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1 JAMES P. SOUZA, ESQ. (SBN 179573)
jsouza@kennedysouza.com
2 E. VAL MENESES, ESQ. (SBN 159228)
vmeneses@kennedysouza.com
3 KENNEDY & SOUZA, APC 12/8/2021
7964 Arjons Drive, Suite I
4 San Diego, California 92126
Telephone: (858) 267-4127
5 Facsimile: (858) 267-4128
6 Attorneys for Cross-Defendant CR CUSTOM
CARPENTRY, INC., sued herein as ROE 2
7
8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 FOR THE COUNTY OF SAN MATEO
10 SHADI KASHEFIZADEH, an individual and Case No.: 21-CIV-02266
PHILIP SHIRVANI, an individual,
11
Plaintiffs, CR CUSTOM CARPENTRY, INC.’s, sued
12 herein as ROE 2, ANSWER TO HILLS
vs. CONSTRUCTION, INC.’S CROSS-
13 COMPLAINT
DAVID FRAKES, an individual; et al.; and
14 Does 1 through 40, inclusive,
Action Filed: 4/20/2021
15 Defendants. Trial Date: None set.
16
HILLS CONSTRUCTION, INC.,
17
Cross-complainant,
18
vs.
19
DURO CONCRETE, INC., a California
20 corporation; et al; and ROES 1 through 50,
21 Cross-Defendants.
22
AND RELATED CROSS ACTIONS.
23
24 TO: THE ABOVE COURT, THE CLERK, AND ALL CONCERNED PARTIES:
25 Cross-Defendant, CR CUSTOM CARPENTRY, INC., sued herein as ROE 2 (hereinafter
26 “CR CUSTOM CARPENTRY”) answers the Cross-Complaint (hereinafter referred to as "Cross-
27 Complaint") of Cross-Complainant, HILLS CONSTRUCTION, INC., (hereinafter referred to as
28 "Cross-Complainant") on file herein as follows:
{00950155:1} 1
CR CUSTOM CARPENTRY, INC.’s, sued herein as ROE 2,
ANSWER TO HILLS CONSTRUCTION, INC.’S CROSS-COMPLAINT
1 GENERAL DENIAL
2 1. Pursuant to the provisions of section 431.30 of the California Code of Civil
3 Procedure, a denial is made in regard to each and every allegation in the Cross-Complaint, and a
4 further denial is made that any damage, whether in the amount set forth in the Cross-Complaint, or
5 in any sum or sums whatsoever, or at all, has been caused by reason of any act or omission on the
6 part of CR CUSTOM CARPENTRY or on the part of any of CR CUSTOM CARPENTRY’s
7 predecessors, successors, agents, servants, employees or anyone who may be alleged to have the
8 ability to create liability on the part of CR CUSTOM CARPENTRY.
9 AFFIRMATIVE DEFENSES
10 FIRST AFFIRMATIVE DEFENSE
11 (Failure To State A Cause Of Action)
12 2. As a first, separate and affirmative defense to the Cross-Complaint, and each cause
13 of action alleged therein, it is alleged that the Cross-Complaint fails to state facts sufficient to
KENNEDY & SOUZA, APC
14 constitute a cause of action against CR CUSTOM CARPENTRY.
15 SECOND AFFIRMATIVE DEFENSE
16 (Contributory or Comparative Negligence)
17 3. As a further, separate and affirmative defense to the Cross-Complaint, and each cause
18 of action alleged therein, it is alleged that others were careless, negligent and at fault with respect
19 to the matters alleged in the Cross-Complaint, and that such carelessness, negligence and fault
20 proximately caused or contributed to the happening of the incident, injuries, loss or damages
21 complained of, if any, and Cross-Complainant’s contributory or comparative fault either bars or
22 proportionately reduces any potential recovery.
23 THIRD AFFIRMATIVE DEFENSE
24 (Statute Of Limitations)
25 4. As a further, separate and affirmative defense to the Cross-Complaint, and each cause
26 of action alleged therein, it is alleged that each such cause of action is barred by the applicable
27 statute of limitations stated in Part II, Title II, of the California Code of Civil Procedure including,
28 ///
{00950155:1} 2
CR CUSTOM CARPENTRY, INC.’s, sued herein as ROE 2,
ANSWER TO HILLS CONSTRUCTION, INC.’S CROSS-COMPLAINT
1 but not limited to, those set forth in California Code of Civil Procedure sections 337, 337(a), 337.1,
2 337.15, 338, 339, 340, 342 and 343.
3 FOURTH AFFIRMATIVE DEFENSE
4 (Unclean Hands)
5 5. As a further, separate and affirmative defense to the Cross-Complaint, and each cause
6 of action alleged therein, it is alleged that other individuals, other entities and/or Cross-Complainant
7 comes to court with unclean hands.
8 FIFTH AFFIRMATIVE DEFENSE
9 (Waiver)
10 6. As a further, separate and affirmative defense to the Cross-Complaint, and each cause
11 of action alleged therein, it is alleged that other individuals, other entities and/or Cross-Complainant
12 has, by acts or omissions to act, waived any potential right to pursue any action against CR
13 CUSTOM CARPENTRY.
KENNEDY & SOUZA, APC
14 SIXTH AFFIRMATIVE DEFENSE
15 (Failure To Mitigate Damages)
16 7. As a further, separate and affirmative defense to the Cross-Complaint, and each cause
17 of action alleged therein, it is alleged that other individuals, other entities and/or Cross-Complainant,
18 by its conduct, actions or failure to act, have failed to mitigate their claimed damages.
19 SEVENTH AFFIRMATIVE DEFENSE
20 (Laches)
21 8. As a further, separate and affirmative defense to the Cross-Complaint, and each cause
22 of action alleged therein, it is alleged that other individuals, other entities and/or Cross-Complainant
23 has unreasonably delayed in bringing an action and/or in naming CR CUSTOM CARPENTRY and
24 has thereby prejudiced rights; therefore, this action is barred by the doctrine of laches.
