E-FILED

1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ANSWER OF WESTERN NATIONAL CONSTRUCTION TO THIRD AMENDED COMPLAINT P:\DOCS\Western \Pleadings\Answers\Answer TAC[WNC].docx GREEN & HALL, A Professional Corporation MICHAEL J. PEPEK, State Bar No. 178238 SAMUEL M. DANSKIN, State Bar No. 136044 MICHAEL A. ERLINGER, State Bar No. 216877 1851 East First Street, 10th Floor Santa Ana, California 92705-4052 Telephone: (714) 918-7000 Facsimile: (714) 918-6996 Attorneys for WESTERN NATIONAL CONSTRUCTION SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SANTA CLARA CILKER APARTMENTS, LLC, Plaintiff, vs. WESTERN NATIONAL CONSTRUCTION, et al., Defendants. CASE NO.

2 113CV258281 ANSWER OF WESTERN NATIONAL CONSTRUCTION TO THIRD AMENDED COMPLAINT JUDGE: Hon. Peter H. Kirwan DEPT.: 1 ACTION FILED: December 26, 2013 TRIAL DATE: June 13, 2016 AND RELATED CROSS-ACTIONS COMES NOW Defendant Western National Construction ("Defendant") which answers Plaintiff's unverified Third Amended Complaint ( Complaint ) by admitting, denying and alleging as follows: / / / E-FILEDApr 19, 2016 2:45 PMDavid H. YamasakiChief Executive Officer/ClerkSuperior Court of CA, County of Santa ClaraCase #1-13-CV-258281 Filing #G-82948By R. Walker, Deputy1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 ANSWER OF WESTERN NATIONAL CONSTRUCTION TO THIRD AMENDED COMPLAINT P:\DOCS\Western \Pleadings\Answers\Answer TAC[WNC].

3 Docx GENERAL DENIAL Under the provisions of California Code of Civil Procedure section , Defendant denies, both generally and specifically, each and every allegation contained in the Complaint, and the whole thereof, and each and every alleged cause of action thereof and denies that Plaintiff sustained any damages as alleged by reason of any alleged act, breach or omission on the part of Defendant. FIRST AFFIRMATIVE DEFENSE (Failure to State a Claim) 1. Failure to State a Claim. The Complaint, and each and every cause of action therein, fails to state facts sufficient to constitute a cause of action, or any cause of action, against Defendant. SECOND AFFIRMATIVE DEFENSE (Contributory Negligence) 2. Contributory Negligence.

4 Defendant is informed and believes and, based thereon, alleges that if Plaintiff suffered or sustained any loss, injury, damage or detriment, the same was directly and proximately caused and contributed to by the conduct, acts, omissions, activities, carelessness, negligence, and/or intentional misconduct of Plaintiff, thereby completely or partially barring Plaintiff's recovery herein. THIRD AFFIRMATIVE DEFENSE (Comparative Fault of Third Parties) 3. Comparative Fault of Third Parties. Defendant is informed and believes and, based thereon, alleges that it is not legally responsible in any fashion with respect to the damages and injuries claimed by Plaintiff in the Complaint; however, if Defendant is subjected to any liability to Plaintiff or any cross-complainant herein, it will be due, in whole or in part, to the acts, omissions, activities, carelessness, recklessness, negligence, and/or intentional misconduct of others.

5 Wherefore, any recovery obtained by Plaintiff or any cross-complainant herein against Defendant should be reduced in proportion to the respective negligence and fault and legal responsibility of all other parties, persons and entities, their agents, servants and employees who E-FILED : Apr 19, 2016 2:45 PM, Superior Court of CA, County of Santa Clara, Case #1-13-CV-258281 Filing #G-829481 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 ANSWER OF WESTERN NATIONAL CONSTRUCTION TO THIRD AMENDED COMPLAINT P:\DOCS\Western \Pleadings\Answers\Answer TAC[WNC].docx contributed to and/or caused any such injury and/or damages, in accordance with the law of comparative negligence; the liability of Defendant, if any, is limited in direct proportion to the percentage of fault actually attributed to it.

