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1 THARPE & HOWELL, LLP
15250 Ventura Boulevard, Ninth Floor
2 Sherman Oaks, California 91403
(818) 205-9955; (818) 205-9944 fax
3
STEPHANIE FORMAN, SBN 195757
4 CHARLES D. MAY, SBN 129663
J. CHRISTOPHER BENNINGTON, SBN 105432 1/22/2021
5
Attorneys for Cross-Defendant,
6 LOWE’S HOME CENTERS, LLC
7
8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 COUNTY OF SAN MATEO
10
11 ROBERTA JURASH and A. SHABI KHAN, Case No.: 18CIV02283
12 Plaintiffs, Complaint Filed: May 4, 2018
vs.
13 Civil Unlimited Jurisdiction
14 CARYN MCDOWELL, JAMES [Assigned to Judge V. Raymond Swope, Dept. 23]
MCDOWELL, GINA HAGGARTY GROUP
15 individually and dba PACIFIC UNION ANSWER OF LOWE’S HOME CENTERS,
INTERNATIONAL, STEPHEN RICHARD LLC TO THE CROSS COMPLAINT OF
16 JOHNSON, individually and dba CARYN AND JAMES McDOWELL
JOHNSON CONSTRUCTION, HOCKER
17
CONSTRUCTION, INC. and DOES 1-50,
18 inclusive,
19 Defendants.
_____________________________________
20
CARYN MCDOWELL, JAMES
21 MCDOWELL,
22 Cross-Complainants,
23 v.
24 GINA HAGGARTY individually and dba
GINA HAGGARTY GROUP, HINA
25 MAHESHWARI, PACIFIC UNION
INTERNATIONAL, STEPHEN
26 RICHARD JOHNSON individually dba
27 JOHNSON CONSTRUCTION, HOCKER
CONSTRUCTION, INC, LOWE'S HOME
28 CENTERS, LLC, ARIANA
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ANSWER OF LOWE’S TO CROSS COMPLAINT OF CARYN AND JAMES McDOWELL
1 CONSTRUCTION AND FLOORING, INC.,
AND ROES 3-50, Inclusive,
2
Cross-Defendants.
3
4
5 Cross-Defendant, LOWE’S HOME CENTERS, LLC (sometimes “Lowe’s”) hereby answers
6 the cross-complaint of CARYN and JAMES MCDOWELL (sometimes “the McDowells”) as
7 follows:
8 1. Under the provisions of Section 431.30 of the California Code of Civil Procedure,
9 Lowe’s denies both generally and specifically each allegation of the cross-complaint, including each
10 and every purported cause of action.
11
15250 Ventura Boulevard, Ninth Floor
Sherman Oaks, California 91403-3221
2. This case involves alleged defects and damages at the residential property located at
THARPE & HOWELL, LLP
12 1148 Cortez Avenue, Burlingame, California (“the property”) which had been purchased by
13 ROBERTA JURASH and A. SHABI KHAN (“the plaintiffs”) from the McDowells. Plaintiffs have
14 filed the instant action and a contemporaneous arbitration (“the arbitration”) against Lowe’s and
15 ARIANA CONSTRUCTION AND FLOORING, INC. (“Ariana”) seeking the recovery of the same
16 damages. Lowe’s denies that the plaintiffs or the McDowells sustained any injury, damage or loss
17 of any kind as the result of any act or omission on the part of Lowe’s or any agent, servant or
18 employee of Lowe’s.
19 FIRST AFFIRMATIVE DEFENSE
20 (Comparative Fault of Cross-Complainants)
21 3. Cross-complainants are barred from any recovery because their own negligence was
22 the sole and proximate cause of any losses or damages they or plaintiffs may have sustained. In the
23 event that a finding is made that Lowe’s was negligent and a proximate cause of the damages or
24 losses claimed by cross-complainants, cross-complainants’ recovery, if any, shall be reduced to the
25 extent their own comparative negligence or other legal fault contributed to their claimed losses and/or
26 damages.
27 ///
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ANSWER OF LOWE’S TO CROSS-COMPLAINT OF CARYN AND JAMES MCDOWELL
1 SECOND AFFIRMATIVE DEFENSE
2 (Comparative Fault of Third Parties)
3 4. The losses and damages, if any, sustained by cross-complainants were proximately
4 caused by the negligence, carelessness, or fault of others, including plaintiffs, and cross-
5 complainants may recover from Lowe’s only that percentage of losses and damages directly
6 attributable to the legal fault, if any, of Lowe’s.
7 THIRD AFFIRMATIVE DEFENSE
8 (Comparative Fault of Other Cross-Defendants)
9 5. Any award of damages against Lowe’s must be negated or reduced based upon the
10 comparative fault of the remaining cross-defendants.