25 EIGHTH AFFIRMATIVE DEFENSE
26 (Comparative Indemnification)
27 9. As a further separate and affirmative defense to the Cross-Complaint, and each cause
28 of action alleged therein, it is alleged that while denying any and all liability on the part of CR
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CR CUSTOM CARPENTRY, INC.’s, sued herein as ROE 2,
ANSWER TO HILLS CONSTRUCTION, INC.’S CROSS-COMPLAINT
1 CUSTOM CARPENTRY, CR CUSTOM CARPENTRY is informed and believes, and thereon
2 alleges, that other individuals, other entities and/or Cross-Complainant, whether or not parties to
3 this action, carelessly, negligently, or intentionally proximately caused or contributed to the
4 happening of the injury, loss or damages complained of, if any, and any damages awarded must be
5 apportioned among such persons or entities, whether or not they are parties, in proportion to any
6 amount attributable to such other persons or entities.
7 NINTH AFFIRMATIVE DEFENSE
8 (Ripeness)
9 10. As a further, separate and affirmative defense to the Cross-Complaint, and each cause
10 of action alleged therein, it is alleged that it is premature and that it does not present this Court with
11 a justiciable case or controversy.
12 TENTH AFFIRMATIVE DEFENSE
13 (Standing)
KENNEDY & SOUZA, APC
14 11. As a further, separate and affirmative defense to the Cross-Complaint, and each cause
15 of action alleged therein, it is alleged that there is a lack of standing to bring suit.
16 ELEVENTH AFFIRMATIVE DEFENSE
17 (Failure to Cooperate)
18 12. As a further, separate and affirmative defense to the Cross-Complaint, and each cause
19 of action alleged therein, itis alleged that the conduct of others regarding the duty to cooperate,
20 constituted a breach of said duty resulting in prejudice to CR CUSTOM CARPENTRY, and such
21 failure to cooperate either bars or proportionately reduces any potential recovery by Cross-
22 Complainant, and/or entitles CR CUSTOM CARPENTRY, to recover any damages they have
23 incurred as a result of Cross-Complainant’s breach.
24 TWELFTH AFFIRMATIVE DEFENSE
25 (Collusion)
26 13. As a further, separate and affirmative defense to the Cross-Complaint, and each cause
27 of action alleged therein, it is alleged that the conduct, actions, or failures to act of individuals, or
28 entities in combination with other persons or entities, whether or not parties to this action,
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CR CUSTOM CARPENTRY, INC.’s, sued herein as ROE 2,
ANSWER TO HILLS CONSTRUCTION, INC.’S CROSS-COMPLAINT
1 constituted collusion and such collusion either bars or proportionally reduces any recovery by Cross-
2 Complainant in this action, and/or entitles CR CUSTOM CARPENTRY to recover any damages
3 they have incurred as a result of such conduct, actions or failures to act.
4 THIRTEENTH AFFIRMATIVE DEFENSE
5 (Statute of Frauds)
6 14. As a further, separate and affirmative defense to the Cross-Complaint, and each cause
7 of action alleged therein, it is alleged that each such cause of action is barred, in whole or in part, as
8 a result of the application of the Statute of Frauds.
9 FOURTEENTH AFFIRMATIVE DEFENSE
10 (Parole Evidence Rule)
11 15. As a further, separate and affirmative defense to the Cross-Complaint, and each cause
12 of action alleged therein, it is alleged that each such cause of action is barred, in whole or in part, as
13 a result of the application of the Parole Evidence Rule.
KENNEDY & SOUZA, APC
14 FIFTEENTH AFFIRMATIVE DEFENSE
15 (Conditions Precedent)
16 16. As a further, separate and affirmative defense to the Cross-Complaint, and each cause
17 of action alleged therein, it is alleged that any obligation of CR CUSTOM CARPENTRY pursuant
18 to the terms of any agreements is excused since conditions precedent to performance have not been
19 met.
20 SIXTEENTH AFFIRMATIVE DEFENSE
21 (Necessary Parties)
22 17. As a further, separate and affirmative defense to the Cross-Complaint, and each cause
23 of action alleged therein, it is alleged that the claims, and each of them, are barred, in whole or in
24 part, as a result of the failure to name and serve necessary parties.
25 ///
26 ///
27 ///
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CR CUSTOM CARPENTRY, INC.’s, sued herein as ROE 2,
ANSWER TO HILLS CONSTRUCTION, INC.’S CROSS-COMPLAINT
1 SEVENTEENTH AFFIRMATIVE DEFENSE
2 (Indispensable Parties)
3 18. As a further, separate and affirmative defense to the Cross-Complaint, and each cause
4 of action alleged therein, it is alleged that the claims, and each of them, are barred, in whole or in
5 part, as a result of the failure to name and serve indispensable parties.
6 EIGHTEENTH AFFIRMATIVE DEFENSE
7 (Implied Consent)
8 19. As a further, separate and affirmative defense to the Cross-Complaint, and each cause
9 of action alleged therein, it is alleged that others expressly or impliedly consented to the conduct
10 complained of; therefore, the Cross-Complaint is barred in whole or in part.
11 NINETEENTH AFFIRMATIVE DEFENSE
12 (Independent Contractors)
13 20. As a further, separate and affirmative defense to the Cross-Complaint, and each cause
KENNEDY & SOUZA, APC
14 of action alleged therein, it is alleged that the dealings upon which the claims are based were with
15 independent contractors; therefore, Cross-Complainant’s exclusive remedy is against those
16 individuals or entities.
17 TWENTIETH AFFIRMATIVE DEFENSE
18 (Failure of Performance)
19 21. As a further, separate and affirmative defense to the Cross-Complaint, and each cause
20 of action alleged therein, it is alleged that the claims, and each of them, are barred, in whole or in
21 part, as a result of Cross-Complainant’s own failure to perform.
22 TWENTY-FIRST AFFIRMATIVE DEFENSE
23 (Failure to Cure)
24 22. As a further, separate and affirmative defense to the Cross-Complaint, and each cause
25 of action alleged therein, it is alleged that the claims, and each of them, are barred, in whole or in
26 part, as a result of Cross-Complainant’s own failure to cure when provided notice and an opportunity
27 to cure.
