E-FILED 1 GREEN & HALL, a Professional Corporation Apr 19, 2016 2:45 PM MICHAEL J

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E-FILED 1 GREEN & HALL, A Professional Corporation Apr 19, 2016 2:45 PM MICHAEL J. PEPEK, State Bar No. 178238 David H. Yamasaki 2 [email protected] Chief Executive Officer/Clerk SAMUEL M. DANSKIN, State Bar No. 136044 Superior Court of CA, County of Santa Clara 3 [email protected] Case #1-13-CV-258281 Filing #G-82948 MICHAEL A. ERLINGER, State Bar No. 216877 By R. Walker, Deputy 4 [email protected] 1851 East First Street, 10th Floor 5 Santa Ana, California 92705-4052 Telephone: (714) 918-7000 6 Facsimile: (714) 918-6996

7 Attorneys for WESTERN NATIONAL CONSTRUCTION 8

10 SUPERIOR COURT OF THE STATE OF CALIFORNIA 11 COUNTY OF SANTA CLARA 12 13 CILKER APARTMENTS, LLC, CASE NO. 113CV258281

14 Plaintiff, ANSWER OF WESTERN NATIONAL CONSTRUCTION TO THIRD AMENDED 15 vs. COMPLAINT

16 WESTERN NATIONAL CONSTRUCTION, JUDGE: Hon. Peter H. Kirwan et al., DEPT.: 1 17 ACTION FILED: December 26, 2013 Defendants. TRIAL DATE: June 13, 2016 18

19 AND RELATED CROSS-ACTIONS

21 COMES NOW Defendant Western National Construction ("Defendant") which answers

22 Plaintiff's unverified Third Amended Complaint (“Complaint”) by admitting, denying and alleging 23 as follows: 24 25 26 27 28 / / /

ANSWER OF WESTERN NATIONAL CONSTRUCTION TO THIRD AMENDED COMPLAINT P:\DOCS\Western Nat.Cilker\Pleadings\Answers\Answer TAC[WNC].docx E-FILED: Apr 19, 2016 2:45 PM, Superior Court of CA, County of Santa Clara, Case #1-13-CV-258281 Filing #G-82948

1 GENERAL DENIAL 2 Under the provisions of California Code of Civil Procedure section 431.30, Defendant 3 denies, both generally and specifically, each and every allegation contained in the Complaint, and 4 the whole thereof, and each and every alleged cause of action thereof and denies that Plaintiff 5 sustained any damages as alleged by reason of any alleged act, breach or omission on the part of 6 Defendant.

7 FIRST AFFIRMATIVE DEFENSE

8 (Failure to State a Claim) 9 1. Failure to State a Claim. The Complaint, and each and every cause of action 10 therein, fails to state facts sufficient to constitute a cause of action, or any cause of action, against 11 Defendant.

12 SECOND AFFIRMATIVE DEFENSE 13 (Contributory Negligence) 14 2. Contributory Negligence. Defendant is informed and believes and, based thereon,

15 alleges that if Plaintiff suffered or sustained any loss, injury, damage or detriment, the same was 16 directly and proximately caused and contributed to by the conduct, acts, omissions, activities, 17 carelessness, negligence, and/or intentional misconduct of Plaintiff, thereby completely or 18 partially barring Plaintiff's recovery herein.

19 THIRD AFFIRMATIVE DEFENSE

20 (Comparative Fault of Third Parties) 21 3. Comparative Fault of Third Parties. Defendant is informed and believes and, based

22 thereon, alleges that it is not legally responsible in any fashion with respect to the damages and 23 injuries claimed by Plaintiff in the Complaint; however, if Defendant is subjected to any liability 24 to Plaintiff or any cross-complainant herein, it will be due, in whole or in part, to the acts, 25 omissions, activities, carelessness, recklessness, negligence, and/or intentional misconduct of 26 others; wherefore, any recovery obtained by Plaintiff or any cross-complainant herein against 27 Defendant should be reduced in proportion to the respective negligence and fault and legal 28 responsibility of all other parties, persons and entities, their agents, servants and employees who

2 ANSWER OF WESTERN NATIONAL CONSTRUCTION TO THIRD AMENDED COMPLAINT P:\DOCS\Western Nat.Cilker\Pleadings\Answers\Answer TAC[WNC].docx E-FILED: Apr 19, 2016 2:45 PM, Superior Court of CA, County of Santa Clara, Case #1-13-CV-258281 Filing #G-82948

1 contributed to and/or caused any such injury and/or damages, in accordance with the law of 2 comparative negligence; the liability of Defendant, if any, is limited in direct proportion to the 3 percentage of fault actually attributed to it.

