ROBERT B. LUECK, ESQ. (83673)
ALEXANDER R. MOORE, ESQ. (195509)
JOHN A. CASTRO, ESQ. (273698)
BOORNAZIAN, JENSEN & GARTHE
A Professional Corporation
555 12th Street, Suite 1800
Oakland, CA 94607
Facsimile: (510) 839-1897
Telephone: (510) 834-4350
Attorneys for Defendant
Madera Framing, Inc. (erroneously
sued as Madera Framing)
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SANTA CLARAError! Bookmark not defined.
CILKER APARTMENTS, LLC,Plaintiff,
vs.
WESTERN NATIONAL CONSTRUCTION, MCLARLAND, VARQUEZ & PARTNERS, INC., GROUP M ENGINEERS, GENTRY ASSOCIATES CONSTRUCTION CONSULTANTS; LARCO INDUSTRIES; FITCH PLASTERING, COURTNEY WATERPROOFING, CELL CRETE, LOS NIETOS CONSTRUCTION, MADERA FRAMING, KELLY DOOR, TARA COATINGS, LDI, ADM PAINTING, ALLIANCE BUILDING PRODUCT, JOS. J. ALBANESE, ANDERSON TRUSS, CALIFORNIA CLASSIC PAVERS, CASEY-FOGIL CONCRETE CONTRACTORS, CENTRAL COAST STAIRS, COMMERCIAL ROOF MANAGEMENT, DAVEY ROOFING, INC., DEMETRIS PAINTING II, INC., DOORWAY MFG., LANDSCAPE PROS, MULTI-BUILDING STRUCTURES, PARK WEST, PYRAMID BUILDERS, ROBECKS WELDING & FABRICATION, RYLOCK COMPANY, SUMMIT WINDOW & PATIO DOOR, VANGUARD and DOES 1-100, inclusive,
Defendants. / )
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FIRST AMENDED ANSWER TO FIRST AMENDED COMPLAINT
Complaint Filed: March 20, 2014
COMES NOW defendant Madera Framing, Inc. (hereinafter “Defendant”), and in answer to the unverified First Amended Complaint of Plaintiff on file herein admits, denies and alleges as follows:
Under the provisions of section 431.30, subdivision (d) of the California Code of Civil Procedure, this answering Defendant denies each and every, all and singular, generally and specifically, the allegations contained in said First Amended Complaint and further denies that Plaintiff has been damaged in any sum or sums, or at all, by reason of any act or omission on the part of this answering Defendant.
WHEREFORE, this answering Defendant prays for judgment as hereinafter set forth.
AS AND FOR A FIRST SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE TO PLAINTIFF’S FIRST AMENDED COMPLAINT, AND TO EACH CAUSE OF ACTION THEREOF, THIS ANSWERING DEFENDANT ALLEGES AS FOLLOWS: Defendant is informed and believes, and upon such information and belief alleges, that Plaintiff was itself careless and negligent in and about the matters alleged in Plaintiff’s First Amended Complaint, and that said carelessness and said negligence on said Plaintiff’s own part proximately contributed to the happening of the incident, and to the injuries, losses or damages complained of, if any there were, and said negligence on the part of Plaintiff shall diminish its recovery herein, if any, in direct proportion to the extent of such negligence.
AS AND FOR A SECOND SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE TO PLAINTIFF’S FIRST AMENDED COMPLAINT, AND TO EACH CAUSE OF ACTION THEREOF, THIS ANSWERING DEFENDANT ALLEGES AS FOLLOWS: Defendant is informed and believes, and upon such information and belief alleges, that Plaintiff was itself actively careless and actively negligent in and about the matters alleged in Plaintiff’s First Amended Complaint, and that said active carelessness and active negligence on said Plaintiff’s own part proximately contributed to the happening of the incident, and to the injuries, losses or damages complained of, if any there were, and said active carelessness and active negligence on the part of Plaintiff shall absolutely bar its recovery herein.
