Preview
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17CV308393
Santa Clara — Civil
Electronically Filed
PATRICK K. O’BRIEN, ESQ. (SBN:167957) by Superior Court of CA,
KATHLEEN C. MILLER, ESQ. (SBN: 202216) County of Santa Clara,
KEVEN HEITZ, ESQ. (SBN: 298899) on 12/14/2020 2:03 PM
O’BRIEN LAW, P.C. Reviewed By: D Harris
755 Baywood Drive, Suite 185 Case #17CV308393
Petaluma, CA 94954-5509 Envelope: 5467750
Tel: (707) 789-6500
Fax: (707) 789-6520
patrick@porbrienlaw.com
kathleen@porbrienlaw.com
kevin@porbrienlaw.com
Attorneys for Cross-Defendant,
AMC GLASS CO., INC.
IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF SANTA CLARA
SHANNON GAINES; Case No.: 17CV308393
Plaintiff, AMC GLASS CO., INC.’S ANSWER TO T.
MILLER CONSTRUCTION, INC.’S CROSS-
vs. COMPLAINT
T. MILLER CONSTRUCTION, INC. and
DOES 1-25, inclusive, - DEMAND FOR JURY TRIAL -
Defendants.
T. MILLER CONSTRUCTION, INC.,
Cross-Complainant,
vs.
ROES 1-300, Inclusive,
Cross-Defendants.
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ANSWER TO CROSS-CROSS-COMPLAINT
jarrisCross-Defendant, AMC GLASS CO., INC. (“Cross-Defendant”) hereby responds to the
unverified | Cross-Complaint (“Cross-Complaint”) of | Cross-Complainant, T. MILLER
CONSTRUCTION, INC. (“Cross-Complainant”), as follows:
GENERAL DENIALS
Pursuant to California Code of Civil Procedure section 431.10, this Cross-Defendant denies
generally and specifically, all and singular, each and every allegation of the Cross-Complaint; and denies
that Cross-Complainant has been injured and/or damaged in any sum, sums, or at all.
Further, as to the Cross-Complaint, and the whole thereof, including each and every purported
cause of action contained therein, Cross-Defendant denies Cross-Complainant sustained, or will
sustain, any injury, damage or loss by reason of any act, omission, negligence, whether active or
passive, breach of express or implied warranty, breach of contract, or any other conduct or absence
thereof on the part of Cross-Defendant or any agent, servant, or employee of Cross-Defendant, and
denies Cross-Defendant was negligent, careless or reckless, acted unlawfully or is guilty of any other
wrongful or culpable act or omission whatsoever.
AFFIRMATIVE DEFENSES
1. AS A FIRST AND DISTINCT AFFIRMATIVE DEFENSE, this Cross-Defendant
alleges that the cause of action in Cross-Complainant’s Cross-Complaint violates the statute of
limitations, including but not limited to Code of Civil Procedure sections 318, 337(1), 337.1, 337.15,
338(2), 338(3), 338(4), 339, 340, 343 and 359; and by Sections 2607(3)(a) and 2725(1)(2) of the
California Commercial Code.
2 AS A SECOND AND DISTINCT AFFIRMATIVE DEFENSE, this Cross-Defendant
alleges that the Cross-Complaint, and each cause of action contained therein, fails to state facts sufficient
to constitute a cause of action.
3. AS A THIRD SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, this Cross-
Defendant is informed and believes and thereon alleges that Cross-Complainant was negligent, careless,
and/or otherwise at fault in and about the matters alleged in the Cross-Complaint, and to the extent said
negligence, carelessness and/or fault caused and/or contributed to injuries and/or damages, if any, Cross-
Complainant’s recovery should be barred or proportionately reduced.
=e
ANSWER TO CROSS-CROSS-COMPLAINT4. AS A FOURTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, this Cross-
Defendant is informed and believes and thereon alleges that persons other than Cross-Complainant and
this Cross-Defendant was careless and/or negligent, and/or committed intentional acts, and that this
carelessness and negligence or these intentional acts proximately contributed to the happening of the
incidents referred to in the Cross-Complaint. Said acts are imputed to Cross-Complainant by reason of
its relationship to said parties and/or said acts comparatively reduce the percentage of negligence and/or
intentional acts, if any, of this Cross-Defendant.
5. AS A FIFTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, this Cross-
Defendant is informed and believes and thereon alleges that Cross-Complainant failed and neglected to
use reasonable care to protect itself and to minimize the losses and damages complained of, if any there
were.
6. AS A SIXTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, this Cross-
Defendant is informed and believes and thereon alleges that Cross-Complainant did not rely upon any
representations made by this Cross-Defendant, and therefore, any injuries, losses, or damages
complained of by the Cross-Complainant, if any there were, were not occasioned by any representations
made by this Cross-Defendant.
de AS A SEVENTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, this
Cross-Defendant is informed and believes and thereon alleges that Cross-Complainant ratified and
confirmed the transactions which are the subject matter of this Cross-Complaint, and every
representation, if any, made by this Cross-Defendant.
8. AS AN EIGHTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, this Cross-
Defendant is informed and believes and thereon alleges that the Cross-Complainant had superior
knowledge in and about the matters alleged to have been represented by this Cross-Defendant, which
knowledge precludes any recovery.
oF AS A NINTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, this Cross-
Defendant is informed and believes and thereon alleges that the Cross-Complaint, and each cause of
action contained therein, is barred by the equitable Doctrine of Laches.
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ANSWER TO CROSS-CROSS-COMPLAINT10. AS A TENTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, this Cross-
Defendant is informed and believes and thereon alleges that the Cross-Complaint, and each cause of
action contained therein, is barred by the equitable Doctrine of Unclean Hands.
11. AS AN ELEVENTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, this
Cross-Defendant is informed and believes and thereon alleges that the Cross-Complaint, and each cause
of action contained therein, is barred by the equitable Doctrine of Waiver and Cross-Complainant is also
estopped from maintaining this action.