11 FOURTH AFFIRMATIVE DEFENSE
15250 Ventura Boulevard, Ninth Floor
Sherman Oaks, California 91403-3221
THARPE & HOWELL, LLP
12 (Failure to State a Cause of Action)
13 6. The McDowells’ cross-complaint and each of the purported causes of action fail to
14 state a cause of action against Lowe’s.
15 FIFTH AFFIRMATIVE DEFENSE
16 (Statute of Limitations)
17 7. Cross-complainants’ claims are barred, in whole or in part, by the running of the
18 applicable statute of limitations as is embodied in California Code of Civil Procedure, Sections
19 335.1, 338, 339, 340, 343.
20 SIXTH AFFIRMATIVE DEFENSE
21 (Failure to Mitigate)
22 8. Cross-complainants have failed to mitigate their losses and damages, if any. In
23 addition, plaintiffs failed to mitigate their losses or damages, which bars their recovery, in whole or
24 in part, and correspondingly bars any claim for indemnity or other recovery by cross-complainants.
25 SEVENTH AFFIRMATIVE DEFENSE
26 (Non-Economic Damages)
27 9. In accordance with the provisions of California Civil Code Section 1431, et seq.,
28 Lowe’s cannot be liable for any portion of the non-economic damages claimed by the plaintiffs in
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ANSWER OF LOWE’S TO CROSS-COMPLAINT OF CARYN AND JAMES MCDOWELL
1 this action greater than the corresponding percentage of liability attributable to Lowe’s. Cross-
2 complainants cannot be indemnified for any portion of the general damages attributed to them.
3 EIGHTH AFFIRMATIVE OF DEFENSE
4 (Fraud of Cross-Complainants)
5 10. Cross-complainants have been accused of fraud by plaintiffs. To that extent that claim
6 is proven against the McDowells, they cannot recover in equity against Lowe’s.
7 NINTH AFFIRMATIVE DEFENSE
8 (Unclean Hands)
9 11. Cross-complainants’ claims are barred, in whole or in part, by the doctrine of unclean
10 hands. In particular, cross-complainants are accused of fraud by plaintiffs, and Lowe’s is informed
11 and believes that plaintiffs are improperly seeking a multiple recovery between the instant action and
15250 Ventura Boulevard, Ninth Floor
Sherman Oaks, California 91403-3221
THARPE & HOWELL, LLP
12 the arbitration.
13 TENTH AFFIRMATIVE DEFENSE
14 (Laches)
15 12. Cross-complainants’ claims are barred, in whole or in part, by the doctrine of laches.
16 ELEVENTH AFFIRMATIVE DEFENSE
17 (Waiver)
18 13. Cross-complainants’ claims are barred, in whole or in part, by the doctrine of waiver.
19 TWELFTH AFFIRMATIVE DEFENSE
20 (Intentional Misconduct)
21 14. Cross-complainants’ claims are barred, in whole or in part, by the intentional
22 misconduct of cross-complainants, plaintiffs, and other third parties.
23 THIRTEENTH AFFIRMATIVE DEFENSE
24 (Pre-Existing Conditions)
25 15. The alleged defects of which plaintiffs complain pre-existed any involvement by
26 Lowe’s in this matter. Cross-complainants cannot seek indemnity against Lowe’s for defects in or
27 damages to plaintiffs’ property which were pre-existing.
28 ///
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ANSWER OF LOWE’S TO CROSS-COMPLAINT OF CARYN AND JAMES MCDOWELL
1 FOURTEENTH AFFIRMATIVE DEFENSE
2 (Trivial Defect)
3 16. Any defect in or damage to plaintiffs’ property related to the acts or omissions of
4 Lowe’s was trivial and not sufficient to support an actionable claim.
5 FIFTEENTH AFFIRMATIVE DEFENSE
6 (Consent and Approval)
7 17. Plaintiffs consented to and approved all acts of and materials supplied by Lowe’s,
8 which bars any claim by plaintiffs against Lowe’s and any claim for indemnity by cross-
9 complainants.
10 SIXTEENTH AFFIRMATIVE DEFENSE
11 (Unjust Enrichment)
15250 Ventura Boulevard, Ninth Floor
Sherman Oaks, California 91403-3221
THARPE & HOWELL, LLP
12 18. Cross-complainants’ claims are barred, in whole or in part, by the doctrine of unjust
13 enrichment. Lowe’s is informed and believes that plaintiffs are seeking multiple recoveries for the
14 same claims which would constitute unjust enrichment, and cross-complainants have no right to
15 indemnity for such unjust enrichment.
16 SEVENTEENTH AFFIRMATIVE DEFENSE
17 (Independent Contractor)
18 19. Lowe’s was merely a supplier of materials for the property. All installation and other
19 work was performed at the property by Ariana and other third parties. Ariana was acting as an
20 independent contractor, and Lowe’s has no responsibility or liability for the acts or omissions of
21 Ariana and the other third parties.
22 EIGHTEENTH AFFIRMATIVE DEFENSE
23 (Superseding Cause)
24 20. Any claim against Lowe’s by the plaintiffs or cross-complainants are barred because
25 of the intervening and superseding actions of other parties.
