Answer Unlimited Fee AppliesCal. Super. - 6th Dist.November 20, 2020KOOOQONU‘I-bUJNr-A Hr-AHr-‘r-A LWNP-‘O H O\ CLAPP, MORONEY, VUCINICH, BEEMAN+SCHELEY 5860 OWENS DRIVE, SUITE 410 PLEASANTON, CALIFORNIA 94588 [\J [\J [\J [\J [\J [\J [\J [\J H >-‘ H >- fl O\ U} -h U.) [\J >- O KO 00 fl U] [\J 00 20CV373882 Santa Clara - Civil Kory L. Phillips: SBN 192767 kphillips@clappmoronev.com Derek M. Sagehorn: SBN8‘63-8-8-8- 31 1888 dsagehom@clappm0ronev.com CLAPP, MORONEY, VUCINICH, BEEMAN+SCHELEY 5860 Owens Drive, Suite 410 Pleasanton, California 94588 Telephone: (925) 734-0990 Facsimile: (925) 734-0888 Attorney for Defendants RAYMOND CHRISTOPHER SOMBILON and RENEE SOMBILON dba BAYVIEW PLUMBING SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA - UNLIMITED JURISDICTION D.S. JORDAN CONSTRUCTION, INC., a Florida corporation, Plaintiff, V. INNOVATE CONCRETE, INC. d.b.a. INNOVATE ENGINEERING, a California corporation; HIGH END DEVELOPMENT, INC.,a California corporation; RAYMOND CHRISTOPHER SOMBILON AND RENEE SOMBILON, husband and Wife, d.b.a. BAYVIREW PLUMBING; MISH- RA, INC. d.b.a. TRICORE PANELS, INC.; and DOES 1 through 20, Defendants. Defendant, RAYMOND CHRISTOPHER SOMBILON AND RENEE SOMBILON, husband and wife, Plaintiff’s complaint, herewith denies each and every, all and singular, the allegations 0f said Complaint, and each alleged cause of action thereof. AS A FURTHER, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT, AND EACH ALLEGED CAUSE OF ACTION THEREOF, this answering Defendant alleges that this Complaint, and each cause of action thereof, does not state facts sufficient to constitute a cause of d.b.a. BAYVIREW PLUMBING, hereinafter BAYVIEW, in answer to R. Ar Electronically Filed by Superior Court of CA, County of Santa Clara, on 2/3/2021 4:47 PM Reviewed By: R. Aragon Case #20CV373882 Envelope: 5774205 Case No.: 20CV373882 Trial Date: None set DEFENDANT RAYMOND CHRISTOPHER SOMBILON AND RENEE SOMBILON, DBA BAYVIEW PLUMBING’S ANSWER TO PLAINTIFF D.S. JORDAN CONSTRUCTION, INC.’S COMPLAINT DEFENDANT RAYMOND CHRISTOPHER SOMBILON AND RENEE SOMBILON, DBA BAYVIEW PLUMBING’S ANSWER TO PLAINTIFF D.S. JORDAN CONSTRUCTION, INC.’S COMPLAINT agon CLAPP, MORONEY, VUCINICH, BEEMAN+SCHELEY 5860 OWENS DRIVE, SUITE 410 KOOOQONU‘I-bUJNr-A PLEASANTON, CALIFORNIA 94588 [\J [\J [\.) N [\J [\J N [\J N H >-¢ H H r-d H r-A r-d H r-A 00 fl O\ Ul -b U.) [\J >-‘ O \o oo fl O\ U] L DJ [\J r-‘ O action against this answering Defendant. AS A SECOND, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT AND EACH ALLEGED CAUSE OF ACTION THEREOF, this answering Defendant alleges that Plaintiffhas unreasonably delayed in bringing this action t0 the prejudice of this answering Defendant and are therefore barred by bringing this action by the Doctrine of Laches and/or California Commercial Code Section 2607. AS A THIRD, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT AND EACH ALLEGED CAUSE OF ACTION THEREOF, this answering Defendant alleges that said Plaintiffproximately caused and contributed to the damages complained 0f, ifany there were; and this answering Defendant further alleges that any fault not attributable t0 said Plaintiffwas a result 0f fault 0n the part 0f persons and/or entities other than this answering Defendant. Such fault bars and/or proportionately reduces any recovery by Plaintiff against this answering Defendant. AS A FOURTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT AND EACH ALLEGED CAUSE OF ACTION THEREOF, this answering Defendant alleges that should Plaintiff recover from this answering Defendant, this answering Defendant are entitled to indemnification, either in whole or in part, from all persons or entities whose negligence and/or fault proximately contributed to Plaintiff’ s damages, if any there were. AS A FIFTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT AND EACH ALLEGED CAUSE OF ACTION THEREOF, this answering Defendant alleges that Plaintiff has directed, ordered, approved and ratified Defendant’s conduct and Plaintiff are therefore estopped from asserting claim based thereon. AS A SIXTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT AND EACH ALLEGED CAUSE OF ACTION THEREOF, this answering Defendant alleges that Plaintiff failed and neglected t0 use reasonable care to minimize and mitigate the losses, injury and damages complained of, if any there were. AS A SEVENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT AND EACH ALLEGED CAUSE OF ACTION THEREOF, this answering Defendant alleges that the Complaint is barred by Virtue 0f the Plaintiff s conduct in causing the damages alleged by the Plaintiff 2 DEFENDANT RAYMOND CHRISTOPHER SOMBILON AND RENEE SOMBILON, DBA BAYVIEW PLUMBING’S ANSWER TO PLAINTIFF D.S. JORDAN CONSTRUCTION, INC.’S COMPLAINT CLAPP, MORONEY, VUCINICH, BEEMAN+SCHELEY 5860 OWENS DRIVE, SUITE 410 PLEASANTON, CALIFORNIA 94588 H Um KOOOQONU‘I-bUJNr-A Hr-AHr-‘r-A