On 12/11/2012 Ignacio Ortega filed a Property - Construction Defect lawsuit against KM 546 Partners, LP/COMPLEX. This case was filed in Fresno County Superior Courts, Bf Sisk Courthouse located in Fresno, California. The Judges overseeing this case are Ikeda, Dale, Black, Donald, McGuire, Rosemary, Simpson, Alan and Hamilton, Jeffrey Y.. The case status is Disposed - Dismissed.
*******3888
12/11/2012
Disposed - Dismissed
Fresno County Superior Courts
Bf Sisk Courthouse
Fresno, California
Ikeda, Dale
Black, Donald
McGuire, Rosemary
Simpson, Alan
Hamilton, Jeffrey Y.
Ortega, Ignacio
Altamirano, Mark
Arevalo, Fermin
Armack, Robert Lee
Diaz, Stacy
Ceja, Jose Luis
Chatman, Leorn
Daza, Serafin
Huesca, Leticia
Garibay, Jorge
Garibay, Margarita
Gomez, Susana
Gonzalez, Vanessa L
Henriquez, Arnoldo
Henriquez, Ana Gladys
Hinojosa, Frank
Hinojosa, Judy
Martinez, Jaime
Martinez, Silvia
Miramontes, David
Guthrie, Lori J
1810 State Street
San Diego, CA 92101-2514
Van Woerkom, Jon
Jones, Todd A
Rose, Jason R
Lifter, Jill J.
Freedman, Karren L.
Mittelman, Mark R
Mickle, Brandon J.
Correll, Deborah A.
Drolshagen, John A.
Fischer, Todd A.
Bassett, Robert D.
Hammons, Wallace W
Yuen, Steven W.
Aguilera, A Eric
Parker, James C.
Young, David E.
Moore, Penny S.
Forni, Jacqueline V,
Kracht, Matthew J.
Dismissal of Party; Judgment Type: Dismissal of Party; Party Name: Ashjian Lighting Company (Terran Ashjian, Inc.); Comment: Without Prejudice Plaintiffs in Intervention, St. Paul Mercury Insurance Complaint in Intervention FIled on Febuary 22, 2016 as to defendant: Ashjian Lightin Company (terran Ashjian Enterprises, Inc.) Only
Pre-Trial Order NO.8; Comment: Signed and returned to clerk's office Pre-Trial Order NO.8 Forwarded to Department 502
Letter Received; Comment: Letter to Presiding Judge
MASAAK KIMURA AMENDED NOT OF MOT FOR GFS.pdf; Comment: MASAAK KIMURA dba THE LANDSCAPE EXPRESS AMENDED NOTIFE OF MOTION FOR DETERMINATION OF GOOD FAITH SETTLEMENT
MPA in Support of Mtn for GFS.pdf; Comment: in Support of Motion for Judicial Determination of Good Faith Settlement.
Order Granted; Judicial Officer: Black, Donald; Comment: good faith settlement
Declaration Filed; Comment: of Service by Mail
Civil Document; Comment: for determination of good fatih settlement
Notice Filed; Comment: Entry of Order
Stipulation and Order filed; Judicial Officer: McGuire, Rosemary; Comment: Stipulation to Stay Five Year Mandatory Dismissal
BAKER CUSTOM CAB AMEND NOT OF MOT FOR GFS.pdf; Comment: BAKER CUSTOM CABINETS, INC. AMENDED NOTICE OF MOTION FOR JUDICIAL DETEERMINATION OF GOOD FAITH SETTLEMENT
Notice of Motion for Good Faith Settlement.pdf; Comment: Motion
Notice of Motion for Good Faith Settlement.pdf; Comment: and Motion for Determination of Good Faith Settlement.
Proof of Service; Comment: Madera Roofing, Inc.
