This case was last updated from Fresno County Superior Courts on 08/14/2019 at 08:05:13 (UTC).

Michael Kirby vs Waten-Castanos/LEAD CASE/COMPLEX

Case Summary

On 05/01/2013 Michael Kirby filed a Property - Construction Defect lawsuit against Waten-Castanos/LEAD CASE/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, Culver Kapetan, Kristi, Hamilton, Jeffrey Y. and Gaab, Kimberly. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    *******1351

  • Filing Date:

    05/01/2013

  • 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

Ikeda, Dale

Culver Kapetan, Kristi

Hamilton, Jeffrey Y.

Gaab, Kimberly

 

Party Details

Plaintiffs

Kirby, Michael

Kirby, Cathy

Halstenberg, Harold

Halstenberg, Nancy

Fetterhoff, Scott

Hormann, Jennifer

Accardo, Douglas

Accardo, Della

Afonin, Lillian S

Afonin, Jack M

Ayaviri, Boris

Ayaviri, Patricia

Badizadegan, Mehri

Badizadegan, Moe

Campos, Javier

Chahal, Gurmeet

Chahal, Rabinder

Christi, Joseph

Christi, Johnna

Davidson, Richard

344 More Parties Available

Attorney/Law Firm Details

Plaintiff Attorney

Garcia, Israel E.

Milstein, Adelman & Kreger 2800 Donald Douglas Loop North

Santa Monica, CA 90405

Other Attorneys

Fidger, Angela R.

Walsh, Paul B.

Tangonan, Kenya T.

Moore, Penny S.

Foster, Jessica C.

Hammons, Wallace W

Nakagawa, Edwin S.

Hazelton, M. Troy

Cano, Gino

Sebra, D. Creighton

Gary, Todd B

Adelman, Fred

Vote, Kurt F.

Souza, James P

Boardman, Nora R.

Arabi, Arash S.

Chien, Brian C

Fischer-Reyes, Jennifer

Griesner-Malcolm, Stacey L.

5 More Attorneys Available

 

Court Documents

Judgment

Dismissal of Party; Dismissal of Party; Judgment Type: Dismissal of Party; Party Name: Chris-Mis Masonry, Inc.; Comment: With Prejudice.

Request for Dismissal Received - Pending Review

Request for Dismissal; Comment: Request for Dismissal

Declaration Filed

Declaration of Stacey L. Malcolm in Support of Application f; Comment: of Stacey L. Malcolm in Support of Application for Determination of Good Faith Settlement

Notice of Entry of Dismissal filed

Notice of Entry of Dismissal and Proof of Service; Comment: Notice of Entry of Dismissal and Proof of Service

Notice of Entry of Dismissal filed

Notice of Entry of Dismissal and Proof of Service; Comment: Notice of Entry of Dismissal and Proof of Service

Notice Filed

Notice Filed; Comment: of entry of default of Cross-defendant Diamond Specialties, Inc.

Request to Enter Default

Request to Enter Default; Comment: Default entered as to Cross-Defendant Michael Ray Ewing, individually and DBA Ewing Insulation Co.

Proof of Service

Proof of Service

Notice of Hearing

Civil Document

Notice of Entry of Dismissal filed

Notice of Entry of Dismissal and Proof of Service; Comment: Notice of Entry of Dismissal (Advanced Insulation)

Order Received for Signature

Proposed Order Determining Good Faith Settlement; Comment: (Order signed; Forwarded to clerks office for further processing) Forwarded to RA on 10/11/17 Proposed Order Determining Good Faith Settlement

Proof of Service

Proof of Service

Declaration Filed

Declaration; Comment: Declaration

Order Received for Signature

Proposed Order; Comment: (Order signed; Forwarded to clerks office for further processing) Forwarded to RA on 1/25/17 Order for: Good Faith Settlement of Pacific Door & Cabinet Company

Dismissal Not Entered

Dismissal Not Entered; Comment: Request for dismissal filed. Dismissal not entered as requested for the following reason: Signature of attorney of record Law offices of Israel E. Garcia, APC is required as to plaintiffs Angelica Jaramillo and Dale Overybay

Stipulation and Order filed

Stipulation and Order filed; Judicial Officer: Culver Kapetan, Kristi; Comment: To set aside default of cross defendant Fencework, Inc.

