BRETT L. MCKAGUE, ESQ. SBN 0 JEREMY J. SCHROEDER, ESQ. SBN FLESHER MCKAGUE LLP 0 Plaza Drive Rocklin, CA Telephone: ().0 Facsimile: (). Attorneys for defendant and cross-defendant, GENTRY ASSOCIATES CONSTRUCTION CONSULTANTS E-FILED Jun, 0 :0 PM David H. Yamasaki Chief Executive Officer/Clerk Superior Court of CA, County of Santa Clara Case #--CV- Filing #G- By A. Ramirez, Deputy 0 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SANTA CLARA * * * 0 CILKER APARTMENTS, LLC, Plaintiff, vs. WESTERN NATIONAL CONSTRUCTION, et al., Defendants. WESTERN NATIONAL CONSTRUCTION, Cross-Complainant, vs. ROES -00, inclusive, Cross-Defendants. CASE NO. CV CROSS-DEFENDANT, GENTRY ASSOCIATES CONSTRUCTION CONSULTANTS, ANSWER TO CROSS- COMPLAINT OF WESTERN NATIONAL CONSTRUCTION COMES NOW, defendant and cross-defendant, GENTRY ASSOCIATES CONSTRUCTION CONSULTANTS (ROE 0 ), appearing for itself and no others, and in answer to cross-complainant, WESTERN NATIONAL CONSTRUCTION s, Cross-Complaint on file herein, does admit, deny, and allege as follows:
0 0 GENERAL DENIAL Answering each and every allegation contained in cross-complainant s Cross-Complaint, this answering cross-defendant denies each and every, all and singular, generally and specifically, the allegations therein contained, and further denies that cross-complainant was damaged in the sums therein alleged or in any sums whatsoever or at all. AFFIRMATIVE DEFENSES I FOR A FIRST, SEPARATE AND DISTINCT DEFENSE to each and every alleged cause of action, this answering cross-defendant alleges cross-complainant s Cross-Complaint, and each alleged cause of action therein, fails to state facts sufficient to constitute a cause of action against this answering cross-defendant so as to bar recovery herein. II FOR A SECOND, SEPARATE AND DISTINCT DEFENSE to each and every alleged cause of action, this answering cross-defendant alleges that cross-complainant failed to mitigate damages so as to bar or reduce recovery herein. III FOR A THIRD, SEPARATE AND DISTINCT DEFENSE to each and every alleged cause of action, this answering cross-defendant alleges that cross-complainant was careless, reckless and negligent in and about the matters and things alleged in the Cross-Complaint which caused or contributed to cross-complainant s damages, if any, so as to bar or reduce recovery herein. IV FOR A FOURTH, SEPARATE AND DISTINCT DEFENSE to each and every alleged cause of action, this answering cross-defendant alleges that the Court may be called upon to apportion liability, if any, for the subject accident on a comparative fault basis and cross-defendant may seek contribution and/or indemnity from such other persons as may have been contributive to the matters herein. /
0 0 V FOR A FIFTH, SEPARATE AND DISTINCT DEFENSE to each and every alleged cause of action, this answering cross-defendant alleges that the events, injuries, losses and damages complained of in the Cross-Complaint, if any, were unavoidable insofar as this answering cross-defendant are concerned, and occurred without any negligence, want of care, default or other breach of duty on the part of this answering cross-defendant. VI FOR A SIXTH, SEPARATE AND DISTINCT DEFENSE to each and every alleged cause of action, this answering cross-defendant alleges that its conduct was not a substantial factor in bringing about cross-complainant s alleged injuries and damages, if any, and therefore this cross-defendant was not a contributing cause thereof, but was superseded by the conduct or negligence of others whose conduct and negligence were independent, intervening, superseding, and the sole and legal cause of the injury and damages alleged by cross-complainant, and that therefore cross-complainant is barred from any recovery from this answering cross-defendant. VII FOR A SEVENTH, SEPARATE AND DISTINCT DEFENSE to each and every alleged cause of action, this answering cross-defendant alleges that it acted in good faith in all matters and things alleged in the Cross-Complaint so as to bar or reduce recovery herein. VIII FOR AN EIGHTH, SEPARATE AND DISTINCT DEFENSE to each and every alleged cause of action, this answering cross-defendant alleges cross-complainant, has, by its own conduct, statements or acts, negligently, wrongfully, intentionally or deliberately caused this answering crossdefendant to do the acts of which said cross-complainant now complains and this answering defendant alleges by reason of the conduct on the part of cross-complainant that cross-complainant should now be estopped or barred from seeking the relief which is requested in the Cross-Complaint on file herein. / /