26 NINETEENTH AFFIRMATIVE DEFENSE
27 (Discharge of All Responsibilities)
28 21. Lowe’s has properly discharged all of its responsibilities under the terms of any
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ANSWER OF LOWE’S TO CROSS-COMPLAINT OF CARYN AND JAMES MCDOWELL
1 contracts with plaintiffs, and neither plaintiffs nor cross-complainants have any viable claim against
2 Lowe’s.
3 TWENTIENTH AFFIRMATIVE DEFENSE
4 (Met Standard of Care)
5 22. All claims against Lowe’s by plaintiffs or cross-complainants are barred because
6 Lowe’s met the standard of care in all ways concerning its involvement with the property.
7 TWENTY-FIRST AFFIRMATIVE DEFENSE
8 (Inadequate Notice/Opportunity to Cure)
9 23. All claims against Lowe’s are barred because plaintiffs failed to give adequate notice
10 of the claimed damages and losses and failed to give Lowe’s any meaningful opportunity to cure any
11 such defects.
15250 Ventura Boulevard, Ninth Floor
Sherman Oaks, California 91403-3221
THARPE & HOWELL, LLP
12 TWENTY-SECOND AFFIRMATIVE DEFENSE
13 (Misuse)
14 24. All claims against Lowe’s are barred because the materials supplied by Lowe’s were
15 misused by plaintiffs or other parties.
16 TWENTY-THIRD AFFIRMATIVE DEFENSE
17 (Estoppel)
18 25. Plaintiffs and cross-complainants are estopped from pursuing any claims against
19 Lowe’s because of their own misconduct.
20 TWENTY-FOURTH AFFIRMATIVE DEFENSE
21 (Passive and Secondary Liability)
22 26. Any liability of Lowe’s is passive and secondary compared to the active wrongdoing
23 of cross-complainants and other third parties.
24 TWENTY-FIFTH AFFIRMATIVE DEFENSE
25 (Balance of Equities)
26 27. Cross-complainants’ claims against Lowe’s are barred because the equities favor
27 Lowe’s in light of the acts and omissions of cross-complainants and plaintiffs.
28 ///
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ANSWER OF LOWE’S TO CROSS-COMPLAINT OF CARYN AND JAMES MCDOWELL
1 TWENTY-SIXTH AFFIRMATIVE DEFENSE
2 (Plans of Plaintiffs)
3 28. Cross-complainants’ claims are barred, in whole or in part, because any possible
4 defect in the materials supplied by Lowe’s were consistent with the plans of and orders made by
5 plaintiffs.
6 POTENTIAL ADDITIONAL DEFENSES
7 29. Cross-Defendant may have the right to assert additional affirmative defenses of which
8 it is presently unaware. Lowe’s expressly reserves the right to assert additional defenses if discovery
9 indicates that such additional defenses would be appropriate.
10 WHEREFORE, cross-defendant prays for judgment against cross-complainants as follows:
11 1. That the cross-complaint be dismissed against Lowe’s with prejudice;
15250 Ventura Boulevard, Ninth Floor
Sherman Oaks, California 91403-3221
THARPE & HOWELL, LLP
12 2. That cross-complaints take nothing by way of the cross-complaint;
13 3. That judgment be entered in favor of cross-defendant and against cross-complainants on
14 all causes of action;
15 4. That cross-defendant be awarded costs of suit incurred herein; and,
16 5. That cross-defendant be awarded such other and further relief as this Court may deem
17 just and proper.
18
19 Dated: January 21, 2021 THARPE & HOWELL, LLP
20
21
By:
22 STEPHANIE FORMAN
CHARLES D. MAY
23 J. CHRISTOPHER BENNINGTON
Attorneys for Cross-Defendant,
24 LOWE’S HOME CENTERS, LLC
25
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ANSWER OF LOWE’S TO CROSS-COMPLAINT OF CARYN AND JAMES MCDOWELL
1 PROOF OF SERVICE
2 STATE OF CALIFORNIA, COUNTY OF LOS ANGELES
3 1. At the time of service I was at least 18 years of age and not a party to this legal action.
4 2. My business address is 15250 Ventura Boulevard, Ninth Floor, Sherman Oaks, CA 91403.
