This case was last updated from Fresno County Superior Courts on 08/14/2019 at 07:39:56 (UTC).

Katherine Birkett vs. McMillin Colby Park, LLC/COMPLEX

Case Summary

On 08/04/2014 Katherine Birkett filed a Property - Construction Defect lawsuit against McMillin Colby Park, LLC/COMPLEX. This case was filed in Fresno County Superior Courts, Bf Sisk Courthouse located in Fresno, California. The Judges overseeing this case are Culver Kapetan, Kristi, McGuire, Rosemary, Hamilton, Jeffrey Y. and Gaab, Kimberly. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    *******2242

  • Filing Date:

    08/04/2014

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Property - Construction Defect

  • Court:

    Fresno County Superior Courts

  • Courthouse:

    Bf Sisk Courthouse

  • County, State:

    Fresno, California

Judge Details

Judges

Culver Kapetan, Kristi

McGuire, Rosemary

Hamilton, Jeffrey Y.

Gaab, Kimberly

 

Party Details

Plaintiffs

Birkett, Katherine

Adams, Andrew

Adams, Keele

Carrillo, Balvino

Carrillo, Teodosia

Chan, Lancy

Chua, Carl

Ly, Vesta

Cornelison, Randall

Dean, Forrest

Dean, Cynthia

Fernandez, Kenneth

Garcia, Giselle

Uribe, Juan

Ibarra, Nicholas

Khaosaat, Outhit

Silchai, Pumiwet

Lin, Brian

Lim, Fen

Logue, Matt

144 More Parties Available

Attorney/Law Firm Details

Plaintiff Attorney

Ryan, Luke P.

Shinnick & Ryan Llp 1650 Hotel Circle North #200

San Diego, CA 92108

Other Attorneys

Worthing, Michael D.

Koper, Jacob

McElroy, Julie D.

Jonathan, Bacon C

Griesner-Malcolm, Stacey L.

Czeshinski, Michael J.

Souza, James P

Estep, Michael J

McNeill, Timothy C.

Hammons, Wallace W

Walsh, Paul B.

Schoneman, Tina L

Meisner, Geoffrey L.

Hazelton, M. Troy

Panchal, Jitesh G.

Iles, Andrew D

Home, W Stuart, III

Morrow, William D

Carbal, Carlos C.

 

Court Documents

Association of Attorney filed

CASR 05892 ASSOC 112217.pdf; Comment: Association of Counsel

Association of Attorney filed

CASR 05673 ASSOC All Signed 050817.pdf; Comment: Law Offices of John A. Baird: Jacob Koper #128772

Proof of Service

Proof of Service; Comment: Proof of Service - ADR - Sacramento Insulation Contractors, a California Corporation DBA Sacramento Building Products

Proof of Service

Proof of Service; Comment: Proof of Service - ADR - John Birdsell Construction, Inc., a California Corporation

Proof of Service

Proof of Service; Comment: Proof of Service - ADR - Fresno Plumbing & Heating, Inc., a California Corporation DBA Fresno Plumbing and DBA Coastal Plumbing

Proof of Service

Proof of Service; Comment: M.C. Truss, Inc., a California Corporation

Proof of Service

Proof of Service; Comment: J.R. Nelson Roofing, Inc., a California Corporation

Summons issued and filed

Summons; Summons issued and filed

Stipulation and Order filed

Stipulation and Order filed; Judicial Officer: Culver Kapetan, Kristi; Comment: to correct the name of defendant

Judgment

Dismissal of Party; Judgment Type: Dismissal of Party; Party Name: Gil, Gerardo Laura; Comment: Without Prejudice.

Notice Filed

CASR 05675 Ntc of Chng of Hndling Atty 100617.pdf; Comment: Notice of Change of Handling Attorney

Reply filed

Reply to Opposition to Demurrer; Comment: to Opposition to Demurrer

Notice Filed

CASR 05675 PLD Ntc of Entry of Order 060517.pdf; Comment: NOTICE OF ENTRY OF ORDER

Objection filed

CASR 05707 PLD PTO Objection 053117.pdf; Comment: to Pre-Trial Order No. 1

Answer Filed

CASR 05707 ANSWER to XC of DEV 053117.pdf

Proof of Service

Proof of Service; Comment: Proof of Service - ADR - Robert Tommy Champagne, Individually and DBA Robert Champagne Landscape Maintenance