0 0 IX FOR A NINTH, SEPARATE AND DISTINCT DEFENSE to each and every alleged cause of action, this answering cross-defendant alleges cross-complainant did not perform adequately with respect to any agreements or understandings between cross-defendant and cross-complainant. X FOR AN TENTH, SEPARATE AND DISTINCT DEFENSE, this answering cross-defendant alleges that the claims asserted herein are subject to off-set and or set-off, and the damages, if any, claimed by cross-complainant should be barred or reduced accordingly. XI FOR A ELEVENTH, SEPARATE AND DISTINCT DEFENSE to each and every alleged cause of action, this answering cross-defendant alleges that cross-complainant failed to perform satisfactorily with regard to their work and/or failed to provide satisfactory materials. XII FOR A TWELFTH, SEPARATE AND DISTINCT DEFENSE to each and every alleged cause of action, this answering cross-defendant alleges the incidents referred to in cross-complainant s Cross-Complaint, if any, and cross-complainant s damages, if any, were directly and proximately caused, concurred in or contributed to by the willful misconduct of cross-complainant so as to bar or reduce recovery herein. XIII FOR A THIRTEENTH, SEPARATE AND DISTINCT DEFENSE to each and every alleged cause of action, this answering cross-defendant alleges cross-complainant acknowledged, ratified, consented to, or acquiesced in the alleged acts or omissions of defendant, if any, thus barring crosscomplainant s recovery. XIV FOR A FOURTEENTH, SEPARATE AND DISTINCT DEFENSE to each and every alleged cause of action, this answering cross-defendant alleges that cross-complainant contracted in the agreement governing this transaction to resolve this matter pursuant to binding arbitration as set forth
0 0 in the agreement. By filing this action, cross-complainant has breached that provision of the agreement, and this answering defendant will pursue any and all rights which may accrue to them as a result of cross-complainant s breach of the arbitration provision contained in the agreement. XV FOR A FIFTEENTH, SEPARATE AND DISTINCT DEFENSE to each and every alleged cause of action, this answering cross-defendant alleges that with reference to the matters set forth in the Cross- Complaint herein, the hands of the cross-complainant itself are unclean so as to bar or reduce recovery herein. XVI FOR A SIXTEENTH, SEPARATE AND DISTINCT DEFENSE to each and every alleged cause of action, this answering cross-defendant alleges that this action is barred by the applicable statute of limitations. XVII FOR A SEVENTEENTH, SEPARATE AND DISTINCT DEFENSE to each and every alleged cause of action, this answering cross-defendant alleges that cross-complainant failed to notify crossdefendant of the alleged breach of warranty within a reasonable time so as to bar any recovery herein. XVIII FOR AN EIGHTEENTH, SEPARATE AND DISTINCT DEFENSE to each and every alleged cause of action, this answering cross-defendant alleges that cross-complainant has delayed an unreasonable period of time in bringing this action, which delay has been prejudicial to crossdefendant, and cross-complainant is thus guilty of laches so as to bar or reduce recovery herein. XIX FOR A NINETEENTH, SEPARATE AND DISTINCT DEFENSE to each and every alleged cause of action, this answering cross-defendant alleges that if, and to the extent that defendant may be entitled to further defenses of which it is presently unaware, it reserves the right to amend this Answer to plead such additional and further affirmative defenses as they become known. /