12. AS A TWELFTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, this
Cross-Defendant is informed and believes and thereon alleges that Cross-Complainant waived the right
to demand full performance from Cross-Defendant because Cross-Complainant knew it had the right to
obtain insurance coverage and Cross-Complainant waived that right by accepting Cross-Defendant’s
performance.
135 AS A THIRTEENTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, this
Cross-Defendant is informed and believes and thereon alleges that Cross-Complainant waived the right
to object because the differences could have been corrected if they had been pointed out at the time, and
that at the time the offer of performance was made by Cross-Defendant, Cross-Complainant had the
opportunity to point out to Cross-Defendant that its performance was defective and did not do so and if
the issue had been raised, Cross-Defendant could have performed according to contract.
14. AS A FOURTEENTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, this
Cross-Defendant is informed and believes and thereon alleges that Cross-Complainant assumed the risk,
if any there was, at the time and place of the incident(s) referred to in the Cross-Complaint.
15. AS A FIFTEENTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, this
Cross-Defendant is informed and believes and thereon alleges that, by the exercise of reasonable effort,
Cross-Complainant could have mitigated the damages allegedly suffered; however, Cross-Complainant
failed and refused, and continues to fail and refuse, to exercise a reasonable effort to mitigate the
damages.
16. | AS A SIXTEENTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, this
Cross-Defendant is informed and believes and thereon alleges that at no time has Cross-Defendant
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ANSWER TO CROSS-CROSS-COMPLAINTbreached any warranty to Cross-Complainant or any other party herein, and Cross-Defendant further
alleges that even if any warranties had been made by the answering Cross-Defendant, which is denied,
no cause of action for breach of warranty has been asserted or may be asserted against this Cross-
Defendant as there are no allegations of privity between this Cross-Defendant any other party and, in
fact, there was no such privity as to give rise to such a cause of action.
17. AS ASEVENTEENTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, this
Cross-Defendant is informed and believes and thereon alleges that Cross-Complainant lacks standing to
bring a cause of action for the defects that are referred to in the Cross-Complaint.
18. AS AN EIGHTEENTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, this
Cross-Defendant alleges that any purported contracts were contracts of adhesion and that such contracts
are unconscionable. Thus, Cross-Complainant is barred from any and all recovery or relief relating to
such contracts. Further, any such contracts seek to incorporate hidden and undisclosed terms which were
neither known nor readily available to Cross-Defendant. Said contracts must be resolved against Cross-
Complainant and in favor of this answering Cross-Defendant.
19. | AS A NINETEENTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, this
Cross-Defendant alleges that, by reason of his conduct, Cross-Complainant is estopped from asserting
any claim against this answering Cross-Defendant.
20. | AS A TWENTIETH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, this
Cross-Defendant alleges Cross-Complainant failed to meet and perform all necessary covenants,
conditions and promises required by him to perform in accordance with the terms and conditions of
any alleged written or implied warranty.
21. AS A TWENTY-FIRST SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE,
this Cross-Defendant alleges the acts or omissions complained of in the Cross-Complaint by this
Cross-Defendant were consented to by Cross-Complainant, and therefore Cross-Complainant cannot
complain of the damages alleged in the Cross-Complaint.
22. | AS A TWENTY-SECOND SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this Cross-Defendant alleges the actions of Cross-Complainant prevented this Cross-
Defendant from performing in any way and released this Cross-Defendant from any duty or liability to
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ANSWER TO CROSS-CROSS-COMPLAINTCross-Complainant. Should any breach of duty have occurred on the part of this Cross-Defendant,
said breach was waived by the conduct and actions of Cross-Complainant.
23. AS A TWENTY-THIRD SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE,
this Cross-Defendant alleges that each and every cause of action is barred because Cross-Complainant
lacks the capacity to sue.
24. | AS A TWENTY-FOURTH SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this Cross-Defendant alleges that if Cross-Complainant is allowed
recovery based on its Cross-Complaint, Cross-Complainant will be unjustly enriched at Cross-
Defendant’s expense.
25 AS A TWENTY-FIFTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE,
this Cross-Defendant alleges that Cross-Complainant and others may have altered the product
involved, proximately causing the events and damages, if any there were, and recovery therefore is
barred or proportionately reduced accordingly.
26. AS A TWENTY-SIXTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE,
this Cross-Defendant alleges that Cross-Complainant either intentionally or negligently failed to
preserve the primary evidence relevant to this litigation, thus failing to give this answering Cross-
Defendant an opportunity to inspect said evidence and thereby severely damaging and prejudicing a
defense. Cross-Complainant should therefore be barred from introducing secondary or lesser evidence,
and any recovery should be diminished accordingly.
27. AS A TWENTY-SEVENTH SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this Cross-Defendant alleges that if any contract, obligations, or amendments have been
entered into, any duty or performance of this answering Cross-Defendant is excused by reason of
failure of consideration, waiver, breach of condition precedent, breach by Cross-Complainant,
impossibility of performance, prevention by Cross-Complainant, frustration of purpose, and/or
acceptance by Cross-Complainant.
‘Tf
///
///
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ANSWER TO CROSS-CROSS-COMPLAINT28. AS A TWENTY-EIGHT SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE,
this Cross-Defendant alleges that any and all events, happening, injuries, and damages, if any there
were, as alleged in the Cross-Complaint, were a direct result of an unforeseeable act of God, thereby
barring either partially or totally Cross-Complainant’s claimed damages.
29. AS A TWENTY-NINTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE,
this Cross-Defendant alleges that Cross-Complainant’s injuries, damages, or harms suffered were a
result of some intervening or superseding cause, thus relieving this answering Cross-Defendant of any
liability for any cause of action in the Cross-Complaint.
30. AS A THIRTIETH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE,
Cross-Defendant alleges that Cross-Complainant is barred from recovery based on the Cross-
Complaint because Cross-Complainant failed to give timely and proper notice of alleged defects and/or
damages pertaining to the premises that are subject to this action, and/or has failed to allow a sufficient
and reasonable opportunity to cure such alleged defects and/or damages.
31. AS A THIRTY-FIRST SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE,
Cross-Defendant alleges that Cross-Complainant or others may have improperly used or improperly
maintained the product involved herein, proximately causing the events and damages, if any there
were, and recovery is therefore barred or proportionally reduced accordingly.