Proof of Service

Proof of Service; Comment: Proof of Service - ADR - Fresno Truss Limited Liability Company, and Nevada Limited Liability Company

Proof of Service

Proof of Service; Comment: Sacramento Insulation Contractors

297 More Documents Available

 

Docket Entries

  • 07/05/2019
  • View Court Documents
  • Disposition: Judgment- Dismissal of Party; Judgment Type: Dismissal of Party; Party Name: Spence Fence Company, a California Corporation; Comment: With Prejudice

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  • 05/13/2019
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  • Disposition: Judgment- Dismissal of Party; Judgment Type: Dismissal of Party; Party Name: Pacific Door & Cabinet, a California Corporation; Comment: with prejudice

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  • 04/05/2019
  • Disposition: Judgment- Judgment Type: Dismissal of Party; Party Names: Patton, Dwayne Mark; Kings Drywall, Inc., a Nevada Corporation; Gross, Matthew; Comment: with prejudice.; Comment: (as to Cross-Defendants)

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  • 03/18/2019
  • View Court Documents
  • Disposition: Judgment- Dismissal of Party; Judgment Type: Dismissal of Party; Party Name: San Joaquin Stairs, Inc., a California Corporation; Comment: without prejudice (an order is required to lift stay for Kings River Door, Inc)

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  • 03/18/2019
  • View Court Documents
  • Disposition: Judgment- Dismissal of Party; Judgment Type: Dismissal of Party; Party Name: J.R. Nelson Roofing, Inc., a California Corporation; Comment: with prejudice

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  • 10/11/2018
  • View Court Documents
  • Disposition: Judgment- Dismissal of Party; Judgment Type: Dismissal of Party; Party Name: Gang-Nails Truss Co., Inc, a California Corporation; Comment: Without Prejudice

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  • 07/05/2018
  • View Court Documents
  • Disposition: Judgment- Dismissal of Party; Judgment Type: Dismissal of Party; Party Name: Kertel Communications, Inc.; Comment: without prejudice.; Comment: (as to Defendant in 1st Cross-Complaint)

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  • 07/05/2018
  • View Court Documents
  • Disposition: Judgment- Dismissal of Party; Judgment Type: Dismissal of Party; Party Name: Airport Specialty Products, Inc. a California Corporation; Comment: with prejudice.; Comment: (as to Defendant in 1st Cross-Complaint)

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  • 03/01/2018
  • View Court Documents
  • Disposition: Judgment- Dismissal of Party; Judgment Type: Dismissal of Party; Party Names: Fresno Truss, Limited Liability Company, and Nevada Limited Liability Company; Carriveau Spencer, Inc., a California Corporation; Comment: without prejudice.; Comment: (as to Defendant in 1st cross complaint)

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  • 07/20/2017
  • View Court Documents
  • Disposition: Judgment- Dismissal - Other filed; Judgment Type: Dismissal - Other filed; Party Names: Kings River Door, Inc., a California Corporation; ROES 1-100; Comment: With Prejudice Cross-Complaint filed by Kings River Door, Inc.

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547 More Docket Entries
  • 11/06/2014
  • Financial info for McMillin Colby Park, LLC: Transaction Assessment $435.00

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  • 11/06/2014
  • Financial info for McMillin Colby Park, LLC: Transaction Assessment $1000.00

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  • 11/06/2014
  • Financial: McMillin Colby Park, LLC; Total Financial Assessment $1,605.00; Total Payments and Credits $1,605.00

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  • 05/01/2018
  • Financial info for Birkett, Katherine: Counter Payment Receipt # CIVIL-2018-00005228 Birkett, Katherine $24.50

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  • 05/01/2018
  • Financial info for Birkett, Katherine: Transaction Assessment $24.50

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  • 11/12/2014
  • Financial info for Birkett, Katherine: Counter Payment Receipt # 196424 Birkett, Katherine $150.00

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  • 11/12/2014
  • Financial info for Birkett, Katherine: Transaction Assessment $150.00

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  • 08/04/2014
  • Financial info for Birkett, Katherine: Counter Payment Receipt # 193060 Birkett, Katherine $435.00

