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JAMES W. RUSHFORD, ESQ. (SBN 088739) y .
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KIRSTIN A. GLASS, ESQ. (SBN 296776) omnia o
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RUSHFORD & BONOTTO, LLP ee ae ore
1010 Hurley Way, Suite 410
Sacramento, California 95825
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Phone: (916) 565-0590
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Fax: (916) 565-0599
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jrushford@rushfordbonotto.com
kglass@rushfordbonotto.com
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Attorneys for Defendant,
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CAPITAL REMODEL & DESIGN, INC.
SUPERIOR COURT OF CALIFORNIA
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IN AND FOR THE COUNTY OF PLACER
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SHANE DOUGLAS, and MARK ) Case No.: S-CV-0037495
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DOUGLAS, )
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Plaintiffs, ) ANSWER TO PLAINTIFFS’
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WHO
Vs. ) COMPLAINT
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OLSON CONSTRUCTION, INC., )
MARK III CONSTRUCTION, INC. )
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inclusive, COMPLAINT FILED: 02/29/16
and DOES 1 through 50,
) FAC FILED: 03/28/17
)
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TRIAL DATE: 07/30/18
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Comes now defendant, CAPITAL REMODEL & DESIGN, INC., and
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in
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answer to Plaintiffs’ Complaint, on file herein, admits, denies and alleges as
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follows:
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GENERAL DENIAL
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Ls Pursuant to the provisions of section 431.30 of the California
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Code of Civil Procedure, this answering defendant denies each, every and
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all of the allegations of the Complaint, and the whole thereof, and denies
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that the Complainants have sustained damages in the sum or sums
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alleged, or in any other sum, or at all.
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2. Further answering the plaintiffs’ Complaint on file herein, and
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the whole thereof, this answering defendant denies that the plaintiffs have
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ANSWER TO PLAINTIFFS’ COMPLAINT
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sustained any injury, damage or loss, if any, by reason of any act or
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omission of this answering defendant or his/her agents or employees.
FIRST AFFIRMATIVE DEFENSE
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No Cause of Action
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This answering defendant alleges that the Complaint fails to state
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facts sufficient to constitute a cause of action, or any cause of action,
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against this answering defendant.
SECOND AFFIRMATIVE DEFENSE
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No Liability For Acts of Others
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That other defendants in this lawsuit, as well as other persons and
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entities not parties to this lawsuit, were themselves responsible for the
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plaintiffs’ damages, if any there were. This defendant requests that
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liability, if any, be assessed in proportion to the liability of other
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defendants, persons and entities who are not parties to this action, and
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that this defendant be required to pay only for its proportionate share of
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fault, if any there be.
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THIRD AFFIRMATIVE DEFENSE
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Act of God
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This answering defendant alleges on information and belief that any
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and all damages sustained by plaintiffs, if any, were the result of
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unforeseen and controllable “Acts of God.”
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FOURTH AFFIRMATIVE DEFENSE
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Comparative Negligence of Plaintiffs
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This answering defendant alleges that at the time and place referred
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to in said Complaint and immediately prior thereto, plaintiffs were careless
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and negligent in that plaintiffs failed to exercise ordinary care, and such
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carelessness and negligence on the part of plaintiffs caused and
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contributed to the damages complained of by plaintiffs, if any there were;
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ANSWER TO PLAINTIFFS’ COMPLAINT
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and that by reason of the doctrine of comparative negligence, plaintiffs are
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in whole and/or in part, of such portion of said
damages, if any, as legally resulted from the aforementioned conduct.
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FIFTH AFFIRMATIVE DEFENSE
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Contributory Negligence of Third Parties
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This answering defendant
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alleges that at the time and place referred
to in said Complaint and immediately prior thereto, other defendants in this
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lawsuit, as well as other persons and entities not
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parties to this lawsuit,
were themselves careless and negligent in that such third parties failed to
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exercise ordinary care, and such
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carelessness and negligence on the part
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of any third party caused and contributed to the damages complained of, if
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any there were; and that by reason of the doctrine of comparative
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negligence, plaintiffs are barred from recovery, in whole and/or in part, of
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such portion of said damages, if any, as legally resulted from the
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aforementioned conduct.