32. AS A THIRTY-SECOND SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE,
Cross-Defendant alleges that at all times mentioned in the Cross-Complaint, no agency, servant,
employee or fiduciary relationship existed between this answering Cross-Defendant and Cross-
Complainant or this answering Cross-Defendant and any other party.
33. AS A THIRTY-THIRD SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE,
Cross-Defendant alleges that if it is found that this answering Cross-Defendant made a warranty,
express or implied, which Cross-Defendant denies, such warranty, if any, was disclaimed, excluded
and limited in all of its parts and in its entirety, explicitly and conspicuously, both orally and in
writing, in words that plainly convey the meaning to Cross-Complainant such that the disclaimer and
limitation of such warranty, if any, together with exclusions and modifications in the course of dealing
///
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ANSWER TO CROSS-CROSS-COMPLAINTand usage of the trade, all operate to preclude Cross-Complainant from reliance upon a recovery under
such alleged warranty.
34. AS A THIRTY-FOURTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE,
Cross-Defendant alleges that as a separate and distinct affirmative defense, Cross-Defendant is
informed and believes and based thereon alleges that if it is determined that Cross-Defendant was
negligent, said negligence was secondary and passive, as contrasted with the active and primary
negligence of other parties to this lawsuit, and therefore, Cross-Complainant is not, as a matter of law,
entitled to recovery from Cross-Defendant on any theory of indemnity.
35. AS A THIRTY-FIFTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE,
Cross-Defendant alleges that the principals of comparative equitable indemnity should be applied by
the Court where appropriate, despite the absence of Cross-Complainant’s Cross-Complaint specifically
requesting same.
36. AS A THIRTY-SIXTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE,
Cross-Defendant alleges that no relationship existed between Cross-Complainant and Cross-Defendant
which would give rise to indemnity.
37. AS A THIRTY-SEVENTH SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, Cross-Defendant alleges that Cross-Defendant fully performed, satisfied and discharged all
duties and obligations it may have owed to Cross-Complainant and/or Cross-Complainant’s assignor
arising out of any and all agreements, representations or contracts made by Cross-Defendant prior to
the commencement of this action. This action is therefore barred by the provision of California Civil
Code Section 1473.
38. AS A THIRTY-EIGHTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE,
Cross-Defendant alleges that at all times and places alleged in the Cross-Complaint, Cross-
Complainant’s assignor(s) failed to perform all duties and obligations on its part of any agreement, oral
or written, with Cross-Defendant, and such acts or omissions bar Cross-Complainant’s recovery
herein.
39. | AS A THIRTY-NINTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE,
Cross-Defendant alleges that Cross-Complainant failed to take all proper measures and remedies to
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ANSWER TO CROSS-CROSS-COMPLAINTprotect his property from damage and injury and said actions or inactions work as a complete bar to
any recovery herein.
40. AS A FORTIETH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, Cross-
Defendant alleges that Cross-Complainant is barred and precluded from recovery in this action because
Cross-Defendant at all relevant times complied with the applicable provisions of the Uniform Building
Code, was prevented from compliance by circumstances beyond its control, and/or was justified in
noncompliance.
41. AS A FORTY-FIRST SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE,
Cross-Defendant alleges that Cross-Complainant unreasonably failed to minimize or prevent alleged
damages in a timely manner by virtue of Cross-Complainant’s failure to properly follow or adhere to
procedures contained within applicable offer to purchase or warranty agreements, Cross-
Complainant’s failure to give timely notice to the Cross-Defendant after discovery of alleged
violations, and Cross-Complainant’s failure to allow Cross-Defendant or its representatives and agents
reasonable and timely access for inspections and repairs, thus barring or diminishing some or all of the
Cross-Complainant’s recovery herein.
42. | AS A FORTY-SECOND SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE,
Cross-Defendant alleges that Cross-Complainant or its members, tenants, assigns or agents, or through
independent third parties’ alterations, or through ordinary wear and tear, misuse, abuse or neglect, or by
use of the structure for something other than its intended purpose caused damage, thus barring or
diminishing some or all of Cross-Complainant’s recovery herein.
43. AS A FORTY-THIRD SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE,
Cross-Defendant alleges that Cross-Complainant is barred and precluded from any recovery in this
action because Cross-Defendant at all times complied with the applicable standard of care required of
Cross-Defendant, at the time and location where the services were rendered.
44, AS A FORTY-FOURTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE,
Cross-Defendant alleges that the subject property conformed to generally accepted industry standards
and was safe for its intended uses. At all relevant times, the subject property conformed to the "state of
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ANSWER TO CROSS-CROSS-COMPLAINTthe art" in Cross-Defendant's industry, and Cross-Defendant should not be held liable for any unknown
and undiscoverable dangers allegedly associated with the property.
45. AS A FORTY-FIFTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE,
Cross-Defendant alleges that Cross-Complainant has failed to satisfy one or more express or implied
conditions precedent to any obligations allegedly owed to Cross-Complainant.
46. AS A FORTY-SIXTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE,
Cross-Defendant alleges that should Cross-Complainant recover from Cross-Defendant, Cross-
Defendant is entitled to indemnification, either in whole or in part from all persons or entities whose
negligence and/or fault proximately contributed to Cross-Complainant’s damages, if any there were.
47. AS A FORTY-SEVENTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE,
Cross-Defendant alleges that by the terms of its contract, Cross-Defendant is not responsible for the
method or means of construction used by any subcontractor, nor is Cross-Defendant responsible for
any subcontractor's failure to carry out the work in accordance with its contract documents.
48. AS A FORTY-EIGHTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE,
Cross-Defendant alleges that the claims of Cross-Complainant are barred by Uniform Commercial
Code Sections 12-1(25)(c), 2510, 2513(1) and (3), 2601, 2605(1)(a) and (b), 2606(1)(a) and (b), 2607,
2715(2)(a) and 2719(3).