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  • 08/04/2014
  • Financial info for Birkett, Katherine: Transaction Assessment $435.00

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  • 08/04/2014
  • Financial: Birkett, Katherine; Total Financial Assessment $609.50; Total Payments and Credits $609.50

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Complaint Information

Timothy C. McNeill (SBN 201275)

HOLLINGSHEAD & ASSOCIATES

P. O. Box 293328

Sacramento, CA 95829 E-FILED

Telephone: (916) 630-3803 1/22/2018 4:04 PM

Facsimile: (916) 630-3848 FRESNO COUNTY SUPERIOR COURT Email: tmeneill@wedefend.com By: I. Herrera, Deputy

Attorney for FINANCIAL PACIFIC INSURANCE COMPANY, Intervening on behalf of Cross- Defendant EWING INSULATION, INC.

SUPERIOR COURT OF CALIFORNIA IN AND FOR THE COUNTY OF FRESNO

Case No. [4CECG02242KCK Assigned for All Purposes to: Hon. Kristi Culver Kapetan, Rm. 104

KATHERINE BIRKETT, et al.

GENERAIL DENIAL

Intervenor hereby denies each and every, all and singular, generally and specifically, all of the allegations contained in said Cross-Complaint, and the whole thereof, insofar as they pertain to this Intervenor, including each and every purported cause of action contained therein. Further, Intervenor denies that Cross-Complainant has sustained or will sustain any injury or damage as a result of the conduct alleged against this Intervenor. L.

AFFIRMATIVE DEFENSES FIRST AFFIRMATIVE DEFENSE COMPARATIVE NEGLIGENCE

AS A FIRST, SEPARATE AND AFFIRMATIVE DEFENSE to the Cross-Complaint, and to each cause of action thereof, this Intervenor alleges by way of a plea of comparative negligence that the Cross-Complainant was negligent in and about the matters and activities alleged in the Cross- Complaint, that said negligence contributed to and was a proximate cause of Cross-Complainant’s alleged injuries and damages, if any, and that if the Cross-Complainant’s is entitled to recover damages against this Intervenor by virtue of the Cross-Complaint, this Intervenor prays that said recovery be diminished by reason of the negligence of the Cross-Complainant in proportion to the degree of fault attributable to the Cross-Complainant.

SECOND AFFIRMATIVE DEFENSE CONTRIBUTORY NEGLIGENCE

AS A SECOND, FURTHER, SEPARATE AND AFFIRMATIVE DEFENSE to the Cross- Complaint, and to each cause of action thereof, this Intervenor alleges that Cross-Complainant was negligent with respect to the matters alleged in the Cross-Complaint and that said negligence contributed to and proximately caused the alleged injuries and damages, if any, to Cross- Complainant. /1

THIRD AFFIRMATIVE DEFENSE FAILURE TO STATE A CAUSE OF ACTION

AS A THIRD, FURTHER, SEPARATE AND AFFIRMATIVE DEFENSE to the Cross- Complaint, and to each cause of action thereof, this Intervenor alleges that Cross-Complainant has failed to state facts sufficient to constitute a cause of action against Intervenor.

FOURTH AFFIRMATIVE DEFENSE

STATUTE OF LIMITATIONS (Other than Personal Injury)

AS A FOURTH, FURTHER, SEPARATE AND AFFIRMATIVE DEFENSE to said Cross- Complaint, and to each cause of action thereof, Intervenor alleges that said Cross-Complaint is barred by the provisions of Code of Civil Procedure §§ 338, 339, 337.1, 337.15 and 343.

FIFTH AFFIRMATIVE DEFENSE FAILURE TO MITIGATE

AS A FIFTH, FURTHER, SEPARATE AND AFFIRMATIVE DEFENSE to said Cross- Complaint, and to each cause of action thereof, this Intervenor alleges that Cross-Complainant failed to take reasonable measures to decrease or eliminate the damages of which Cross-Complainant now complain.

SIXTH AFFIRMATIVE DEFENSE NEGLIGENCE OF OTHERS

AS A SIXTH, FURTHER, SEPARATE AND AFFIRMATIVE DEFENSE to said Cross- Complaint, and to each cause of action thereof, Intervenor alleges that parties named and vet to be named as parties in this action were careless and negligent in the matters alleged, that said negligence contributed to and was the legal cause of Cross-Complainant’s alleged injuries and damages, if any, and that if the Cross-Complainant is entitled to recover damages from this Intervenor by virtue of the Cross-Complaint, this Intervenor prays that said recovery be diminished in proportion to the degree of fault attributable to said defendants, cross-defendants or third party.