5 3. I served copies of the following documents (specify the exact title of each document served):
6 ANSWER OF LOWE’S HOME CENTERS, LLC TO THE CROSS COMPLAINT OF
CARYN AND JAMES McDOWELL
7
4. I served the documents listed above in item 3 on the following persons at the addresses listed:
8
SEE ATTACHED SERVICE LIST
9
5. a. X ONLY BY ELECTRONIC TRANSMISSION. Only by e-mailing the document(s)
10 to the persons at the e-mail address(es) listed pursuant to Emergency Rule 12 of the
California Rules of Court which states a party represented by counsel, who has
11 appeared in an action or proceeding, must accept electronic service of a notice or
15250 Ventura Boulevard, Ninth Floor
Sherman Oaks, California 91403-3221
document that may be served by mail, express mail, overnight delivery, or facsimile
THARPE & HOWELL, LLP
12 transmission; and, wherein the serving party must confirm by telephone or email the
appropriate electronic service address for counsel being served. Please be advised
13 that during the Coronavirus (Covid-19) pandemic, this office will be working
remotely, not able to send physical mail as usual, and is therefore using only
14 electronic mail. No electronic message or other indication that the transmission was
unsuccessful was received within a reasonable time after the transmission.
15
6. I served the documents by the means described in item 5 on (date): See Below
16
I declare under penalty of perjury under the laws of the State of California that the foregoing is true
17 and correct.
18
1/22/2021 Amy Eivazian
19 DATE (TYPE OR PRINT NAME) (SIGNATURE OF DECLARANT)
20
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I:\30000-000\30921\Pleadings - McDowell Case\Answer.docx
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ANSWER OF LOWE’S TO CROSS-COMPLAINT OF CARYN AND JAMES MCDOWELL
1 SERVICE LIST
2 Jeffrey A. Leon, Esq.
jleon@leonandleon.com
3
LEON & LEON
4 1970 Broadway, Suite 1200
Oakland, CA 94612
5 Telephone (510) 208-6600
Facsimile (510) 451-1010
6 Attorneys for Defendants and Cross-Complainants
7 Caryn McDowell & James McDowell
8 Simon A. Mazzola, Esq.
simon@simonmazzola.com
9 Taryn Tharaken, Esq.
taryn@simonmazzola.com
10 The Mazzola Law Office
11 611 Gateway Blvd., Suite 102
15250 Ventura Boulevard, Ninth Floor
Sherman Oaks, California 91403-3221
South San Francisco, CA 94080
THARPE & HOWELL, LLP
12 Attorneys for Plaintiffs Roberta Jurash & A. Shabi Kahn
13 Dennis F. Moriarty
Email: dmoriarity@cwmlaw.com
14 Cesari, Werner & Moriarty
75 Southgate Avenue
15 Daly City, CA 94015
Attorneys for Defendants, X-Defendants and
16 Cross Complainants Caryn & James McDowell
17 Shannon Jones
sbj@sbj-law.com
18
Lindsey A. Morgan
19 lam@sbj-law.com
Jennifer Garcia
20 jmg@sbj-law.com
SHANNON B. JONES LAW GROUP, INC.