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SIXTH AFFIRMATIVE DEFENSE
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Apportionment of Fault
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As to each and every cause of action set forth in the Complaint, this
answering defendant alleges that to the extent, and only in the event, that
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it is found liable to plaintiffs in any sum whatsoever, which liability is
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expressly denied and disputed, such liability in whole or in part will be the
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direct or imputed fault and responsibility of other parties to this litigation,
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be they the plaintiffs, defendants or cross-defendants, and/or other third
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parties. As a result, this defendant requests that in such an event, an
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apportionment of fault and responsibility be made among all parties in
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accordance with those equitable apportionment principles set forth in Li v.
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Yellow Cab Company 13 Cal.3d 804 and American Motorcycle Association
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v. Superior Court 20 Cal.3d 578. This defendant further requests that a
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ANSWER TO PLAINTIFFS’ COMPLAINT
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judgment and declaration of total or partial indemnification and distribution
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all other parties in accordance with such apportionment of
fault and responsibility.
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SEVENTH AFFIRMATIVE DEFENSE
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Civil Code § 945.5(d)-Alteration/Misuse of Product
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This answering defendant alleges that any injury, damage or loss, if
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any, sustained by plaintiffs herein was due to and legally caused by the
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misuse, abuse and misapplication of the product described in the
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Complaint. Additionally, this defendant is excused, in whole or
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in part,
from any obligation, damage, loss or liability alleged as same was caused
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by the plaintiffs or his or her or their agent’s, or an independent third
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party’s alterations, ordinary wear and tear, or neglect, or by the structure’s
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use for something other than its intended purpose.
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This answering defendant alleges that in the event it is determined
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that the product in question was defective, then, and in such event,
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defendant alleges that each defect was discovered by plaintiffs, or in the
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exercise of reasonable care should have been discovered by plaintiffs, who
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nevertheless continued to unreasonably, improperly and negligently use
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said product, all of which operates as a bar to recovery.
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EIGHTH AFFIRMATIVE DEFENSE
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Product Altered, Modified, Changed
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This answering defendant alleges that at all times mentioned in
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plaintiffs’ Complaint, the product which is the subject of these plaintiffs’
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Complaint, was altered, modified, or otherwise changed from the condition
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which existed when it left the possession of the defendant herein, all of
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which bars plaintiffs from recovering in this action.
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ANSWER TO PLAINTIFFS’ COMPLAINT
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NINTH AFFIRMATIVE DEFENSE
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DO Unreasonable and Unforeseeable Use of Product
This answering defendant alleges that if plaintiffs sustained injuries
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attributable to the use of any product manufactured
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by this defendant,
which allegations are expressly denied, the injuries were solely caused by
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and attributable to the unreasonable, unforeseeable
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and inappropriate
purpose and improper use made by plaintiffs of said product.
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TENTH AFFIRMATIVE DEFENSE
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Failure to Give Notice
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This answering defendant alleges that plaintiffs failed to give this
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defendant notice of the breach of implied warranty alleged in the Complaint
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within a reasonable time after the occurrence of the alleged injury.
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ELEVENTH AFFIRMATIVE DEFENSE
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Estoppel
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This answering defendant alleges that plaintiffs directed, ordered,
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approved, and/or ratified defendant's conduct, and plaintiffs are therefore
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estopped from asserting any claim based thereon.
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TWELFTH AFFIRMATIVE DEFENSE
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Unclean Hands
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This answering defendant alleges that plaintiffs’ Complaint, and each
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cause of action thereof, is barred by virtue of plaintiffs’ conduct in causing
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the damages alleged by plaintiffs under the doctrine of unclean hands.
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THIRTEENTH AFFIRMATIVE DEFENSE
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Satisfaction
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This answering defendant alleges that prior to the commencement of
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this action, this answering defendant duly performed, satisfied, and
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discharged all duties and obligations it may have owed to plaintiffs arising
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out of any and all agreements, representations, or contracts made by them
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ANSWER TO PLAINTIFFS’ COMPLAINT
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Or on behalf of this answering defendant, and this action is therefore
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by the provisions of California Civil Code Section 1473.