4 FOURTH AFFIRMATIVE DEFENSE 5 (Statute of Limitations) 6 4. Statute of Limitations. Defendant is informed and believes and, based thereon, 7 alleges that the Complaint, and each and every cause of action contained therein, is barred by the

8 applicable statutes of limitation, including, but not limited to, California Code of Civil Procedure 9 sections 337, 337.1, 337.15, 338(a-k), 338.1, 339, 340(1-5), 343, 346, 347, and 430.10.

10 FIFTH AFFIRMATIVE DEFENSE 11 (Conduct Was Justified) 12 5. Conduct Was Justified. The conduct of Defendant in regard to the matters alleged 13 in Plaintiff's Complaint was justified, and by reason of the foregoing, Plaintiff is barred from any 14 recovery against Defendant.

15 SIXTH AFFIRMATIVE DEFENSE 16 (Failure to Mitigate) 17 6. Failure to Mitigate. Defendant is informed and believes and, based thereon, alleges 18 that, as to each alleged cause of action, Plaintiff failed, refused and neglected to take reasonable 19 steps to mitigate the alleged damages, if any, thus barring or diminishing Plaintiff's recovery 20 herein.

21 SEVENTH AFFIRMATIVE DEFENSE

22 (Intervening and Superseding Causes) 23 7. Intervening and Superseding Causes. Defendant is informed and believes and, 24 based thereon, alleges that the injuries and damages of which Plaintiff complains were 25 proximately caused by, or contributed to, by the acts of other defendants, cross- defendants, 26 persons and/or other entities, and that said acts were an intervening and superseding cause of the 27 injuries and damages, if any, of which Plaintiff complains, thus barring Plaintiff from any 28 recovery against Defendant.

3 ANSWER OF WESTERN NATIONAL CONSTRUCTION TO THIRD AMENDED COMPLAINT P:\DOCS\Western Nat.Cilker\Pleadings\Answers\Answer TAC[WNC].docx E-FILED: Apr 19, 2016 2:45 PM, Superior Court of CA, County of Santa Clara, Case #1-13-CV-258281 Filing #G-82948

1 EIGHTH AFFIRMATIVE DEFENSE 2 (Doe/Roe Defendants) 3 8. Doe/Roe Defendants. Defendant is not legally responsible for the acts and/or 4 omissions of those additional defendants named in the Complaint and/or to be named as Does, or 5 to cross-defendants that may be named as roes in any cross-complaint filed in this action.

6 NINTH AFFIRMATIVE DEFENSE 7 (Assumption of the Risk) 8 9. Assumption of the Risk. Defendant is informed and believes and, based thereon, 9 alleges that, at the time and place of the incident alleged in Plaintiff's Complaint, Plaintiff knew of 10 and fully understood the danger and risks incident to its undertaking, including, but not limited to 11 construction and/or purchase of real property; but despite such knowledge, Plaintiff freely and 12 voluntarily assumed and exposed itself to all risks of harm and the consequential injuries and 13 resultant damages, if any.

14 TENTH AFFIRMATIVE DEFENSE

15 (Acts of God) 16 10. Acts of God. Defendant is informed and believes and, based thereon, alleges that 17 the damages complained of in Plaintiff's Complaint, if any, resulted from an unforeseeable act of 18 God, thereby barring, either partially or totally, Plaintiff's claimed damages.

19 ELEVENTH AFFIRMATIVE DEFENSE

20 (Waiver) 21 11. Waiver. Defendant is informed and believes and, based thereon, alleges that

22 Plaintiff executed a waiver and release and/or otherwise agreed to release and waive its rights to 23 some or all of the claims asserted in the Complaint.

24 TWELFTH AFFIRMATIVE DEFENSE 25 (Estoppel) 26 12. Estoppel. Defendant is informed and believes and, based thereon, alleges that 27 Plaintiff engaged in conduct and activities with respect to the subject of this litigation, and by 28 reason of said activities and conduct, is estopped from asserting any claims for damages or seeking

4 ANSWER OF WESTERN NATIONAL CONSTRUCTION TO THIRD AMENDED COMPLAINT P:\DOCS\Western Nat.Cilker\Pleadings\Answers\Answer TAC[WNC].docx E-FILED: Apr 19, 2016 2:45 PM, Superior Court of CA, County of Santa Clara, Case #1-13-CV-258281 Filing #G-82948

1 any other relief against Defendant.