298 SEVENTH AFFIRMATIVE DEFENSE CONSENT

AS AN EIGHTH, FURTHER, SEPARATE AND AFFIRMATIVE DEFENSE, to said Cross- Complaint, and each cause of action thereof, Intervenor alleges that at all times mentioned Cross- Complainant consented to the acts and events set forth therein.

EFIGHTH AFFIRMATIVE DEFENSE TRIVIAL DEFECT

AS A NINTH, FURTHER, SEPARATE AND AFFIRMATIVE DEFENSE, to said Cross- Complaint, and each cause of action thereof, Intervenor alleges that said Cross-Complaint is barred by the fact that the dangerous condition alleged is a minor, trivial and insignificant defect which does not create a substantial risk of injury.

NINTH AFFIRMATIVE DEFENSE OBVIOUS DEFECT

AS A TENTH, FURTHER, SEPARATE AND AFFIRMATIVE DEFENSE. Intervenor alleges that if, in fact, there was a defect, which this Intervenor denies the defect, is one that was known or should have been known by Cross-Complainant.

TENTH AFFIRMATIVE DEFENSE NO NOTICE WARRANTY

AS AN ELEVENTH, FURTHER, SEPARATE AND AFFIRMATIVE DEFENSE, Intervenor alleges that it received no notice of breach of warranty, if any there was, as required by law.

ELEVENTH AFFIRMATIVE DEFENSE

NO WARRANTIES & DISCLAIMERS

AS AN ELEVENTH, FURTHER, SEPARATE AND AFFIRMATIVE DEFENSE to said Cross-Complaint and each cause of action }thereof, Intervenor alleges that the expressed and implied warranties alleged to have been made were expressly disclaimed and excluded by the label, and pursuantState of California, which provided that the manufacturer made no

warranties, expressed or implied, concerning this product or its use which extended beyond the

-5 Complaint In Intervention

-5 Complaint In Intervention description on the label; that all statements made concerning the product applied only when used as directed.

description on the label; that all statements made concerning the product applied only when used as directed.

TWELFTH AFFIRMATIVE DEFENSE BARRED BY STATUTE

The Cross-Complaint, and each cause of action thereof, is barred by the statutes of limitation set forth in the California Code of Civil Procedure, commencing with § 335 and continuing through § 349.4, more particularly, but not limited to, the following sections: 337(1), 337.1, 337.15, 338, 338(d), 339, 340, and 343; and by §§ 1201(25)( ¢ ), 2601, 2602, 2513(1)(3), 2510(1), 2605(1)(a) and (b), 2606(1)(a) and (b), 2607(3)(a), 2715(2)(a), 2719(3), and 2725(1) and (2) of the Uniform Commercial Code of the State of California.

THIRTEENTH AFFIRMATIVE DEFENSE CONTRIBUTION AFFIRMATIVE DEFENSE

AS A THIRTEENTH, FURTHER, SEPARATE AND AFFIRMATIVE DEFENSE to this Cross-Complaint, this Intervenor alleges that if the Cross-Complainant is entitled to a joint judgment against this Intervenor and the remaining defendants, or cross-defendants, and each of them, this Intervenor prays that this court order each of the judgment debtors to pay to the Cross-Complainant their proportionate share of the joint judgment, the judgment debtor’s proportionate share having been determined by the trier of fact; and if this Intervenor is required to pay to the Cross-Complainant a disproportionate share of any joint judgment, this Intervenor prays leave of this court to seek contribution by motion against any other judgment debtor not paying the proportionate share allocated to any such defendant or cross-defendant by the trier of fact.