28 ///
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CR CUSTOM CARPENTRY, INC.’s, sued herein as ROE 2,
ANSWER TO HILLS CONSTRUCTION, INC.’S CROSS-COMPLAINT
1 TWENTY-SECOND AFFIRMATIVE DEFENSE
2 (Other Individuals, Other Entities’ Negligence)
3 23. As a further, separate and affirmative defense to the Cross-Complaint, and each cause
4 of action alleged therein, it is alleged that the claims, and each of them, are barred, in whole or in
5 part, to the extent that other individuals and/or other entities were negligent.
6 TWENTY-THIRD AFFIRMATIVE DEFENSE
7 (Several Liability)
8 24. As a further, separate and affirmative defense to the Cross-Complaint, and each cause
9 of action alleged therein, it is alleged that any liability for non-economic damages is several only,
10 and not joint, and that any recovery for such damages shall only be against the party in proportion
11 to that parties’ percentage of fault in causing such damages.
12 TWENTY-FOURTH AFFIRMATIVE DEFENSE
13 (Secondary Liability)
KENNEDY & SOUZA, APC
14 25. As a further, separate and affirmative defense to the Cross-Complaint, and each cause
15 of action alleged therein, it is alleged that any liability of CR CUSTOM CARPENTRY was passive
16 derivative and/or secondary in nature, while the conduct of others was active and primary in nature;
17 therefore, any recovery against should be barred and/or proportionately reduced.
18 TWENTY-FIFTH AFFIRMATIVE DEFENSE
19 (Acceptance of Performance)
20 26. As a further, separate and affirmative defense to the Cross-Complaint, and each cause
21 of action alleged therein, it is alleged that the claims, and each of them, are barred, in whole or in
22 part, as a result of the acceptance of CR CUSTOM CARPENTRY’s performance.
23 TWENTY-SIXTH AFFIRMATIVE DEFENSE
24 (No Current Controversy)
25 27. As a further, separate and affirmative defense to the Cross-Complaint, and each cause
26 of action alleged therein, it is alleged that the claims, and each of them, are barred, in whole or in
27 part, to the extent that there is no current, justiciable, immediate and/or actual controversy relating
28 to the rights, duties or obligations of the respective parties.
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CR CUSTOM CARPENTRY, INC.’s, sued herein as ROE 2,
ANSWER TO HILLS CONSTRUCTION, INC.’S CROSS-COMPLAINT
1 TWENTY-SEVENTH AFFIRMATIVE DEFENSE
2 (Delayed Notice)
3 28. As a further, separate and affirmative defense to the Cross-Complaint, and each cause
4 of action alleged therein, it is alleged that the claims, and each of them, are barred in whole or in
5 part, as a result of the delay and/or failure to give proper notice after discovering any alleged breach
6 of an obligation or duty.
7 TWENTY-EIGHTH AFFIRMATIVE DEFENSE
8 (Apportionment)
9 29. As a further, separate and affirmative defense to the Cross-Complaint, and each cause
10 of action alleged therein, it is alleged that any damages were proximately caused or contributed to
11 by persons and/or entities other than CR CUSTOM CARPENTRY, and that the liability for any
12 claims or damages shall be apportioned to all persons and/or entities according to their relative
13 degrees of fault or liability.
KENNEDY & SOUZA, APC
14 TWENTY-NINTH AFFIRMATIVE DEFENSE
15 (Intervening or Superseding Negligence)
16 30. As a further, separate and affirmative defense to the Cross-Complaint, and each cause
17 of action alleged therein, it is alleged that the claims, are barred, in whole or in part, as a result of
18 the independent, intervening, superseding and/or supervening negligence, recklessness, carelessness
19 or fault of a person or entity other than CR CUSTOM CARPENTRY.
20 THIRIETH AFFIRMATIVE DEFENSE
21 (Res Judicata)
22 31. As a further, separate and affirmative defense to the Cross-Complaint, and each cause
23 of action alleged therein, it is alleged that the claims, and each of them, are barred, in whole or in
24 part, as a result of the doctrine of res judicata.
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CR CUSTOM CARPENTRY, INC.’s, sued herein as ROE 2,
ANSWER TO HILLS CONSTRUCTION, INC.’S CROSS-COMPLAINT
1 THIRTY-FIRST AFFIRMATIVE DEFENSE
2 (Collateral Estoppel)
3 32. As a further, separate and affirmative defense to the Cross-Complaint, and each cause
4 of action alleged therein, it is alleged that the claims, and each of them, are barred, in whole or in
5 part, as a result of the doctrine of collateral estoppel.
6 THIRTY-SECOND AFFIRMATIVE DEFENSE
7 (Contractual Time Limitations)
8 33. As a further, separate and affirmative defense to the Cross-Complaint, and each cause
9 of action alleged therein, it is alleged that the claims, and each of them, are barred in whole or in
10 part, to the extent that there was a lack of compliance with contractual time limitations regarding
11 the filing of suit, notice and/or warranty claims.
12 THIRTY-THIRD AFFIRMATIVE DEFENSE
13 (No Resultant Damages)
KENNEDY & SOUZA, APC
14 34. CR CUSTOM CARPENTRY is informed and believes, and thereon alleges, that as
15 to each alleged cause of action set forth in Cross-Complainants’ Cross-Complaint, the conditions
16 and defects set forth therein, and the damages related thereto, did not arise out of work performed
17 by CR CUSTOM CARPENTRY nor any act or omission related thereto and thus recovery is
18 precluded based on the lack of resultant damages.
19 THIRTY-FOURTH AFFIRMATIVE DEFENSE
20 (Work Performed in Accordance with Plans and Specifications)
21 35. CR CUSTOM CARPENTRY is informed and believes, and thereon alleges, that if
22 materials and/or services were supplied and/or constructed by CR CUSTOM CARPENTRY, they
23 were so supplied and/or constructed in accordance with the plans and specifications supplied to CR
24 CUSTOM CARPENTRY, by persons other than CR CUSTOM CARPENTRY. Any alleged defects
25 in workmanship and/or materials were therefore caused by deficiencies in the plans and
26 specifications supplied to CR CUSTOM CARPENTRY, which deficiencies were neither known to
27 CR CUSTOM CARPENTRY, nor discoverable by CR CUSTOM CARPENTRY, with an exercise
28 of reasonable care.