2 THIRTEENTH AFFIRMATIVE DEFENSE 3 (Laches) 4 13. Laches. Defendant is informed and believes and, based thereon, alleges that 5 Plaintiff waited an unreasonable period of time before asserting its claims, if any, against 6 Defendants, and is barred from asserting such claims under the doctrine of laches.

7 FOURTEENTH AFFIRMATIVE DEFENSE

8 (Unjust Enrichment) 9 14. Unjust Enrichment. Defendant is informed and believes and, based thereon, alleges 10 that Plaintiff's Complaint, and each cause of action contained therein, is barred by the doctrine of 11 unjust enrichment, and that Plaintiff would be unjustly enriched by the requested relief.

12 FIFTEENTH AFFIRMATIVE DEFENSE 13 (Complete Performance) 14 15. Complete Performance. Defendant has appropriately, completely, and fully

15 performed and discharged any and all obligations and legal duties arising out of the matters 16 alleged in Plaintiff's Complaint.

17 SIXTEENTH AFFIRMATIVE DEFENSE 18 (Discharged Duties) 19 16. Discharged Duties. Defendant is informed and believes and, based thereon, alleges 20 that prior to the commencement of this action, Defendant duly satisfied and discharged all duties 21 and obligations owed to Plaintiff arising out of any and all agreements, representations, or

22 contracts made by or on behalf of Defendant.

23 SEVENTEENTH AFFIRMATIVE DEFENSE 24 (Accord and Satisfaction) 25 17. Accord and Satisfaction. Defendant is informed and believes and, based thereon, 26 alleges that Plaintiff engaged in conduct and actions to constitute an accord and satisfaction 27 concerning the obligations, conduct, or acts at issue in the Complaint, barring recovery from 28 Defendant.

5 ANSWER OF WESTERN NATIONAL CONSTRUCTION TO THIRD AMENDED COMPLAINT P:\DOCS\Western Nat.Cilker\Pleadings\Answers\Answer TAC[WNC].docx E-FILED: Apr 19, 2016 2:45 PM, Superior Court of CA, County of Santa Clara, Case #1-13-CV-258281 Filing #G-82948

1 EIGHTEENTH AFFIRMATIVE DEFENSE 2 (Novation) 3 18. Novation. Defendant is informed and believes and, based thereon, alleges that 4 Plaintiff has engaged in conduct and actions to constitute a novation concerning the obligations, 5 conduct, or acts at issue in the Complaint, barring recovery from Defendant.

6 NINETEENTH AFFIRMATIVE DEFENSE 7 (Impracticality) 8 19. Impracticality. Defendant is informed and believes and, based thereon, alleges that 9 Plaintiff has engaged in conduct and actions to render the obligations, conduct, or acts set forth in 10 the Complaint impracticable by Defendant; thus, barring recovery from Defendant.

11 TWENTIETH AFFIRMATIVE DEFENSE 12 (Lack of Equity) 13 20. Lack of Equity. As between Defendant and Plaintiff, the equities do not 14 preponderate in favor of Plaintiff as to allow recovery.

15 TWENTY-FIRST AFFIRMATIVE DEFENSE 16 (Res Judicata) 17 21. Res Judicata. Defendant is informed and believes and, based thereon, alleges that 18 some or all of the claims asserted in the Complaint are barred by the doctrine of res judicata.

19 TWENTY-SECOND AFFIRMATIVE DEFENSE

20 (No Warranty) 21 22. No Warranty. Defendant is informed and believes and, based thereon, alleges that

22 it made no warranty, express or implied, to Plaintiff; if it is found, however, that Defendant made 23 any warranty, then Defendant is informed and believes, and based thereon, alleges that Plaintiff 24 failed to give adequate notice of any alleged breach of such warranty, that there was delay in 25 giving notice of any such breach within a reasonable time of the discovery of the breach of 26 warranty and/or from a point in time when the breach should have been discovered, and such 27 warranties, if any, expired before the events, injuries and damages alleged in the Complaint, 28 thereby barring either partially or totally Plaintiff's claimed damages.