FOURTEENTH AFFIRMATIVE DEFENSE
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Uniform Commercial Code
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This answering defendant alleges that this Complaint, and each cause
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of action thereof, is barred by
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the following provisions of the Uniform
Commercial Code: Section 1201(25)(c), 2601(1),
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and (3), 2510(1),
2605(1)(a) and (b), 2606(1)(a) and (b), 2607, 2715(2)(a) and 2719(3).
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FIFTEENTH AFFIRMATIVE DEFENSE
Laches
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This answering defendant alleges that plaintiffs have unreasonably
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delayed in the bringing of this action without good cause therefore. Said
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delay has directly resulted in prejudice to this defendant, and this action is,
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therefore, barred by the Doctrine of Laches.
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SIXTEENTH AFFIRMATIVE DEFENSE
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Doctrine of Waiver
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This answering defendant alleges that plaintiffs’ claims are barred in
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whole or in part by the doctrine of waiver.
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SEVENTEENTH AFFIRMATIVE DEFENSE
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Attorneys' Fees
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This answering defendant alleges that in the event that this
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answering defendant is determined to be the prevailing party relative to
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plaintiffs’ claims, defendant shall be entitled to recover reasonable attorney
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fees and costs pursuant to Code of Civil Procedure section 1021.6 and Civil
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Code section 1717.
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ANSWER TO PLAINTIFFS’ COMPLAINT
EIGHTEENTH AFFIRMATIVE DEFENSE
—
DN Spoliation of Evidence
This answering defendant alleges that the Complaint and each cause
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of action contained therein are absolutely barred to the extent, and
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in the
event, that plaintiffs are found to be liable to any party, including this
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answering defendant, or any other party, excluding this answering
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defendant, is found liable to plaintiffs by reason of their willful misconduct
and concealment, intentional and/or
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negligent spoliation of crucial physical
evidence, interference with this defendant's work and work product,
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and
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that such willful misconduct, concealment, spoliation, and interference will
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absolutely bar plaintiffs and all other parties from any right to recover
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anything from this answering defendant.
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NINETEENTH AFFIRMATIVE DEFENSE
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Workmanlike Performance
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This answering defendant alleges that this answering defendant fully
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performed all duties and responsibilities pursuant to any agreement and
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instruction and diligently performed its work in a workmanlike manner and
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in accordance with project plans, specifications, instructions prepared by
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plaintiffs and other parties to this action and third parties.
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TWENTIETH AFFIRMATIVE DEFENSE
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No Control
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This answering defendant alleges that this answering defendant is
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not, nor have they ever been, an owner of the subject premises, nor an
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occupant of the subject premises, nor has this answering defendant ever
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had control or a right to control or possess the subject premises.
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ANSWER TO PLAINTIFFS’ COMPLAINT
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TWENTY-FIRST AFFIRMATIVE DEFENSE
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Satisfaction & Discharge of Duties
This answering defendant alleges that this answering defendant duly
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performed its work in a workmanlike manner at the subject construction
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site, satisfied and discharged all duties and obligations it may have owed to
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plaintiffs and all other parties arising out of any and all agreements made
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by them or on behalf of this answering defendant or, alternatively, was
prevented from duly performing, satisfying and discharging all duties and
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obligations by virtue of the breach of any such
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agreements or the
interference with defendant's performance pursuant to such agreements
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plaintiffs, other parties to this litigation, and third persons.
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TWENTY-SECOND AFFIRMATIVE DEFENSE
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Acceptance of Performance by Plaintiffs
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This answering defendant alleges that this answering defendant fully
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performed all duties, obligations, covenants, promises in accordance with
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any and all agreements and instructions; defendant's performance,
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materials supplied, and work product were inspected, accepted, approved,
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specified, supervised, and ratified by plaintiffs and other parties to this
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action. Insofar as the work performed by defendant was done on behalf of,
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at the request of, and with the assent and approval of plaintiffs and other
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parties to this action, all claims and cross-claims are absolutely barred by
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Civil Code section 1473, 1474, 1475, 1476, 1477, and each of them.