21 208 W. El Pintado Road
22 Danville, CA 94526
Attorneys for Defendants, X-Defendants & X-Complainants
23 Pacific Union International, Hina Maheshwari, Gina Haggarty
individually and dba Gina Haggarty Group
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ANSWER OF LOWE’S TO CROSS-COMPLAINT OF CARYN AND JAMES MCDOWELL
1 Todd A. Roberts
Email: todd.roberts@ropers.com
2 Arthur N. Bortz
Email: arthur.bortz@ropers.com
3 Donna Bautistia
Email: donna.bautista@ropers.com
4 Peggy Kurilla
Email: peggy.kurilla@ropers.com
5 Ropers, Majeski
1001 Marshall Street, Suite 600
6 Redwood City, CA 94063
Attorneys for Defendants, X-Defendants & X-Complainants
7 Stephen Richard Johnson individually and
dba Johnson Construction
8
9 Peter J. Linn
Email: plinn@bishop-barry.com
10 David Beach
Email: dbeach@bishop-barry.com
11 Bishop Barry, PC
15250 Ventura Boulevard, Ninth Floor
Sherman Oaks, California 91403-3221
6001 Shellmound Street, Suite 875
THARPE & HOWELL, LLP
12 Emeryville, CA 94608
Attorneys for Defendants, X-Defendants &
13 X-Complainants Hocker Construction Inc.
14 Colette F. Stone
Email: cstone@stonelawoffice.com
15 Juliet M. Lompa
Email: jlompa@stonelawoffice.com
16 Celena Sepulveda
Email: csepulveda@stonelawoffice.com
17 Stone & Associates, APC
2125 Ygnacio Valley Road, Suite 101
18 Walnut Creek, CA 94598
Attorneys for Defendants, X-Defendants &
19 X-Complainants Hocker Construction Inc.
20 Christopher J. Nevis, Esq.
Christopher.Nevis@lewisbrisbois.com
21 Michael A. Walker, Esq.
Michael.Walker@lewisbrisbois.com
22 LEWIS BRISBOIS BISGAARD & SMITH LLP
23 333 Bush Street, Suite 1100
San Francisco, CA 94104-2872
24 Attorneys for Cross-Defendant Excelsior Roofing Co.
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ANSWER OF LOWE’S TO CROSS-COMPLAINT OF CARYN AND JAMES MCDOWELL
Preview
1 THARPE & HOWELL, LLP 15250 Ventura Boulevard, Ninth Floor 2 Sherman Oaks, California 91403 (818) 205-9955; (818) 205-9944 fax 3 STEPHANIE FORMAN, SBN 195757 4 CHARLES D. MAY, SBN 129663 J. CHRISTOPHER BENNINGTON, SBN 105432 1/22/2021 5 Attorneys for Cross-Defendant, 6 LOWE’S HOME CENTERS, LLC 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 COUNTY OF SAN MATEO 10 11 ROBERTA JURASH and A. SHABI KHAN, Case No.: 18CIV02283 12 Plaintiffs, Complaint Filed: May 4, 2018 vs. 13 Civil Unlimited Jurisdiction 14 CARYN MCDOWELL, JAMES [Assigned to Judge V. Raymond Swope, Dept. 23] MCDOWELL, GINA HAGGARTY GROUP 15 individually and dba PACIFIC UNION ANSWER OF LOWE’S HOME CENTERS, INTERNATIONAL, STEPHEN RICHARD LLC TO THE CROSS COMPLAINT OF 16 JOHNSON, individually and dba CARYN AND JAMES McDOWELL JOHNSON CONSTRUCTION, HOCKER 17 CONSTRUCTION, INC. and DOES 1-50, 18 inclusive, 19 Defendants. _____________________________________ 20 CARYN MCDOWELL, JAMES 21 MCDOWELL, 22 Cross-Complainants, 23 v. 24 GINA HAGGARTY individually and dba GINA HAGGARTY GROUP, HINA 25 MAHESHWARI, PACIFIC UNION INTERNATIONAL, STEPHEN 26 RICHARD JOHNSON individually dba 27 JOHNSON CONSTRUCTION, HOCKER CONSTRUCTION, INC, LOWE'S HOME 28 CENTERS, LLC, ARIANA -1- ANSWER OF LOWE’S TO CROSS COMPLAINT OF CARYN AND JAMES McDOWELL 1 CONSTRUCTION AND FLOORING, INC., AND ROES 3-50, Inclusive, 2 Cross-Defendants. 3 4 5 Cross-Defendant, LOWE’S HOME CENTERS, LLC (sometimes “Lowe’s”) hereby answers 6 the cross-complaint of CARYN and JAMES MCDOWELL (sometimes “the McDowells”) as 7 follows: 8 1. Under the provisions of Section 431.30 of the California Code of Civil Procedure, 9 Lowe’s denies both generally and specifically each allegation of the cross-complaint, including each 10 and every purported cause of action. 11 15250 Ventura Boulevard, Ninth Floor Sherman Oaks, California 91403-3221 2. This case involves alleged defects and damages at the residential property located at THARPE & HOWELL, LLP 12 1148 Cortez Avenue, Burlingame, California (“the property”) which had been purchased by 13 ROBERTA JURASH and A. SHABI KHAN (“the plaintiffs”) from the McDowells. Plaintiffs have 14 filed the instant action and a contemporaneous arbitration (“the arbitration”) against Lowe’s and 15 ARIANA CONSTRUCTION AND FLOORING, INC. (“Ariana”) seeking the recovery of the same 16 damages. Lowe’s denies that the plaintiffs or the McDowells sustained any injury, damage or loss 17 of any kind as the result of any act or omission on the part of Lowe’s or any agent, servant or 18 employee of Lowe’s. 19 FIRST AFFIRMATIVE DEFENSE 20 (Comparative Fault of Cross-Complainants) 21 3. Cross-complainants are barred from any recovery because their own negligence was 22 the sole and proximate cause of any losses or damages they or plaintiffs may have sustained. In the 23 event that a finding is made that Lowe’s was negligent and a proximate cause of the damages or 24 losses claimed by cross-complainants, cross-complainants’ recovery, if any, shall be reduced to the 25 extent their own comparative negligence or other legal fault contributed to their claimed losses and/or 26 damages. 