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CR CUSTOM CARPENTRY, INC.’s, sued herein as ROE 2,
ANSWER TO HILLS CONSTRUCTION, INC.’S CROSS-COMPLAINT
1 THIRTY-FIFTH AFFIRMATIVE DEFENSE
2 (Adhesion Contract)
3 36. The alleged contract in issue between Cross-Complainant and CR CUSTOM
4 CARPENTRY drafted by Cross-Complainant, is a contract of adhesion; therefore, any ambiguities
5 in the terms and the conditions of the contract must be construed against Cross-Complainant.
6 THIRTY-SIXTH AFFIRMATIVE DEFENSE
7 (Ratification)
8 37. CR CUSTOM CARPENTRY is informed and believes, and thereon alleges, that
9 Cross-Complainant approved the acts and/or omissions, if any, of CR CUSTOM CARPENTRY and
10 ratified same; consequently, Cross-Complainant is barred from recovery herein for equitable
11 indemnity as against CR CUSTOM CARPENTRY.
12 THIRTY-SEVENTH AFFIRMATIVE DEFENSE
13 (Lack of Notice)
KENNEDY & SOUZA, APC
14 38. As a further, separate and affirmative defense to the Cross-Complaint, and each cause
15 of action alleged therein, it is alleged that Cross-Complainant failed to conform and/or comply with
16 the terms of the alleged contracts by failing to serve written notice on CR CUSTOM CARPENTRY
17 of any purported deficiencies in CR CUSTOM CARPENTRY’s work, and therefore has waived any
18 and all claims they have against CR CUSTOM CARPENTRY as a result of such alleged
19 deficiencies.
20 THIRTY-EIGHTH AFFIRMATIVE DEFENSE
21 (Performance Excused)
22 39. As a further, separate and affirmative defense to the Cross-Complaint, and each cause
23 of action alleged therein, it is alleged that any failure on the part of CR CUSTOM CARPENTRY to
24 perform the obligations described in the Cross-Complaint is excused by Cross -Complainant’s own
25 breach of contract and/or by reason of impossibility of performance, prevention by Cross-
26 Complainant, frustration of purpose, and/or acceptance by Cross-Complainant.
27 ///
28 ///
{00950155:1} 10
CR CUSTOM CARPENTRY, INC.’s, sued herein as ROE 2,
ANSWER TO HILLS CONSTRUCTION, INC.’S CROSS-COMPLAINT
1 THIRTY-NINTH AFFIRMATIVE DEFENSE
2 (Direction/Approval)
3 40. CR CUSTOM CARPENTRY is informed and believes and upon such information
4 and believe alleges that Cross-Complainant directed, ordered, approved and/or ratified CR
5 CUSTOM CARPENTRY’s conduct, and Cross-Complainant is therefore estopped from asserting
6 any claim based thereon.
7 FORTIETH AFFIRMATIVE DEFENSE
8 (Approval by Public Entity)
9 41. CR CUSTOM CARPENTRY is informed and believes and upon such information
10 and belief alleges that any and all work performed by CR CUSTOM CARPENTRY with regard to
11 the properties which are the subject matter of this litigation have been inspected and approved of by
12 the local public entities/jurisdiction authority at the time CR CUSTOM CARPENTRY performed
13 its work at the properties involved in this litigation.
KENNEDY & SOUZA, APC
14 FORTY-FIRST AFFIRMATIVE DEFENSE
15 (Lack of Scheduling and Coordination by General Contractor)
16 42. CR CUSTOM CARPENTRY is informed and believes and upon such information
17 and belief alleges that any and all defects and damage at the properties which are the subject matter
18 of this litigation are a result of any scheduling and coordination by the general contractor in this
19 matter and are not a result of work performed by CR CUSTOM CARPENTRY.
20 FORTY-SECOND AFFIRMATIVE DEFENSE
21 (Reservation of Rights)
22 43. As a further, separate and affirmative defense to the Cross-Complaint, and each cause
23 of action alleged therein, it is alleged that CR CUSTOM CARPENTRY may have other, separate
24 and additional defenses for which they are not presently aware, and it hereby reserves its rights to
25 assert them by amendment to this answer when discovery is complete.
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27 ///
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{00950155:1} 11
CR CUSTOM CARPENTRY, INC.’s, sued herein as ROE 2,
ANSWER TO HILLS CONSTRUCTION, INC.’S CROSS-COMPLAINT
1 I.
2 PRAYER FOR RELIEF
3 WHEREFORE, in relation to its answer to the Cross-Complaint, CR CUSTOM
4 CARPENTRY prays as follows:
5 (1) That Cross-Complainant shall take nothing by reason of the Cross-Complaint;
6 (2) That the court makes a determination that CR CUSTOM CARPENTRY is not
7 obligated to pay any sums to Cross-Complainant;
8 (3) That the Cross-Complaint should be dismissed;
9 (4) That CR CUSTOM CARPENTRY be awarded costs that it incurred in relation to
10 Cross-Complainant’s subject claims;
11 (5) That CR CUSTOM CARPENTRY be awarded costs of suit and attorneys' fees
12 incurred herein;
13 (6) That CR CUSTOM CARPENTRY be awarded such other and further relief as the
KENNEDY & SOUZA, APC
14 court may deem proper; and
15 (7) That if CR CUSTOM CARPENTRY is found liable, the degree of responsibility or
16 liability for the resulting damage should be determined and CR CUSTOM CARPENTRY should be
17 held liable only for that portion of the total damage related to its degree of liability.
