of the allegations of the Cross-Complaint, Cross-Defendant alleges that the Cross-Complaint filed against Cross- Defendant was brought without reasonable care and without a good faithbelief that there was a justifiable controversy under the factsand the law which warranted the filingof the Cross-Complaint against Cross-Defendant, and that Cross-Complainant should therefore be responsible for all of Cross- Defendant’s.necessary and reasonable defense costs, including attorneys' fees,as more particularly set forth in California Code of Civil Procedure Sections 128.6, 128.7, 1038 and 1021.6. 10 FORTY-SEVENTH AFFIRMATIVE DEFENSE 11 (No Successor Liability) 12 49. Asa separate and further affirmative defense, without admitting any of the allegations 13 of the Cross-Complaint, Cross-Defendant is informed and believes and thereon alleges that the 14 allegedly defective products were manufactured by a predecessor corporation, and Cross-Defendant, 15 as the successor corporate owner of the manufacturing division, has no liability for allegedly 16 defective products manufactured by the predecessor corporation. 7 WHEREFORE, Cross-Defendant prays for relief as follows: 18 1. That Cross-Complainant take nothing by way of its Cross-Complaint; 19 2s For attorneys’ fees, costs and defense and investigation herein; 20 3. For costs of suit incurred herein; and 21 4. For such other and further relief as this Court may deem just and proper. 22 23 DATED: October 13, 2017 KULUVA, ARMIJO & GARCIA 24 25 By: MARK D. SHIELDS 26 Attorneys for Cross-Defendant Fenceworks, Inc., dba Golden State Fence Co. 27 28 14 CR