EMILIO PEREZ et al VS. MERCY HOUSING CALIFORNIA XIV, LP, CATHOLIC CHARITY et al

Complaint Information

denies and alleges as follows:

2 This answering Defendant CYO denies each and every, all and singular, generally 3 ||and specifically, all of the allegations therein contained, and further denies that cross- 4 | complainant has been damaged in any sum whatsoever, or at all.

5 | This answering Defendant CYO further denies that by reason of any act or acts, 6 | :' omission or omissions, fault, carelessness or negligence upon its part, cross-complainant 7 | sustained injuries, loss or damages of any kind or character in any part thereof,whatsoever, or at all.

9 | AFFIRMATIVE DEFENSES 10 | | AS AND FOR A SEPARATE AND DISTINCT DEFENSE TO THE COMPLAINT

11 ON FILE HEREIN, this answering defendant alleges that plaintiff herein failed to state a 12 | cause of action for which relief may be granted.

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AS AND FOR A SEPARATE AND DISTINCT DEFENSE TO THE COMPLAINT

|| ON FILE HEREIN, this answering defendant alleges that should plaintiff recover damages against any defendants, said defendants are entitled to have the amount abated, reduced or eliminated to the extent plaintiff’s negligence caused or contributed to his injuries and || damages, if any.

| AS AND FOR A SEPARATE AND DISTINCT DEFENSE TO THE COMPLAINT

ON FILE HEREIN, this answering defendant alleges that the injuries and damages of which plaintiff complains were proximately caused by the negligence and fault of other defendants | herein and without any fault or want of care on the part of this answering defendant or on the | part of any person or persons for whose acts this answering defendant was or is legally responsible.

| AS AND FOR A SEPARATE AND DISTINCT DEFENSE TO THE COMPLAINT

|ON FILE HEREIN, this answering defendant alleges that the plaintiff is barred by the provisions of California Code of Civil Procedure, Section 335.1, in that more than two years :z has elapsed from the date of the alleged injury and the date of filing of the complaint herein.

' AS AND FOR A SEPARATE AND I?zl_sTINCT DEFENSE TO THE COMPLAINT

| AS AND FOR A SEPARATE AND DISTINCT DEFENSE TO THE COMPLAINT

| ON FILE HEREIN, Cross-defendant alleges that the Cross-complaint and every cause of action therein does not state facts sufficient to constitute a cause of action against Cross- defendant.

| " AS AND FOR A SEPARATE AND DISTINCT DEFENSE TO THE COMPLAINT

| ON FILE HEREIN, Cross-defendant alleges that Cross-complainant and their agents were

careless and negligent with respect to the matters alleged in the Cross-complaint and that

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10 such carelessness and negligence proximately contributed to the happenings of the matters 11 complained of and to the alleged injuries, loss or damages, if any there were. Cross- 12 | complainant was at fault in or about the matters referred to in the Cross-complaint and such

fault on the part of Cross-complainant proximately caused or contributed to the damages | complained of, if any there were, and that any fault not attributable to said Cross-complainant ' was a result of fault on the part of persons and/or entities other that Cross-defendant. Such fault bars and/or proportionately reduces any recovery by Cross-complainant against Cross- | defendant.

| AS AND FOR A SEPARATE AND DISTINCT DEFENSE TO THE COMPLAINT

| ON FILE HEREIN, Cross-defendant alleges that individuals or entities other that Cross- defendant were careless and negligent with respect to the matters alleged in the Cross- complaim and that such carelessness and negligence proximately contributed to the | happenings of the matters complained of and to the alleged injuries, loss and damages, if any || there were, claimed by Cross-complainant.

AS AND FOR A SEPARATE AND DISTINCT DEFENSE TO THE COMPLAINT

| ON FILE HEREIN, Cross-defendant alleges that Cross-complainant has failed and neglected to use reasonable care to protect themselves and to minimize the losses and damages | | complained of, if any there were.

AS AND FOR A SEPARATE AND I?%?TINCT DEFENSE TO THE COMPLAINT

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ON FILE HEREIN, Cross-defendant allege that Cross-complainant, by reason of their | knowledge, statements, and conduct, have waived any right or is estopped from claiming any | right, which they may have had for the alleged wrongful acts or omissions, if any there were, |of answering cross-defendant. On information and belief, Cross-complainant directed, | ordered, approved, and ratified Cross-defendant’s conduct with respect to the allegations of | Cross-complainant, and Cross-complainant is therefore estopped from asserting claims based || thereon.

| AS AND FOR A SEPARATE AND DISTINCT DEFENSE TO THE COMPLAINT

ON FILE HEREIN, Cross-defendant alleges that Cross-complainant failed to make

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| reasonable efforts to mitigate their damages, if any there were.

