NAIRI PATERSON, ESQ. State Bar No. STRATMAN, PATTERSON & HUNTER 0 th Street, Suite 00 Oakland, CA -1 Phone: () -0 Fax: () - // Attorney for Cross-Defendant, VIKING DOOR, INC. (sued as ROE ; sued erroneously as VIKING DOOR, INC. DBA VIKING DOOR & WINDOW, INC.) 1 SUPERIOR COURT OF THE STATE OF CALIFORNIA GURMAN AND DEVINDER BAL, ET AL, vs. Plaintiffs, FOR THE COUNTY OF CONTRA COSTA CENTEX HOMES, A NEVADA GENERAL PARTNERSHIP; CENTEX REAL ESTATE, A NEVADA GENERAL CORPORATION; CENTEX HOME REALY CORP., A NEVADA CORPORATION; AND DOES 1-1,000, INCLUSIVE, Defendants AND RELATED CROSS-ACTIONS Case No.: MSC-0 UNLIMITED JURISDICTION ASSIGNED TO FOR ALL PURPOSES: THE HONORABLE JUDITH S. CRADDICK DEPT: VIKING DOOR, INC. S ANSWER TO CROSS-COMPLAINT FILED BY CENTEX HOMES, A NEVADA GENERAL PARTNERSHIP; CENTEX REAL ESTATE CORPORATION, A NEVADA CORPORATION; AND CENTEX HOMES REALTY COMPANY, A NEVADA CORPORATION COMES NOW, Cross-Defendant, VIKING DOOR, INC. (sued as ROE ; sued erroneously as VIKING DOOR, INC. DBA VIKING DOOR & WINDOW, INC.), and in answer to the Cross- Complaint of CENTEX HOMES, A NEVADA GENERAL PARTNERSHIP; CENTEX REAL ESTATE CORPORATION, A NEVADA CORPORATION; and CENTEX HOMES REALTY COMPANY, A NEVADA CORPORATION, on file herein admits, denies, and alleges as follows: Under the provisions of California Code of Civil Procedure 1.0, this answering Cross- Defendant denies each, every and all of the allegations of said Cross-Complaint, and the whole thereof, ANSWER TO CENTEX S CROSS-COMPLAINT - 1
1 and denies Cross-Complainant sustained damages in any sum or sums alleged, or in any other sum or at all. II Further answering Cross-Complainant s Cross-Complaint on file herein, and the whole thereof, this answering Cross-Defendant denies that the Cross-Complainant has sustained any injury, damages or loss, if any, by reason of any act or omission of this answering Cross-Defendant or its agents or employees. Cross-Defendant denies that the Cross-Complaint and each cause of action does not state facts sufficient to constitute a cause of action against this Cross-Defendant. Cross-Defendant alleges that Cross-Complainant was careless and negligent with respect to the matters alleged, and that such carelessness and negligence proximately caused and/or contributed to the injuries, loss and damages complained of, if any there were, and said contributory negligence either bars or proportionately reduces any potential recovery by Cross-Complainant from this Cross-Defendant. Cross-defendant alleges that other individuals and/or entities were careless and/or negligent, and this carelessness and negligence proximately caused and/or contributed to the alleged injuries and damages referred to in cross-complainant s cross-complaint. Cross-defendant alleges that the cross-complaint is barred by the statute of limitations, including, but not limited to, Part II, Title, Chapter of the California Code of Civil Procedure,, et seq., and by California Civil Code., and more particularly, the following: California Code of Civil Procedure (1),.1,,, 0 and/or, and Uniform Commercial Code 0()(a) and. That cross-complainant is barred from any recovery as to this answering cross-defendant, in that any damage proven to have been sustained by cross-complainant was the direct and proximate result of ANSWER TO CENTEX S CROSS-COMPLAINT -
1 the independent and superseding action of cross-complainant and other persons or parties, and not due to any act or omission on the part of this cross-defendant. Cross-defendant alleges that cross-complainant acted with full knowledge of all facts and circumstances surrounding their alleged damages, and thus assumed the risk of its damages, if any. Cross-defendant alleges that cross-complainant s action is barred by the doctrine of waiver. Cross-defendant alleges that, should cross-complainant recover from this cross-defendant, said cross-defendant is entitled to indemnification, either in whole or in part, from all persons or entities whose fault proximately contributed to said damages, if any there were. Cross-defendant alleges that cross-complainant and persons and/or parties other than this crossdefendant and for whom this cross-defendant is not responsible, altered, abused or misused the property which is the subject matter of this action and/or cross-defendant s materials, work and/or equipment, and as such, proximately caused or contributed to said damages, if any there were, and cross-complainant s amount of recovery from this cross-defendant, if any, shall be reduced on the basis of the comparative negligence of such other persons, named or unnamed. Cross-defendant alleges that cross-complainants action is barred by the doctrine of estoppel. Cross-defendant alleges that the complaint fails to state a cause of action against this crossdefendant and that cross-complainant lacks standing to do so as it is not a party to nor is it in privity of contract with this cross-defendant or some or all of them. Cross-defendant alleges that cross-complainant s causes of action, and each of them, are barred by the doctrine of laches. ANSWER TO CENTEX S CROSS-COMPLAINT -
