1 NAIRI PATERSON, ESQ. State Bar No. STRATMAN, PATTERSON & HUNTER 0 th Street, Suite 00 Oakland, CA 1- Phone: () -0 Fax: () - Attorney for Cross-Defendant/Defendant/Cross-Complainant, VIKING DOOR, INC. (sued as DOE ; sued erroneously as VIKING DOOR, INC. DBA VIKING DOOR & WINDOW, INC.) SUPERIOR COURT OF THE STATE OF CALIFORNIA GURMAN AND DEVINDER BAL, ET AL, vs. Plaintiffs, 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. Case No.: MSC-0 UNLIMITED JURISDICTION // ASSIGNED TO FOR ALL PURPOSES: THE HONORABLE JUDITH S. CRADDICK DEPT: VIKING DOOR, INC. S ANSWER TO PLAINTIFFS SECOND AMENDED COMPLAINT COMES NOW Defendant, VIKING DOOR, INC. (sued as DOE ; sued erroneously as VIKING DOOR, INC. DBA VIKING DOOR & WINDOW, INC.), in answer to the Complaint of Plaintiffs on file herein admits, denies and alleges as follows: I Under the provisions of Section 1.0 of the California Code of Civil Procedure, this answering Defendant denies each, every and all of the allegations of said Complaint, and the whole thereof, and denies Plaintiffs sustained damages in any sum or sums alleged, or in any other sum or at all. ANSWER TO COMPLAINT - 1
1 II Further answering Plaintiffs Complaint on file herein, and the whole thereof, this answering Defendant denies that Plaintiffs have sustained any injury, damages or loss, if any, by reason of any act or omission of this answering Defendant or its agents or employees. That the Complaint and each of the alleged causes of action fails to state facts sufficient to constitute a cause of action against this answering defendant. Defendant alleges that Plaintiffs were 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 plaintiff from this defendant. 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 the Complaint. Defendant alleges that the 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 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 plaintiff is barred from any recovery as to this answering Defendant, in that any damage proven to have been sustained by plaintiff was the direct and proximate result of the independent and superseding action of plaintiff and other persons or parties, and not due to any act or omission on the part of this Defendant. ANSWER TO COMPLAINT -
1 Defendant alleges that plaintiff acted with full knowledge of all facts and circumstances surrounding their alleged damages, and thus assumed the risk of its damages, if any. Defendant alleges that plaintiff s action is barred by the doctrine of waiver. Defendant alleges that, should plaintiff recover from this defendant, said 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. Defendant alleges that plaintiff and persons and/or parties other than this defendant and for whom this defendant is not responsible, altered, abused or misused the property which is the subject matter of this action and/or defendant s materials, work and/or equipment, and as such, proximately caused or contributed to said damages, if any there were, and plaintiff s amount of recovery from this defendant, if any, shall be reduced on the basis of the comparative negligence of such other persons, named or unnamed. Defendant alleges that plaintiff s action is barred by the doctrine of estoppel. Defendant alleges that the complaint fails to state a cause of action against this defendant and that plaintiff lacks standing to do so as it is not a party to nor is it in privity of contract with this defendant or some or all of them. Defendant alleges that plaintiff s causes of action, and each of them, are barred by the doctrine of laches. Defendant alleges that plaintiff has failed by their own actions and inactions to take reasonable steps to mitigate whatever loss they may have sustained as alleged in the complaint. ANSWER TO COMPLAINT -
1 Defendant alleges that this defendant performed, satisfied, and discharged all duties and obligations they may have owed to plaintiff arising out of any and all agreements, representations or contracts made by them or on behalf of this Defendant, and this action is therefore barred by the provisions of California Civil Code. Defendant alleges that this Defendant is not responsible for the method or means of construction used by the parties and others unrelated to this Defendant, nor is this Defendant, responsible for those parties or others failure to carry out the work in accordance with the contract documents and/or accepted construction practices. Defendant alleges that this Defendant is entitled to reasonable attorneys fees pursuant to California Civil Code, et seq. Defendant alleges that plaintiff failed to give timely, proper and/or reasonable notice of breach of warranty. Defendant alleges that plaintiff conducted a complete, unhindered inspection and investigation of the premises and transaction mentioned in plaintiff s complaint prior to the time the transaction was fully consummated and plaintiff knew, or should have known, of the quality, character and condition of the subject premises, including the portion of the premises about which plaintiff now complains, and that by reason of said inspection and investigation, plaintiff is presumed to have relied upon their own observations, and not upon the representations asserted or made by this defendant, if any there were, completely barring recovery. Defendant alleges that any warranties alleged by plaintiff have expired by passage of time. ANSWER TO COMPLAINT -
1 Defendant alleges that the defects in plaintiff s property, if any, are of a trivial nature, insufficient to give rise to liability under applicable California law. Defendant alleges that plaintiff 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. Defendant alleges that plaintiff expressly or impliedly acknowledged, ratified, consented to and acquiesced in the alleged acts or omissions, if any, of this answering defendant, thus barring plaintiff from any recovery whatsoever. Defendant alleges that each and every cause of action of the complaint is barred by plaintiff s failure to provide reasonable and/or timely notice of the claims to this Defendant. Defendant alleges that this 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 Defendant reserves the right to assert additional defenses in the event discovery indicates that they would be appropriate. WHEREFORE, Defendant prays that Plaintiffs take nothing by reason of their said Complaint and that this Defendant be dismissed hence with its costs. ANSWER TO COMPLAINT -
NOTICE By placing the following statement in the answer, neither this defendant nor its counsel waives any privilege or objection regarding the admissibility of the following statement (or the existence of insurance coverage for this defendant), and requests that this statement be redacted as may be necessary and appropriate to protect this answering defendant. 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, Defendant, Cross- Complainant VIKING DOOR, INC. ANSWER TO 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 PLAINTIFFS SECOND AMENDED COMPLAINT 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. 1 Nairi Paterson ANSWER TO COMPLAINT -