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PLD-C-010
ATTORNEY OR PARTY WITHOUT ATTORNEY (NAME AND ADDRESS): TELEPHONE: FOR COURT USE ONLY
Matthew J. Gluck (221571)
Gluck Daniel LLP
1 Sansome Street, Suite 720
San Francisco, CA 94104
ELECTRONICALLY
ATTORNEY FOR (NAME): Watchful, INC.
Insert name of court, judicial district or branch court, if any, and post office and street
FILED
Superior Court of California,
address: County of San Francisco
SUPERIOR COURT OF CALIFORNIA, CITY AND COUNTY OF SAN FRANCISCO
CIVIC CENTER COURTHOUSE 10/29/2020
400 McAllister Street Clerk of the Court
BY: EDWARD SANTOS
San Francisco, CA 94102
Deputy Clerk
PLAINTIFF: 281 Ellis Street, LLC
DEFENDANT: Watchful, Inc.
ANSWER—Contract CASE NUMBER:
✖ TO COMPLAINT OF (name): 281 Ellis Street, LLC CGC-20-586340
TO CROSS-COMPLAINT (name):
1. This pleading, including attachments and exhibits, consists of the following number of pages: 5
2. DEFENDANT (name): Watchful, Inc.
answers the complaint or cross-complaint as follows:
3. Check ONLY ONE of the next two boxes:
a. ✖ Defendant generally denies each statement of the complaint or cross-complaint. (Do not check this box if the
verified complaint or cross-complaint demands more than $1,000.)
b. Defendant admits that all of the statements of the complaint or cross-complaint are true EXCEPT:
(1) Defendant claims the following statements are false (use paragraph numbers or explain):
Continued on Attachment 3.b.(1).
(2) Defendant has no information or belief that the following statements are true, so defendant denies them (use
paragraph numbers or explain):
Continued on Attachment 3.b.(2).
If this form is used to answer a cross-complaint, plaintiff means cross-complainant and defendant means cross-defendant.
Page 1 of 2
Form Approved for Optional Use Code of Civil Procedure, § 425.12
Judicial Council of California ANSWER—Contract www.courts.ca.gov
PLD-C-010 [Rev. January 1, 2007]
PLD-C-010
SHORT TITLE: CASE NUMBER:
281 ELLIS STREET, LLC v. WATCHFUL, INC.
CGC-20-586340
ANSWER—Contract
4. ✖ AFFIRMATIVE DEFENSES Defendant alleges the following additional reasons that plaintiff is not entitled to recover
anything:
See Attachment 4
✖ Continued on Attachment 4.
5. Other
6. DEFENDANT PRAYS
a. that plaintiff take nothing.
b. ✖ for costs of suit.
c. ✖ Other (specify):
Attorney's fees according to proof, according to contract.
Matthew J. Gluck
(Type or print name) {Signature of party or attorney)
PLD-C - 010 [Rev. January 1, 2007] Page 2 of 2
ANSWER—Contract
For your protection and privacy, please press the Clear
This Form button after you have printed the form. Print this form Save this form Clear this form
281 Ellis Street, LLC v. Watchful, Inc.
San Francisco Superior Court Case No. CGC-20-586340
Attachment 4 to Answer to Complaint
FIRST AFFIRMATIVE DEFENSE
(Failure to State a Cause of Action)
The Complaint fails to state facts sufficient to constitute a cause of action.
SECOND AFFIRMATIVE DEFENSE
(Material Breach)
Defendant alleges that Plaintiff is not entitled to the relief requested because Plaintiff has
materially breached the terms of any valid and enforceable agreement(s) between Defendant and
Plaintiff.
THIRD AFFIRMATIVE DEFENSE
(Breach Of Implied Covenant)
Defendant alleges that Plaintiff is not entitled to recover any amounts under any valid and
enforceable agreement(s) between Defendant and Plaintiff based on Plaintiff’s breach of the
implied covenant of good faith and fair dealing.
FOURTH AFFIRMATIVE DEFENSE ,
(Offset)
Any damages to which Plaintiff might be entitled must be offset by the damages that Plaintiff has
caused to Defendant.
FIFTH AFFIRMATIVE DEFENSE
(Unclean Hands)
The Complaint and each cause of action therein alleged is barred by the doctrine of unclean
hands.
SIXTH AFFIRMATIVE DEFENSE .