49. AS A FORTY-NINTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE,
Cross-Defendant alleges that Cross-Complainant was negligent and careless in and about the matters
and events referred to in the Cross-Complaint, which negligence and carelessness proximately caused
and/or contributed to the liability, damages, or injuries sustained by Cross-Complainant, if any there
were or are. Said negligence and carelessness completely bars and/or reduces to the proportional
extent of said negligence and carelessness, any decision, verdict or recovery to which Cross-
Complainant may be entitled.
50. AS A FIFTIETH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, Cross-
Defendant alleges that Cross-Complainant is barred from recovering under any tort theory of recovery
under the Economic Loss Doctrine.
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ANSWER TO CROSS-CROSS-COMPLAINT51. AS A FIFTY-FIRST SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE,
Cross-Defendant alleges that the Cross-Complaint fails as a result of misjoinder of parties.
52. AS A FIFTY-SECOND SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE,
Cross-Defendant alleges that Cross-Complainant is barred from obtaining the relief requested by the
doctrine of collateral estoppel.
53. AS A FIFTY-THIRD SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE,
Cross-Defendant alleges that Cross-Complainant is barred from obtaining the relief requested by the
doctrine of res judicata.
54, AS A FIFTY-FOURTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE,
Cross-Defendant alleges that Cross-Complainant’s claims are barred, including because they have been
previously released.
55. AS A FIFTY-FIFTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE,
Cross-Defendant alleges that Cross-Defendant presently has insufficient knowledge or insufficient
information upon which to form a belief whether Cross-Defendant may have additional, yet
unasserted, affirmative defenses, including but not limited to affirmative defenses that may be
specified in Section 945.5 of the California Civil Code. Cross-Defendant reserves the right to assert
additional affirmative defenses in the event discovery indicates it would be appropriate.
WHEREFORE, this Cross-Defendant prays as follows:
1. That Cross-Complainant takes nothing from this answering Cross-Defendant by this
Cross-Complaint;
2. For an apportionment of damage in proportion to the degree of fault of each responsible
party;
3. That Cross-Defendant be awarded judgment in this action;
4. For attorneys’ fees incurred herein;
> For costs of suit incurred herein; and
6. For such other and further relief as the Court deems proper.
///
///
elle
ANSWER TO CROSS-CROSS-COMPLAINTn
ay a
ow
jury.
Cross-Defendant hereby demands that the trial in the above-captioned matter be tried before a
DATED: December 14, 2020 O’BRIEN LAW, P.C.
,, fathin (le
PATRICK K. O’BRIEN, ESQ.
KATHLEEN C. MILLER, ESQ.
Attorneys for Cross-Defendant,
AMC GLASS CO., INC.
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ANSWER TO CROSS-CROSS-COMPLAINTPROOF OF SERVICE
Gaines v. T. Miller Construction, Inc.
Santa Clara
Case No. 17CV308393
I, the undersigned, hereby declare that I am over the age of 18 years and not a party to the
above-captioned action; that my business address is 755 Baywood Drive, Suite 185, Petaluma,
California, 94954.
On the date set forth below, the following document(s) were served:
AMC GLASS CO., INC.’S ANSWER TO T MILLER CONSTRUCTION'S CROSS-
COMPLAINT
on the other parties to this action at the following address:
Daniel J. Mash
McPharlin Sprinkles & Thomas, LLP
160 W Santa Clara St, Suite 400
San Jose, CA 95113
Main:(408) 293-1900
Attorneys for SHANNON GAINES
Todd Fischer
Fischer Kerny, LLP
2600 Garden Road, Suite 222
Monterey, CA 93940
Main: (831) 372-9200
Attorneys for T. MILLER
Plaintiff CONSTRUCTION, INC.
Defendant
Julie McElroy, Esq. Timothy J. McCaffery, Esq.
Jacobsen & McElroy PC McCAFFERY HOSKING LLP
2401 American River Drive, Suite 100
Sacramento, CA 95825
Main: (916) 971-4100
Attorneys for Bruce Mechanical, Inc.
Cross-Defendant
1777 Botelho Drive, Suite 360
Walnut Creek, CA 94596-508
Main: (925) 705-7358
Attorneys for Brett Shelton Roofing
Cross-Defendant
Sally Williams
Sally williams Law
555 Soquel Avenue, Ste. 380
Santa Cruz, CA 95062
Main: (831) 459-6096
Attorneys for Golden State Plastering
Cross-Defendant
Kevin P. Lee, Esq.
Mokri Vanis & Jones, LLP
2251 Fair Oaks Boulevard
Suite 100
Sacramento, CA 95825
Main: (925) 375-1851
Attorneys for Fernandez's Painting
Cross-Defendant
Mark J. Heisey
Burnam Brown
P.O. Box 119
Oakland, CA 94604-0119
Main: (510) 444-6800
Attorneys for Southwest Door & Window
dba Portofino Glass Works
Jonathan C. Bacon, Esq.
MOKRI VANIS & JONES LLP
2251 Fair Oaks Blvd., Suite 100
Sacramento, CA 95825
Main: (925) 471-8400
Attorneys for Shelton Roofing
Cross-Defendant
ae
PROOF OF SERVICEBradley A. Bening, Esq.
Willoughby, Stuart, Bening & Cook
50 W. San Fernando Street, Suite 400
San Jose, CA 95113
Special Master
Joseph M. Sweeney, Esq.
Sweeney Mason LLP
983 University Avenue, Ste. 104C
Los Gatos, CA 95032-7637
Main: (408) 356-3000
Attorneys for Shannon Gaines
Plaintiff
Darrell V. Nguyen
TYSON & MENDES LLP
Jim E. Sell, Esq.
Candice N. Hamant, Esq.
Darrell V. Nguyen, Esq.
371 Bel Marin Keys Blvd., Suite 100
Novato, CA 94949
Main: (628) 253-5070
Attorneys for Centaur Plumbing dba Echo
Plumbing
Cross-Defendant
&] (BY ELECTRONIC SERVICE) Complying with Code of Civil Procedure §1010.6,
my electronic business address and I caused such document to be electronically served through
FileAndServeXpress for the above-entitled case to the parties on the Service List maintained on the
FileAndServeXpress Website for this case. The file transmission was reported as complete and a
copy of the FileAndServeXpress receipt will be maintained with the original document in our
office.