Notice Filed

Notice Filed; Comment: Pre-Trial Order No 2

Proof of Service

Proof of Service

481 More Documents Available

 

Docket Entries

  • 06/14/2019
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  • Disposition: Judgment- Dismissal - Other filed; Judgment Type: Dismissal - Other filed; Party Names: Arakelian, INC.; Flooring Contractors; Michael Taylor's Carpet Service; Cornerstone Flooring; Glen Siemer; Mark Anthony Ramirez; First Choice Flooring; Premier Floor Covering; Palmer's Floor Covering; Bart Sanders; Delgado, Jose Antonio; Comment: Without Prejudice; Comment: (As to 5th Cross Complaint)

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  • 11/16/2018
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  • Disposition: Judgment- Dismissal of Party; Judgment Type: Dismissal of Party; Party Name: First Choice Flooring; Comment: With Prejudice

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  • 11/16/2018
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  • Disposition: Judgment- Dismissal of Party; Judgment Type: Dismissal of Party; Party Name: Mark Anthony Ramirez; Comment: With Prejudice

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  • 09/06/2018
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  • Disposition: Judgment- Dismissal - Other filed; Judgment Type: Dismissal - Other filed; Party Names: Roes 1 through 200 Inclusive; Advanced Insulation, Inc.; All Texture International, Inc.; Anlin Industries, Inc.; Barreto, Ramon Camberos; BOJ Construction, Inc.; Broken Drum Insulation Visalia, Inc.; Arakelian, Inc. dba Builders Flooring; Bulrad Enterprises, Inc. dba Cabinet Connection; Rick Berry, Inc. dba Cal Custom Tile; Conte Construction Company, Inc. dba California Rain Gutters; Central Valley Overhead Door, Inc.; Chris-Mis Masonry, Inc.; Schaefer, Billy Gunter; Diamond Specialties, Inc.; PML 4 Enterprises, Inc. dba Discount Landscape & Farm Supply; Ewing, Michael Ray; Fenceworks, Inc.; Franz, Edwin Glen; Fresno Landscaping, Inc.; Fresno Plumbing & Heating, Inc.; B-F Glass Inc.; Granite Hills Landscape, Inc.; Graystone Masonry, Inc.; Hodges Electric, Inc.; Impact Finishes, Inc.; Jim Edwards Construction, Inc.; Ladell, Inc. dba Johnson Air; Lopez, Juan Francisco; Kenyon Plastering, Inc.; Madera Roofing, Inc.; Hand, Nelson Leroy; Northstar Framing, Inc.; Ohanian's Drywall; Pacific Door and Cabinet Company, Inc.; Palomera Construction, Inc.; PML 4 Enterprises, Inc.; Rosenthal, Steven Andrew; Sacramento Insulation Contractors dba Sacramento Building Products; San Joaquin Stairs, Inc.; Sanger Iron Works, Inc.; Mitcheltree, William Henry, II; Terry Tuell Concrete, Inc.; Windows Plus, Inc.; J. Edward Gish, Inc. dba Woodland Stairs and Millwork; Rosenthal Construction; Ewing Insulation, Inc., a Suspended California Corporation; Comment: With Prejudice; Comment: (As to all remaining Cross Defendants in 2nd Cross Complaint)