1 Cross-defendant alleges that cross-complainant has failed by its own actions and inactions to take reasonable steps to mitigate whatever loss they may have sustained as alleged in the complaint. Cross-defendant alleges that this cross-defendant performed, satisfied, and discharged all duties and obligations they may have owed to cross-complainant arising out of any and all agreements, representations or contracts made by them or on behalf of this cross-defendant, and this action is therefore barred by the provisions of California Civil Code. Cross-defendant alleges that this cross-defendant is not responsible for the method or means of construction used by the parties and others unrelated to this cross-defendant, nor is this cross-defendant responsible for those parties or others failure to carry out the work in accordance with the contract documents and/or accepted construction practices. Crossdefendant alleges that this cross-defendant is entitled to reasonable attorneys fees pursuant to California Civil Code, et seq. Cross-defendant alleges that cross-complainant failed to give timely, proper and/or reasonable notice of breach of warranty. Cross-defendant alleges that cross-complainant conducted a complete, unhindered inspection and investigation of the premises and transaction mentioned in cross-complainant s complaint prior to the time the transaction was fully consummated and cross-complainant knew, or should have known, of the quality, character and condition of the subject premises, including the portion of the premises about which cross-complainant now complains, and that by reason of said inspection and investigation, crosscomplainant is presumed to have relied upon their own observations, and not upon the representations asserted or made by this cross-defendant, if any there were, completely barring recovery. ANSWER TO CENTEX S CROSS-COMPLAINT -
1 Cross-defendant alleges that any warranties alleged by cross-complainant have expired by passage of time. Cross-defendant alleges that the defects in cross-complainant s property, if any, are of a trivial nature, insufficient to give rise to liability under applicable California law. Cross-defendant alleges that cross-complainant is an improper party to bring some or all of the claims alleged in the complaint, lack standing and authority to prosecute said claims, and are otherwise barred and/or lack capacity to bring and prosecute this action. Cross-defendant alleges that cross-complainant expressly or impliedly acknowledged, ratified, consented to and acquiesced in the alleged acts or omissions, if any, of this answering cross-defendant, thus barring cross-complainant from any recovery whatsoever. Cross-defendant alleges that each and every cause of action of the complaint is barred by crosscomplainant s failure to provide reasonable and/or timely notice of the claims to this cross-defendant. Cross-defendant alleges that this cross-defendant presently has insufficient knowledge or information on which to form a belief as to whether they may have additional, as yet unstated, defenses available. This cross-defendant reserves the right to assert additional defenses in the event discovery indicates that they would be appropriate. WHEREFORE, cross-defendant prays that cross-complainant take nothing by reason of its said Complaint and that this cross-defendant be dismissed hence with its costs. NOTICE By placing the following statement in the answer, neither this cross-defendant nor its counsel waives any privilege or objection regarding the admissibility of the following statement (or the existence of insurance coverage for this cross-defendant), and requests that this statement be redacted as may be necessary and appropriate to protect this answering cross-defendant. ANSWER TO CENTEX S CROSS-COMPLAINT -
All attorneys and staff of the office of Stratman, Patterson & Hunter are employees of Farmers Insurance Exchange, a Member of the Farmers Insurance Group of Companies, and not a partnership. DATED: September, STRATMAN, PATTERSON & HUNTER 1 BY: NAIRI PATERSON, ESQ. Attorney for Cross-Defendant, VIKING DOOR, INC. ANSWER TO CENTEX S CROSS-COMPLAINT -
Re: Bal, et al v. Centex Homes, et al Case Number: MSC-0 PROOF OF SERVICE Code of Civil Procedure a,. I am a resident of the State of California and over the age of eighteen years, and not a party to the within action. My business address is 0 th Street, Suite 00, Oakland, CA -1. On September,, I electronically served the document via LexisNexis File & Serve described as: VIKING DOOR, INC. S ANSWER TO CROSS-COMPLAINT FILED BY CENTEX HOMES, A NEVADA GENERAL PARTNERSHIP; CENTEX REAL ESTATE CORPORATION, A NEVADA CORPORATION; AND CENTEX HOMES REALTY COMPANY, A NEVADA CORPORATION on the recipients designated on the Transaction Receipt located on the LexisNexis File & Serve website. Executed on September,, at Oakland, California. I declare under penalty of perjury under the laws of the State of California that the above is true and correct. Nairi Paterson 1 ANSWER TO CENTEX S CROSS-COMPLAINT -