(Unjust Enrichment)
Plaintiff would be unjustly enriched if awarded any damages, or any other relief for any or all of
the claims alleged by Plaintiff against Defendant in the Complaint.
SEVENTH AFFIRMATIVE DEFENSE
(Laches)
The Complaint and each cause of action therein alleged is barred by the doctrine of laches.
1
281 Ellis Street, LLC v. Watchful, Inc.
San Francisco Superior Court Case No. CGC-20-586340
EIGHTH AFFIRMATIVE DEFENSE
(Acts of God)
Plaintiff’s claims are the result of an unforeseeable Act of God, thereby excusing, in whole or in
part, Defendant’s performance under any contract between Plaintiff and Defendant.
NINTH AFFIRMATIVE DEFENSE
(Failure to Mitigate)
Plaintiff failed to properly or adequately mitigate its damages, if any. This failure to mitigate
bars and diminishes Plaintiff’s recovery to the extent the damages could have been mitigated.
TENTH AFFIRMATIVE DEFENSE
(Equities Weight Against Relief)
The equities in this case weigh against the relief that Plaintiff seeks.
ELEVENTH AFFIRMATIVE DEFENSE
(Force Majeure)
Defendant’s performance under the contract is excused, in whole or in part, due to force majeure.
TWELFTH AFFIRMATIVE DEFENSE
(Waiver and Estoppel)
The Complaint and each cause of action therein alleged is barred by the doctrines of waiver and
estoppel.
THIRTEENTH AFFIRMATIVE DEFENSE
(Excuse)
Pursuant to California Civil Code section 1511, Defendants’ obligations to perform under the
contract are excused, in whole or in part, due to irresistible, superhuman causes.
FOURTEENTH AFFIRMATIVE DEFENSE
(Commercial Frustration)
Due to the COVID-19 Pandemic, and pursuant to the Commercial Frustration Doctrine,
Defendants are unable to use the premises for the stated purpose, and as a result, their
performance under the contract is excused, in whole or in part.
FIFTEENTH AFFIRMATIVE DEFENSE
(Impossibility/Impracticability of Performance)
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281 Ellis Street, LLC v. Watchful, Inc.
San Francisco Superior Court Case No. CGC-20-586340
Defendants’ performance is excused, in whole or in part, due to the COVID-19 Pandemic, which
has rendered Defendants’ ability to perform its obligations under the contract impossible and/or
impracticable.
SIXTEENTH AFFIRMATIVE DEFENSE
(Government Regulations)
In response to the COVID-19 Pandemic, local, city, state and federal governments enacted
mandatory orders which, among other requirements, mandated that all non-essential personnel
work from home, and prohibited any concentration of individuals to congregate outside their
home, for which non-compliance may result in fines or legal action. As a result of these
government regulations and orders, Defendants’ business has been materially and adversely
affected. As a result, Defendants’ performance under the contract must be excused in whole or in
part.
SEVENTEENTH AFFIRMATIVE DEFENSE
(Reservation of Additional Affirmative Defenses)
Defendant reserves the right to include additional affirmative defenses upon the discovery of
facts sufficient to support said defenses.
3
PROOF OF SERVICE
1
2 I, Brenda Martinez-Eby, declare as follows: I am a citizen of the United States, over the age of
eighteen years and not a party to the within entitled action. My business address is Gluck Daniel LLP, One
3 Sansome Street, Suite 720, San Francisco, California 94104. On September 30, 2020, I served the attached
paper identified below on the interested parties in said action, by placing a true copy thereof in sealed
4 envelope(s) addressed as indicated and served the named document in the manner indicated below
5 ANSWER-CONTRACT
(TO COMPLAINT OF 281 ELLIS STREET, LLC)
6
7 Service upon:
8 Marco Quazzo, Esq.
BARTKO, ZANKEL, BUNZEL & MILLER
9 One Embarcadero Center, Suite 800
San Francisco, CA 94111
10 Tel: 415-956-1900
11 Fax: 415-956-1152
Email: mquazzo@bzbm.com
12
Attorney for Plaintiff 281 ELLIS STREET,
13 LLC
14 BY MAIL: I caused true and correct copies of the above document(s) to be served by mail on the above
date by personally placing and sealing said document(s) in an envelope or package suitable for mailing,
15 addressed to the addressee(s) and including this firm's return address, and then, following ordinary office
practice, placing said sealed envelope in the office's usual location for collection and mailing with the United
16 States Postal Service.
17 BY NEXT-DAY OVERNIGHT SERVICE: I caused true and correct copies of the above
document(s) to be placed within a sealed envelope or other package suitable for overnight shipment,
18 addressed to the addressee(s) and including this firm's return address, and delivered on the date stated above
to an overnight delivery service for delivery to the addressee(s) on the following business day.