AS AND FOR A THIRD SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE TO PLAINTIFF’S FIRST AMENDED COMPLAINT, AND TO EACH CAUSE OF ACTION THEREOF, THIS ANSWERING DEFENDANT ALLEGES AS FOLLOWS: Defendant is informed and believes, and upon such information and belief alleges, that if Plaintiff has sustained, or will sustain, any of the injuries, losses or damages described in its First Amended Complaint, which this answering Defendant denies, then such injuries, losses or damages were caused solely or in part by the failure of Plaintiff to take reasonable steps available to it to mitigate such damages, and to the extent that any such injuries, losses or damages proven by Plaintiff were caused by Plaintiff’s own failure to take reasonable steps available to it to mitigate such damages, they shall not be recoverable against this answering Defendant.
AS AND FOR A FOURTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE TO PLAINTIFF’S FIRST AMENDED COMPLAINT, AND TO EACH CAUSE OF ACTION THEREOF, THIS ANSWERING DEFENDANT ALLEGES AS FOLLOWS: Defendant is informed and believes, and upon such information and belief alleges, that if Plaintiff has suffered any of the injuries, losses or damages described in its First Amended Complaint, which this answering Defendant denies, then such injuries, losses or damages were caused solely by the unforeseeable and unreasonable abuse, misuse or alteration of the subject products or improvements, by persons, parties or entities other than this answering Defendant, and not by any act or omission for which this answering Defendant may be held legally or equitably responsible.
AS AND FOR A FIFTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE TO PLAINTIFF’S FIRST AMENDED COMPLAINT, AND TO EACH CAUSE OF ACTION THEREOF, THIS ANSWERING DEFENDANT ALLEGES AS FOLLOWS: Defendant is informed and believes, and upon such information and belief alleges, that if Plaintiff has suffered any of the injuries, losses, or damages described in its First Amended Complaint, which this answering Defendant denies, then such injuries, losses or damages were caused solely by the actionable conduct of persons, parties or entities other than this answering Defendant, and not by any act or omission for which this answering Defendant may be held legally or equitably responsible.
AS AND FOR A SIXTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE TO PLAINTIFF’S FIRST AMENDED COMPLAINT, AND TO EACH CAUSE OF ACTION THEREOF, THIS ANSWERING DEFENDANT ALLEGES AS FOLLOWS: Plaintiff’s First Amended Complaint, and each alleged cause of action therein, is absolutely barred by the provisions of Code of Civil Procedure sections 335, 337, 337.1, 337.15, 338, 339, 340, 343, and each of them.
AS AND FOR A SEVENTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE TO PLAINTIFF’S FIRST AMENDED COMPLAINT, AND TO EACH CAUSE OF ACTION THEREOF, THIS ANSWERING DEFENDANT ALLEGES AS FOLLOWS: Defendant is informed and believes, and upon such information and belief alleges, that Plaintiff’s First Amended Complaint, and each alleged cause of action therein, is absolutely barred by the failure of Plaintiff to give this answering Defendant reasonable notice of the alleged breaches of contract or other wrongful conduct as alleged in Plaintiff’s First Amended Complaint.
AS AND FOR AN EIGHTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE TO PLAINTIFF’S FIRST AMENDED COMPLAINT, AND TO EACH CAUSE OF ACTION THEREOF, THIS ANSWERING DEFENDANT ALLEGES AS FOLLOWS: Defendant is informed and believes, and upon such information and belief alleges, that Plaintiff has been guilty of unreasonable delay in commencing and in prosecuting the subject civil action, to the irreparable prejudice of Defendant, and Plaintiff’s First Amended Complaint, and each alleged cause of action therein, is therefore absolutely barred by the equitable doctrine of laches.