FOURTEENTH AFFIRMATIVE DEFENSE PROPOSITION 51 DEFENSE

AS A FOURTEENTH , FURTHER, SEPARATE AND AFFIRMATIVE DEFENSE to the Cross-Complaint, this Intervenor alleges that other defendants or cross-defendants in this lawsuit, as well as other persons and entities not parties to this lawsuit, were themselves responsible for the Cross-Complainant’s damages, if any there were. This Intervenor requests that its liability, if any, be assessed in proportion to the liability of other codefendants, persons or entities who are not parties to

FIFTEENTH AFFIRMATIVE DEFENSE INTERVENING AND SUPERSEDING CAUSES

The injuries and damages sustained by the Cross-Complainant, if any, were proximately caused by the intervening and superseding actions of others, which intervening and superseding actions bar and/or diminish Cross-Complainant’s recovery, if any, against this Intervenor.

SIXTEENTH AFFIRMATIVE DEFENSE FAILURE TO PROPERLY MAINTAIN PROPERTY

At all times mentioned in the Cross-Complaint, Cross-Complainant and others so carelessly, recklessly, negligently, and wrongfully maintained the property so as to cause and contribute in some way to the damages, if any, alleged to have been sustained by Cross-Complainant. Therefore, Cross- Complainant’s recovery herein as to any damages and injuries sustained by Cross-Complainant, if there were any, shall be diminished to the extent that such injuries or damages were proximately caused by the carelessness, recklessness, negligence, or wrongful conduct of Cross-Complainant, and other persons.

SEVENTEENTH AFFIRMATIVE DEFENSE PASSIVE NEGLIGENCE

This Intervenor is informed and believes and therefore alleges that any and all injuries allegedly suffered by the Cross-Complainant, the fact of which is expressly denied by this Intervenor, are the direct and proximately result of the passive negligence, or other passive actionable conduct, on the part of the Cross-Complainant, and on the part of other parties and non-parties. /1 /1

EIGHTEENTH AFFIRMATIVE DEFENSE FAILURE TO GIVE NOTICE OF DEFECTS

Without admitting any allegations of the Cross-Complaint, Intervenor is informed and believes and thereupon alleges that the Cross-Complaint, and each cause of action contained therein, are barred by Cross-Complainant’s failure to give timely notice to this Intervenor of the alleged defects, breaches, and/or damages, if any, which any party may have sustained.

NINETEENTH AFFIRMATIVE DEFENSE LACK OF PRIVITY

The Cross-Complaint, and each cause of action therein, fails to state facts sufficient to constitute a cause of action for indemnity or contribution against this Intervenor.

TWENTIETH AFFIRMATIVE DEFENSE INDEMNITY

Should Cross-Complainant recover damages from this Intervenor, this Intervenor 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.

TWENTY-FIRST AFFIRMATIVE DEFENSE

ASSUMPTION OF RISK: PRIMARY AS A FURTHER, SEPARATE AND AFFIRMATIVE DEFENSE to said Cross-Complaint, and to each cause of action thereof, Intervenor alleges that Intervenor owed no legal duty to protect Cross-Complainant from the particular risk of harm that caused the alleged injury and Cross- Complainant’s activity constituted primary assumption of the risk and Cross-Complainant’s claim is therefore completely barred.

TWENTY-SECOND AFFIRMATIVE DEFENSE

ASSUMPTION OF RISK: SECONDARY AS A FURTHER, SEPARATE AND AFFIRMATIVE DEFENSE to said Cross-Complaint, and to each cause of action thereof, Intervenor alleges that even if Intervenor owed a duty of care,

Cross-Complainant encountered a known risk imposed by Intervenor’s alleged breach of duty and

-8 Complaint In Intervention

-8 Complaint In Intervention Cross-Complainant’s activities consisted of secondary assumption of the risk and Cross- Complainant’s damages shall be reduced by Cross-Complainant’s own proportionate responsibility.

Cross-Complainant’s activities consisted of secondary assumption of the risk and Cross- Complainant’s damages shall be reduced by Cross-Complainant’s own proportionate responsibility.

TWENTY-THIRD AFFIRMATIVE DEFENSE

ASSUMPTION OF RISK: EXPRESSED

AS A FURTHER, SEPARATE AND AFFIRMATIVE DEFENSE to said Cross-Complaint, and to each cause of action thereof, Intervenor alleges that Cross-Complainant expressly assumed the risk of injury or harm and therefore Cross-Complainant’s Cross-complaint is completely barred.