AS AND FOR A SEPARATE AND DISTINCT DEFENSE TO THE COMPLAINT

| ON FILE HEREIN, Cross-defendant alleges that each and every one of cross-complainant’s claims are barred by applicable statutes of limitation. The Cross-complaint, and each cause of | action thereof, is barred by one or more of the statutes of limitation set forth in the California Code of Civil Procedure, beginning with Section 335 and continuing through Section 349.4, including, but not limited to: 337(1), 337.1, 337.15, 338, 339, 340, and 343; and by Sections 13607(3)(@), 2725(1) and (2) of the Uniform Commercial Code of the State of California.

| AS AND FOR A SEPARATE AND DISTINCT DEFENSE TO THE COMPLAINT

| ON FILE HEREIN, Cross-defendant alleges that Cross-complainant’s claims are barred by | the doctrine of Laches.

| AS AND FOR A SEPARATE AND DISTINCT DEFENSE TO THE COMPLAINT

|ON FILE HEREIN, Cross-defendant asserts that Cross-complainant voluntarily and | knowingly assumed the risk of loss, if any, flowing from his retention of persons/entities to | renovate/remediate his property. Cross-complainant is therefore barred from any and all of | ' the relief sought in the Cross-complaint.

AS AND FOR A SEPARATE AND DISTINCT DEFENSE TO THE COMPLAINT

ON FILE HEREIN, if it is determined that Cross-defendant did not perform one or more of

| the duties and obligations it may have owed o Cross-complainant arising out of any and all

AS AND FOR A SEPARATE AND DISTINCT DEFENSE TO THE COMPLAINT {ON FILE HERE

IN, if it is determined that Cross-defendant did not perform, satisfy, and | discharge all duties and obligations it may have owed to Cross-complainant arising out of

any and all agreements, representations, or contracts made by or on behalf of Cross-

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defendant, then Cross-defendant alleges that the performance of each obligation was excused

10 due to impossibility or impracticability in each instance.

11 | AS AND FOR A SEPARATE AND DISTINCT DEFENSE TO THE COMPLAINT

12 ON FILE HEREIN, each and every cause of action set forth in the Cross-complaint as 13 |l amended is barred because Cross-complainant failed to give Cross-defendant proper notice in 14 || a timely and reasonable manner of any alleged breach, nor was Cross-defendant afforded an

opportunity to fulfill his obligations in each instance.

| AS AND FOR A SEPARATE AND DISTINCT DEFENSE TO THE COMPLAINT

| ON FILE HEREIN, on information and belief, Cross-complainant and others unrelated to Cross-defendant failed to follow, and/or modified, altered, abused, and/or misused the designs, plans, and specifications provided, and such conduct caused and contributed to the | damages which are alleged in this lawsuit.

AS AND FOR A SEPARATE AND DISTINCT DEFENSE TO THE COMPLAINT

ON FILE HEREIN, cross-defendant is not responsible for the method or means of construction used by the owners, general contractors, or subcontractors; nor is Cross- | defendant responsible for the failure of the owners, general contractors, or subcontractors to | carry out the work in accordance with contract documents, nor is Cross-defendant responsible for alleged design deficiencies committed by others.

| AS AND FOR A SEPARATE AND DISTINCT DEFENSE TO THE COMPLAINT

ON FILE HEREIN, no act or omission cf_ f?ross~defendan% was a substantial factor in

ON FILE HEREIN, no act or omission cf_ f?ross~defendan% was a substantial factor in faxand

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AS AND FOR A SEPARATE AND DISTINCT DEFENSE TO THE COMPLAINT

4| AS AND FOR A SEPARATE AND DISTINCT DEFENSE TO THE COMPLAINT

5 ||ON FILE HEREIN, Cross-defendant alleges that Cross-complainant breached the alleged

6 contract with Cross-complainant by failing timely, fully, and adequately to perform the terms

7 |l and conditions therein, thereby preventing Cross-defendant’s performance, if any was due,

8 || and discharging any obligation on the part of this Cross-defendant.

91 AS AND FOR A SEPARATE AND DISTINCT DEFENSE TO THE COMPLAINT

10 | ON FILE HEREIN, Cross-defendant alleges that before it had any obligation to perform its 11 obligations under the contract, if there be any, Cross-complainant indicated that it would not 12 | perform its obligations under the contract, thereby repudiating the alleged contract.

13 AS AND FOR A SEPARATE AND DISTINCT DEFENSE TO THE COMPLAINT

14 ON FILE HEREIN, Cross-complainant is barred from relief because it failed to exercise

| ordinary care with regard to the matters referred to in the Cross-complaint and such failure : contributed directly and proximately to the happening of the events alleged therein and to the damages, if any, sustained by Cross-complainant. |

| AS AND FOR A SEPARATE AND DISTINCT DEFENSE TO THE COMPLAINT

| ON FILE HEREIN, Cross-defendant alleges that no act or omission of this Cross-defendant was a substantial factor in bringing about the alleged damages sustained by Cross- complainant,omission by them a contributing cause thereof. Any alleged | acts or omissions of Cross-defendant were superseded by the acts or omissions of other | persons, firms, or corporations which were the independent, intervening, and proximate cause of any loss allegedly suffered by Cross-complainant.

WHEREFORE, this answering cross-defendant prays that cross-complainant take nothing by way of the cross-complaint on file herein; that these answering cross-defendants | have judgment thereon, together with their costs of suit, and for such other and further relief

| as the court may deem proper. )

CATHOLIC CHARITIES CYO OF THE ARCHDIOCESE OF SAN FRANCISCO