Proof of Service; Comment: Atmos Corporation
Notice of Change of Address Filed
Objection filed; Comment: Apache Erectors, Inc.'s objections to evidence in support of opposition to St. Paul Mercury Insurance Company's motion to intervene
Civil Document; Comment: special answer to the complaint
Disposition: Judgment- Judicial Officer: Hamilton, Jeffrey Y.; Judgment Type: Dismissal Order - Entire Action; Party Names: Ortega, Ignacio; Altamirano, Mark; Arevalo, Fermin; Armack, Robert Lee; Diaz, Stacy; Ceja, Jose Luis; Chatman, Leorn; Daza, Serafin; Huesca, Leticia; Garibay, Jorge; Garibay, Margarita; Gomez, Susana; Gonzalez, Vanessa L; Henriquez, Arnoldo; Henriquez, Ana Gladys; Hinojosa, Frank; Hinojosa, Judy; Martinez, Jaime; Martinez, Silvia; Miramontes, David; Miramontes, Sharon; Ortega, Manuel; Ortega, Elvia; Ponce, Rafael; Ponce, Eva; Rakkar, Kabal S; Kaur, Mohinder; Rangel, Cergio; Rangel, Yolanda; Reyes, Elias; Reyes, Malena T; KM 546 Partners, L.P.; Covington, Robert Mitchell; 105 Howard St., Inc.; Valley Vanguard Properties, Inc.; Arambula, Jose; Batres, Manuel; Batres, Eva; Martinez, Alfredo; Martinez, Araceli G.; Mendez, Martin; Mendoza, Flor; Milian, Lizett; Milian, Francisco; Rowland, Michael; Singh, Rajinder; Kaur, Pritpal; 105 Howard St Inc; Valley Vanguard Properties Inc; Apache Erectors Inc dba Jordan Construction; Atmos Corp dba Merzon Industries; BF Glass Inc dba Fresno Shower Door & Mirror; Baker Custom Cabinets Inc; Central Valley Landscape & Maintenance; Erik Mott Painting Inc; Golden State Woodworking Inc.; Hector Sahagun Construction; JR Construction; Rocha, Jim; Jiminez Electric; Masaak Kimura, Dba Landscape Express; Madera Custom Tile Inc; Madera Masonry; Madera Roofing Inc; McClure Door Inc; Pacific Door & Cabinet Company; Penninsula Floors Inc dba The Design Center; Purl's Sheet Metal & Air Conditioning Inc; Gonzales, Ray M; Staggs, Richard; Robert's Drywall; Spence, Robert; Sacramento Building Products; Solis Construction; Sparky Electric; Tri-Valley Plastering Inc; Watkins & Sons Construction Inc; Western States Plumbing Inc dba Walt's Plumbing; Diebert, William; Terran Ashjian Enterprises Inc; Atmos Corporation, Dba Merzon Industries; 105 Howard St.. Inc.; Valley Vanguard Properties, Inc.; Corona, Javier; Glass Tech, Inc.; B - F Glass, Inc.; Moes 1 - 20; Maravilla, Adolfo & Rosana; Ortiz, Jose & Modesta; Villanueva, Pablo & Maria; Zamora, Saul & Rita; C.V.L. & M., LTD; Madera Custom Tile Inc; La Tierra Verde Landscape Inc; AIG Specialty Insurance Company; Glass Tech, Inc.; Glass Tech, Inc.; Apache Erectors, Inc.; St Paul Mercury Insurance Company; Glass Tech, Inc.; Sacramento Insulation Contractors, Inc.; Ashjian Lighting Company (Terran Ashjian, Inc.); Atmos Corporation; Erik Mott Painting, Inc.; Madera Masonry; Madera Roofing, Inc.; Pacific Door & Cabinet, Inc.; Peninsula Floors, Inc.; Purl's Sheet Metal & Air Conditioning, Inc.; Roberts Drywall; Spence, Robert; Sacramento Building Products; Solis Construction; Sparky Electric; Tri-Valley Plastering, Inc.; Western States Plumbing, Inc.; Madera Custom Tile & Granite, Inc.; Glass Tech, Inc.; Glass Tech, Inc.; Pacific Door & Cabinet Company
Disposition: Judgment- Judgment Type: Dismissal - Other filed; Party Names: St Paul Mercury Insurance Company; Ashjian Lighting Company (Terran Ashjian, Inc.); Atmos Corporation; Erik Mott Painting, Inc.; Madera Masonry; Madera Roofing, Inc.; Pacific Door & Cabinet, Inc.; Peninsula Floors, Inc.; Purl's Sheet Metal & Air Conditioning, Inc.; Roberts Drywall; Spence, Robert; Sacramento Building Products; Solis Construction; Sparky Electric; Tri-Valley Plastering, Inc.; Western States Plumbing, Inc.; Comment: with prejudice.; Comment: (as to Complaint in Intervention filed by St. Paul Mercury Ins. Co.)