LWNP-‘O NNNNNNNNNHr-‘HH mumm-hwwr-‘Okoooua under the Doctrine 0fUnclean Hands. AS A EIGHTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT AND EACH ALLEGED CAUSE OF ACTION THEREOF, this answering Defendant alleges that prior t0 the commencement 0f this action, this answering Defendant duly performed, satisfied and discharged all duties and obligations that it may have owed t0 the Plaintiff arising out of any and all agreements, representations or contracts made by it or on behalf of this answering Defendant and this action is therefore barred by the provision of California Civil Code Section 1473. AS A NINTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT AND EACH ALLEGED CAUSE OF ACTION THEREOF, this answering Defendant alleges that Plaintiff acted with the full knowledge of all the facts and circumstances surrounding their alleged injuries and thus assumed the risk of injury, if any. AS A TENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT AND EACH ALLEGED CAUSE OF ACTION THEREOF, this answering Defendant alleges that Plaintiff was negligent and careless in and about the matters and events referred t0 in the Complaint, Which negligence and carelessness proximately caused and/or contributed t0 the liability, damages, 0r injuries sustained by Plaintiff, if any there were 0r are. Said negligence and carelessness completely bars and/or reduces to the proportional extent of said negligence and carelessness, any decision, verdict or recovery to which Plaintiffmay be entitled. AS A ELEVENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT AND EACH ALLEGED CAUSE OF ACTION THEREOF, this answering Defendant alleges that if Plaintiff in fact sustained any damages or injuries by reason 0f any alleged act, omission 0r negligence 0n the part of this Defendant, such acts, omissions or negligence were passive 0r secondary in nature, Whereas the Plaintiff was active and primary in character; as a result 0f Which Plaintiff is not entitled t0 indemnity from this Defendant. AS A TWELVTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT AND EACH ALLEGED CAUSE OF ACTION THEREOF, this answering Defendant alleges that Plaintiff’s complaint and each of its causes of actions are uncertain, ambiguous and unintelligible. AS A THIRTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE 3 DEFENDANT RAYMOND CHRISTOPHER SOMBILON AND RENEE SOMBILON, DBA BAYVIEW PLUMBING’S ANSWER TO PLAINTIFF D.S. JORDAN CONSTRUCTION, INC.’S COMPLAINT \OOONQUILUJNr-A CLAPP, MORONEY, VUCINICH, BEEMAN+SCHELEY 5860 OWENS DRIVE SUITE 410 PLEASANTON, CALIFORNIA 94588 N [\J N [\J [\J N [\J [\J N r-A >-¢ >-A r-A >-A >-A r-A H >-A r-A 00 q O\ Ul A U3 N >-* O \D 00 N ON Um A UJ [\J >-‘ O COMPLAINT AND EACH ALLEGED CAUSE OF ACTION THEREOF, this answering Defendant alleges that Plaintiff is barred from relief due to the doctrine of unjust enrichment. AS A FOURTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT AND EACH ALLEGED CAUSE OF ACTION THEREOF, this answering Defendant alleges that Plaintiff consented t0 the alleged acts 0f Defendant. AS A FIFTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT AND EACH ALLEGED CAUSE OF ACTION THEREOF, AS A FURTHER, SEPARATE, AFFIRMATIVE DEFENSE, this answering Defendant alleges that third parties were careless and negligent in and about the matters alleged in the Complaint and that said carelessness and negligence on the part 0f these third parties was the sole, legal cause of the injuries, loss and/or damages complained of, if any there were, and that any damages that Defendant may otherwise be obligated to pay be proportionately reduced by the fault of others pursuant to Civil Code §143 1 .1, et seq. AS A SIXTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT AND EACH ALLEGED CAUSE OF ACTION THEREOF, this answering Defendant alleges that there is no written contract for Plaintiff to enforce. WHEREFORE, this Defendant prays that Plaintiff take nothing against it by way of their Complaint, that Defendant has judgement for its costs 0f suit herein incurred, together with such other and further relief as the Court deems just and reasonable. Dated: February 3, 2021 CLAPP, MORONEY, VUCINICH, BEEMAN+SCHELEY Kory L. Phillips Derek M. Sagehorn Attorney for Defendants RAYMOND CHRISTOPHER SOMBILON and RENEE SOMBILON dba BAYVIEW PLUMBING 4 DEFENDANT RAYMOND CHRISTOPHER SOMBILON AND RENEE SOMBILON, DBA BAYVIEW PLUMBING’S ANSWER TO PLAINTIFF D.S. JORDAN CONSTRUCTION, INC.’S COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 D.S. Jordan Construction, Inc. v. Innovate Concrete, Inc., et al Santa Clara County Superior Court Case No. 20CV373882 PROOF OF SERVICE [Code ofCiv. Proc. §§ 1011, 1013, 1031a, 2015.5] METHOD OF SERVICE D By Personal Service D By Mail D By Overnight Delivery D By Messenger Service D By Facsimile By E-Mail/Electronic Transmission 1. I am a citizen 0f the United States and am employed in the County 0f Alameda, State of California. I am over the age of 18 years and not a party to the within action. 