Leonard Defendis vs. Lennar Fresno, Inc. / COMPLEX

Complaint Information

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ALBERT P. BLAKE, JR., SBN 147078 AN LAW OFFICES OF TIMOTHY R. WAGNER 1655 Grant Street, Suite 800-B ~ Concord, CA 94520 = Telephone: (925) 681-3600 o Facsimile: (866) 386-1186 o albert.blake@aig.com P g T | Attorneys for Third Party Defendant 2

ELITE LANDSCAPING, INC. o

SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF FRESNO

Case No.: 13CECG01284 ELITE LANDSCAPING, INC.’S SPECIAL

- ANSWER TO PLAINTIFFS’ COMPLAINT

AND RELATED CROSS-ACTIONS

ELITE LANDSCAPRING, INC. {“Third Party Defendant") in Answer to the Complaint of Plaintiffs on file herein, and asserting the following special defenses to the causes of action set forth in the Plaintiffs' Complaint on file herein, as follows:

GENERAL DENIAL

Pursuant to the provisions of Section 431.30 of the California Code of Civil

' Procedure; this Third Party Defendant generally and specifically denies each and every, and all, of the allegations of the Complaint, and further denies that Plaintiff has sustained damages in any sum or sums, or otherwise, or at all,omission on the

part of this Third Party Defendant, or any of its agents, servants, or employees.

part of this Third Party Defendant, or any of its agents, servants, or employees. O 00 ~N OO 0 b»h WO N -

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FIRST AFFIRMATIVE DEFENSE

Third Party Defendant is informed and believes and alleges as follows; The Complaint and each alleged cause of action thereof, fails to state facts sufficient to constitute a cause of action against this Third Party Defendant.

SECOND AFFIRMATIVE DEFENSE

The Complaint, 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)(a)-(d); 896(g)(6); 896(g)(7); 8O6(gX(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

Plaintiff has unreasonably delayed in bringing this action to the prejudice of this Third Party Defendant and is therefore barred from bringing this action by the doctrine of laches.

FOURTH AFFIRMATIVE DEFENSE

Plaintiff was careless and negligent in and about the matters referred to in the Complaint, and such fault on the part of Plaintiff proximately caused and contributed to the damages complained of, if any there are. This Third Party Defendant further alleges that any fault not attributable to Plaintiff was a result on the part of persons and/or entities other than this Third Party Defendant. Such fault bars and/or proportionately reduces any recovery by Plaintiff against this Third Party Defendant.

FIFTH AFFIRMATIVE DEFENSE

Should Plaintiff recover damages from this 'I;hird Party Defendant, this Third Party Defendant is entitled to indemnification, either in whole or in part, from all persons or entities whose negligence and/or fault proximately contributed to Plaintiffs damages, if any there are,

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SIXTH AFFIRMATIVE DEFENSE

Plaintiff directed, ordered, approved, and/or ratified this Third Party Defendant

conduct and this Plaintiff is therefore estopped from asserting any claim based thereon.

SEVENTH AFFIRMATIVE DEFENSE

Plaintiff 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 Plaintiff's part.

EIGHTH AFFIRMATIVE DEFENSE

The Complaint, and each cause of action thereof, is barred by Plaintiff'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 Third Party Defendant duly performed, satisfied, and discharged all duties and obligations it may have owed to Plaintiff arisingagreements, representations, or contracts made by it or on behalf of this Third Party Defendant.

TENTH AFFIRMATIVE DEFENSE

Plaintiff and others unrelated to this Third Party Defendant medified, altered, abused, and/or misused the materials, equipment and/or work provided by this Third Party 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 Third Party Defendant is not responsible for Plaintiff's failure to carry out the work in accordance with the contract documents.

TWELFTH AFFIRMATIVE DEFENSE

The Complaint, 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).

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THIRTEENTH AFFIRMATIVE DEFENSE

The Complaint, and each alleged cause of action thereof, is barred by the provisions of California Civil Code Section 2784.5.