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TWENTY-THIRD AFFIRMATIVE DEFENSE
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Statute of Limitations
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This answering defendant alleges that this Complaint, and each cause
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of action thereof, is barred by the statute of limitations set forth in the
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California Code of Civil Procedure, commencing with section 335 and
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continuing through section 349.4, more particularly, but not limited to, the
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ANSWER TO PLAINTIFFS’ COMPLAINT
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following: section 312, 335.1, 337, 338, section 339, section 340, and
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this defendant is excused, in whole or in part,
from any obligation, damage, loss or liability alleged to the extent that the
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time period for filing actions bars the claimed violation under Civil Code
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section 945.5(e).
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TWENTY-FOURTH AFFIRMATIVE DEFENSE
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Breach of Implied Covenant of Good Faith & Fair Dealing
This answering defendant alleges that the plaintiffs violated
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the
implied covenant of good faith and fair dealing.
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TWENTY-FIFTH AFFIRMATIVE DEFENSE
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Indemnity
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Should plaintiffs recover damages from defendant, this defendant is
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entitled to indemnification, either in whole or in part, from all persons or
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entities whose negligence and/or fault proximately contributed to plaintiffs’
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damages, if any there are.
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TWENTY-SIXTH AFFIRMATIVE DEFENSE
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Civil Code § 2784.5-Invalid Indemnity
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The Complaint, and each alleged cause of action thereof, is barred by
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the provisions of California Civil Code § 2784.5.
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TWENTY-SEVENTH AFFIRMATIVE DEFENSE
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Set-Off
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This answering defendant alleges that the plaintiffs’ and other
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defendants and cross-defendant’s damages, if any exist, are subject to a
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complete or partial set-off.
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TWENTY-EIGTH AFFIRMATIVE DEFENSE
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Trivial Defect
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This answering defendant alleges that the existing condition(s)
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alleged by plaintiffs, defendants and cross-defendants were only trivial
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ANSWER TO PLAINTIFFS’ COMPLAINT
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defects, if at all.
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—S TWENTY-NINTH AFFIRMATIVE DEFENSE
Minor Defect
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This answering defendant alleges that the defect alleged
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by plaintiffs
to have caused their injuries created a minor and not substantial risk of
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injury, and therefore is not actionable.
THRTIETH AFFIRMATIVE DEFENSE
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Privity
This answering defendant alleges that this Complaint,
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and each cause
of action thereof, fails to state a cause of action against this answering
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defendant as there is no privity between plaintiffs and this answering
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defendant.
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THIRTY-FIRST AFFIRMATIVE DEFENSE
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Violation of Civil Code §§ 896-945.5
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This answering defendant alleges that plaintiffs have violated
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provisions set forth in Civil Code sections 896 through 945.5 requiring non-
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adversarial procedures to resolve disputes, as alleged in_ plaintiffs’
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Complaint, including providing defendants with a detailed notice of claim, a
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notice of defects (if any), a reasonable opportunity to cure any alleged
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defects, mediation, and/or opportunity to otherwise reach a settlement
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with plaintiffs, as well as other particulars of these sections of the Civil
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Code, be exhausted prior to the filing of their Complaint.
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THIRTY-SECOND AFFIRMATIVE DEFENSE
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Civil Code § 945.5(a) —- Act of God
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This answering defendant alleges that it is excused, in whole or in
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part, from any obligation, damage, loss or liability alleged as same was
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caused by an unforeseen act of nature including, but not limited to, a
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weather condition, earthquake, or manmade event such as war, terrorism
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ANSWER TO PLAINTIFFS’ COMPLAINT
or vandalism.