18 Dated: December 8, 2021 KENNEDY & SOUZA, APC
19
By:
20 JAMES P. SOUZA, ESQ.
E. VAL MENESES, ESQ.
21 Attorneys for Cross-Defendant CR CUSTOM
CARPENTRY, INC., sued herein as ROE 2
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CR CUSTOM CARPENTRY, INC.’s, sued herein as ROE 2,
ANSWER TO HILLS CONSTRUCTION, INC.’S CROSS-COMPLAINT
Preview
1 JAMES P. SOUZA, ESQ. (SBN 179573) jsouza@kennedysouza.com 2 E. VAL MENESES, ESQ. (SBN 159228) vmeneses@kennedysouza.com 3 KENNEDY & SOUZA, APC 12/8/2021 7964 Arjons Drive, Suite I 4 San Diego, California 92126 Telephone: (858) 267-4127 5 Facsimile: (858) 267-4128 6 Attorneys for Cross-Defendant CR CUSTOM CARPENTRY, INC., sued herein as ROE 2 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 FOR THE COUNTY OF SAN MATEO 10 SHADI KASHEFIZADEH, an individual and Case No.: 21-CIV-02266 PHILIP SHIRVANI, an individual, 11 Plaintiffs, CR CUSTOM CARPENTRY, INC.’s, sued 12 herein as ROE 2, ANSWER TO HILLS vs. CONSTRUCTION, INC.’S CROSS- 13 COMPLAINT DAVID FRAKES, an individual; et al.; and 14 Does 1 through 40, inclusive, Action Filed: 4/20/2021 15 Defendants. Trial Date: None set. 16 HILLS CONSTRUCTION, INC., 17 Cross-complainant, 18 vs. 19 DURO CONCRETE, INC., a California 20 corporation; et al; and ROES 1 through 50, 21 Cross-Defendants. 22 AND RELATED CROSS ACTIONS. 23 24 TO: THE ABOVE COURT, THE CLERK, AND ALL CONCERNED PARTIES: 25 Cross-Defendant, CR CUSTOM CARPENTRY, INC., sued herein as ROE 2 (hereinafter 26 “CR CUSTOM CARPENTRY”) answers the Cross-Complaint (hereinafter referred to as "Cross- 27 Complaint") of Cross-Complainant, HILLS CONSTRUCTION, INC., (hereinafter referred to as 28 "Cross-Complainant") on file herein as follows: {00950155:1} 1 CR CUSTOM CARPENTRY, INC.’s, sued herein as ROE 2, ANSWER TO HILLS CONSTRUCTION, INC.’S CROSS-COMPLAINT 1 GENERAL DENIAL 2 1. Pursuant to the provisions of section 431.30 of the California Code of Civil 3 Procedure, a denial is made in regard to each and every allegation in the Cross-Complaint, and a 4 further denial is made that any damage, whether in the amount set forth in the Cross-Complaint, or 5 in any sum or sums whatsoever, or at all, has been caused by reason of any act or omission on the 6 part of CR CUSTOM CARPENTRY or on the part of any of CR CUSTOM CARPENTRY’s 7 predecessors, successors, agents, servants, employees or anyone who may be alleged to have the 8 ability to create liability on the part of CR CUSTOM CARPENTRY. 9 AFFIRMATIVE DEFENSES 10 FIRST AFFIRMATIVE DEFENSE 11 (Failure To State A Cause Of Action) 12 2. As a first, separate and affirmative defense to the Cross-Complaint, and each cause 13 of action alleged therein, it is alleged that the Cross-Complaint fails to state facts sufficient to KENNEDY & SOUZA, APC 14 constitute a cause of action against CR CUSTOM CARPENTRY. 15 SECOND AFFIRMATIVE DEFENSE 16 (Contributory or Comparative Negligence) 17 3. As a further, separate and affirmative defense to the Cross-Complaint, and each cause 18 of action alleged therein, it is alleged that others were careless, negligent and at fault with respect 19 to the matters alleged in the Cross-Complaint, and that such carelessness, negligence and fault 20 proximately caused or contributed to the happening of the incident, injuries, loss or damages 21 complained of, if any, and Cross-Complainant’s contributory or comparative fault either bars or 22 proportionately reduces any potential recovery. 23 THIRD AFFIRMATIVE DEFENSE 24 (Statute Of Limitations) 25 4. As a further, separate and affirmative defense to the Cross-Complaint, and each cause 26 of action alleged therein, it is alleged that each such cause of action is barred by the applicable 27 statute of limitations stated in Part II, Title II, of the California Code of Civil Procedure including, 28 /// {00950155:1} 2 CR CUSTOM CARPENTRY, INC.’s, sued herein as ROE 2, ANSWER TO HILLS CONSTRUCTION, INC.’S CROSS-COMPLAINT 1 but not limited to, those set forth in California Code of Civil Procedure sections 337, 337(a), 337.1, 2 337.15, 338, 339, 340, 342 and 343. 3 FOURTH AFFIRMATIVE DEFENSE 4 (Unclean Hands) 5 5. As a further, separate and affirmative defense to the Cross-Complaint, and each cause 6 of action alleged therein, it is alleged that other individuals, other entities and/or Cross-Complainant 7 comes to court with unclean hands. 8 FIFTH AFFIRMATIVE DEFENSE 9 (Waiver) 10 6. As a further, separate and affirmative defense to the Cross-Complaint, and each cause 11 of action alleged therein, it is alleged that other individuals, other entities and/or Cross-Complainant 12 has, by acts or omissions to act, waived any potential right to pursue any action against CR 13 CUSTOM CARPENTRY. KENNEDY & SOUZA, APC 14 SIXTH AFFIRMATIVE DEFENSE 15 (Failure To Mitigate Damages) 16 7. As a further, separate and affirmative defense to the Cross-Complaint, and each cause 17 of action alleged therein, it is alleged that other individuals, other entities and/or Cross-Complainant, 18 by its conduct, actions or failure to act, have failed to mitigate their claimed damages. 19 SEVENTH AFFIRMATIVE DEFENSE 20 (Laches) 21 8. As a further, separate and affirmative defense to the Cross-Complaint, and each cause 22 of action alleged therein, it is alleged that other individuals, other entities and/or Cross-Complainant 23 has unreasonably delayed in bringing an action and/or in naming CR CUSTOM CARPENTRY and 24 has thereby prejudiced rights; therefore, this action is barred by the doctrine of laches. 