Answer Cross ComplaintCal. Super. - 6th Dist.April 1, 2021Electronically Filed by Superior Court of CA, County of Santa Clara, on 1/28/2022 1:34 PM Reviewed By: R. Tien Case #21CV381448 Envelope: 8165870 R. Tien (OWNOO'I-thd NNNNNNNNNAQJJAAAAA; mVOthN-‘OQWNQQ-fiWN-‘O SHARON L. HIGHTOWER, ESQ. - S.B.N. 129874 LAURA MALKOFSKY, ESQ. - S.B.N. 142536 ERICKSEN ARBUTHNOT 210 North Fourth Street, Suite 350 San Jose, CA 951 12 Telephone: (408) 286-0880 Facsimile: (408)286-0337 shightowerQDericksenarbuthnot.com Attorneys for Aquatek Plumbing, Inc. SUPERIOR COURT OF CALIFORIA, COUNTY OF SANTA CLARA UNLIMITED JURISDICTION VERA FOX, individually and CASE NO: 21CV381448 HERBERT FOX, individually, Plaintiffs, v. ANSWER TO UNVERIFIED CROSS-COMPLAINT AQUATEK PLUMBING, INC. AMERICAN MANAGEMENT SERVICES, INC., BLOSSOM HILL ESTATES NO. 2 HOMEOWNERS ASSOCIATION, DOES 1-10, Complaint Filed: 4/1/2021 Defendants. Trial Date: TBD AMERICAN MANAGEMENT SERVICES, INC., a California Corporation; BLOSSOM HILL ESTATES NO. 2 HOMEOWNERS ASSOCIATION, a California Corporation, Cross-Complainants, v. AQUATEK PLUMBING, INC. , a California Corporation; ROES 1-20, Cross-Defendants. ANSWER TO UNVERIFIED CROSS-COMPLAINT - l - (OQVODO'l-th-k NNNNNNNNNAAAAAAAAAA mVOm#WNAO©meCflACfiN-‘O COMES NOW Cross-Defendant Aquatek Plumbing, Inc., severing itselffrom all others, and for answer to the unverified Cross-Complaint of Cross-Complainant American Management Services, Inc. and Blossom Hill Estates No. 2 Homeowners Association, Inc., admits, denies and alleges as follows: Cross-Defendant denies all 0f the allegations, generally and specifically, contained in the Cross-Complaint and each cause of action as they apply to this appearing Cross-Defendant; and specifically deny that Cross-Defendant is liable to Cross-Complainants under the theories or in the manner set forth in the Cross-Complaint, deny that Cross-Complainants were inj ured or damaged as alleged in the Cross-Complaint, or as the result of any conduct of Cross- Defendant. AFFIRMATIVE DEFENSES As a first, separate, distinct and affirmative defense, this appearing Cross-Defendant alleges that the Cross-Complainants were guilty of contributory fault/negligence in the matters set forth in the Cross-Complaint which proximately caused or contributed to the injuries or damages complained of. As a second, separate, distinct and affirmative defense, this appearing Cross-Defendant alleges that the Cross-Complainants had the express knowledge 0f the risks and hazards set forth in the Cross-Complaint, as well as the magnitude of the risks and hazards, and thereafter knowingly, willingly and voluntarily assumed those risks. As a third, separate, distinct and affirmative defense, this appearing Cross-Defendant alleges that the Cross-Complainants had knowledge of the risks and hazards set forth in the Cross-Complaint, as well as the magnitude of the risks and hazards, and thereafter knowingly, willingly and voluntarily impliedly assumed those risks by their conduct. ANSWER TO UNVERIFIED CROSS-COMPLAINT - 2 - mVQU‘l-hooN-A 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 As a fourth, separate, distinct and affirmative defense, this appearing Cross-Defendant alleges that neither the Cross-Complaint nor any cause of action in the Cross-Complaint states facts sufficient to substantiate a cause 0f action against this appearing Cross-Defendant. As a fifth, separate, distinct and affirmative defense, this appearing Cross-Defendant alleges that, on information and belief, Cross-Complainants’ alleged injuries, if any there were, were aggravated by Cross-Complainants’ failure to use reasonable diligence to mitigate them. As a sixth, separate, distinct and affirmative defense, this appearing Cross-Defendant alleges that co-Cross-Defendants, and each of them, named and unnamed in the Cross- Complaint, were