19 BY FACSIMILE: I caused true and correct copies of the above document(s) to be sent via facsimile to
the addressee(s) on this date. The facsimile machine used complies with California Rule of Court 2003(3)
20 and no error was reported by the sending facsimile machine. The transmission record for this facsimile
complies with California Rule of Court 2003(6).
21
BY EMAIL: I caused true and correct copies of the above document(s) to be sent via email to the
22 addressee(s) on this date. I did not receive a notice indicating delivery failure.
X BY E-SERVICE: I caused true and correct copies of the above document(s) to be sent via electronic
23 transmission through the Court’s E-service vendor in conformity with San Francisco Superior Court Local
Rule 2.10.
24
I declare under penalty of perjury under the laws of the State of California that the foregoing
25 is true and correct. Executed September 30, 2020, at South San Francisco, California.
26
27
Brenda Martinez-Eby
28
PROOF OF SERVICE
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PLD-C-010 ATTORNEY OR PARTY WITHOUT ATTORNEY (NAME AND ADDRESS): TELEPHONE: FOR COURT USE ONLY Matthew J. Gluck (221571) Gluck Daniel LLP 1 Sansome Street, Suite 720 San Francisco, CA 94104 ELECTRONICALLY ATTORNEY FOR (NAME): Watchful, INC. Insert name of court, judicial district or branch court, if any, and post office and street FILED Superior Court of California, address: County of San Francisco SUPERIOR COURT OF CALIFORNIA, CITY AND COUNTY OF SAN FRANCISCO CIVIC CENTER COURTHOUSE 10/29/2020 400 McAllister Street Clerk of the Court BY: EDWARD SANTOS San Francisco, CA 94102 Deputy Clerk PLAINTIFF: 281 Ellis Street, LLC DEFENDANT: Watchful, Inc. ANSWER—Contract CASE NUMBER: ✖ TO COMPLAINT OF (name): 281 Ellis Street, LLC CGC-20-586340 TO CROSS-COMPLAINT (name): 1. This pleading, including attachments and exhibits, consists of the following number of pages: 5 2. DEFENDANT (name): Watchful, Inc. answers the complaint or cross-complaint as follows: 3. Check ONLY ONE of the next two boxes: a. ✖ Defendant generally denies each statement of the complaint or cross-complaint. (Do not check this box if the verified complaint or cross-complaint demands more than $1,000.) b. Defendant admits that all of the statements of the complaint or cross-complaint are true EXCEPT: (1) Defendant claims the following statements are false (use paragraph numbers or explain): Continued on Attachment 3.b.(1). (2) Defendant has no information or belief that the following statements are true, so defendant denies them (use paragraph numbers or explain): Continued on Attachment 3.b.(2). If this form is used to answer a cross-complaint, plaintiff means cross-complainant and defendant means cross-defendant. Page 1 of 2 Form Approved for Optional Use Code of Civil Procedure, § 425.12 Judicial Council of California ANSWER—Contract www.courts.ca.gov PLD-C-010 [Rev. January 1, 2007] PLD-C-010 SHORT TITLE: CASE NUMBER: 281 ELLIS STREET, LLC v. WATCHFUL, INC. CGC-20-586340 ANSWER—Contract 4. ✖ AFFIRMATIVE DEFENSES Defendant alleges the following additional reasons that plaintiff is not entitled to recover anything: See Attachment 4 ✖ Continued on Attachment 4. 5. Other 6. DEFENDANT PRAYS a. that plaintiff take nothing. b. ✖ for costs of suit. c. ✖ Other (specify): Attorney's fees according to proof, according to contract. Matthew J. Gluck (Type or print name) {Signature of party or attorney) PLD-C - 010 [Rev. January 1, 2007] Page 2 of 2 ANSWER—Contract For your protection and privacy, please press the Clear This Form button after you have printed the form. Print this form Save this form Clear this form 281 Ellis Street, LLC v. Watchful, Inc. San Francisco Superior Court Case No. CGC-20-586340 Attachment 4 to Answer to Complaint FIRST AFFIRMATIVE DEFENSE (Failure to State a Cause of Action) The Complaint fails to state facts sufficient to constitute a cause of action. SECOND AFFIRMATIVE DEFENSE (Material Breach) Defendant alleges that Plaintiff is not entitled