25 EIGHTH AFFIRMATIVE DEFENSE 26 (Comparative Indemnification) 27 9. As a further separate and affirmative defense to the Cross-Complaint, and each cause 28 of action alleged therein, it is alleged that while denying any and all liability on the part of CR {00950155:1} 3 CR CUSTOM CARPENTRY, INC.’s, sued herein as ROE 2, ANSWER TO HILLS CONSTRUCTION, INC.’S CROSS-COMPLAINT 1 CUSTOM CARPENTRY, CR CUSTOM CARPENTRY is informed and believes, and thereon 2 alleges, that other individuals, other entities and/or Cross-Complainant, whether or not parties to 3 this action, carelessly, negligently, or intentionally proximately caused or contributed to the 4 happening of the injury, loss or damages complained of, if any, and any damages awarded must be 5 apportioned among such persons or entities, whether or not they are parties, in proportion to any 6 amount attributable to such other persons or entities. 7 NINTH AFFIRMATIVE DEFENSE 8 (Ripeness) 9 10. As a further, separate and affirmative defense to the Cross-Complaint, and each cause 10 of action alleged therein, it is alleged that it is premature and that it does not present this Court with 11 a justiciable case or controversy. 12 TENTH AFFIRMATIVE DEFENSE 13 (Standing) KENNEDY & SOUZA, APC 14 11. As a further, separate and affirmative defense to the Cross-Complaint, and each cause 15 of action alleged therein, it is alleged that there is a lack of standing to bring suit. 16 ELEVENTH AFFIRMATIVE DEFENSE 17 (Failure to Cooperate) 18 12. As a further, separate and affirmative defense to the Cross-Complaint, and each cause 19 of action alleged therein, itis alleged that the conduct of others regarding the duty to cooperate, 20 constituted a breach of said duty resulting in prejudice to CR CUSTOM CARPENTRY, and such 21 failure to cooperate either bars or proportionately reduces any potential recovery by Cross- 22 Complainant, and/or entitles CR CUSTOM CARPENTRY, to recover any damages they have 23 incurred as a result of Cross-Complainant’s breach. 24 TWELFTH AFFIRMATIVE DEFENSE 25 (Collusion) 26 13. As a further, separate and affirmative defense to the Cross-Complaint, and each cause 27 of action alleged therein, it is alleged that the conduct, actions, or failures to act of individuals, or 28 entities in combination with other persons or entities, whether or not parties to this action, {00950155:1} 4 CR CUSTOM CARPENTRY, INC.’s, sued herein as ROE 2, ANSWER TO HILLS CONSTRUCTION, INC.’S CROSS-COMPLAINT 1 constituted collusion and such collusion either bars or proportionally reduces any recovery by Cross- 2 Complainant in this action, and/or entitles CR CUSTOM CARPENTRY to recover any damages 3 they have incurred as a result of such conduct, actions or failures to act. 4 THIRTEENTH AFFIRMATIVE DEFENSE 5 (Statute of Frauds) 6 14. As a further, separate and affirmative defense to the Cross-Complaint, and each cause 7 of action alleged therein, it is alleged that each such cause of action is barred, in whole or in part, as 8 a result of the application of the Statute of Frauds. 9 FOURTEENTH AFFIRMATIVE DEFENSE 10 (Parole Evidence Rule) 11 15. As a further, separate and affirmative defense to the Cross-Complaint, and each cause 12 of action alleged therein, it is alleged that each such cause of action is barred, in whole or in part, as 13 a result of the application of the Parole Evidence Rule. KENNEDY & SOUZA, APC 14 FIFTEENTH AFFIRMATIVE DEFENSE 15 (Conditions Precedent) 16 16. As a further, separate and affirmative defense to the Cross-Complaint, and each cause 17 of action alleged therein, it is alleged that any obligation of CR CUSTOM CARPENTRY pursuant 18 to the terms of any agreements is excused since conditions precedent to performance have not been 19 met. 20 SIXTEENTH AFFIRMATIVE DEFENSE 21 (Necessary Parties) 22 17. As a further, separate and affirmative defense to the Cross-Complaint, and each cause 23 of action alleged therein, it is alleged that the claims, and each of them, are barred, in whole or in 24 part, as a result of the failure to name and serve necessary parties. 25 /// 26 /// 27 /// 28 /// {00950155:1} 5 CR CUSTOM CARPENTRY, INC.’s, sued herein as ROE 2, ANSWER TO HILLS CONSTRUCTION, INC.’S CROSS-COMPLAINT 1 SEVENTEENTH AFFIRMATIVE DEFENSE 2 (Indispensable Parties) 3 18. As a further, separate and affirmative defense to the Cross-Complaint, and each cause 4 of action alleged therein, it is alleged that the claims, and each of them, are barred, in whole or in 5 part, as a result of the failure to name and serve indispensable parties. 6 EIGHTEENTH AFFIRMATIVE DEFENSE 7 (Implied Consent) 8 19. As a further, separate and affirmative defense to the Cross-Complaint, and each cause 9 of action alleged therein, it is alleged that others expressly or impliedly consented to the conduct 10 complained of; therefore, the Cross-Complaint is barred in whole or in part. 11 NINETEENTH AFFIRMATIVE DEFENSE 12 (Independent Contractors) 13 20. As a further, separate and affirmative defense to the Cross-Complaint, and each cause KENNEDY & SOUZA, APC 14 of action alleged therein, it is alleged that the dealings upon which the claims are based were with 15 independent contractors; therefore, Cross-Complainant’s exclusive remedy is against those 16 individuals or entities. 17 TWENTIETH AFFIRMATIVE DEFENSE 18 (Failure of Performance) 19 21. As a further, separate and affirmative defense to the Cross-Complaint, and each cause 20 of action alleged therein, it is alleged that the claims, and each of them, are barred, in whole or in 21 part, as a result of Cross-Complainant’s own failure to perform. 