TWENTY-FOURTH AFFIRMATIVE DEFENSE FAILURE TO COMPLY WITH INSTRUCTIONS

AS A FURTHER, SEPARATE AND AFFIRMATIVE DEFENSE, to said Cross-Complaint, and each cause of action thereof, Intervenor alleges that the Cross-Complainant failed to comply with the written and oral instructions relating to use of said product, and this failure caused the alleged damages, if any, suffered by the Cross-Complainant.

TWENTY-FIFTH AFFIRMATIVE DEFENSE

IMPROPER USE (Product)

AS A FURTHER, SEPARATE AND AFFIRMATIVE DEFENSE, to said Cross-Complaint, and each cause of action thereof, Intervenor alleges that if Cross-Complainant sustained injuries attributableproduct manufactured by this Intervenor, which allegations are expressly denied, the injuries were solely caused by and attributable to the unreasonable, unforeseeable, and inappropriate purpose and improperl use made by Cross-Complainant of said product.

TWENTY-SIXTH AFFIRMATIVE DEFENSE

MISUSE AND ABUSE (Product)

AS A FURTHER, SEPARATE AND AFFIRMATIVE DEFENSE, to said Cross-Complaint, and each cause of action thereof, Intervenor alleges that any injury, damage, or loss, if any, complained of in said Cross-Complaint was proximately caused by Cross-Complainant’s own acts and, further, by the misuse and abuse of the product referred to in said Cross-Complaint.

TWENTY-SEVENTH AFFIRMATIVE DEFENSE RES JUDICATA

AS A FURTHER, SEPARATE AND AFFIRMATIVE DEFENSE to said Cross-Complaint and each cause of action thereof, Intervenor alleges that by reason of a prior adjudication, Cross- Complainant’s Cross-Complaint is barred by the Doctrine of Res Judicata.

TWENTY-EIGHTH AFFIRMATIVE DEFENSE WAIVER AND ESTOPPEL

AS A FURTHER, SEPARATE AND AFFIRMATIVE DEFENSE to said Cross-Complaint and each cause of action thereof, Intervenor alleges that Cross-Complainant has waived and is estopped and barred from alleging the matters set forth in said Cross-Complaint.

TWENTY-NINTH AFFIRMATIVE DEFENSE UNCLEAN HANDS

AS A FURTHER, SEPARATE AND AFFIRMATIVE DEFENSE to said Cross-Complaint and each cause of action thereof, Intervenor alleges that said Cross-Complaint is barred by the Doctrine of Unclean Hands.

THIRTIETH AFFIRMATIVE DEFENSE LACHES

AS A FURTHER, SEPARATE AND AFFIRMATIVE DEFENSE to said Cross-Complaint and each cause of action thereof, Intervenor alleges that said Cross-Complaint is barred by the Doctrine of Laches.

THIRTY-FIRST AFFIRMATIVE DEFENSE ACT OF GOD

AS A FURTHER, SEPARATE AND AFFIRMATIVE DEFENSE, to Cross-Complainant’s Cross-Complaint, and each cause of action thereof, Intervenor alleges that the injuries and damages, if any, sustained by Cross-Complainant were causedwithout any contribution on the part of this answering Intervenor.

THIRTY SECOND AFFIRMATIVE DEFENSE

SATISFACTION OF DUTIES, OBLIGATIONS Prior to commencement of this action, this answering Intervenor duly performed, satisfied, and discharged all duties and obligations it may have owed to Cross-Complainant arisingagreements, representations, or contracts made by it on behalf of this Intervenor, and this action is therefore barred by the provisions of California Civil Code §§ 1473 — 1477.

THIRTY-THIRD AFFIRMATIVE DEFENSE STANDING

AS A SEPARATE AFFIRMATIVE DEFENSE, Intervenor alleges that Cross-Complainant lacks standing to sue this Intervenor either jointly or individually.

THIRTY-FOURTH AFFIRMATIVE DEFENSE DESIGN AND CONSTRUCTION

AS A SEPARATE AFFIRMATIVE DEFENSE, Intervenor alleges that, as a matter of law, this Intervenor may not be held liable, either jointly or severally, for any injury caused by the plan, design, or construction of the area described in Cross-Complainant’s Cross-Complaint, in that said plan, design or construction of said property is not legally or factually the responsibility of this Intervenor,

THIRTY-FIFTH AFFIRMATIVE DEFENSE NO LIABILITY FOR CONTRACT ERRORS

AS A SEPARATE AFFIRMATIVE DEFENSE, Intervenor alleges that Intervenor is not responsible for defects, errors, or omissions in the contract documents from which Intervenor performed its work, including plans and specifications.