I declare under penalty of perjury under the laws of the United States that the foregoing is
true and correct.
Executed December 14, 2020, at Petaluma, California.
Nick Carrera
OE
PROOF OF SERVICE
Preview
n 17CV308393 Santa Clara — Civil Electronically Filed PATRICK K. O’BRIEN, ESQ. (SBN:167957) by Superior Court of CA, KATHLEEN C. MILLER, ESQ. (SBN: 202216) County of Santa Clara, KEVEN HEITZ, ESQ. (SBN: 298899) on 12/14/2020 2:03 PM O’BRIEN LAW, P.C. Reviewed By: D Harris 755 Baywood Drive, Suite 185 Case #17CV308393 Petaluma, CA 94954-5509 Envelope: 5467750 Tel: (707) 789-6500 Fax: (707) 789-6520 patrick@porbrienlaw.com kathleen@porbrienlaw.com kevin@porbrienlaw.com Attorneys for Cross-Defendant, AMC GLASS CO., INC. IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SANTA CLARA SHANNON GAINES; Case No.: 17CV308393 Plaintiff, AMC GLASS CO., INC.’S ANSWER TO T. MILLER CONSTRUCTION, INC.’S CROSS- vs. COMPLAINT T. MILLER CONSTRUCTION, INC. and DOES 1-25, inclusive, - DEMAND FOR JURY TRIAL - Defendants. T. MILLER CONSTRUCTION, INC., Cross-Complainant, vs. ROES 1-300, Inclusive, Cross-Defendants. -1- ANSWER TO CROSS-CROSS-COMPLAINT jarrisCross-Defendant, AMC GLASS CO., INC. (“Cross-Defendant”) hereby responds to the unverified | Cross-Complaint (“Cross-Complaint”) of | Cross-Complainant, T. MILLER CONSTRUCTION, INC. (“Cross-Complainant”), as follows: GENERAL DENIALS Pursuant to California Code of Civil Procedure section 431.10, this Cross-Defendant denies generally and specifically, all and singular, each and every allegation of the Cross-Complaint; and denies that Cross-Complainant has been injured and/or damaged in any sum, sums, or at all. Further, as to the Cross-Complaint, and the whole thereof, including each and every purported cause of action contained therein, Cross-Defendant denies Cross-Complainant sustained, or will sustain, any injury, damage or loss by reason of any act, omission, negligence, whether active or passive, breach of express or implied warranty, breach of contract, or any other conduct or absence thereof on the part of Cross-Defendant or any agent, servant, or employee of Cross-Defendant, and denies Cross-Defendant was negligent, careless or reckless, acted unlawfully or is guilty of any other wrongful or culpable act or omission whatsoever. AFFIRMATIVE DEFENSES 1. AS A FIRST AND DISTINCT AFFIRMATIVE DEFENSE, this Cross-Defendant alleges that the cause of action in Cross-Complainant’s Cross-Complaint violates the statute of limitations, including but not limited to Code of Civil Procedure sections 318, 337(1), 337.1, 337.15, 338(2), 338(3), 338(4), 339, 340, 343 and 359; and by Sections 2607(3)(a) and 2725(1)(2) of the California Commercial Code. 2 AS A SECOND AND DISTINCT AFFIRMATIVE DEFENSE, this Cross-Defendant alleges that the Cross-Complaint, and each cause of action contained therein, fails to state facts sufficient to constitute a cause of action. 3. AS A THIRD SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, this Cross- Defendant is informed and believes and thereon alleges that Cross-Complainant was negligent, careless, and/or otherwise at fault in and about the matters alleged in the Cross-Complaint, and to the extent said negligence, carelessness and/or fault caused and/or contributed to injuries and/or damages, if any, Cross- Complainant’s recovery should be barred or proportionately reduced. =e ANSWER TO CROSS-CROSS-COMPLAINT4. AS A FOURTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, this Cross- Defendant is informed and believes and thereon alleges that persons other than Cross-Complainant and this Cross-Defendant was careless and/or negligent, and/or committed intentional acts, and that this carelessness and negligence or these intentional acts proximately contributed to the happening of the incidents referred to in the Cross-Complaint. Said acts are imputed to Cross-Complainant by reason of its relationship to said parties and/or said acts comparatively reduce the percentage of negligence and/or intentional acts, if any, of this Cross-Defendant. 5. AS A FIFTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, this Cross- Defendant is informed and believes and thereon alleges that Cross-Complainant failed and neglected to use reasonable care to protect itself and to minimize the losses and damages complained of, if any there were. 6. AS A SIXTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, this Cross- Defendant is informed and believes and thereon alleges that Cross-Complainant did not rely upon any representations made by this Cross-Defendant, and therefore, any injuries, losses, or damages complained of by the Cross-Complainant, if any there were, were not occasioned by any representations made by this Cross-Defendant. de AS A SEVENTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, this Cross-Defendant is informed and believes and thereon alleges that Cross-Complainant ratified and confirmed the transactions which are the subject matter of this Cross-Complaint, and every representation, if any, made by this Cross-Defendant. 8. AS AN EIGHTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, this Cross- Defendant is informed and believes and thereon alleges that the Cross-Complainant had superior knowledge in and about the matters alleged to have been represented by this Cross-Defendant, which knowledge precludes any recovery. oF AS A NINTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, this Cross- Defendant is informed and believes and thereon alleges that the Cross-Complaint, and each cause of action contained therein, is barred by the equitable Doctrine of Laches. /// -3- ANSWER TO CROSS-CROSS-COMPLAINT10. AS A TENTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, this Cross- Defendant is informed and believes and thereon alleges that the Cross-Complaint, and each cause of action contained therein, is barred by the equitable Doctrine of Unclean Hands. 11. AS AN ELEVENTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, this Cross-Defendant is informed and believes and thereon alleges that the Cross-Complaint, and each cause of action contained therein, is barred by the equitable Doctrine of Waiver and Cross-Complainant is also estopped from maintaining this action. 12. AS A TWELFTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, this Cross-Defendant is informed and believes and thereon alleges that Cross-Complainant waived the right to demand full performance from Cross-Defendant because Cross-Complainant knew it had the right to obtain insurance coverage and Cross-Complainant waived that right by accepting Cross-Defendant’s performance. 