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  • 09/05/2018
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  • Disposition: Judgment- Dismissal - Other filed; Judgment Type: Dismissal - Other filed; Party Names: Kirby, Michael; Kirby, Cathy; Halstenberg, Harold; Halstenberg, Nancy; Fetterhoff, Scott; Hormann, Jennifer; Accardo, Douglas; Accardo, Della; Afonin, Lillian S; Afonin, Jack M; Ayaviri, Boris; Ayaviri, Patricia; Badizadegan, Mehri; Badizadegan, Moe; Campos, Javier; Chahal, Gurmeet; Chahal, Rabinder; Christi, Joseph; Christi, Johnna; Davidson, Richard; Davidson, Ruby; Gallegos, Richard; Gallegos, Casaundra; Grissom, Travis T; Hecker, Randall R; Hecker, Sarah; Hensley, William; Hensley, Wanda; Hoogland, Justin; Hoogland, Lindsey; Kachadoorian, Kris; Kachadoorian, Aida; Kilabi, Landhu Kinzanza; Lopez, Marisol; Lystad, John; Lystad, Karen; Mayer, Gene; Meier, Adam; Meier, Cherie; Mills, Edward; Mills, Jacquelin; Gireesh, Sanku; Mohan, Archana Vinaya; De Oca, Piedad M Montes; Moraza, Angel; Moraza, Marilyn; Moss, Arthur; Mumby, Clayton H; Mumby, Penchit; Owens, Griselda; Robbins, Glenn; Robbins, Alice; Rohlfer, Christopher; Rohlfer, Natalie; Schokrpur, Andre; Shaw, Steven W; Shaw, Lydia; Miracle, Christopher; Smith, Kristin Miracle; Stemler, James M; Takahasi, Dennis; Takahasi, Christine; Tamble, Joseph; Tamble, Leslie; Teran, Tobias; Teran, Fatima S; Tockey, Darin; Tockey, Deborah; Walter, Rodney W; Walter, Arlene J; Weil, William; Weil, Sandra; Whitaker, Jeffrey; Whitaker, Lisa; Wathen-Castanos Project General Partners, LLC; 52 At harlan Ranch, LP, a Calif Limited Partnership; 5289 Enterprises LP, A Calif. Limited Partnership; 5486 Enterprises II,Lp a Calif. Limited Partnership; 5539 Enterpirses LLP, a California Limited Partnership; 5582 Enterprises LP, a California Limited Partnership; 5602 Enterprises LP, a Calif Limited Partnership; 5703 Enterprises LP, a California Limited Partnership; 5704 Enterprises LP, a Calif Limited Partnership; 5705 Enterprises LP, a California Limited Partnership; 5758 Enterprises LP, a California Limited Partnership; Buchanan Estates Locan LP, a Calif Limited Partnership; Buchanan Estates Shepherd LP, a Calif Limited Partnership; Capri Court at Harlan Ranch II LP, a California Limited Par; Clovis Town and Country IV, LP, a California Limited Partner; Clovis Town and Country V, Inc, a California Corp; Clovis Town and Country V, LP, a Calif. Limited Partnershp; European Collection at Harlan Ranch LP, a Calif Limited Part; Foxton Chase at Harlan Ranch LP, a Calif Limited Partnership; Ivy Gate at Harlan Ranch III, LP, a Delaware Limited Partner; Ivy Gate at harlan Ranch LP, a California Limited Partnershp; Locan Shepherd LP, a Calif Limited Partnership; Town and Country at Harlan Ranch II LP, a Calif Limited Part; Town and Country at Harlan Ranch, LP, a Calif Limited Partne; Wathen-Castanos Hybrid Homes Inc; Jimmy O'Brien & Julie Ramsey; Lloyd G. Carter & Becky Gong; Thomas D. Ngo & Thao B. Tran; Adams, Glenn; Alekseev, Max; Ken & Tammie Allison; Arriola, Rosa D.; Chris & Melissa Bibler; Christensen, Melissa; Jeffrey B. & Kathleen A. Diamond; Casey & Adelene Dorough; Bernadette & Delphina Garcia; David R. & Yvette Garcia; Louis & Jennifer Gennuso; Dave & Surujdai Susan Goorahoo; Wayne A. & Kathie Hunter; Raymond & Karen Jones; Donald & Claudia Luft; Daron & Wendy Martinez; Frank & Mandy Meraz; Jesus & Karina Olaguez; Overbay, Dale; Daniel & Andrea Pena; Poltioske, Connie; Porter, Heather; AJ & Sharon Rassamni; Xavier & Christine Rodarte; Michael & Emily Salway; Gregory & Kerrie Seib; Robert & Helen Sexton; Anthony & Evelyana Shelly; Wellman & Ann Marie Shew; Daniel & Dolores Soto; Matthew & Lavinia Terra; Buchanan Estates Shepherd II, LP a Calif Limited Partnership; Buchanan Estates Shepherd II LP,a Calif. Limited Partnership; Walter, Lisa M.; Christopher & Tammy L. Dornay Living Trust; Huynh, Khoa; Tran, Alyne; Peterson, Greg; Peterson, Virginia S.; Barco, Cathy; Barco, David; Brescione, Linda; Brescione, Michael; Buccellato, Catherine; Calvillo, Anna; Carlineo, Nicolas; Carlineo, Trisha; Caruso, Thomas A.; Conner, Shann; Dawood, David S.; Dawood, Maya O.; Elliot, Jeffrey B.; Elliot, Kristin L.; Fenn, Debra; Freitas, Joseph I.; Frietas, Karyn S.; Garza, Juan, II; Gill, Satwant; Gill, Alexandra; Greene, Jessica Jane; Hedman, Randall; Hedrick, Jeffrey; Hernandez, Rene; Hernandez, Eileen; Hindiyeh, Nevin; Jaramillo, Angelica; Leddicotte, George; Leddicotte, Cindy; Leforge, Patrick; Little, Jason; Logan, Vince; Logan, Megan; McCollister, Donald; McCollister, Linda; Mohammadi, Allen M.; Monsevais, Jeff; O'Rorke, Kevin; Orona, Jennie; Pekarek, Ronald; Pekarek, Roxanne; Pritchard, Brian; Prithchard, Bob; Pritchard, Jennifer; Pruett, Thomas; Pruett, Desiree; Rhodes, David M.; Rhodes, Janice; Rij, Edward A.; Rij, Monica; Robles, Delia N.; Roblez-Felix, Nichole; Sandhu, Avtar; Sandhu, Gurmeet; Shackelford, James; Shackelford, Roberta J.; Snedden, Charles R.; Snedden, C. Joan; Trimble, Timothy; Trimble, Lindsey; Urrutia, Jeff; Van Zee, Vincent S.; Vasquez, Joanna; Woertendyke, Janet; Wyatt, Theodore; Ladell Inc dba Johnson Air (Third Party Defendant); Wilson Homes Inc; Wathen-Castanos, Inc; B-F GLASS, INC. dba FRESNO SHOWER DOOR & MIRROR; SANGER IRON WORKS, INC.; PACIFIC DOOR & CABINET, INC.; SANGER IRON WORKS, INC.; Wathen-Castanos; Kenyon Plastering, Inc.; Nakagawa, Edwin S., Attorney; Juan Of A Kind Construction; Sacramento Insulation Contractors, Inc.; Comment: (As to Original Complaint)