6 ANSWER OF WESTERN NATIONAL CONSTRUCTION TO THIRD AMENDED COMPLAINT P:\DOCS\Western Nat.Cilker\Pleadings\Answers\Answer TAC[WNC].docx E-FILED: Apr 19, 2016 2:45 PM, Superior Court of CA, County of Santa Clara, Case #1-13-CV-258281 Filing #G-82948

1 TWENTY-THIRD AFFIRMATIVE DEFENSE 2 (Unclean Hands) 3 23. Unclean Hands. By virtue of Plaintiff's own careless, negligent and other wrongful 4 conduct, Plaintiff should be barred from recovering against Defendant by the equitable doctrine of 5 unclean hands.

6 TWENTY-FOURTH AFFIRMATIVE DEFENSE 7 (No Privity) 8 24. No Privity. Defendant is informed and believes and, based thereon, alleges that, 9 there is no privity between Plaintiff and Defendant, and Plaintiff's recovery herein should be 10 diminished or barred.

11 TWENTY-FIFTH AFFIRMATIVE DEFENSE 12 (Modification of Property) 13 25. Modification of Property. Defendant is informed and believes and, based thereon, 14 alleges that if Plaintiff herein suffered or sustained any loss, injury, damage, or detriment, the

15 same was directly and proximately caused and contributed to by the abuse, misuse, substantial 16 change, alteration and/or failure to maintain the subject property following its construction and/or 17 sale, all without the knowledge or consent of Defendant, thereby barring or diminishing Plaintiff's 18 recovery herein.

19 TWENTY-SIXTH AFFIRMATIVE DEFENSE

20 (Misuse of Products) 21 26. Misuse of Products. Defendant is informed and believes and, based thereon,

22 alleges that any and all events, occurrences, injuries and damages, if any, alleged by Plaintiff were 23 proximately caused or contributed to by the product(s) in question having been used in a non- 24 intended or abnormal manner, and not as a result of any defects in or failure of said product(s) or 25 any component thereof. 26 27 28

7 ANSWER OF WESTERN NATIONAL CONSTRUCTION TO THIRD AMENDED COMPLAINT P:\DOCS\Western Nat.Cilker\Pleadings\Answers\Answer TAC[WNC].docx E-FILED: Apr 19, 2016 2:45 PM, Superior Court of CA, County of Santa Clara, Case #1-13-CV-258281 Filing #G-82948

1 TWENTY-SEVENTH AFFIRMATIVE DEFENSE 2 (State of the Art) 3 27. State of the Art. Defendant is informed and believes and, based thereon, alleges 4 that the product(s) which is (are) the subject of Plaintiff's Complaint was (were) “state of the art” 5 at the time it (they) was (were) manufactured and not defective in any legally actionable manner.

6 TWENTY-EIGHTH AFFIRMATIVE DEFENSE 7 (Preservation of Evidence) 8 28. Preservation of Evidence. Defendant is informed and believes and, based thereon, 9 alleges that Plaintiff is precluded from proceeding against Defendant by reason of its negligent or 10 otherwise wrongful failure to preserve, or to cause others to preserve, evidence relating to alleged 11 defects in the project that is the subject of the Complaint.

12 TWENTY-NINTH AFFIRMATIVE DEFENSE 13 (Contribution) 14 29. Contribution. The injuries and damages, if any, sustained by Plaintiff at the time or

15 times and place or places alleged in the Complaint were a direct and proximate result of the acts, 16 omissions, or negligence of third parties not within the knowledge or control of Defendant, and, 17 therefore, were sustained, if at all, without any negligence on the part of Defendant.

18 THIRTIETH AFFIRMATIVE DEFENSE 19 (Standing) 20 30. Standing. Defendant is informed and believes and, based thereon, alleges that 21 Plaintiff lacks the capacity and/or standing to sue, thereby barring Plaintiff's Complaint.