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THIRTY-THIRD AFFIRMATIVE DEFENSE
Violation of Civil Code § 945.5(b) — Homeowner Unreasonableness
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This answering defendant alleges that is excused,
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JAMES W. RUSHFORD, ESQ. (SBN 088739) y . = KIRSTIN A. GLASS, ESQ. (SBN 296776) omnia o +150 PB RUSHFORD & BONOTTO, LLP ee ae ore 1010 Hurley Way, Suite 410 Sacramento, California 95825 W Phone: (916) 565-0590 $IU4S Fax: (916) 565-0599 KR jrushford@rushfordbonotto.com kglass@rushfordbonotto.com Oo Attorneys for Defendant, NOD CAPITAL REMODEL & DESIGN, INC. SUPERIOR COURT OF CALIFORNIA Aa O©O IN AND FOR THE COUNTY OF PLACER Go od SHANE DOUGLAS, and MARK ) Case No.: S-CV-0037495 cd /~ DOUGLAS, ) ) LK NDMP Plaintiffs, ) ANSWER TO PLAINTIFFS’ ) «> WHO Vs. ) COMPLAINT ) KR = OLSON CONSTRUCTION, INC., ) MARK III CONSTRUCTION, INC. ) ON od inclusive, COMPLAINT FILED: 02/29/16 and DOES 1 through 50, ) FAC FILED: 03/28/17 ) ODO iS TRIAL DATE: 07/30/18 Defendants. ) al ) = N Comes now defendant, CAPITAL REMODEL & DESIGN, INC., and WO in =< answer to Plaintiffs’ Complaint, on file herein, admits, denies and alleges as Oo = follows: DBD NS GENERAL DENIAL |= NM Ls Pursuant to the provisions of section 431.30 of the California DYOS NN Code of Civil Procedure, this answering defendant denies each, every and WOW MW all of the allegations of the Complaint, and the whole thereof, and denies FF NO that the Complainants have sustained damages in the sum or sums oO NW alleged, or in any other sum, or at all. ODO NW 2. Further answering the plaintiffs’ Complaint on file herein, and NN NM the whole thereof, this answering defendant denies that the plaintiffs have Oo O 1 ANSWER TO PLAINTIFFS’ COMPLAINT -~ ~ sustained any injury, damage or loss, if any, by reason of any act or = DYNO omission of this answering defendant or his/her agents or employees. FIRST AFFIRMATIVE DEFENSE WOW No Cause of Action FR This answering defendant alleges that the Complaint fails to state oO facts sufficient to constitute a cause of action, or any cause of action, NO against this answering defendant. SECOND AFFIRMATIVE DEFENSE oO No Liability For Acts of Others O That other defendants in this lawsuit, as well as other persons and oO od gd) entities not parties to this lawsuit, were themselves responsible for the =| plaintiffs’ damages, if any there were. This defendant requests that =i DO liability, if any, be assessed in proportion to the liability of other WO ed defendants, persons and entities who are not parties to this action, and KR = that this defendant be required to pay only for its proportionate share of OT & fault, if any there be. ODO S| THIRD AFFIRMATIVE DEFENSE — WON Act of God =| This answering defendant alleges on information and belief that any oO =| and all damages sustained by plaintiffs, if any, were the result of FDO NO unforeseen and controllable “Acts of God.” |= NM FOURTH AFFIRMATIVE DEFENSE NY ND Comparative Negligence of Plaintiffs WwW NW This answering defendant alleges that at the time and place referred FR ND to in said Complaint and immediately prior thereto, plaintiffs were careless PD Oo and negligent in that plaintiffs failed to exercise ordinary care, and such DW carelessness and negligence on the part of plaintiffs caused and NO oN contributed to the damages complained of by plaintiffs, if any there were; mM 2 ANSWER TO PLAINTIFFS’ COMPLAINT ~~ am and that by reason of the doctrine of comparative negligence, plaintiffs are = barred from recovery, PDP in whole and/or in part, of such portion of said damages, if any, as legally resulted from the aforementioned conduct. WOW FIFTH AFFIRMATIVE DEFENSE FR Contributory Negligence of Third Parties oO This answering defendant ODO alleges that at the time and place referred to in said Complaint and immediately prior thereto, other defendants in this N lawsuit, as well as other persons and entities not Oa parties to this lawsuit, were themselves careless and negligent in that such third parties failed to O exercise ordinary care, and such oOo carelessness and negligence on the part lll of any third party caused and contributed to the damages complained of, if =| any there were; and that by reason of the doctrine of comparative DY lll negligence, plaintiffs are barred