135 AS A THIRTEENTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, this Cross-Defendant is informed and believes and thereon alleges that Cross-Complainant waived the right to object because the differences could have been corrected if they had been pointed out at the time, and that at the time the offer of performance was made by Cross-Defendant, Cross-Complainant had the opportunity to point out to Cross-Defendant that its performance was defective and did not do so and if the issue had been raised, Cross-Defendant could have performed according to contract. 14. AS A FOURTEENTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, this Cross-Defendant is informed and believes and thereon alleges that Cross-Complainant assumed the risk, if any there was, at the time and place of the incident(s) referred to in the Cross-Complaint. 15. AS A FIFTEENTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, this Cross-Defendant is informed and believes and thereon alleges that, by the exercise of reasonable effort, Cross-Complainant could have mitigated the damages allegedly suffered; however, Cross-Complainant failed and refused, and continues to fail and refuse, to exercise a reasonable effort to mitigate the damages. 16. | AS A SIXTEENTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, this Cross-Defendant is informed and believes and thereon alleges that at no time has Cross-Defendant -4- ANSWER TO CROSS-CROSS-COMPLAINTbreached any warranty to Cross-Complainant or any other party herein, and Cross-Defendant further alleges that even if any warranties had been made by the answering Cross-Defendant, which is denied, no cause of action for breach of warranty has been asserted or may be asserted against this Cross- Defendant as there are no allegations of privity between this Cross-Defendant any other party and, in fact, there was no such privity as to give rise to such a cause of action. 17. AS ASEVENTEENTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, this Cross-Defendant is informed and believes and thereon alleges that Cross-Complainant lacks standing to bring a cause of action for the defects that are referred to in the Cross-Complaint. 18. AS AN EIGHTEENTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, this Cross-Defendant alleges that any purported contracts were contracts of adhesion and that such contracts are unconscionable. Thus, Cross-Complainant is barred from any and all recovery or relief relating to such contracts. Further, any such contracts seek to incorporate hidden and undisclosed terms which were neither known nor readily available to Cross-Defendant. Said contracts must be resolved against Cross- Complainant and in favor of this answering Cross-Defendant. 19. | AS A NINETEENTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, this Cross-Defendant alleges that, by reason of his conduct, Cross-Complainant is estopped from asserting any claim against this answering Cross-Defendant. 20. | AS A TWENTIETH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, this Cross-Defendant alleges Cross-Complainant failed to meet and perform all necessary covenants, conditions and promises required by him to perform in accordance with the terms and conditions of any alleged written or implied warranty. 21. AS A TWENTY-FIRST SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, this Cross-Defendant alleges the acts or omissions complained of in the Cross-Complaint by this Cross-Defendant were consented to by Cross-Complainant, and therefore Cross-Complainant cannot complain of the damages alleged in the Cross-Complaint. 22. | AS A TWENTY-SECOND SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, this Cross-Defendant alleges the actions of Cross-Complainant prevented this Cross- Defendant from performing in any way and released this Cross-Defendant from any duty or liability to -5- ANSWER TO CROSS-CROSS-COMPLAINTCross-Complainant. Should any breach of duty have occurred on the part of this Cross-Defendant, said breach was waived by the conduct and actions of Cross-Complainant. 23. AS A TWENTY-THIRD SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, this Cross-Defendant alleges that each and every cause of action is barred because Cross-Complainant lacks the capacity to sue. 24. | AS A TWENTY-FOURTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, this Cross-Defendant alleges that if Cross-Complainant is allowed recovery based on its Cross-Complaint, Cross-Complainant will be unjustly enriched at Cross- Defendant’s expense. 25 AS A TWENTY-FIFTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, this Cross-Defendant alleges that Cross-Complainant and others may have altered the product involved, proximately causing the events and damages, if any there were, and recovery therefore is barred or proportionately reduced accordingly. 26. AS A TWENTY-SIXTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, this Cross-Defendant alleges that Cross-Complainant either intentionally or negligently failed to preserve the primary evidence relevant to this litigation, thus failing to give this answering Cross- Defendant an opportunity to inspect said evidence and thereby severely damaging and prejudicing a defense. Cross-Complainant should therefore be barred from introducing secondary or lesser evidence, and any recovery should be diminished accordingly. 27. AS A TWENTY-SEVENTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, this Cross-Defendant alleges that if any contract, obligations, or amendments have been entered into, any duty or performance of this answering Cross-Defendant is excused by reason of failure of consideration, waiver, breach of condition precedent, breach by Cross-Complainant, impossibility of performance, prevention by Cross-Complainant, frustration of purpose, and/or acceptance by Cross-Complainant. ‘Tf /// /// -6- ANSWER TO CROSS-CROSS-COMPLAINT28. AS A TWENTY-EIGHT SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, this Cross-Defendant alleges that any and all events, happening, injuries, and damages, if any there were, as alleged in the Cross-Complaint, were a direct result of an unforeseeable act of God, thereby barring either partially or totally Cross-Complainant’s claimed damages. 29. AS A TWENTY-NINTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, this Cross-Defendant alleges that Cross-Complainant’s injuries, damages, or harms suffered were a result of some intervening or superseding cause, thus relieving this answering Cross-Defendant of any liability for any cause of action in the Cross-Complaint. 30. AS A THIRTIETH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, Cross-Defendant alleges that Cross-Complainant is barred from recovery based on the Cross- Complaint because Cross-Complainant failed to give timely and proper notice of alleged defects and/or damages pertaining to the premises that are subject to this action, and/or has failed to allow a sufficient and reasonable opportunity to cure such alleged defects and/or damages. 