FOURTEENTH AFFIRMATIVE DEFENSE

The Complaint, and each cause of action thereof, fails to state a cause of action against Third Party Defendant for breach of warranty, expressed, implied or otherwise, because there is no privity between Plaintiff and this Third Party Defendant.

FIFTEENTH AFFIRMATIVE DEFENSE

The Complaint, and each cause of action thereof, fails to state a cause of action against this Third Party Defendant because Plaintiff failed to give timely and proper notice of any breach of warranty, implied, express or otherwise.

SIXTEENTH AFFIRMATIVE DEFENSE

Plaintiff 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, 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 Third Party Defendant. Any liability of this Third Party Defendant, which liability is expressly denied, would therefore be limited to those injuries, losses or damages, if any there was for which this Third Party Defendant’s actionable conduct, if any, was a primary contributing factor.

EIGHTEENTH AFFIRMATIVE DEFENSE

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

NINETEENTH AFFIRMATIVE DEFENSE

The Complaint, and each alleged cause of action thereof, fails to state facts sufficient fo 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 Third Party Defendant.

TWENTY-FIRST AFFIRMATIVE DEFENSE

Plaintiff has knowingly and voluntarily waived all claims of loss or damage against Third Party Defendant and is therefore estopped and barred from alleging the matters sef forth in its Complaint.

TWENTY-SECOND AFFIRMATIVE DEFENSE

(Violation of Civil Code §886 through §945.5)

Third Party Defendant alleges that Plaintiffs have violated provisions set forth in Civil Code §896 through §945.5, which require non-adversarial procedures to resolve disputes, including providing 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 setilement with Plaintiffs prior to the filing of their Complaint, as well as other particulars of those sections.

TWENTY-THIRD AFFIRMATIVE DEFENSE

{(Civil Code §945.5(a)-Act Of God}

Third Party 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 such as war, terrorism, or vandalism.

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TWENTY-FOURTH AFFIRMATIVE DEFENSE

(Civil Code §945.5(b)-Homeowner Unreasonableness)

Third Party Defendant is excused, in whole or in part, from any obligation, damage, loss or liability alleged as same was caused by Plaintiffs’ 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)

Third Party Defendant is excused, in whole or in part, from any obligation,

damage, loss or liability alleged as same was caused by Plaintiffstheir agent, employee, general confractor, 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)

Third Party Defendant is excused, in whole or in part, from any obligation, damage, loss or liability alleged as same was caused by Plaintiffstheir 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)

Third Party 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 violafion.

TWENTY-EIGHTH AFFIRMATIVE DEFENSE

(Civil Code §945.5(f)-Release)

Third Party 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)

Third Party 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.

THIRTIETH AFFIRMATIVE DEFENSE

Third Party Defendant alleges that Plaintiff's claims, and each of them, are barred by the Plaintiff's agreement to purchase and take the property and its improvements thereon "as-is”, and to assume the risk that the subject property, and the improvements thereon, contained construction deficiencies and defects and that Third Party Defendant is entitled to judgment and/or adjudication in its favor of the claims brought by Plaintiff. Third Party Defendant affirmatively alleges that it is an intended third party beneficiary of the "as-is" provision of the Purchase Agreement by which Plaintiff took title to and possession of the Overlook property at issue in this case and therefore, neither plaintiff, nor any other party, can state a cause of action against this answering Third Parly Defendant.

WHEREFORE, this Third Party Defendant prays as follows:

1, That Plaintiff takes nothing by way of its Complaint on file herein;

2. That this Third Party Defendant receive a judgment in its favor for its costs, disbursements, and attorneys’ fees incurred in this action; and i i

2. That this Third Party Defendant receive a judgment in its favor for its costs, disbursements, and attorneys’ fees incurred in this action; and i i W oo ~N-

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3. That this Defendant be awarded such other and further relief as the Court may deem just and proper.

Dated: February 24, 2016 LAW OFFICES OF TIMOTHY R. WAGNER