THIRTY-SIXTH AFFIRMATIVE DEFENSE

CONSTRUCTION CONTRACT —~ WHEN PROVISIONS VOID AND UNENFORCEABLE. AS A SEPARATE AFFIRMATIVE DEFENSE, Intervenor alleges that the Cross-Complaint 1s barred by the provisions of Civil Code §§ 2782 — 2784. u

THIRTY-SEVENTH AFFIRMATIVE DEFENSE | VAGUENESS OF ALLEGATIONS

AS A SEPARATE AFFIRMATIVE DEFENSE, Intervenor alleges the allegations contained in the Cross-Complaint, and each purported cause of action contained therein, are vague, ambiguous, and uncertain.,

THIRTY-EIGHTH AFFIRMATIVE DEFENSE STATE OF THE ART

AS A SEPARATE AFFIRMATIVE DEFENSE, Intervenor alleges that the work performed and products used by Intervenor were “state of the art” at the time of construction and not defective in any legally actionable way.

THIRTY-NINTH AFFIRMATIVE DEFENSE RIGHT TO RAISE OTHER AFFIRMATIVE DEFENSES

Intervenor asserts the right to raise other affirmative defenses as they become ascertained.

FORTIETH AFFIRMATIVE DEFENSE THIS PARTY ASSERTS THE RIGHTS AND FEES SET OUT UNDER CIVIL CODE § 2782

If it 1s contended that any contract obligations claimed against this party were entered into after January 1, 2009, this party asserts that proper tender to undertake defense of obligations of a subcontractor under Civil Code 2782 have not been made and this answering party reserves all rights to undertake the defense as set out in Civil Code § 2782 to undertake that defense under the conditions set forth therein. This party also asserts any rights to choose the type of defense to be undertaken as set out under Civil Code § 2782, if complaining party sets out a proper tender to undertake defense. This party also asserts their rights to attorneys’ fees and costs for failure of others to comply with the provisions of that statute and as the statute allows. Further under this Civil Code § 27782, this party asserts the rights for indemnity as provided by this statute. 1/ /1 /1 /1

FORTY-FIRST AFFIRMATIVE DEFENSE

FAILURE TO COMPLY WITH CIVIL CODE PROVISIONS REQUIRING MAINTENANCE, REPAIR, FIX, AND/OR OPPORTUNITY TO FIX OR REPAIR Plaintiff homeowners have failed to comply with the provisions of Civil Code §§ 907, 944, and 945.5 in maintaining and repairing their property and in allowing builder and/or others to repair or fix the alleged conditions.

FORTY-SECOND AFFIRMATIVE DEFENSE OTHERS HAVE FAILED TO COMP WITH PROVISIONS OF CIVIL CODE § 896 IN BRINGING TIMELY ACTION AND/OR UNDERTAKING THEIR OBLIGATIONS

This party contends that the action was not brought timely under the provisions of Civil Code § 896 and/or that others have failed to perform their obligations for construction as set out in Civil Code § 896 and thus their actions have impacted on this party and this party contends they are not responsible for those violations.

FORTY-THIRD AFFIRMATIVE DEFENSE

REQUIREMENTS UNDER CALIFORNIA CIVIL CODE §§ 895-945.5 HAVE NOT BEEN MET BY OTHERS and DAMAGES ARE LIMITED

UNDER THOSE CODE SECTIONS

This party asserts that owners and/or developer and/or general contractor has failed to comply with the requirements for causes of actions on homes constructed after January 1, 2003 under Civil Code §§ 895~ 945.5 and that damages are limited as set out under Civil Code §§ 896 through 945.5. IL.

PRAYER FOR ANSWER

WHEREFORE, this Intervenor prays judgment as follows: [. That Cross-Complainant take nothing by virtue of this action; 2. For reasonable attorneys’ fees; 3. For costs of suit incurred herein; and

FINANCIAL PACIFIC INSURANCE

3 COMPANY on behalf of EWING INSULATION, INC.