31. AS A THIRTY-FIRST SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, Cross-Defendant alleges that Cross-Complainant or others may have improperly used or improperly maintained the product involved herein, proximately causing the events and damages, if any there were, and recovery is therefore barred or proportionally reduced accordingly. 32. AS A THIRTY-SECOND SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, Cross-Defendant alleges that at all times mentioned in the Cross-Complaint, no agency, servant, employee or fiduciary relationship existed between this answering Cross-Defendant and Cross- Complainant or this answering Cross-Defendant and any other party. 33. AS A THIRTY-THIRD SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, Cross-Defendant alleges that if it is found that this answering Cross-Defendant made a warranty, express or implied, which Cross-Defendant denies, such warranty, if any, was disclaimed, excluded and limited in all of its parts and in its entirety, explicitly and conspicuously, both orally and in writing, in words that plainly convey the meaning to Cross-Complainant such that the disclaimer and limitation of such warranty, if any, together with exclusions and modifications in the course of dealing /// -7- ANSWER TO CROSS-CROSS-COMPLAINTand usage of the trade, all operate to preclude Cross-Complainant from reliance upon a recovery under such alleged warranty. 34. AS A THIRTY-FOURTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, Cross-Defendant alleges that as a separate and distinct affirmative defense, Cross-Defendant is informed and believes and based thereon alleges that if it is determined that Cross-Defendant was negligent, said negligence was secondary and passive, as contrasted with the active and primary negligence of other parties to this lawsuit, and therefore, Cross-Complainant is not, as a matter of law, entitled to recovery from Cross-Defendant on any theory of indemnity. 35. AS A THIRTY-FIFTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, Cross-Defendant alleges that the principals of comparative equitable indemnity should be applied by the Court where appropriate, despite the absence of Cross-Complainant’s Cross-Complaint specifically requesting same. 36. AS A THIRTY-SIXTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, Cross-Defendant alleges that no relationship existed between Cross-Complainant and Cross-Defendant which would give rise to indemnity. 37. AS A THIRTY-SEVENTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, Cross-Defendant alleges that Cross-Defendant fully performed, satisfied and discharged all duties and obligations it may have owed to Cross-Complainant and/or Cross-Complainant’s assignor arising out of any and all agreements, representations or contracts made by Cross-Defendant prior to the commencement of this action. This action is therefore barred by the provision of California Civil Code Section 1473. 38. AS A THIRTY-EIGHTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, Cross-Defendant alleges that at all times and places alleged in the Cross-Complaint, Cross- Complainant’s assignor(s) failed to perform all duties and obligations on its part of any agreement, oral or written, with Cross-Defendant, and such acts or omissions bar Cross-Complainant’s recovery herein. 39. | AS A THIRTY-NINTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, Cross-Defendant alleges that Cross-Complainant failed to take all proper measures and remedies to -8- ANSWER TO CROSS-CROSS-COMPLAINTprotect his property from damage and injury and said actions or inactions work as a complete bar to any recovery herein. 40. AS A FORTIETH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, Cross- Defendant alleges that Cross-Complainant is barred and precluded from recovery in this action because Cross-Defendant at all relevant times complied with the applicable provisions of the Uniform Building Code, was prevented from compliance by circumstances beyond its control, and/or was justified in noncompliance. 41. AS A FORTY-FIRST SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, Cross-Defendant alleges that Cross-Complainant unreasonably failed to minimize or prevent alleged damages in a timely manner by virtue of Cross-Complainant’s failure to properly follow or adhere to procedures contained within applicable offer to purchase or warranty agreements, Cross- Complainant’s failure to give timely notice to the Cross-Defendant after discovery of alleged violations, and Cross-Complainant’s failure to allow Cross-Defendant or its representatives and agents reasonable and timely access for inspections and repairs, thus barring or diminishing some or all of the Cross-Complainant’s recovery herein. 42. | AS A FORTY-SECOND SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, Cross-Defendant alleges that Cross-Complainant or its members, tenants, assigns or agents, or through independent third parties’ alterations, or through ordinary wear and tear, misuse, abuse or neglect, or by use of the structure for something other than its intended purpose caused damage, thus barring or diminishing some or all of Cross-Complainant’s recovery herein. 43. AS A FORTY-THIRD SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, Cross-Defendant alleges that Cross-Complainant is barred and precluded from any recovery in this action because Cross-Defendant at all times complied with the applicable standard of care required of Cross-Defendant, at the time and location where the services were rendered. 44, AS A FORTY-FOURTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, Cross-Defendant alleges that the subject property conformed to generally accepted industry standards and was safe for its intended uses. At all relevant times, the subject property conformed to the "state of /// -9- ANSWER TO CROSS-CROSS-COMPLAINTthe art" in Cross-Defendant's industry, and Cross-Defendant should not be held liable for any unknown and undiscoverable dangers allegedly associated with the property. 45. AS A FORTY-FIFTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, Cross-Defendant alleges that Cross-Complainant has failed to satisfy one or more express or implied conditions precedent to any obligations allegedly owed to Cross-Complainant. 