from recovery, in whole and/or in part, of WO such portion of said damages, if any, as legally resulted from the KR lw aforementioned conduct. NT kw SIXTH AFFIRMATIVE DEFENSE DO Apportionment of Fault wk WON As to each and every cause of action set forth in the Complaint, this answering defendant alleges that to the extent, and only in the event, that wh O it is found liable to plaintiffs in any sum whatsoever, which liability is DBD BRO expressly denied and disputed, such liability in whole or in part will be the BO + direct or imputed fault and responsibility of other parties to this litigation, BRD NY be they the plaintiffs, defendants or cross-defendants, and/or other third WwW BS parties. As a result, this defendant requests that in such an event, an FF DR apportionment of fault and responsibility be made among all parties in oO DD accordance with those equitable apportionment principles set forth in Li v. ODO A Yellow Cab Company 13 Cal.3d 804 and American Motorcycle Association NN Ww v. Superior Court 20 Cal.3d 578. This defendant further requests that a Oo 3 ANSWER TO PLAINTIFFS’ COMPLAINT -~ -~ judgment and declaration of total or partial indemnification and distribution = issue against PDP all other parties in accordance with such apportionment of fault and responsibility. WO SEVENTH AFFIRMATIVE DEFENSE FF Civil Code § 945.5(d)-Alteration/Misuse of Product OO This answering defendant alleges that any injury, damage or loss, if OD any, sustained by plaintiffs herein was due to and legally caused by the NN misuse, abuse and misapplication of the product described in the Oo Complaint. Additionally, this defendant is excused, in whole or OO in part, from any obligation, damage, loss or liability alleged as same was caused mo by the plaintiffs or his or her or their agent’s, or an independent third lll = party’s alterations, ordinary wear and tear, or neglect, or by the structure’s NYO use for something other than its intended purpose. W This answering defendant alleges that in the event it is determined KR that the product in question was defective, then, and in such event, wk OT defendant alleges that each defect was discovered by plaintiffs, or in the gpk DO exercise of reasonable care should have been discovered by plaintiffs, who oh NN nevertheless continued to unreasonably, improperly and negligently use WO =e said product, all of which operates as a bar to recovery. whe O EIGHTH AFFIRMATIVE DEFENSE FDO BRD Product Altered, Modified, Changed |= BR This answering defendant alleges that at all times mentioned in NYO DD plaintiffs’ Complaint, the product which is the subject of these plaintiffs’ WwW BD Complaint, was altered, modified, or otherwise changed from the condition FF 8 which existed when it left the possession of the defendant herein, all of oO we which bars plaintiffs from recovering in this action. NO /// NHN /// Oo SS 4 ANSWER TO PLAINTIFFS’ COMPLAINT oe -~ NINTH AFFIRMATIVE DEFENSE = DO Unreasonable and Unforeseeable Use of Product This answering defendant alleges that if plaintiffs sustained injuries WO attributable to the use of any product manufactured FR by this defendant, which allegations are expressly denied, the injuries were solely caused by Oo and attributable to the unreasonable, unforeseeable ODO and inappropriate purpose and improper use made by plaintiffs of said product. N TENTH AFFIRMATIVE DEFENSE Oa Failure to Give Notice Oo This answering defendant alleges that plaintiffs failed to give this Go CC defendant notice of the breach of implied warranty alleged in the Complaint =| lUCUlUK within a reasonable time after the occurrence of the alleged injury. NYP llc ELEVENTH AFFIRMATIVE DEFENSE WO ek Estoppel ek KR This answering defendant alleges that plaintiffs directed, ordered, TN ot approved, and/or ratified defendant's conduct, and plaintiffs are therefore ed DO estopped from asserting any claim based thereon. Se NN TWELFTH AFFIRMATIVE DEFENSE WO = Unclean Hands —& O This answering defendant alleges that plaintiffs’ Complaint, and each KY FD cause of action thereof, is barred by virtue of plaintiffs’ conduct in causing |- A the damages alleged by plaintiffs under the doctrine of unclean hands. DYOS NN THIRTEENTH AFFIRMATIVE DEFENSE WO N Satisfaction FPF DBD This answering defendant alleges that prior to the commencement of oO NW this action, this answering