Ignacio Ortega vs KM 546 Partners, LP/COMPLEX

Complaint Information

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)

SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF FRESNO

IGNACIO ORTEGA, et al., Case No.: 12 CE CG 03888 MADERA CUSTOM TILE & GRANITE, Plaintiffs, INC."S ANSWER TO ST. PAUL

MERCURY INSURANCE COMPANY’S

V. DOE AMENDMENT TO COMPLAINT

IN INTERVENTION

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:

GENERAL DENIAL

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.

FIRST AFFIRMATIVE DEFENSE

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.

SECOND AFFIRMATIVE DEFENSE

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.

THIRD AFFIRMATIVE DEFENSE

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.

FOURTH AFFIRMATIVE DEFENSE

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.

FIFTH AFFIRMATIVE DEFENSE

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.

SIXTH AFFIRMATIVE DEFENSE

Intervenor directed, ordered, approved, and/or ratified this Cross-Defendant's conduct and this Intervenor is therefore estopped from asserting any claim based thereon.

SEVENTH AFFIRMATIVE DEFENSE

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.

EIGHTH AFFIRMATIVE DEFENSE

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.

NINTH AFFIRMATIVE DEFENSE

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.

TENTH AFFIRMATIVE DEFENSE

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.

ELEVENTH AFFIRMATIVE DEFENSE

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.

TWELFTH AFFIRMATIVE DEFENSE

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).

THIRTEENTH AFFIRMATIVE DEFENSE

The Complaint in Intervention, and each alleged cause of action thereof, is barred

by the provisions of California Civil Code Section 2784 .5.

FOURTEENTH AFFIRMATIVE DEFENSE

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.

FIFTEENTH AFFIRMATIVE DEFENSE

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.

SIXTEENTH AFFIRMATIVE DEFENSE

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.

SEVENTEENTH AFFIRMATIVE DEFENSE

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.

EIGHTEENTH AFFIRMATIVE DEFENSE

Intervenor’'s Complaint, and each alleged cause of action thereof, is barred by the provisions of Civil Code Section 1473.

NINETEENTH AFFIRMATIVE DEFENSE

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.

TWENTIETH AFFIRMATIVE DEFENSE

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.

TWENTY-FIRST AFFIRMATIVE DEFENSE

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.

TWENTY-SECOND AFFIRMATIVE DEFENSE

(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.

TWENTY-THIRD AFFIRMATIVE DEFENSE

(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

TWENTY-FOURTH AFFIRMATIVE DEFENSE

(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.

TWENTY-FIFTH AFFIRMATIVE DEFENSE

(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.

TWENTY-SIXTH AFFIRMATIVE DEFENSE

(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.

TWENTY-SEVENTH AFFIRMATIVE DEFENSE

(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.

TWENTY-EIGHTH AFFIRMATIVE DEFENSE

(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.

TWENTY-NINTH AFFIRMATIVE DEFENSE

(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.