22 THIRTY-FIRST AFFIRMATIVE DEFENSE 23 (Standard of Care) 24 31. Standard of Care. Defendant is informed and believes and, based thereon, alleges 25 that Plaintiff is barred and precluded from any recovery in this action because Defendant, at all 26 times, complied with the applicable standard of care, at the applicable time and location. 27 28

8 ANSWER OF WESTERN NATIONAL CONSTRUCTION TO THIRD AMENDED COMPLAINT P:\DOCS\Western Nat.Cilker\Pleadings\Answers\Answer TAC[WNC].docx E-FILED: Apr 19, 2016 2:45 PM, Superior Court of CA, County of Santa Clara, Case #1-13-CV-258281 Filing #G-82948

1 THIRTY-SECOND AFFIRMATIVE DEFENSE 2 (Lack of Justifiable Controversy) 3 32. Lack of Justifiable Controversy. Defendant is informed and believes and, based 4 thereon, alleges that Plaintiff's Complaint against Defendant was brought without reasonable care 5 and without a good faith belief that there was a justifiable controversy against Defendant, and that 6 Plaintiff is therefore responsible for Defendant's necessary and reasonable defense costs, including 7 attorneys’ fees, as more particularly set forth in California Code of Civil Procedure section 1038.

8 THIRTY-THIRD AFFIRMATIVE DEFENSE 9 (Investigation Fees) 10 33. Investigation Fees. Defendant is informed and believes and, based thereon, alleges 11 that Plaintiff failed to allege facts sufficient for recovery of investigative expenses and is, 12 therefore, not entitled to recover said expenses in prosecuting any causes of action contained in the 13 Complaint.

14 THIRTY-FOURTH AFFIRMATIVE DEFENSE

15 (Offset) 16 34. Offset. Defendant is informed and believes and, based thereon, alleges that 17 Plaintiff's recovery, if any, must be offset to the extent Defendant expended money conducting 18 repairs to address the obligations, conduct, or acts at issue in the Complaint.

19 THIRTY-FIFTH AFFIRMATIVE DEFENSE

20 (Collateral Estoppel) 21 35. Collateral Estoppel. Defendant is informed and believes and, based thereon,

22 alleges that some or all of the claims asserted in the Complaint are barred by the doctrine of 23 collateral estoppel.

24 THIRTY-SIXTH AFFIRMATIVE DEFENSE 25 (Reservation) 26 36. Reservation. Defendant reserves the right to amend its answer to assert further 27 affirmative defenses that are not presently known but may become known and available through 28 further investigation and discovery.

9 ANSWER OF WESTERN NATIONAL CONSTRUCTION TO THIRD AMENDED COMPLAINT P:\DOCS\Western Nat.Cilker\Pleadings\Answers\Answer TAC[WNC].docx E-FILED: Apr 19, 2016 2:45 PM, Superior Court of CA, County of Santa Clara, Case #1-13-CV-258281 Filing #G-82948

1 THIRTY-SEVENTHAFFIRMATIVE DEFENSE 2 (Settlement) 3 Defendant alleges the Third Amended Complaint, and each and every cause of action 4 thereof, has been previously extinguished by prior compromise, settlement agreement, and mutual 5 release. Said prior compromise, settlement agreement and mutual release being in written form 6 and consideration thereafter exchanged. 7

8 DATED: April 19, 2016 GREEN & HALL, A Professional Corporation 9 10 11

12 Michael A. Erlinger Attorneys for WESTERN NATIONAL 13 CONSTRUCTION 14

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10 ANSWER OF WESTERN NATIONAL CONSTRUCTION TO THIRD AMENDED COMPLAINT P:\DOCS\Western Nat.Cilker\Pleadings\Answers\Answer TAC[WNC].docx E-FILED: Apr 19, 2016 2:45 PM, Superior Court of CA, County of Santa Clara, Case #1-13-CV-258281 Filing #G-82948

1 PROOF OF SERVICE 2 I am employed in the County of Orange, State of California. I am over the age of 18 and not a party to the within action. My business address is 1851 East First Street, 10th Floor, Santa 3 Ana, CA 92705-4052. 4 On April 19, 2016, I served the within document(s) described as:

5 ANSWER OF WESTERN NATIONAL CONSTRUCTION TO THIRD AMENDED COMPLAINT 6 BY E-SERVICE: I electronically served the document(s) via Santa Clara County 7 Superior Court's Electronic Filing System on the recipients designated on the transaction receipt located on the Santa Clara County Superior Court's Electronic Filing System website. [See 8 Transaction Receipt on SCE Filing Website] 9 I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. 10 Executed on April 19, 2016, at Santa Ana, California. 11 12

14 Sheila Ellis

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11 ANSWER OF WESTERN NATIONAL CONSTRUCTION TO THIRD AMENDED COMPLAINT P:\DOCS\Western Nat.Cilker\Pleadings\Answers\Answer TAC[WNC].docx