defendant duly performed, satisfied, and OD NM discharged all duties and obligations it may have owed to plaintiffs arising NN DO out of any and all agreements, representations, or contracts made by them Oo 5 ANSWER TO PLAINTIFFS’ COMPLAINT ~ ~ Or on behalf of this answering defendant, and this action is therefore =| barred NYO by the provisions of California Civil Code Section 1473. FOURTEENTH AFFIRMATIVE DEFENSE WO Uniform Commercial Code FPF This answering defendant alleges that this Complaint, and each cause oO of action thereof, is barred by ODO the following provisions of the Uniform Commercial Code: Section 1201(25)(c), 2601(1), NN and (3), 2510(1), 2605(1)(a) and (b), 2606(1)(a) and (b), 2607, 2715(2)(a) and 2719(3). Oa Oo FIFTEENTH AFFIRMATIVE DEFENSE Laches Go Ck This answering defendant alleges that plaintiffs have unreasonably = ll delayed in the bringing of this action without good cause therefore. Said PB lel delay has directly resulted in prejudice to this defendant, and this action is, WO therefore, barred by the Doctrine of Laches. HR SIXTEENTH AFFIRMATIVE DEFENSE NT ok Doctrine of Waiver DO od This answering defendant alleges that plaintiffs’ claims are barred in od N whole or in part by the doctrine of waiver. WO = SEVENTEENTH AFFIRMATIVE DEFENSE O — Attorneys' Fees DBD AF This answering defendant alleges that in the event that this |= PO answering defendant is determined to be the prevailing party relative to NY WN plaintiffs’ claims, defendant shall be entitled to recover reasonable attorney WwW PP fees and costs pursuant to Code of Civil Procedure section 1021.6 and Civil F PR Code section 1717. oO NM /// WN NO /// NH /// Oo NS 6 ANSWER TO PLAINTIFFS’ COMPLAINT EIGHTEENTH AFFIRMATIVE DEFENSE — DN Spoliation of Evidence This answering defendant alleges that the Complaint and each cause W of action contained therein are absolutely barred to the extent, and KR in the event, that plaintiffs are found to be liable to any party, including this oO answering defendant, or any other party, excluding this answering NO defendant, is found liable to plaintiffs by reason of their willful misconduct and concealment, intentional and/or Oa negligent spoliation of crucial physical evidence, interference with this defendant's work and work product, Oo and oOo that such willful misconduct, concealment, spoliation, and interference will cd absolutely bar plaintiffs and all other parties from any right to recover ed =| anything from this answering defendant. SB ND NINETEENTH AFFIRMATIVE DEFENSE WO —& Workmanlike Performance SBS KR This answering defendant alleges that this answering defendant fully OT = performed all duties and responsibilities pursuant to any agreement and DD S&S instruction and diligently performed its work in a workmanlike manner and BB N in accordance with project plans, specifications, instructions prepared by WO |S plaintiffs and other parties to this action and third parties. BS O TWENTIETH AFFIRMATIVE DEFENSE DBD NB No Control FF WN This answering defendant alleges that this answering defendant is NBS NO not, nor have they ever been, an owner of the subject premises, nor an WO NW occupant of the subject premises, nor has this answering defendant ever FPF Rh had control or a right to control or possess the subject premises. oO © /// ODO WW /// WW N /// Oo mw 7 ANSWER TO PLAINTIFFS’ COMPLAINT oe am TWENTY-FIRST AFFIRMATIVE DEFENSE =| YB Satisfaction & Discharge of Duties This answering defendant alleges that this answering defendant duly HW} performed its work in a workmanlike manner at the subject construction FR site, satisfied and discharged all duties and obligations it may have owed to oO plaintiffs and all other parties arising out of any and all agreements made NO by them or on behalf of this answering defendant or, alternatively, was prevented from duly performing, satisfying and discharging all duties and oO obligations by virtue of the breach of any such Oo agreements or the interference with defendant's performance pursuant to such agreements Go by Ul plaintiffs, other parties to this litigation, and third persons. = TWENTY-SECOND AFFIRMATIVE DEFENSE PDP Acceptance of Performance by Plaintiffs W lw This answering defendant alleges that this answering defendant fully KR ll performed all duties, obligations, covenants, promises in accordance with ON Ke any and all