22 TWENTY-FIRST AFFIRMATIVE DEFENSE 23 (Failure to Cure) 24 22. As a further, separate and affirmative defense to the Cross-Complaint, and each cause 25 of action alleged therein, it is alleged that the claims, and each of them, are barred, in whole or in 26 part, as a result of Cross-Complainant’s own failure to cure when provided notice and an opportunity 27 to cure. 28 /// {00950155:1} 6 CR CUSTOM CARPENTRY, INC.’s, sued herein as ROE 2, ANSWER TO HILLS CONSTRUCTION, INC.’S CROSS-COMPLAINT 1 TWENTY-SECOND AFFIRMATIVE DEFENSE 2 (Other Individuals, Other Entities’ Negligence) 3 23. As a further, separate and affirmative defense to the Cross-Complaint, and each cause 4 of action alleged therein, it is alleged that the claims, and each of them, are barred, in whole or in 5 part, to the extent that other individuals and/or other entities were negligent. 6 TWENTY-THIRD AFFIRMATIVE DEFENSE 7 (Several Liability) 8 24. As a further, separate and affirmative defense to the Cross-Complaint, and each cause 9 of action alleged therein, it is alleged that any liability for non-economic damages is several only, 10 and not joint, and that any recovery for such damages shall only be against the party in proportion 11 to that parties’ percentage of fault in causing such damages. 12 TWENTY-FOURTH AFFIRMATIVE DEFENSE 13 (Secondary Liability) KENNEDY & SOUZA, APC 14 25. As a further, separate and affirmative defense to the Cross-Complaint, and each cause 15 of action alleged therein, it is alleged that any liability of CR CUSTOM CARPENTRY was passive 16 derivative and/or secondary in nature, while the conduct of others was active and primary in nature; 17 therefore, any recovery against should be barred and/or proportionately reduced. 18 TWENTY-FIFTH AFFIRMATIVE DEFENSE 19 (Acceptance of Performance) 20 26. As a further, separate and affirmative defense to the Cross-Complaint, and each cause 21 of action alleged therein, it is alleged that the claims, and each of them, are barred, in whole or in 22 part, as a result of the acceptance of CR CUSTOM CARPENTRY’s performance. 23 TWENTY-SIXTH AFFIRMATIVE DEFENSE 24 (No Current Controversy) 25 27. As a further, separate and affirmative defense to the Cross-Complaint, and each cause 26 of action alleged therein, it is alleged that the claims, and each of them, are barred, in whole or in 27 part, to the extent that there is no current, justiciable, immediate and/or actual controversy relating 28 to the rights, duties or obligations of the respective parties. {00950155:1} 7 CR CUSTOM CARPENTRY, INC.’s, sued herein as ROE 2, ANSWER TO HILLS CONSTRUCTION, INC.’S CROSS-COMPLAINT 1 TWENTY-SEVENTH AFFIRMATIVE DEFENSE 2 (Delayed Notice) 3 28. As a further, separate and affirmative defense to the Cross-Complaint, and each cause 4 of action alleged therein, it is alleged that the claims, and each of them, are barred in whole or in 5 part, as a result of the delay and/or failure to give proper notice after discovering any alleged breach 6 of an obligation or duty. 7 TWENTY-EIGHTH AFFIRMATIVE DEFENSE 8 (Apportionment) 9 29. As a further, separate and affirmative defense to the Cross-Complaint, and each cause 10 of action alleged therein, it is alleged that any damages were proximately caused or contributed to 11 by persons and/or entities other than CR CUSTOM CARPENTRY, and that the liability for any 12 claims or damages shall be apportioned to all persons and/or entities according to their relative 13 degrees of fault or liability. KENNEDY & SOUZA, APC 14 TWENTY-NINTH AFFIRMATIVE DEFENSE 15 (Intervening or Superseding Negligence) 16 30. As a further, separate and affirmative defense to the Cross-Complaint, and each cause 17 of action alleged therein, it is alleged that the claims, are barred, in whole or in part, as a result of 18 the independent, intervening, superseding and/or supervening negligence, recklessness, carelessness 19 or fault of a person or entity other than CR CUSTOM CARPENTRY. 20 THIRIETH AFFIRMATIVE DEFENSE 21 (Res Judicata) 22 31. As a further, separate and affirmative defense to the Cross-Complaint, and each cause 23 of action alleged therein, it is alleged that the claims, and each of them, are barred, in whole or in 24 part, as a result of the doctrine of res judicata. 25 /// 26 /// 27 /// 28 /// {00950155:1} 8 CR CUSTOM CARPENTRY, INC.’s, sued herein as ROE 2, ANSWER TO HILLS CONSTRUCTION, INC.’S CROSS-COMPLAINT 1 THIRTY-FIRST AFFIRMATIVE DEFENSE 2 (Collateral Estoppel) 3 32. As a further, separate and affirmative defense to the Cross-Complaint, and each cause 4 of action alleged therein, it is alleged that the claims, and each of them, are barred, in whole or in 5 part, as a result of the doctrine of collateral estoppel. 6 THIRTY-SECOND AFFIRMATIVE DEFENSE 7 (Contractual Time Limitations) 8 33. As a further, separate and affirmative defense to the Cross-Complaint, and each cause 9 of action alleged therein, it is alleged that the claims, and each of them, are barred in whole or in 10 part, to the extent that there was a lack of compliance with contractual time limitations regarding 11 the filing of suit, notice and/or warranty claims. 12 THIRTY-THIRD AFFIRMATIVE DEFENSE 13 (No Resultant Damages) KENNEDY & SOUZA, APC 14 34. CR CUSTOM CARPENTRY is informed and believes, and thereon alleges, that as 15 to each alleged cause of action set forth in Cross-Complainants’ Cross-Complaint, the conditions 16 and defects set forth therein, and the damages related thereto, did not arise out of work performed 17 by CR CUSTOM CARPENTRY nor any act or omission related thereto and thus recovery is 18 precluded based on the lack of resultant damages. 