AS AND FOR A NINTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE TO PLAINTIFF’S FIRST AMENDED COMPLAINT, AND TO EACH ALLEGED CAUSE OF ACTION THEREOF, THIS ANSWERING DEFENDANT ALLEGES AS FOLLOWS: Defendant is informed and believes, and upon such information and belief alleges, that Plaintiff’s First Amended Complaint, and each alleged cause of action therein, is absolutely barred by virtue of Plaintiff’s knowing and voluntary waiver of any further obligations or liabilities of this answering Defendant, if any there were. Plaintiff’s waiver includes, but is not limited to, Plaintiff’s execution of a settlement agreement with answering Defendant, whereby Plaintiff released Defendant of from all claims raised in Plaintiff’s First Amended Complaint.
AS AND FOR A TENTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE TO PLAINTIFF’S FIRST AMENDED COMPLAINT, AND TO EACH CAUSE OF ACTION THEREOF, THIS ANSWERING DEFENDANT ALLEGES AS FOLLOWS: Plaintiff’s First Amended Complaint, and each alleged cause of action therein, fails to state facts sufficient to constitute a cause of action against this answering Defendant.
AS AND FOR AN ELEVENTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE TO PLAINTIFF’S FIRST AMENDED COMPLAINT, AND TO EACH CAUSE OF ACTION THEREOF, THIS ANSWERING DEFENDANT ALLEGES AS FOLLOWS: Defendant is informed and believes, and upon such information and belief alleges, that Plaintiff, by and through its conduct, acts and deeds, has caused Defendant to change position, and to act to its detriment and prejudice. Plaintiff’s First Amended Complaint, and each alleged cause of action therein, is therefore absolutely barred by the equitable doctrine of estoppel. Such conduct by Plaintiff includes, but is not limited to this answering Defendant’s detrimental reliance on a settlement agreement it entered into with Plaintiff, whereby Plaintiff released this Defendant of from all claims raised in Plaintiff’s First Amended Complaint.
AS AND FOR A TWELFTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE TO PLAINTIFF’S FIRST AMENDED COMPLAINT, AND TO EACH CAUSE OF ACTION THEREOF, THIS ANSWERING DEFENDANT ALLEGES AS FOLLOWS: Defendant is informed and believes, and upon such information and belief alleges, that Plaintiff’s First Amended Complaint, and each alleged cause of action therein, is absolutely barred by the doctrine of failure of consideration. Plaintiff has not provided a consideration to which Defendant is entitled under the alleged contracts or agreements, if any there were, and there has been no legal justification or excuse for Plaintiff’s failure to perform. This answering Defendant therefore has no further obligations of any kind under said alleged contracts or agreements, if any there were.
AS AND FOR A THIRTEENTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE TO PLAINTIFF’S FIRST AMENDED COMPLAINT, AND TO EACH CAUSE OF ACTION THEREOF, THIS ANSWERING DEFENDANT ALLEGES AS FOLLOWS: Defendant is informed and believes, and upon such information and belief alleges, that Plaintiff’s First Amended Complaint, and each alleged cause of action therein, is absolutely barred by Plaintiff’s own failure to perform or satisfy some or all of the conditions precedent to any further obligations of Defendant under the alleged contracts or agreements, if any there were. This includes, but is not limited to, Plaintiff’s failure to abide by the terms of the settlement agreement it entered into with this answering Defendant, whereby Plaintiff released Defendant of from all claims raised in Plaintiff’s First Amended Complaint.
AS AND FOR A FOURTEENTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE TO PLAINTIFF’S FIRST AMENDED COMPLAINT, AND TO EACH CAUSE OF ACTION THEREOF, THIS ANSWERING DEFENDANT ALLEGES AS FOLLOWS: Defendant is informed and believes, and upon such information and belief alleges, that if Plaintiff has suffered, or will suffer, any of the injuries, losses or damages described in its First Amended Complaint, which this answering Defendant denies, then such injuries, losses or damages were caused solely by the voluntary and knowing, or implied, assumption of the risk or risks attendant to the matters complained of or alleged in Plaintiff’s First Amended Complaint, and such knowing and voluntary, or implied, assumption of the risk absolutely bars or reduces Plaintiff’s right to recovery herein, if any there be, in proportion to such voluntary and knowing, or implied, assumption of the risk.