27 /// 28 -2- ANSWER OF LOWE’S TO CROSS-COMPLAINT OF CARYN AND JAMES MCDOWELL 1 SECOND AFFIRMATIVE DEFENSE 2 (Comparative Fault of Third Parties) 3 4. The losses and damages, if any, sustained by cross-complainants were proximately 4 caused by the negligence, carelessness, or fault of others, including plaintiffs, and cross- 5 complainants may recover from Lowe’s only that percentage of losses and damages directly 6 attributable to the legal fault, if any, of Lowe’s. 7 THIRD AFFIRMATIVE DEFENSE 8 (Comparative Fault of Other Cross-Defendants) 9 5. Any award of damages against Lowe’s must be negated or reduced based upon the 10 comparative fault of the remaining cross-defendants. 11 FOURTH AFFIRMATIVE DEFENSE 15250 Ventura Boulevard, Ninth Floor Sherman Oaks, California 91403-3221 THARPE & HOWELL, LLP 12 (Failure to State a Cause of Action) 13 6. The McDowells’ cross-complaint and each of the purported causes of action fail to 14 state a cause of action against Lowe’s. 15 FIFTH AFFIRMATIVE DEFENSE 16 (Statute of Limitations) 17 7. Cross-complainants’ claims are barred, in whole or in part, by the running of the 18 applicable statute of limitations as is embodied in California Code of Civil Procedure, Sections 19 335.1, 338, 339, 340, 343. 20 SIXTH AFFIRMATIVE DEFENSE 21 (Failure to Mitigate) 22 8. Cross-complainants have failed to mitigate their losses and damages, if any. In 23 addition, plaintiffs failed to mitigate their losses or damages, which bars their recovery, in whole or 24 in part, and correspondingly bars any claim for indemnity or other recovery by cross-complainants. 25 SEVENTH AFFIRMATIVE DEFENSE 26 (Non-Economic Damages) 27 9. In accordance with the provisions of California Civil Code Section 1431, et seq., 28 Lowe’s cannot be liable for any portion of the non-economic damages claimed by the plaintiffs in -3- ANSWER OF LOWE’S TO CROSS-COMPLAINT OF CARYN AND JAMES MCDOWELL 1 this action greater than the corresponding percentage of liability attributable to Lowe’s. Cross- 2 complainants cannot be indemnified for any portion of the general damages attributed to them. 3 EIGHTH AFFIRMATIVE OF DEFENSE 4 (Fraud of Cross-Complainants) 5 10. Cross-complainants have been accused of fraud by plaintiffs. To that extent that claim 6 is proven against the McDowells, they cannot recover in equity against Lowe’s. 7 NINTH AFFIRMATIVE DEFENSE 8 (Unclean Hands) 9 11. Cross-complainants’ claims are barred, in whole or in part, by the doctrine of unclean 10 hands. In particular, cross-complainants are accused of fraud by plaintiffs, and Lowe’s is informed 11 and believes that plaintiffs are improperly seeking a multiple recovery between the instant action and 15250 Ventura Boulevard, Ninth Floor Sherman Oaks, California 91403-3221 THARPE & HOWELL, LLP 12 the arbitration. 13 TENTH AFFIRMATIVE DEFENSE 14 (Laches) 15 12. Cross-complainants’ claims are barred, in whole or in part, by the doctrine of laches. 16 ELEVENTH AFFIRMATIVE DEFENSE 17 (Waiver) 18 13. Cross-complainants’ claims are barred, in whole or in part, by the doctrine of waiver. 19 TWELFTH AFFIRMATIVE DEFENSE 20 (Intentional Misconduct) 21 14. Cross-complainants’ claims are barred, in whole or in part, by the intentional 22 misconduct of cross-complainants, plaintiffs, and other third parties. 23 THIRTEENTH AFFIRMATIVE DEFENSE 24 (Pre-Existing Conditions) 25 15. The alleged defects of which plaintiffs complain pre-existed any involvement by 26 Lowe’s in this matter. Cross-complainants cannot seek indemnity against Lowe’s for defects in or 27 damages to plaintiffs’ property which were pre-existing. 28 /// -4- ANSWER OF LOWE’S TO CROSS-COMPLAINT OF CARYN AND JAMES MCDOWELL 1 FOURTEENTH AFFIRMATIVE DEFENSE 2 (Trivial Defect) 3 16. Any defect in or damage to plaintiffs’ property related to the acts or omissions of 4 Lowe’s was trivial and not sufficient to support an actionable claim. 5 FIFTEENTH AFFIRMATIVE DEFENSE 6 (Consent and Approval) 7 17. Plaintiffs consented to and approved all acts of and materials supplied by Lowe’s, 8 which bars any claim by plaintiffs against Lowe’s and any claim for indemnity by cross- 9 complainants. 