6 FOURTH AFFIRMATIVE DEFENSE (Statute of Limitations) 4. Statute of Limitations. Defendant is informed and believes and, based thereon, alleges that the Complaint, and each and every cause of action contained therein, is barred by the applicable statutes of limitation, including, but not limited to, California Code of Civil Procedure sections 337, , , 338(a-k), , 339, 340(1-5), 343, 346, 347, and FIFTH AFFIRMATIVE DEFENSE (Conduct Was Justified) 5. Conduct Was Justified. The conduct of Defendant in regard to the matters alleged in Plaintiff's Complaint was justified, and by reason of the foregoing, Plaintiff is barred from any recovery against Defendant. SIXTH AFFIRMATIVE DEFENSE (Failure to Mitigate) 6.

7 Failure to Mitigate. Defendant is informed and believes and, based thereon, alleges that, as to each alleged cause of action, Plaintiff failed, refused and neglected to take reasonable steps to mitigate the alleged damages, if any, thus barring or diminishing Plaintiff's recovery herein. SEVENTH AFFIRMATIVE DEFENSE (Intervening and Superseding Causes) 7. Intervening and Superseding Causes. Defendant is informed and believes and, based thereon, alleges that the injuries and damages of which Plaintiff complains were proximately caused by, or contributed to, by the acts of other defendants, cross- defendants, persons and/or other entities, and that said acts were an intervening and superseding cause of the injuries and damages, if any, of which Plaintiff complains, thus barring Plaintiff from any recovery against Defendant.

8 E-FILED : Apr 19, 2016 2:45 PM, Superior Court of CA, County of Santa Clara, Case #1-13-CV-258281 Filing #G-829481 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 ANSWER OF WESTERN NATIONAL CONSTRUCTION TO THIRD AMENDED COMPLAINT P:\DOCS\Western \Pleadings\Answers\Answer TAC[WNC].docx EIGHTH AFFIRMATIVE DEFENSE (Doe/Roe Defendants) 8. Doe/Roe Defendants. Defendant is not legally responsible for the acts and/or omissions of those additional defendants named in the Complaint and/or to be named as Does, or to cross-defendants that may be named as roes in any cross-complaint filed in this action. NINTH AFFIRMATIVE DEFENSE (Assumption of the Risk) 9. Assumption of the Risk. Defendant is informed and believes and, based thereon, alleges that, at the time and place of the incident alleged in Plaintiff's Complaint, Plaintiff knew of and fully understood the danger and risks incident to its undertaking, including, but not limited to construction and/or purchase of real property; but despite such knowledge, Plaintiff freely and voluntarily assumed and exposed itself to all risks of harm and the consequential injuries and resultant damages, if any.

9 TENTH AFFIRMATIVE DEFENSE (Acts of God) 10. Acts of God. Defendant is informed and believes and, based thereon, alleges that the damages complained of in Plaintiff's Complaint, if any, resulted from an unforeseeable act of God, thereby barring, either partially or totally, Plaintiff's claimed damages. ELEVENTH AFFIRMATIVE DEFENSE (Waiver) 11. Waiver. Defendant is informed and believes and, based thereon, alleges that Plaintiff executed a waiver and release and/or otherwise agreed to release and waive its rights to some or all of the claims asserted in the Complaint. TWELFTH AFFIRMATIVE DEFENSE (Estoppel) 12. Estoppel. Defendant is informed and believes and, based thereon, alleges that Plaintiff engaged in conduct and activities with respect to the subject of this litigation, and by reason of said activities and conduct, is estopped from asserting any claims for damages or seeking E-FILED : Apr 19, 2016 2:45 PM, Superior Court of CA, County of Santa Clara, Case #1-13-CV-258281 Filing #G-829481 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 ANSWER OF WESTERN NATIONAL CONSTRUCTION TO THIRD AMENDED COMPLAINT P:\DOCS\Western \Pleadings\Answers\Answer TAC[WNC].

10 Docx any other relief against Defendant. THIRTEENTH AFFIRMATIVE DEFENSE (Laches) 13. Laches. Defendant is informed and believes and, based thereon, alleges that Plaintiff waited an unreasonable period of time before asserting its claims, if any, against Defendants, and is barred from asserting such claims under the doctrine of laches. FOURTEENTH AFFIRMATIVE DEFENSE (Unjust Enrichment) 14. Unjust Enrichment. Defendant is informed and believes and, based thereon, alleges that Plaintiff's Complaint, and each cause of action contained therein, is barred by the doctrine of unjust enrichment, and that Plaintiff would be unjustly enriched by the requested relief. FIFTEENTH AFFIRMATIVE DEFENSE (Complete Performance) 15.