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  • 07/10/2018
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  • Disposition: Judgment- Dismissal of Party; Judgment Type: Dismissal of Party; Party Name: Michael Taylor's Carpet Service; Comment: with prejudice

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  • 06/13/2018
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  • Disposition: Judgment- Dismissal of Party; Judgment Type: Dismissal of Party; Comment: (Matthew & Lavina Terra are not Parties in this case.); Party Names: Rij, Edward A.; Rij, Monica; Comment: Without Prejudice

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  • 05/10/2018
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  • Disposition: Judgment- Dismissal of Party; Judgment Type: Dismissal of Party; Party Name: Northstar Framing, Inc.; Comment: With Prejudice as to Cross-Defendant Northstar Framing, Inc.

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  • 05/02/2018
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  • Disposition: Judgment- Dismissal of Party; Judgment Type: Dismissal of Party; Party Names: Hecker, Randall R; Hecker, Sarah; Barco, Cathy; Barco, David; Comment: without prejudice

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  • 04/30/2018
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  • Disposition: Judgment- Dismissal of Party; Judgment Type: Dismissal of Party; Party Name: Lopez, Juan Francisco; Comment: with prejudice.; Comment: (As to Defendant in 2nd Cross-Complaint)

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854 More Docket Entries
  • 08/16/2016
  • Financial info for Kirby, Michael: Transaction Assessment $435.00

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  • 06/06/2016
  • Financial info for Kirby, Michael: Counter Payment Receipt # CIVIL-2016-00020357 One Legal LLC $1.00

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  • 06/06/2016
  • Financial info for Kirby, Michael: Transaction Assessment $1.00

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  • 05/27/2015
  • Financial info for Kirby, Michael: Counter Payment Receipt # CIVIL-2015-00006975 1st Priority $20.00

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  • 05/27/2015
  • Financial info for Kirby, Michael: Transaction Assessment $20.00

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  • 05/01/2013
  • Financial info for Kirby, Michael: Counter Payment Receipt # 177279 Kirby, Michael $1000.00

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  • 05/01/2013
  • Financial info for Kirby, Michael: Counter Payment Receipt # 177278 Kirby, Michael $435.00

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  • 05/01/2013
  • Financial info for Kirby, Michael: Transaction Assessment $1000.00

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  • 05/01/2013
  • Financial info for Kirby, Michael: Transaction Assessment $435.00

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  • 05/01/2013
  • Financial: Kirby, Michael; Total Financial Assessment $1,895.00; Total Payments and Credits $1,895.00

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Complaint Information

Gino Cano (SBN 201034) | E-FILED

D asay - (oSOCIATES 5/24/2017 11:34:18 AM Sacramento, CA 95829 FRESNO COUNTY SUPERIOR COURT Telephone: (916) 630-3803 Bvic L 5

Facsimile: (916) 630-3848 y:>. Lopez, Deputy

Email: gcano@wedefend.com

Attorney for Financial Pacific Insurance Company, Intervening on behalf of Cross-Defendant FRESNO LANDSCAPING, INC. (Roe 19)

SUPERIOR COURT OF CALIFORNIA IN AND FOR THE COUNTY OF FRESNO

MICHAEL & CATHY KIRBY,; et al. Case No. 13CECGO01351

Plaintiffs, COMPLAINT IN INTERVENTION

WATHEN-CASTANOS PROJECT GENERAL

PARTNERS, LLC, et al.