AS AND FOR A FIFTEENTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE TO PLAINTIFF’S FIRST AMENDED COMPLAINT, AND TO EACH CAUSE OF ACTION THEREOF, THIS ANSWERING DEFENDANT ALLEGES AS FOLLOWS: Defendant is informed and believes, and upon such information and belief alleges, that Plaintiff has been guilty of inequitable conduct with respect to the matters alleged in Plaintiff’s First Amended Complaint, and such inequitable conduct shall absolutely bar Plaintiff’s recovery herein under the equitable doctrine of unclean hands. Plaintiff’s inequitable conduct includes, but is not limited to, Plaintiff naming this answering Defendant in its First Amended Complaint after Plaintiff executed a settlement agreement with Defendant releasing Defendant of from all claims contained in Plaintiff’s First Amended Complaint.
AS AND FOR A SIXTEENTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE TO PLAINTIFF’S FIRST AMENDED COMPLAINT, AND TO EACH CAUSE OF ACTION THEREOF, THIS ANSWERING DEFENDANT ALLEGES AS FOLLOWS: Defendant is informed and believes, and upon such information and belief alleges, that Plaintiff is in material breach of the contracts or agreements alleged in its First Amended Complaint, if any there were, and such material breach relieves Defendant of any further obligations or liabilities under said alleged contracts or agreements, if any there were.
AS AND FOR A SEVENTEENTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE TO PLAINTIFF’S FIRST AMENDED COMPLAINT, AND TO EACH CAUSE OF ACTION THEREOF, THIS ANSWERING DEFENDANT ALLEGES AS FOLLOWS: Defendant is informed and believes, and upon such information and belief alleges, that Plaintiff’s First Amended Complaint, and each alleged cause of action therein, is absolutely barred by the failure of Plaintiff to give this answering Defendant reasonable notice of the alleged breaches of express warranty or other wrongful conduct as alleged in Plaintiff’s First Amended Complaint.
AS AND FOR AN EIGHTEENTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE TO PLAINTIFF’S FIRST AMENDED COMPLAINT, AND TO EACH CAUSE OF ACTION THEREOF, THIS ANSWERING DEFENDANT ALLEGES AS FOLLOWS: Plaintiff’s First Amended Complaint, and each alleged cause of action appearing therein, fails to state facts, or to allege claims, which would impose joint and several liability for any of the damages claimed by any party against this answering Defendant. Any liability of this answering Defendant, which liability is expressly denied, would therefore be limited to those injuries, losses or damages, if any there were, for which this answering Defendant’s actionable conduct, if any, was a primary contributing factor.
AS AND FOR A NINETEENTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE TO PLAINTIFF’S FIRST AMENDED COMPLAINT, AND TO EACH CAUSE OF ACTION THEREOF, THIS ANSWERING DEFENDANT ALLEGES AS FOLLOWS: Plaintiff’s First Amended Complaint, and each alleged cause of action therein, is absolutely barred by the provisions of Civil Code sections 1473, 1474, 1475, 1476, 1477, and each of them.
AS AND FOR A TWENTIETH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE TO PLAINTIFF’S FIRST AMENDED COMPLAINT, AND TO EACH CAUSE OF ACTION THEREOF, THIS ANSWERING DEFENDANT ALLEGES AS FOLLOWS: Plaintiff’s First Amended Complaint, and each alleged cause of action therein, fails to state facts sufficient to constitute a cause of action for breach of third party beneficiary contract against this answering Defendant.
