On 04/24/2013 Leonard Defendis filed a Property - Construction Defect lawsuit against Lennar Fresno, Inc // 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, Snauffer, Mark, Snauffer, Mark W, McGuire, Rosemary and Hamilton, Jeffrey Y.. The case status is Pending - Other Pending.
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04/24/2013
Pending - Other Pending
Fresno County Superior Courts
Bf Sisk Courthouse
Fresno, California
Ikeda, Dale
Black, Donald
Snauffer, Mark
Snauffer, Mark W
McGuire, Rosemary
Hamilton, Jeffrey Y.
Defendis, Leonard
Magallon, Francisco
Lomas, Julia
Yip, Lambo
Li, Hui
Rana, Realiza
Lamborn, Reggie
Bettencourt, Jonathan
Bettencourt, Kelly
Bianchi, Steven D.
Bianchi, Laurenetta
Chandler, John
Chandler, Diana
Cleveland, Craig R.
Cleveland, Marianne B.
Climer, Chau T.
Climer, Jamie
Farris, Mary
Felmus, Jeremy
Felmus, Jessica
Garcia, Israel E.
Milstein, Adelman & Kreger 2800 Donald Douglas Loop North
Santa Monica, CA 90405
Foster, Jessica C.
Iniguez, Miguel A
Blake, Albert P, JR
PINION, G B
Paige, Robert N.
Packer, Alan H.
Ingalsbe, William J
Zaouk, Christine C.
Drolshagen, John A.
Blaisdell, Benjamin W.
Hammons, Wallace W
Ebner, Darren M
Peel, James W.
Bevitz, Joshua B
Cullins, Darren R.
Czeshinski, Michael J.
CMS for 11-14-17 full.pdf
Case Management Statement; Comment: Case Management Statement
Case Management Statement
Letter of Documents Returned Without Filing; Comment: Notice of Change of Handling of Attorney
Case Status Report 11-30-2016 Scanned.pdf; Comment: Plaintiffs' Case Status Report
Minute Order Attachment; Comment: attached Certificate of mailing
Notice; Comment: Notice of Disassociation of Counsel.
Civil Document; Comment: to Complaint of Lennar Fresno, Inc.
Request to Enter Default
Minute Order Attachment
CMS for 10-12-17 full.pdf
22838-RFD.pdf; Comment: Request for Dismissal
Case Management Statement; Comment: Case Management Statement
RFD for 3 Homes (no 2nd DVI) 12-6-16 Scanned.pdf
Notice; Comment: Associated attorney: Tina Schoneman
Notice of Change of Address Filed
Civil Document; Comment: associated attorney: Daniel G. Pezold
Order filed; Judicial Officer: Snauffer, Mark; Comment: Stipulation to Set Aside Default and Order -Granted. Default aginst Rick Berry is set aside.
Disposition: Judgment- Dismissal of Party; Judgment Type: Dismissal of Party; Party Name: Lacey, Shannon; Comment: Without Prejudice
Disposition: Judgment- Dismissal of Party; Judgment Type: Dismissal of Party; Party Name: Perry, Scott L; Comment: Without Prejudice
Disposition: Judgment- Dismissal of Party; Judgment Type: Dismissal of Party; Party Name: Huynh, Jennie; Comment: Without Prejudice
Disposition: Judgment- Dismissal of Party; Judgment Type: Dismissal of Party; Party Names: Wood, James R.; Wood, Stacey L.; Comment: without prejudice.; Comment: (As to Complaint filed by Plaintiffs)
Disposition: Judgment- Dismissal of Party; Judgment Type: Dismissal of Party; Party Names: Yip, Lambo; Li, Hui; Oakden, Vergil L; Oakden, Mary Louann; Comment: without prejudice.; Comment: (As to Complaint filed by Plaintiffs)
Disposition: Judgment- Dismissal of Party; Judgment Type: Dismissal of Party; Party Names: Schoenbrod, Daniel; Schoenbrod, Denise; Comment: Without Prejudice
Disposition: Judgment- Dismissal of Party; Judgment Type: Dismissal of Party; Party Names: Hernandez, Victor V.; Cellini, Allan; Cellini, Laura; Munoz, Brenda L; Munoz, Teodoro V; Comment: Without Prejudice.
Disposition: Judgment- Dismissal of Party; Judgment Type: Dismissal of Party; Party Names: Rana, Realiza; Lamborn, Reggie; Bettencourt, Jonathan; Bettencourt, Kelly; Gejeian, David; Gejeina, Shelby; Reilly, Ronald; Sandoval, Joaquin; Sandoval, Lisa; Cuneo, Melissa A; Card, Diane M; Hernandez, Larry; Hernandez, Ramona V; Hopkins, Jamie; Keir, Anthony; Keir, Marjorie; Comment: Without Prejudice.; Comment: (As to Complaint filed by Plaintiffs)
Disposition: Judgment- Dismissal - Other filed; Judgment Type: Dismissal - Other filed; Party Name: Defendis, Leonard; Comment: Plaintiff's Branden & Lisa Bezzant
Continued Case Management Conference- Judicial Officer: McGuire, Rosemary; Hearing Time: 3:28 PM
Financial info for Lennar Fresno, Inc.: Counter Payment Receipt # 182417 Lennar Fresno, Inc. $60.00
Financial info for Lennar Fresno, Inc.: Counter Payment Receipt # 182404 Lennar Fresno, Inc. $1435.00
Financial info for Lennar Fresno, Inc.: Transaction Assessment $60.00
Financial info for Lennar Fresno, Inc.: Transaction Assessment $435.00
Financial info for Lennar Fresno, Inc.: Transaction Assessment $1000.00
Financial: Lennar Fresno, Inc.; Total Financial Assessment $1,705.00; Total Payments and Credits $1,705.00
Financial info for Defendis, Leonard: Counter Payment Receipt # 177067 Defendis, Leonard $1435.00
Financial info for Defendis, Leonard: Transaction Assessment $1000.00
Financial info for Defendis, Leonard: Transaction Assessment $435.00
Financial: Defendis, Leonard; Total Financial Assessment $1,435.00; Total Payments and Credits $1,435.00
”B\{ FAY‘.“
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
Case No.: 13CECG01284 ELITE LANDSCAPING, INC.’S SPECIAL
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:
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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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.
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.
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.
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.
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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Plaintiff directed, ordered, approved, and/or ratified this Third Party Defendant
conduct and this Plaintiff is therefore estopped from asserting any claim based thereon.
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.
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.
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.
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.
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.
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).
The Complaint, and each alleged cause of action thereof, is barred by the provisions of California Civil Code Section 2784.5.
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.
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.
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.
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.
Plaintiff's Complaint, and each alleged cause of action thereof, is barred by the provisions of Civil Code Section 1473.
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.
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.
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.
(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.
{(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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(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.
(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.
(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.
(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.
(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.
(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.
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
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