guilty 0f negligence, or other acts or omissions in the matters set forth in the Cross-Complaint, which proximately caused or contributed to the damages 0r loss complained of, if any, and that the Court is requested to determine and allocate the percentage 0f negligence attributable to each co-Cross-Defendant. As a seventh, separate, distinct and affirmative defense, this appearing Cross-Defendant alleges that the condition claimed to be the cause 0f injury, damage or loss, if any there are, sustained by the Cross-Complainants’ was open and obvious. As an eighth, separate, distinct and affirmative defense, this appearing Cross-Defendant alleges that the condition claimed to be the cause of injury, damage or loss, if any there are, sustained by the Cross-Complainants was trivial. As a ninth, separate, distinct and affirmative defense, this appearing Cross-Defendant alleges that Cross-Complainants are estopped by action of law or by conduct from maintaining the action filed in this matter. ANSWER TO UNVERIFIED CROSS-COMPLAINT - 3 - mVOO'IAOJNA 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 As a tenth, separate, distinct and affirmative defense, this appearing Cross-Defendant alleges that Cross-Complainants have waived and forever discharged their right to maintain an action as set forth in the Cross-Complaint. As an eleventh, separate, distinct and affirmative defense, this appearing Cross- Defendant alleges that the action filed in this matter is not maintainable under the doctrine of laches. As a twelfth, separate, distinct and affirmative defense, this appearing Cross-Defendant alleges that the Cross-Complainants are guilty of unclean hands in the matters set forth in the Cross-Complaint which extinguishes the right to equitable relief. As a thirteenth, separate, distinct and affirmative defense, this appearing Cross- Defendant alleges that it does not have any control over the condition complained of by the Cross-Complainants and is not liable for any injury, damage, 0r claims arising therefrom. As a fourteenth, separate, distinct and affirmative defense, this appearing Cross- Defendant alleges that it lacked notice of any hazardous condition alleged in the Cross- Complaint that would give rise t0 liability. As a fifteenth, separate, distinct and affirmative defense, this appearing Cross- Defendant alleges that Cross-Complainants may not recover damages due t0 the failure of Cross-Complainants to take actions to avoid the injuries allege and damages, if any, as set forth in the Complaint and Cross-Complaint. I As a sixteenth, separate distinct, and affirmative defense, this appearing Cross- Defendant alleges that Cross-Complainants cannot prove any facts showing that the conduct of this Cross-Defendant was the cause in fact of any damages alleged in the Cross-Complaint. ANSWER TO UNVERIFIED CROSS-COMPLAINT - 4 - OQmNOU'I-thA NNNNNNNNNAAAAAAAAAA mflmmth-‘OiomNOCfi-kmNA As a seventeenth, separate, distinct and affirmative defense, this appearing Cross- Defendant alleges that this Cross-Defendant acted in accordance with federal, state, and local laws and provided work within the appropriate standard of care. As an eighteenth, separate, distinct and affirmative defense, this appearing Cross- Defendant alleges that at all times it acted in good faith. As a nineteenth, separate, distinct and affirmative defense, this appearing Cross- Defendant alleges that it owed no duty to the Plaintiffs as alleged in the underlying Complaint. As twentieth, separate, distinct and affirmative defense, this appearing Cross-Defendant alleges that no contract exists between Cross-Complaints and Cross-Defendant herein. As a twenty-first, separate, distinct and affirmative defense, this appearing Cross- Defendant sets forth that it may have other, separate and additional defenses of which it is not presently