AS AND FOR A TWENTY-FIRST SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE TO PLAINTIFF’S FIRST AMENDED COMPLAINT, AND TO EACH CAUSE OF ACTION THEREOF, THIS ANSWERING DEFENDANT ALLEGES AS FOLLOWS: Plaintiff’s First Amended Complaint, and each alleged cause of action therein, fails to state facts sufficient to constitute a cause of action for negligence against this answering Defendant.
AS AND FOR A TWENTY-SECOND SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE TO PLAINTIFF’S FIRST AMENDED COMPLAINT, AND TO EACH CAUSE OF ACTION THEREOF, THIS ANSWERING DEFENDANT ALLEGES AS FOLLOWS: Defendant is informed and believes, and upon such information and belief alleges, that if Plaintiff has suffered any of the injuries, losses or damages alleged in its First Amended Complaint, which this answering Defendant denies, then such injuries, losses or damages were caused solely by the project owners’, developers’ or general contractors’ breach of the implied warranty of suitability of the site, plans and specifications for the subject work of improvement, and not by any act or omission for which this answering Defendant may be held legally or equitably responsible.
AS AND FOR A TWENTY-THIRD SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE TO PLAINTIFF’S FIRST AMENDED COMPLAINT, AND TO EACH CAUSE OF ACTION THEREOF, THIS ANSWERING DEFENDANT ALLEGES AS FOLLOWS: Plaintiff’s First Amended Complaint, and each alleged cause of action thereof, fails to state facts sufficient to support a claim or award of attorney’s fees under any legal or equitable theory.
AS AND FOR A TWENTY-FOURTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE TO PLAINTIFF’S FIRST AMENDED COMPLAINT, AND TO EACH CAUSE OF ACTION THEREOF, THIS ANSWERING DEFENDANT ALLEGES AS FOLLOWS: Defendant is informed and believes, and upon such information and belief alleges, that Plaintiff’s First Amended Complaint, and each alleged cause of action therein, is absolutely barred by the failure of Plaintiff to give this answering Defendant reasonable notice of the alleged breaches of implied warranty or other wrongful conduct as alleged in Plaintiff’s First Amended Complaint.
AS AND FOR A TWENTY-FIFTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE TO PLAINTIFF’S FIRST AMENDED COMPLAINT, AND TO EACH CAUSE OF ACTION THEREOF, THIS ANSWERING DEFENDANT ALLEGES AS FOLLOWS: Plaintiff’s First Amended Complaint, and each cause of action thereof, and any damages alleged by Plaintiff, are each barred by Plaintiff’s failure to mitigate its damages according to the requirements of, among other things, the Commercial Code, as set forth in Commercial Code sections 2703, 2704, 2706, 2708, 2709, and 2710, and others.
AS AND FOR A TWENTY-SIXTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE TO PLAINTIFF’S FIRST AMENDED COMPLAINT, AND TO EACH CAUSE OF ACTION THEREOF, THIS ANSWERING DEFENDANT ALLEGES AS FOLLOWS: Plaintiff’s First Amended Complaint, and each cause of action thereof, fails to state facts sufficient to constitute a cause of action for breach of contract against this answering Defendant.
AS AND FOR A TWENTY-SEVENTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE TO PLAINTIFF’S FIRST AMENDED COMPLAINT, AND TO EACH CAUSE OF ACTION THEREOF, THIS ANSWERING DEFENDANT ALLEGES AS FOLLOWS: Plaintiff’s First Amended Complaint, and each cause of action thereof, fails to state facts sufficient to constitute a cause of action for breach of implied warranties against this answering Defendant.
AS AND FOR A TWENTY-EIGHTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE TO PLAINTIFF’S FIRST AMENDED COMPLAINT, AND TO EACH CAUSE OF ACTION THEREOF, THIS ANSWERING DEFENDANT ALLEGES AS FOLLOWS: Plaintiff’s First Amended Complaint, and each cause of action thereof, fails to state facts sufficient to constitute a cause of action for breach of express warranties against this answering Defendant.