19 THIRTY-FOURTH AFFIRMATIVE DEFENSE 20 (Work Performed in Accordance with Plans and Specifications) 21 35. CR CUSTOM CARPENTRY is informed and believes, and thereon alleges, that if 22 materials and/or services were supplied and/or constructed by CR CUSTOM CARPENTRY, they 23 were so supplied and/or constructed in accordance with the plans and specifications supplied to CR 24 CUSTOM CARPENTRY, by persons other than CR CUSTOM CARPENTRY. Any alleged defects 25 in workmanship and/or materials were therefore caused by deficiencies in the plans and 26 specifications supplied to CR CUSTOM CARPENTRY, which deficiencies were neither known to 27 CR CUSTOM CARPENTRY, nor discoverable by CR CUSTOM CARPENTRY, with an exercise 28 of reasonable care. {00950155:1} 9 CR CUSTOM CARPENTRY, INC.’s, sued herein as ROE 2, ANSWER TO HILLS CONSTRUCTION, INC.’S CROSS-COMPLAINT 1 THIRTY-FIFTH AFFIRMATIVE DEFENSE 2 (Adhesion Contract) 3 36. The alleged contract in issue between Cross-Complainant and CR CUSTOM 4 CARPENTRY drafted by Cross-Complainant, is a contract of adhesion; therefore, any ambiguities 5 in the terms and the conditions of the contract must be construed against Cross-Complainant. 6 THIRTY-SIXTH AFFIRMATIVE DEFENSE 7 (Ratification) 8 37. CR CUSTOM CARPENTRY is informed and believes, and thereon alleges, that 9 Cross-Complainant approved the acts and/or omissions, if any, of CR CUSTOM CARPENTRY and 10 ratified same; consequently, Cross-Complainant is barred from recovery herein for equitable 11 indemnity as against CR CUSTOM CARPENTRY. 12 THIRTY-SEVENTH AFFIRMATIVE DEFENSE 13 (Lack of Notice) KENNEDY & SOUZA, APC 14 38. As a further, separate and affirmative defense to the Cross-Complaint, and each cause 15 of action alleged therein, it is alleged that Cross-Complainant failed to conform and/or comply with 16 the terms of the alleged contracts by failing to serve written notice on CR CUSTOM CARPENTRY 17 of any purported deficiencies in CR CUSTOM CARPENTRY’s work, and therefore has waived any 18 and all claims they have against CR CUSTOM CARPENTRY as a result of such alleged 19 deficiencies. 20 THIRTY-EIGHTH AFFIRMATIVE DEFENSE 21 (Performance Excused) 22 39. As a further, separate and affirmative defense to the Cross-Complaint, and each cause 23 of action alleged therein, it is alleged that any failure on the part of CR CUSTOM CARPENTRY to 24 perform the obligations described in the Cross-Complaint is excused by Cross -Complainant’s own 25 breach of contract and/or by reason of impossibility of performance, prevention by Cross- 26 Complainant, frustration of purpose, and/or acceptance by Cross-Complainant. 27 /// 28 /// {00950155:1} 10 CR CUSTOM CARPENTRY, INC.’s, sued herein as ROE 2, ANSWER TO HILLS CONSTRUCTION, INC.’S CROSS-COMPLAINT 1 THIRTY-NINTH AFFIRMATIVE DEFENSE 2 (Direction/Approval) 3 40. CR CUSTOM CARPENTRY is informed and believes and upon such information 4 and believe alleges that Cross-Complainant directed, ordered, approved and/or ratified CR 5 CUSTOM CARPENTRY’s conduct, and Cross-Complainant is therefore estopped from asserting 6 any claim based thereon. 7 FORTIETH AFFIRMATIVE DEFENSE 8 (Approval by Public Entity) 9 41. CR CUSTOM CARPENTRY is informed and believes and upon such information 10 and belief alleges that any and all work performed by CR CUSTOM CARPENTRY with regard to 11 the properties which are the subject matter of this litigation have been inspected and approved of by 12 the local public entities/jurisdiction authority at the time CR CUSTOM CARPENTRY performed 13 its work at the properties involved in this litigation. KENNEDY & SOUZA, APC 14 FORTY-FIRST AFFIRMATIVE DEFENSE 15 (Lack of Scheduling and Coordination by General Contractor) 16 42. CR CUSTOM CARPENTRY is informed and believes and upon such information 17 and belief alleges that any and all defects and damage at the properties which are the subject matter 18 of this litigation are a result of any scheduling and coordination by the general contractor in this 19 matter and are not a result of work performed by CR CUSTOM CARPENTRY. 20 FORTY-SECOND AFFIRMATIVE DEFENSE 21 (Reservation of Rights) 22 43. As a further, separate and affirmative defense to the Cross-Complaint, and each cause 23 of action alleged therein, it is alleged that CR CUSTOM CARPENTRY may have other, separate 24 and additional defenses for which they are not presently aware, and it hereby reserves its rights to 25 assert them by amendment to this answer when discovery is complete. 26 /// 27 /// 28 /// {00950155:1} 11 CR CUSTOM CARPENTRY, INC.’s, sued herein as ROE 2, ANSWER TO HILLS CONSTRUCTION, INC.’S CROSS-COMPLAINT 1 I. 2 PRAYER FOR RELIEF 3 WHEREFORE, in relation to its answer to the Cross-Complaint, CR CUSTOM 4 CARPENTRY prays as follows: 5 (1) That Cross-Complainant shall take nothing by reason of the Cross-Complaint; 6 (2) That the court makes a determination that CR CUSTOM CARPENTRY is not 7 obligated to pay any sums to Cross-Complainant; 8 (3) That the Cross-Complaint should be dismissed; 9 (4) That CR CUSTOM CARPENTRY be awarded costs that it incurred in relation to 10 Cross-Complainant’s subject claims; 11 (5) That CR CUSTOM CARPENTRY be awarded costs of suit and attorneys' fees 12 incurred herein; 13 (6) That CR CUSTOM CARPENTRY be awarded such other and further relief as the KENNEDY & SOUZA, APC 14 court may deem proper; and 15 (7) That if CR CUSTOM CARPENTRY is found liable, the degree of responsibility or 16 liability for the resulting damage should be determined and CR CUSTOM CARPENTRY should be 17 held liable only for that portion of the total damage related to its degree of liability. 18 Dated: December 8, 2021 KENNEDY & SOUZA, APC 19 By: 20 JAMES P. SOUZA, ESQ. E. VAL MENESES, ESQ. 21 Attorneys for Cross-Defendant CR CUSTOM CARPENTRY, INC., sued herein as ROE 2 22 23 24 25 26 27 28 {00950155:1} 12 CR CUSTOM CARPENTRY, INC.’s, sued herein as ROE 2, ANSWER TO HILLS CONSTRUCTION, INC.’S CROSS-COMPLAINT