10 SIXTEENTH AFFIRMATIVE DEFENSE 11 (Unjust Enrichment) 15250 Ventura Boulevard, Ninth Floor Sherman Oaks, California 91403-3221 THARPE & HOWELL, LLP 12 18. Cross-complainants’ claims are barred, in whole or in part, by the doctrine of unjust 13 enrichment. Lowe’s is informed and believes that plaintiffs are seeking multiple recoveries for the 14 same claims which would constitute unjust enrichment, and cross-complainants have no right to 15 indemnity for such unjust enrichment. 16 SEVENTEENTH AFFIRMATIVE DEFENSE 17 (Independent Contractor) 18 19. Lowe’s was merely a supplier of materials for the property. All installation and other 19 work was performed at the property by Ariana and other third parties. Ariana was acting as an 20 independent contractor, and Lowe’s has no responsibility or liability for the acts or omissions of 21 Ariana and the other third parties. 22 EIGHTEENTH AFFIRMATIVE DEFENSE 23 (Superseding Cause) 24 20. Any claim against Lowe’s by the plaintiffs or cross-complainants are barred because 25 of the intervening and superseding actions of other parties. 26 NINETEENTH AFFIRMATIVE DEFENSE 27 (Discharge of All Responsibilities) 28 21. Lowe’s has properly discharged all of its responsibilities under the terms of any -5- ANSWER OF LOWE’S TO CROSS-COMPLAINT OF CARYN AND JAMES MCDOWELL 1 contracts with plaintiffs, and neither plaintiffs nor cross-complainants have any viable claim against 2 Lowe’s. 3 TWENTIENTH AFFIRMATIVE DEFENSE 4 (Met Standard of Care) 5 22. All claims against Lowe’s by plaintiffs or cross-complainants are barred because 6 Lowe’s met the standard of care in all ways concerning its involvement with the property. 7 TWENTY-FIRST AFFIRMATIVE DEFENSE 8 (Inadequate Notice/Opportunity to Cure) 9 23. All claims against Lowe’s are barred because plaintiffs failed to give adequate notice 10 of the claimed damages and losses and failed to give Lowe’s any meaningful opportunity to cure any 11 such defects. 15250 Ventura Boulevard, Ninth Floor Sherman Oaks, California 91403-3221 THARPE & HOWELL, LLP 12 TWENTY-SECOND AFFIRMATIVE DEFENSE 13 (Misuse) 14 24. All claims against Lowe’s are barred because the materials supplied by Lowe’s were 15 misused by plaintiffs or other parties. 16 TWENTY-THIRD AFFIRMATIVE DEFENSE 17 (Estoppel) 18 25. Plaintiffs and cross-complainants are estopped from pursuing any claims against 19 Lowe’s because of their own misconduct. 20 TWENTY-FOURTH AFFIRMATIVE DEFENSE 21 (Passive and Secondary Liability) 22 26. Any liability of Lowe’s is passive and secondary compared to the active wrongdoing 23 of cross-complainants and other third parties. 24 TWENTY-FIFTH AFFIRMATIVE DEFENSE 25 (Balance of Equities) 26 27. Cross-complainants’ claims against Lowe’s are barred because the equities favor 27 Lowe’s in light of the acts and omissions of cross-complainants and plaintiffs. 28 /// -6- ANSWER OF LOWE’S TO CROSS-COMPLAINT OF CARYN AND JAMES MCDOWELL 1 TWENTY-SIXTH AFFIRMATIVE DEFENSE 2 (Plans of Plaintiffs) 3 28. Cross-complainants’ claims are barred, in whole or in part, because any possible 4 defect in the materials supplied by Lowe’s were consistent with the plans of and orders made by 5 plaintiffs. 6 POTENTIAL ADDITIONAL DEFENSES 7 29. Cross-Defendant may have the right to assert additional affirmative defenses of which 8 it is presently unaware. Lowe’s expressly reserves the right to assert additional defenses if discovery 9 indicates that such additional defenses would be appropriate. 10 WHEREFORE, cross-defendant prays for judgment against cross-complainants as follows: 11 1. That the cross-complaint be dismissed against Lowe’s with prejudice; 15250 Ventura Boulevard, Ninth Floor Sherman Oaks, California 91403-3221 THARPE & HOWELL, LLP 12 2. That cross-complaints take nothing by way of the cross-complaint; 13 3. That judgment be entered in favor of cross-defendant and against cross-complainants on 14 all causes of action; 15 4. That cross-defendant be awarded costs of suit incurred herein; and, 16 5. That cross-defendant be awarded such other and further relief as this Court may deem 17 just and proper. 18 19 Dated: January 21, 2021 THARPE & HOWELL, LLP 20 21 By: 22 STEPHANIE FORMAN CHARLES D. MAY 23 J. CHRISTOPHER BENNINGTON Attorneys for Cross-Defendant, 24 LOWE’S HOME CENTERS, LLC 25 26 27 28 -7- ANSWER OF LOWE’S TO CROSS-COMPLAINT OF CARYN AND JAMES MCDOWELL 1 PROOF OF SERVICE 2 STATE OF CALIFORNIA, COUNTY OF LOS ANGELES 3 1. At the time of service I was at least 18 years of age and not a party to this legal action. 