Disposition: Judgment- Dismissal of Party; Judgment Type: Dismissal of Party; Party Name: Sparky Electric; Comment: With Prejudice
Disposition: Judgment- Dismissal of Party; Judgment Type: Dismissal of Party; Party Name: Purl's Sheet Metal & Air Conditioning, Inc.; Comment: with prejudice.; Comment: (as to Defendant in complaint in intervention)
Disposition: Judgment- Dismissal of Party; Judgment Type: Dismissal of Party; Party Name: Madera Custom Tile & Granite, Inc.; Comment: With Prejudice
Disposition: Judgment- Dismissal of Party; Judgment Type: Dismissal of Party; Party Name: Atmos Corporation; Comment: With Prejudice; Comment: (As to Defendant in Intervention)
Disposition: Judgment- Dismissal of Party; Judgment Type: Dismissal of Party; Party Name: Sacramento Building Products; Comment: With Prejudice
Disposition: Judgment- Dismissal of Party; Judgment Type: Dismissal of Party; Party Names: AIG Specialty Insurance Company; Comment: without prejudice/Dismissal in exchange for mutual waiver of fees and costs
Disposition: Judgment- Dismissal of Party; Judgment Type: Dismissal - Other filed; Party Names: 105 Howard St Inc; Valley Vanguard Properties Inc; Ashjian Lighting Company (Terran Ashjian, Inc.); Apache Erectors Inc dba Jordan Construction; Atmos Corp dba Merzon Industries; BF Glass Inc dba Fresno Shower Door & Mirror; Baker Custom Cabinets Inc; Central Valley Landscape & Maintenance; Erik Mott Painting Inc; Golden State Woodworking Inc.; Hector Sahagun Construction; JR Construction; Rocha, Jim; Jiminez Electric; Masaak Kimura, Dba Landscape Express; Madera Custom Tile Inc; Madera Masonry; Madera Roofing Inc; McClure Door Inc; Pacific Door & Cabinet Company; Penninsula Floors Inc dba The Design Center; Purl's Sheet Metal & Air Conditioning Inc; Gonzales, Ray M; Staggs, Richard; Robert's Drywall; Spence, Robert; Sacramento Building Products; Solis Construction; Sparky Electric; Tri-Valley Plastering Inc; Watkins & Sons Construction Inc; Western States Plumbing Inc dba Walt's Plumbing; Diebert, William; Terran Ashjian Enterprises Inc; C.V.L. & M., LTD; La Tierra Verde Landscape Inc; Glass Tech, Inc.; Apache Erectors, Inc.; St Paul Mercury Insurance Company; Comment: As to first Cross Complaint With Prejudice
Disposition: Judgment- Dismissal - Other filed; Judgment Type: Dismissal - Other filed; Party Names: KM 546 Partners, L.P.; Covington, Robert Mitchell; 105 Howard St., Inc.; Valley Vanguard Properties, Inc.; Madera Custom Tile Inc; Glass Tech, Inc.; Glass Tech, Inc.; Glass Tech, Inc.; Pacific Door & Cabinet Company; Comment: with prejudice (as to original complaint filed)
Financial info for Ortega, Ignacio: Counter Payment Receipt # CIVIL-2016-00021888 Nationwide Legal LLC. $21.00
Financial info for Ortega, Ignacio: Transaction Assessment $21.00
Financial info for Ortega, Ignacio: Counter Payment Receipt # CIVIL-2016-00011923 1st Priority Attorney Service, INC. $1.50
Financial info for Ortega, Ignacio: Transaction Assessment $1.50
Financial info for Ortega, Ignacio: Counter Payment Receipt # 176099 Ortega, Ignacio $150.00
Financial info for Ortega, Ignacio: Transaction Assessment $150.00
Financial info for Ortega, Ignacio: Counter Payment Receipt # 172510 Ortega, Ignacio $1435.00
Financial info for Ortega, Ignacio: Transaction Assessment $1000.00
Financial info for Ortega, Ignacio: Transaction Assessment $435.00
Financial: Ortega, Ignacio; Total Financial Assessment $1,627.50; Total Payments and Credits $1,627.50
JON A. VAN WOERKOM, SBN 137631 E-FILED
LAW OFFICES OF TIMOTHY R. WAGNER 5/26/2016
1655 Grant Street, Ste 800-B 11:01 AM
Concord, CA 94520 FRESNO COUNTY SUPERIOR COURT Facsimile: (866) 386-1186 S ’ jon.vanwoerkom@aig.com
Attorneys for Cross-Defendant, MADERA CUSTOM TILE & GRANITE, INC. (sued herein as DOE 1)
IGNACIO ORTEGA, et al., Case No.: 12 CE CG 03888 MADERA CUSTOM TILE & GRANITE, Plaintiffs, INC."S ANSWER TO ST. PAUL
V. DOE AMENDMENT TO COMPLAINT
KM 546 PARTNERS, L.P., et al,,
Cross-Defendants.
AND RELATED CROSS-ACTIONS.
COMES NOW Cross-Defendant MADERA CUSTOM TILE & GRANITE, INC.