46. AS A FORTY-SIXTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, Cross-Defendant alleges that should Cross-Complainant recover from Cross-Defendant, Cross- Defendant is entitled to indemnification, either in whole or in part from all persons or entities whose negligence and/or fault proximately contributed to Cross-Complainant’s damages, if any there were. 47. AS A FORTY-SEVENTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, Cross-Defendant alleges that by the terms of its contract, Cross-Defendant is not responsible for the method or means of construction used by any subcontractor, nor is Cross-Defendant responsible for any subcontractor's failure to carry out the work in accordance with its contract documents. 48. AS A FORTY-EIGHTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, Cross-Defendant alleges that the claims of Cross-Complainant are barred by Uniform Commercial Code Sections 12-1(25)(c), 2510, 2513(1) and (3), 2601, 2605(1)(a) and (b), 2606(1)(a) and (b), 2607, 2715(2)(a) and 2719(3). 49. AS A FORTY-NINTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, Cross-Defendant alleges that Cross-Complainant was negligent and careless in and about the matters and events referred to in the Cross-Complaint, which negligence and carelessness proximately caused and/or contributed to the liability, damages, or injuries sustained by Cross-Complainant, if any there were or are. Said negligence and carelessness completely bars and/or reduces to the proportional extent of said negligence and carelessness, any decision, verdict or recovery to which Cross- Complainant may be entitled. 50. AS A FIFTIETH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, Cross- Defendant alleges that Cross-Complainant is barred from recovering under any tort theory of recovery under the Economic Loss Doctrine. /// -10- ANSWER TO CROSS-CROSS-COMPLAINT51. AS A FIFTY-FIRST SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, Cross-Defendant alleges that the Cross-Complaint fails as a result of misjoinder of parties. 52. AS A FIFTY-SECOND SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, Cross-Defendant alleges that Cross-Complainant is barred from obtaining the relief requested by the doctrine of collateral estoppel. 53. AS A FIFTY-THIRD SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, Cross-Defendant alleges that Cross-Complainant is barred from obtaining the relief requested by the doctrine of res judicata. 54, AS A FIFTY-FOURTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, Cross-Defendant alleges that Cross-Complainant’s claims are barred, including because they have been previously released. 55. AS A FIFTY-FIFTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, Cross-Defendant alleges that Cross-Defendant presently has insufficient knowledge or insufficient information upon which to form a belief whether Cross-Defendant may have additional, yet unasserted, affirmative defenses, including but not limited to affirmative defenses that may be specified in Section 945.5 of the California Civil Code. Cross-Defendant reserves the right to assert additional affirmative defenses in the event discovery indicates it would be appropriate. WHEREFORE, this Cross-Defendant prays as follows: 1. That Cross-Complainant takes nothing from this answering Cross-Defendant by this Cross-Complaint; 2. For an apportionment of damage in proportion to the degree of fault of each responsible party; 3. That Cross-Defendant be awarded judgment in this action; 4. For attorneys’ fees incurred herein; > For costs of suit incurred herein; and 6. For such other and further relief as the Court deems proper. /// /// elle ANSWER TO CROSS-CROSS-COMPLAINTn ay a ow jury. Cross-Defendant hereby demands that the trial in the above-captioned matter be tried before a DATED: December 14, 2020 O’BRIEN LAW, P.C. ,, fathin (le PATRICK K. O’BRIEN, ESQ. KATHLEEN C. MILLER, ESQ. Attorneys for Cross-Defendant, AMC GLASS CO., INC. -12- ANSWER TO CROSS-CROSS-COMPLAINTPROOF OF SERVICE Gaines v. T. Miller Construction, Inc. Santa Clara Case No. 17CV308393 I, the undersigned, hereby declare that I am over the age of 18 years and not a party to the above-captioned action; that my business address is 755 Baywood Drive, Suite 185, Petaluma, California, 94954. On the date set forth below, the following document(s) were served: AMC GLASS CO., INC.’S ANSWER TO T MILLER CONSTRUCTION'S CROSS- COMPLAINT on the other parties to this action at the following address: Daniel J. Mash McPharlin Sprinkles & Thomas, LLP 160 W Santa Clara St, Suite 400 San Jose, CA 95113 Main:(408) 293-1900 Attorneys for SHANNON GAINES Todd Fischer Fischer Kerny, LLP 2600 Garden Road, Suite 222 Monterey, CA 93940 Main: (831) 372-9200 Attorneys for T. MILLER Plaintiff CONSTRUCTION, INC. Defendant Julie McElroy, Esq. Timothy J. McCaffery, Esq. Jacobsen & McElroy PC McCAFFERY HOSKING LLP 2401 American River Drive, Suite 100 Sacramento, CA 95825 Main: (916) 971-4100 Attorneys for Bruce Mechanical, Inc. Cross-Defendant 1777 Botelho Drive, Suite 360 Walnut Creek, CA 94596-508 Main: (925) 705-7358 Attorneys for Brett Shelton Roofing Cross-Defendant Sally Williams Sally williams Law 555 Soquel Avenue, Ste. 380 Santa Cruz, CA 95062 Main: (831) 459-6096 Attorneys for Golden State Plastering Cross-Defendant Kevin P. Lee, Esq. Mokri Vanis & Jones, LLP 2251 Fair Oaks Boulevard Suite 100 Sacramento, CA 95825 Main: (925) 375-1851 Attorneys for Fernandez's Painting Cross-Defendant Mark J. Heisey Burnam Brown P.O. Box 119 Oakland, CA 94604-0119 Main: (510) 444-6800 Attorneys for Southwest Door & Window dba Portofino Glass Works Jonathan C. Bacon, Esq. MOKRI VANIS & JONES LLP 2251 Fair Oaks Blvd., Suite 100 Sacramento, CA 95825 Main: (925) 471-8400 Attorneys for Shelton Roofing Cross-Defendant ae PROOF OF SERVICEBradley A. Bening, Esq. Willoughby, Stuart, Bening & Cook 50 W. San Fernando Street, Suite 400 San Jose, CA 95113 Special Master Joseph M. Sweeney, Esq. Sweeney Mason LLP 983 University Avenue, Ste. 104C Los Gatos, CA 95032-7637 Main: (408) 356-3000 Attorneys for Shannon Gaines Plaintiff Darrell V. Nguyen TYSON & MENDES LLP Jim E. Sell, Esq. Candice N. Hamant, Esq. Darrell V. Nguyen, Esq. 371 Bel Marin Keys Blvd., Suite 100 Novato, CA 94949 Main: (628) 253-5070 Attorneys for Centaur Plumbing dba Echo Plumbing Cross-Defendant &] (BY ELECTRONIC SERVICE) Complying with Code of Civil Procedure §1010.6, my electronic business address and I caused such document to be electronically served through FileAndServeXpress for the above-entitled case to the parties on the Service List maintained on the FileAndServeXpress Website for this case. The file transmission was reported as complete and a copy of the FileAndServeXpress receipt will be maintained with the original document in our office. I declare under penalty of perjury under the laws of the United States that the foregoing is true and correct. Executed December 14, 2020, at Petaluma, California. Nick Carrera OE PROOF OF SERVICE