Defendants.

AND RELATED CROSS-ACTIONS. Complaint filed: May 21, 2013 Trial Date: n/a

FINANCIAL PACIFIC INSURANCE COMPANY, INC. (hereinafter “Intervenor”™), by leave of the court hereby intervenes in this action and does hereby demands adversely to plaintiffs, defendants, cross-defendants and cross-complainant as follows:

1. Intervenor is and at all times herein mentioned a corporation duly organized and existing under the laws of the State of California and authorized to transact business in the State of California. Intervenor is authorized to transact multiple lines of insurance, including commercial general liability insurance.

2. This action was commenced by plaintiffs Michael & Cathy Kirby, et al. against

defendants Wathen-Castanos Project General Partners, LLC, et al. on or about May 21, 2013 seeking

defendants Wathen-Castanos Project General Partners, LLC, et al. on or about May 21, 2013 seeking recovery for damages related to Strict 'Produc'ts Liability; Strict Products Liability (Component Products); Violation of Building Standards As Set Forth In California Civil Code §896 ; Breach of Implied Warranty (Merchantability); Breach of Contract; Negligence; Breach of Express Warranty; and Violation of Statute.

recovery for damages related to Strict 'Produc'ts Liability; Strict Products Liability (Component Products); Violation of Building Standards As Set Forth In California Civil Code §896 ; Breach of Implied Warranty (Merchantability); Breach of Contract; Negligence; Breach of Express Warranty; and Violation of Statute.

3. Defendant and cross-complainant Wathen Castanos Hybrid Homes, Inc. (hereinafter “Cross-Complainant™) have appeared in this action on or about December 30, 2013 by answer and cross-complaint against numerous cross-defendants, and thereafter filing Roe Amendment No. One naming FRESNO LANDSCAPING, INC. as Roe 19.

Cross-Complainant is asserting multiple affirmative defenses and causes of action Breach of Contract; Implied Contractual Indemnity; Comparative Equitable Indemnity; Negligence; Breach of Express Warranty; Breach of Implied Warranty; Contribution; Express Contractual Indemnity; and Declaratory Relief.

4. FRESNO LANDSCAPING, INC. was served by with the cross-complaint filed by Cross-Complainant on May 13, 20135.

5. Intervenor has a right to intervene in this action under Code of Civil Procedure § 387(b) by virtue of the following facts: Financial Pacific Insurance Company underwrote commercial liability policy numbered 175648A (effective July 1, 2007 through July 1, 2008), on behalf FRESNO LANDSCAPING, INC.

6. FRESNO LANDSCAPING, INC. is a suspended California corporation and, as such, is barred by law from defending itself in the instant action.

By intervening in this litigation, Intervenor is not waiving any of its rights or policy terms, conditions, and/or limitations under the Commercial General Liability policy to FRESNO LANDSCAPING, INC. Therefore, Intervenor reserves any and all rights and nothing herein is intended to be a waiver of any of Intervenor’s policy terms, conditions, and/or limitations.

GENERAL 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

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 vslrill sustain any injury or damage as a result of the conduct alleged against this Intervenor. L

denies that Cross-Complainant has sustained or vslrill 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.

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 AF FIRMATIVE 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 yet 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.

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.

EIGHTH 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 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 §

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, thé 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.

349.4, more particularly, but not limited to, thé 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 this action, and that this Intervenor be required to pay only for its proportionate share of fault, if any there be. It is further requested that the court order and determine that liability, if any, of this Intervenor for any damages shall be joint and several only for economic damages, and that this Intervenor’s liability for non-economic damages be allocated to this Intervenor in direct proportion to any percentage of fault attributable to this Intervenor. /!

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.

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. /1 /1

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. /1 /1 NINETEENTH AF P:IRMATIVE DEFENSE

NINETEENTH AF P:IRMATIVE 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 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 improper 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.

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. /1

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. /1 THIRTY-THIRD AfFIRMATIVE DEFENSE

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 is barred by the provisions of Civil Code §§ 2782 — 2784.

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. /1