(sued herein as DOE 1) (hereinafter “Cross-Defendant”) and, for itself alone and none
other, answers the Doe Amendment to Complaint in Intervention of ST. PAUL
MERCURY INSURANCE COMPANY (hereinafter “Intervenor”). Specifically, Cross- Defendant here admits, denies and alleges as follows:
Pursuant to the provisions of Section 431.30 of the California Code of Civil
Procedure; this Cross-Defendant generally and specifically denies each and every, and
all, of the allegations of the Complaint in Intervention, and further denies that Intervenor
has sustained damages in any sum or sums, or otherwise, or at all,= MADERA CUSTOM TILE & GRANITE, INC."S ANSWER TO ST. PAUL MERCURY INSURANCE
has sustained damages in any sum or sums, or otherwise, or at all,= MADERA CUSTOM TILE & GRANITE, INC."S ANSWER TO ST. PAUL MERCURY INSURANCE omission on the part of this Cross-Defendant, or any of its agents, servants, or employees.
omission on the part of this Cross-Defendant, or any of its agents, servants, or employees.
Cross-Defendant is informed and believes and alleges as follows: The Complaint in Intervention and each alleged cause of action thereof, fails to state facts sufficient to constitute a cause of action against this Cross-Defendant.
The Complaint in Intervention, and each cause of action thereof, is barred by the statutes of limitation set forth in the California Code of Civil Procedure, including, but not limited to, the following Sections: 337;1; 337.1(a)}(1)-(3)(f); 337.15(a)(1)-(g}4), 338(a),(b); 339:1; 340.8; 343; 896(e); 896(f); 896(g) 1), 896(g}3)Xa)-(d); 896(g)(6); 896(g)(7); 896(g)(8); 896(g)(9), 896(g)(10); 896(g)(12); 896(g)(14); 900; 941(a)-(e), and 2607(3)(a), and 2725(1), (2) of the California Commercial Code.
Intervenor has unreasonably delayed in bringing this action to the prejudice of this Cross-Defendant and is therefore barred from bringing this action by the doctrine of laches.
Intervenor was careless and negligent in and about the matters referred to in the Complaint in Intervention, and such fault on the part of Intervenor proximately caused and contributed to the damages complained of, if any there are. This Cross-Defendant further alleges that any fault not attributable to Intervenor was a result on the part of persons and/or entities other than this Cross-Defendant. Such fault bars and/or proportionately reduces any recovery by Intervenor against this Cross-Defendant.
Should Intervenor recover damages from this Cross-Defendant, this 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 Intervenor's damages, -2. MADERA CUSTOM TILE & GRANITE, INC."S ANSWER TO ST. PAUL MERCURY INSURANCE
entities whose negligence and/or fault proximately contributed to Intervenor's damages, -2. MADERA CUSTOM TILE & GRANITE, INC."S ANSWER TO ST. PAUL MERCURY INSURANCE if any there are.
if any there are.
Intervenor directed, ordered, approved, and/or ratified this Cross-Defendant's conduct and this Intervenor is therefore estopped from asserting any claim based thereon.
Intervenor has failed and neglected to use reasonable care to minimize and mitigate the losses, injuries and damages complained of, if any there are, and is precluded from recovering those damages which could reasonably been avoided by the exercise of due care on Intervenor’s part.
The Complaint in Intervention, and each cause of action thereof, is barred by Intervenor's conduct in causing the damages alleged by it under the doctrine of unclean hands.
Prior to commencement of this action, this Cross-Defendant duly performed, satisfied, and discharged all duties and obligations it may have owed to Intervenor arisingagreements, representations, or contracts made by it or on behalf of this Cross-Defendant.
Intervenor and others unrelated to this Cross-Defendant modified, altered, abused, and/or misused the materials, equipment and/or work provided by this Cross- Defendant, and such conduct caused and/or contributed to the damages which are alleged in this lawsuit.
By the terms of its contract, this Cross-Defendant is not responsible for Intervenor’s failure to carry out the work in accordance with the contract documents.
The Complaint in Intervention, and each cause of action thereof, is barred by the following provisions of the Uniform Commercial Code: Sections 1201(25)(c), 2601, 2602(1), 2513(1) and (3), 2510(1)(a) and (b), 2606(1)(a) and (b), 2607, 2715(2)(a) and 2719(3).
The Complaint in Intervention, and each alleged cause of action thereof, is barred
by the provisions of California Civil Code Section 2784 .5.
The Complaint in Intervention, and each cause of action thereof, fails to state a cause of action against Cross-Defendant for breach of warranty, expressed, implied or otherwise, because there is no privity between Intervenor and this Cross-Defendant.