agreements and instructions; defendant's performance, ODO materials supplied, and work product were inspected, accepted, approved, ew NN specified, supervised, and ratified by plaintiffs and other parties to this WO ee action. Insofar as the work performed by defendant was done on behalf of, wee O at the request of, and with the assent and approval of plaintiffs and other FD NO parties to this action, all claims and cross-claims are absolutely barred by RD |= Civil Code section 1473, 1474, 1475, 1476, 1477, and each of them. NYO NN TWENTY-THIRD AFFIRMATIVE DEFENSE WwW DBD Statute of Limitations FF NS This answering defendant alleges that this Complaint, and each cause oa WS of action thereof, is barred by the statute of limitations set forth in the ODO California Code of Civil Procedure, commencing with section 335 and NN NO continuing through section 349.4, more particularly, but not limited to, the CoO Ww 8 ANSWER TO PLAINTIFFS’ COMPLAINT o ~ following: section 312, 335.1, 337, 338, section 339, section 340, and = section 343. Additionally, NMS this defendant is excused, in whole or in part, from any obligation, damage, loss or liability alleged to the extent that the WO time period for filing actions bars the claimed violation under Civil Code FR section 945.5(e). oO TWENTY-FOURTH AFFIRMATIVE DEFENSE NO Breach of Implied Covenant of Good Faith & Fair Dealing This answering defendant alleges that the plaintiffs violated OA the implied covenant of good faith and fair dealing. O© TWENTY-FIFTH AFFIRMATIVE DEFENSE Go Indemnity cE = Should plaintiffs recover damages from defendant, this defendant is ek NDMP entitled to indemnification, either in whole or in part, from all persons or gh WO entities whose negligence and/or fault proximately contributed to plaintiffs’ KR =k damages, if any there are. «@e TN TWENTY-SIXTH AFFIRMATIVE DEFENSE see DO Civil Code § 2784.5-Invalid Indemnity eh N The Complaint, and each alleged cause of action thereof, is barred by WO = the provisions of California Civil Code § 2784.5. wee O TWENTY-SEVENTH AFFIRMATIVE DEFENSE FD BD Set-Off + PP This answering defendant alleges that the plaintiffs’ and other NO NY defendants and cross-defendant’s damages, if any exist, are subject to a WO DWM complete or partial set-off. FF DN TWENTY-EIGTH AFFIRMATIVE DEFENSE oO NH Trivial Defect OO NY This answering defendant alleges that the existing condition(s) NN Dw alleged by plaintiffs, defendants and cross-defendants were only trivial Oo wo 9 ANSWER TO PLAINTIFFS’ COMPLAINT ao a defects, if at all. S —S TWENTY-NINTH AFFIRMATIVE DEFENSE Minor Defect &!D This answering defendant alleges that the defect alleged KR by plaintiffs to have caused their injuries created a minor and not substantial risk of OO injury, and therefore is not actionable. THRTIETH AFFIRMATIVE DEFENSE ON Privity This answering defendant alleges that this Complaint, Oo and each cause of action thereof, fails to state a cause of action against this answering Go hi defendant as there is no privity between plaintiffs and this answering ck =| defendant. ch DVO THIRTY-FIRST AFFIRMATIVE DEFENSE se WW Violation of Civil Code §§ 896-945.5 KR ck This answering defendant alleges that plaintiffs have violated gk OT provisions set forth in Civil Code sections 896 through 945.5 requiring non- OD =R adversarial procedures to resolve disputes, as alleged in_ plaintiffs’ wk N Complaint, including providing defendants with a detailed notice of claim, a WO @h notice of defects (if any), a reasonable opportunity to cure any alleged O = defects, mediation, and/or opportunity to otherwise reach a settlement FD DS with plaintiffs, as well as other particulars of these sections of the Civil |- DW Code, be exhausted prior to the filing of their Complaint. NYO © THIRTY-SECOND AFFIRMATIVE DEFENSE SO W Civil Code § 945.5(a) —- Act of God FR Dw This answering defendant alleges that it is excused, in whole or in oa Ww part, from any obligation, damage, loss or liability alleged as same was ODO WN caused by an unforeseen act of nature including, but not limited to, a BY N weather condition, earthquake, or manmade event such as war, terrorism Oo NO 10 ANSWER TO PLAINTIFFS’ COMPLAINT or vandalism. =| DY THIRTY-THIRD AFFIRMATIVE DEFENSE Violation of Civil Code § 945.5(b) — Homeowner Unreasonableness WOW This answering defendant alleges that is excused,