2. My place 0f employment is 5860 Owens Drive, Suite 410, Pleasanton, California 94588. 3. On the date set forth below, I caused to be served a true and correct copy of the document described as: DEFENDANT RAYMOND CHRISTOPHER SOMBILON AND RENEE SOMBILON, DBA BAYVIEW PLUMBING’S ANSWER TO PLAINTIFF D.S. JORDAN CONSTRUCTION, INC.’S COMPLAINT 4. I served the documents on the persons below, as follows: Attornev for Plaintiff D.S. Jordan Construction, Inc. John J. Freni, Esq. Law Office 0f John J. Freni 401 West A Street, 17th Floor San Diego, CA 92101 Phone: (619) 557-9128 Fax: (619) 238-1981 Email: john@freni-law.com 5. The document(s) was served by the following means (specify): a. D BY PERSONAL SERVICE. I caused to be personally delivered the documents t0 the persons at the addresses listed in item 4. (1) For a party represented by an attorney, delivery was made to the attorney 0r at the attorney's office by leaving the documents in an envelope or package clearly labeled to identify the attorney being served with a receptionist or an individual in charge of the office. (2) For a party, delivery was made to the party or by leaving the documents at the party's residence With some person not less than 18 years 0f age between the hours of eight in the morning and six in the evening. b. D BY UNITED STATES MAIL. I enclosed the documents in a sealed envelope 0r package addressed to the persons at the addresses in item 4 and (specify one): 1 PROOF OF SERVICE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (1) D deposited the sealed envelope with the United States Postal Services, with the postage fully prepaid. (2) D placed the envelope for collection and mailing, following our ordinary business practices. I am readily familiar With this business's practice for collecting and processing correspondence for mailing. On the same day that correspondence is placed for collection and mailing, it is deposited in the ordinary course of business With the United States Postal Service, in a sealed envelope with postage fully prepaid. D BY CERTIFIED MAIL/RETURN RECEIPT REQUESTED. I enclosed the documents in a sealed envelope or package addressed t0 the persons at the addresses in item 4 and (specify one): (1) D deposited the sealed envelope with the United States Postal Services, with the postage fully prepaid. (2) D placed the envelope for collection and mailing, following our ordinary business practices. I am readily familiar With this business's practice for collecting and processing correspondence for mailing. On the same day that correspondence is placed for collection and mailing, it is deposited in the ordinary course of business With the United States Postal Service, in a sealed envelope With postage fully prepaid for said certified mail/return receipt number (See attached copies of Certified Mailflleturn Receipts Requested.) I am a resident or employed in the County Where the mailing occurred. The envelope 0r package was placed in the mail at Pleasanton, California, County 0f Alameda. d. D BY OVERNIGHT DELIVERY. I enclosed the documents in an envelope or package provided by an overnight delivery carrier and addressed t0 the persons at the addresses in item 4. I place the envelope or package for collection and overnight delivery at an office or a regularly utilized drop box of the overnight delivery carrier. D BY MESSENGER SERVICE. I served the documents by placing them in an envelope 0r package addressed t0 the persons at the addresses listed in item 4 and providing them t0 a professional messenger service for service. D BY FAX TRANSMISSION. Based 0n an agreement of the parties t0 accept service by fax transmission, I faxed the documents t0 the persons at the fax numbers listed in item 4. N0 error was reported by the fax machine that I used. BY E-MAIL OR ELECTRONIC TRANSMISSION. I caused all 0f the above-entitled document(s) t0 be sent to the recipients listed by electronic mail only based on the fact that during the Coronavirus (C0Vid-19) pandemic, this office will be working remotely, not able to send physical mail as usual, and is therefore using only electronic mail. No electronic message or other indication that the transmission was unsuccessful was received Within a reasonable time after the transmission. (State) I declare under penalty of perjury under the laws of the State of California that the above is true and correct. 2 PROOF OF SERVICE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 D (Federal) I declare that I am employed in the office 0f a member 0f the bar 0f this court at Whose direction the service was made. I declare under penalty of perjury that the foregoing is true and correct. Executed on February 3, 2021 at Pleasanton, California. LO'Vi/ A. PWWW Lori A. Pierson 3 PROOF OF SERVICE