The Complaint in Intervention, and each cause of action thereof, fails to state a cause of action against this Cross-Defendant because Intervenor failed to give timely and proper notice of any breach of warranty, implied, express or otherwise.
Intervenor acted with full knowledge of all of the facts and circumstances surrounding its alleged injuries and damages, and thus assumed the risks of its injuries and damages, if any there are.
The Complaint in Intervention, and each alleged cause of action thereof, fails to state facts, or to allege claims, which would impose joint and several liability for any of the damages claimed by any part against this Cross-Defendant. Any liability of this Cross-Defendant, which liability is expressly denied, would therefore be limited to those injuries, losses or damages, if any there was for which this Cross-Defendant's actionable conduct, if any, was a primary contributing factor.
Intervenor’'s Complaint, and each alleged cause of action thereof, is barred by the provisions of Civil Code Section 1473.
The Complaint in Intervention, and each alleged cause of action thereof, fails to state facts sufficient to constitute a cause of action for indemnity or contribution based on strict liability.
The Complaint, and each alleged cause of action thereof, fails to state facts sufficient to constitute a cause of action for breach of implied warranty against this Cross-Defendant.
Intervenor has knowingly and voluntarily waived all claims of loss or damage against Cross-Defendant and is therefore estopped and barred from alleging the matters set forth in its Complaint in Intervention.
(Violation of Civil Code §896 through §945.5) Cross-Defendant alleges that Intervenors have violated provisions set forth in Civil Code §896 through §945.5, which require non-adversarial procedures to resolve disputes, including providing Cross-Defendants with a detailed notice of claim, a notice of defects, if any, a reasonable opportunity to cure any alleged defects, mediation, and/or opportunity to otherwise reach a settlement with Intervenors prior to the filing of their Complaint in Intervention, as well as other particulars of those sections.
(Civil Code §945.5(a)-Act Of God) Cross-Defendant alleges that it is excused, in whole or in part, from any obligation, damage, loss or liability alleged as same was caused by an unforeseen act of
nature including, but not limited to, a weather condition, earthquake, or manmade even
(Civil Code §945.5(b)-Homeowner Unreasonableness)
Cross-Defendant is excused, in whole or in part, from any obligation, damage, loss or liability alleged as same was caused by Intervenors’ unreasonable failure to minimize or prevent those damages in a timely manner, including the failure of the homeowner to allow reasonable and timely access for inspections and repairs in accordance with provisions as set forth in Civil Code §896 through §945.5, which includes failure to give timely notice to the Builder after discovery of a violation.
(Civil Code §945.5(c)—Failure to Maintain)
Cross-Defendant is excused, in whole or in part, from any obligation, damage, loss or liability alleged as same was caused by Intervenorstheir agent, employee, general contractor, subcontractor, independent contractor, or consultant by virtue of their failure to follow the Builder's or manufacturer's recommendations, or commonly accepted homeowner maintenance obligations.
(Civil Code §945.5(d)-Alterations/Misuse)
Cross-Defendant is excused, in whole or in part, from any obligation, damage, loss or liability alleged as same was caused by Intervenorstheir agent’s, or an independent third party’'s alterations, ordinary wear and tear, misuse, abuse, or neglect, or by the structure’s use for something other than its intended purpose.
(Civil Code §945.5(e)-Statute Of Limitations)
Cross-Defendant is excused, in whole or in part, from any obligation, damage, loss or liability alleged to the extent that the time period for filing actions bars the claimed violation.
(Civil Code §945.5(f)-Release)
Cross-Defendant is excused, in whole or in part, from any obligation, damage, loss or liability alleged as to a particular violation for which the Builder has obtained a valid release.
(Civil Code §945.5(g)—Repair Successful)
Cross-Defendant is excused, in whole or in part, from any obligation, damage, loss or liability alleged to the extent that the Builder's repair was successful in correcting the particular violation of the applicable Standard.
WHEREFORE, this Cross-Defendant prays as follows:
1. That Intervenor takes nothing by way of its Complaint on file herein;
2. That this Cross-Defendant receive a judgment in its favor for its costs, disbursements, and attorneys’ fees incurred in this action; and
3. That this Cross-Defendant be awarded such other and further relief as the
Court may deem just and proper. Dated: May 24, 2016 LAW OFFICES OF TIMOTHY R. WAGNER
By: AN i L’\"“’\é i — L JON'A. VAN. WOERKOM A eys for Cross-Defendant,
MADERA CUSTOM TILE & GRANITE, INC.