aware, and hereby reserve the right to assert them by amendment t0 this answer when discovery is complete. WHEREFORE, Cross-Defendant prays that Cross-Complainants take nothing by their Cross-Complaint, for costs, attorneys’ fees, and such other relief as the Court may deem just and proper. DATED: January 28, 2022 ERICKSEN ARBUTHNOT Y SHARON L. HIGHTQWER, ESQ. Attorneys for AQUATEK PLUMBING, INC. ANSWER TO UNVERIFIED CROSS-COMPLAINT - 5 - OLOOONGO‘l-hOONA NNNNNNNNNAAAAAAAAAA mem-POONAOQWNQU‘I-POONA CASE NAME: FOX V. AQUATEK PLUMBING, et a1. ACTION NO: 21CV381448 PROOF OF SERVICE I declare that I am employed in the County of Santa Clara, California. I am over the age of eighteen (1 8) years and not a party t0 the Within cause; my business address is 210 No. Fourth Street, Suite 350, San Jose, CA 951 12. I served the attached: Answer t0 Unverified Cross-Complaint 0n the interested parties in said cause, using the following method: / / (BY MAIL) I placed each sealed envelope, With postage thereon fully prepaid for first-class mail, for collection and mailing at San Jose, California, following ordinary business practices. I am readily familiar with the practice ofERICKSEN ARBUTHNOT for the processing 0f correspondence, said practice being that in the ordinary course of business, correspondence is deposited in the United States Postal Service the same day as it is placed for processing. / / (BY PERSONAL SERVICE) I caused each such envelope to be delivered by hand to the addressee(s) noted below. / / (BY FEDERAL EXPRESS) The foregoing document was placed in a sealed envelope provided by Federal ExpressflJPS, designated as overnight (delivery by next business day) with delivery fees paid or provided for and addressed as stated below. I deposited such envelope in the Federal Express/UPS collection box at 2 10 North Fourth Street, San Jose, California. / / (BY FACSIMILE) I caused the said document t0 be transmitted by facsimile machine to the facsimile number indicated after the address(es) noted below. Such transmission was verified as complete and Without error. /XX/ (BY ELECTRONIC SERVICE) Based 0n a court order 0r an agreement 0f the parties t0 accept service by electronic transmission, I caused the documents t0 be sent t0 the persons at the electronic notification addresses listed below. OR: The above-described document(s) will be delivered electronically through the Court’s electronic filing system. /XX/ (ELECTRONIC SERVICE VIA ONE LEGAL) Based 0n a court order 0r an agreement 0f the parties to accept service by electronic transmission, I caused the above-entitled document to be served through One Legal at www.onelegal.c0m addressed to all parties appearing on the electronic service list for the above-entitled case. The service transmission was reported as complete and a copy One Legal Receipt Page/ Confirmation will be filed, deposited or maintained With the original document in this office. A11 parties that do not appear on the electronic service list Will be sent a copy by US Mail. PLAINTIFF COUNSEL: John C. Stein James P. Collins The Boccardo Law Firm 111 W. St. Johns St, Ste. 400 San Jose, CA 951 13 (408) 298-5678 stein@boccardo.com jcollins@boccardo.com ANSWER TO UN VERIFIED CROSS- COMPLAINT - 1 - OLOOONOUO‘l-PQJNA NNNNNNNNNAAAAAAAAAA mem-PwNAOQmNmm-POONA ATTORNEY FOR DEFENDANT AMERICAN MANAGEMENT SERVICES, INC. Seymour Bernard Everett III Samantha E.D0rey Everett Dorey LLP 18300 Von Karman Ave, Ste 900 Irvine, CA 92612-1054 Phone: 949-77 1 -9244 | Fax: 949-377-31 10 Email: severett@everettdorev.com sdorey@everettdorey.com I declare under penalty 0f perjury under the laws of the State of California that the foregoing is true and correct, and that this declaration was executed 0n January 28, 2022, at San Jose, California. --'- F - JENNIFER L- SHARP . ANSWER TO UNVERIFIED CROSS- COMPLAINT - 2 -