4 2. My business address is 15250 Ventura Boulevard, Ninth Floor, Sherman Oaks, CA 91403. 5 3. I served copies of the following documents (specify the exact title of each document served): 6 ANSWER OF LOWE’S HOME CENTERS, LLC TO THE CROSS COMPLAINT OF CARYN AND JAMES McDOWELL 7 4. I served the documents listed above in item 3 on the following persons at the addresses listed: 8 SEE ATTACHED SERVICE LIST 9 5. a. X ONLY BY ELECTRONIC TRANSMISSION. Only by e-mailing the document(s) 10 to the persons at the e-mail address(es) listed pursuant to Emergency Rule 12 of the California Rules of Court which states a party represented by counsel, who has 11 appeared in an action or proceeding, must accept electronic service of a notice or 15250 Ventura Boulevard, Ninth Floor Sherman Oaks, California 91403-3221 document that may be served by mail, express mail, overnight delivery, or facsimile THARPE & HOWELL, LLP 12 transmission; and, wherein the serving party must confirm by telephone or email the appropriate electronic service address for counsel being served. Please be advised 13 that during the Coronavirus (Covid-19) pandemic, this office will be working remotely, not able to send physical mail as usual, and is therefore using only 14 electronic mail. No electronic message or other indication that the transmission was unsuccessful was received within a reasonable time after the transmission. 15 6. I served the documents by the means described in item 5 on (date): See Below 16 I declare under penalty of perjury under the laws of the State of California that the foregoing is true 17 and correct. 18 1/22/2021 Amy Eivazian 19 DATE (TYPE OR PRINT NAME) (SIGNATURE OF DECLARANT) 20 21 I:\30000-000\30921\Pleadings - McDowell Case\Answer.docx 22 23 24 25 26 27 28 -8- ANSWER OF LOWE’S TO CROSS-COMPLAINT OF CARYN AND JAMES MCDOWELL 1 SERVICE LIST 2 Jeffrey A. Leon, Esq. jleon@leonandleon.com 3 LEON & LEON 4 1970 Broadway, Suite 1200 Oakland, CA 94612 5 Telephone (510) 208-6600 Facsimile (510) 451-1010 6 Attorneys for Defendants and Cross-Complainants 7 Caryn McDowell & James McDowell 8 Simon A. Mazzola, Esq. simon@simonmazzola.com 9 Taryn Tharaken, Esq. taryn@simonmazzola.com 10 The Mazzola Law Office 11 611 Gateway Blvd., Suite 102 15250 Ventura Boulevard, Ninth Floor Sherman Oaks, California 91403-3221 South San Francisco, CA 94080 THARPE & HOWELL, LLP 12 Attorneys for Plaintiffs Roberta Jurash & A. Shabi Kahn 13 Dennis F. Moriarty Email: dmoriarity@cwmlaw.com 14 Cesari, Werner & Moriarty 75 Southgate Avenue 15 Daly City, CA 94015 Attorneys for Defendants, X-Defendants and 16 Cross Complainants Caryn & James McDowell 17 Shannon Jones sbj@sbj-law.com 18 Lindsey A. Morgan 19 lam@sbj-law.com Jennifer Garcia 20 jmg@sbj-law.com SHANNON B. JONES LAW GROUP, INC. 21 208 W. El Pintado Road 22 Danville, CA 94526 Attorneys for Defendants, X-Defendants & X-Complainants 23 Pacific Union International, Hina Maheshwari, Gina Haggarty individually and dba Gina Haggarty Group 24 25 26 27 28 -9- ANSWER OF LOWE’S TO CROSS-COMPLAINT OF CARYN AND JAMES MCDOWELL 1 Todd A. Roberts Email: todd.roberts@ropers.com 2 Arthur N. Bortz Email: arthur.bortz@ropers.com 3 Donna Bautistia Email: donna.bautista@ropers.com 4 Peggy Kurilla Email: peggy.kurilla@ropers.com 5 Ropers, Majeski 1001 Marshall Street, Suite 600 6 Redwood City, CA 94063 Attorneys for Defendants, X-Defendants & X-Complainants 7 Stephen Richard Johnson individually and dba Johnson Construction 8 9 Peter J. Linn Email: plinn@bishop-barry.com 10 David Beach Email: dbeach@bishop-barry.com 11 Bishop Barry, PC 15250 Ventura Boulevard, Ninth Floor Sherman Oaks, California 91403-3221 6001 Shellmound Street, Suite 875 THARPE & HOWELL, LLP 12 Emeryville, CA 94608 Attorneys for Defendants, X-Defendants & 13 X-Complainants Hocker Construction Inc. 14 Colette F. Stone Email: cstone@stonelawoffice.com 15 Juliet M. Lompa Email: jlompa@stonelawoffice.com 16 Celena Sepulveda Email: csepulveda@stonelawoffice.com 17 Stone & Associates, APC 2125 Ygnacio Valley Road, Suite 101 18 Walnut Creek, CA 94598 Attorneys for Defendants, X-Defendants & 19 X-Complainants Hocker Construction Inc. 20 Christopher J. Nevis, Esq. Christopher.Nevis@lewisbrisbois.com 21 Michael A. Walker, Esq. Michael.Walker@lewisbrisbois.com 22 LEWIS BRISBOIS BISGAARD & SMITH LLP 23 333 Bush Street, Suite 1100 San Francisco, CA 94104-2872 24 Attorneys for Cross-Defendant Excelsior Roofing Co. 25 26 27 28 - 10 - ANSWER OF LOWE’S TO CROSS-COMPLAINT OF CARYN AND JAMES MCDOWELL