to the relief requested because Plaintiff has materially breached the terms of any valid and enforceable agreement(s) between Defendant and Plaintiff. THIRD AFFIRMATIVE DEFENSE (Breach Of Implied Covenant) Defendant alleges that Plaintiff is not entitled to recover any amounts under any valid and enforceable agreement(s) between Defendant and Plaintiff based on Plaintiff’s breach of the implied covenant of good faith and fair dealing. FOURTH AFFIRMATIVE DEFENSE , (Offset) Any damages to which Plaintiff might be entitled must be offset by the damages that Plaintiff has caused to Defendant. FIFTH AFFIRMATIVE DEFENSE (Unclean Hands) The Complaint and each cause of action therein alleged is barred by the doctrine of unclean hands. SIXTH AFFIRMATIVE DEFENSE . (Unjust Enrichment) Plaintiff would be unjustly enriched if awarded any damages, or any other relief for any or all of the claims alleged by Plaintiff against Defendant in the Complaint. SEVENTH AFFIRMATIVE DEFENSE (Laches) The Complaint and each cause of action therein alleged is barred by the doctrine of laches. 1 281 Ellis Street, LLC v. Watchful, Inc. San Francisco Superior Court Case No. CGC-20-586340 EIGHTH AFFIRMATIVE DEFENSE (Acts of God) Plaintiff’s claims are the result of an unforeseeable Act of God, thereby excusing, in whole or in part, Defendant’s performance under any contract between Plaintiff and Defendant. NINTH AFFIRMATIVE DEFENSE (Failure to Mitigate) Plaintiff failed to properly or adequately mitigate its damages, if any. This failure to mitigate bars and diminishes Plaintiff’s recovery to the extent the damages could have been mitigated. TENTH AFFIRMATIVE DEFENSE (Equities Weight Against Relief) The equities in this case weigh against the relief that Plaintiff seeks. ELEVENTH AFFIRMATIVE DEFENSE (Force Majeure) Defendant’s performance under the contract is excused, in whole or in part, due to force majeure. TWELFTH AFFIRMATIVE DEFENSE (Waiver and Estoppel) The Complaint and each cause of action therein alleged is barred by the doctrines of waiver and estoppel. THIRTEENTH AFFIRMATIVE DEFENSE (Excuse) Pursuant to California Civil Code section 1511, Defendants’ obligations to perform under the contract are excused, in whole or in part, due to irresistible, superhuman causes. FOURTEENTH AFFIRMATIVE DEFENSE (Commercial Frustration) Due to the COVID-19 Pandemic, and pursuant to the Commercial Frustration Doctrine, Defendants are unable to use the premises for the stated purpose, and as a result, their performance under the contract is excused, in whole or in part. FIFTEENTH AFFIRMATIVE DEFENSE (Impossibility/Impracticability of Performance) 2 281 Ellis Street, LLC v. Watchful, Inc. San Francisco Superior Court Case No. CGC-20-586340 Defendants’ performance is excused, in whole or in part, due to the COVID-19 Pandemic, which has rendered Defendants’ ability to perform its obligations under the contract impossible and/or impracticable. SIXTEENTH AFFIRMATIVE DEFENSE (Government Regulations) In response to the COVID-19 Pandemic, local, city, state and federal governments enacted mandatory orders which, among other requirements, mandated that all non-essential personnel work from home, and prohibited any concentration of individuals to congregate outside their home, for which non-compliance may result in fines or legal action. As a result of these government regulations and orders, Defendants’ business has been materially and adversely affected. As a result, Defendants’ performance under the contract must be excused in whole or in part. SEVENTEENTH AFFIRMATIVE DEFENSE (Reservation of Additional Affirmative Defenses) Defendant reserves the right to include additional affirmative defenses upon the discovery of facts sufficient to support said defenses. 3 PROOF OF SERVICE 1 2 I, Brenda Martinez-Eby, declare as follows: I am a citizen of the United States, over the age of eighteen years and not a party to the within entitled action. My business address is Gluck Daniel LLP, One 3 Sansome Street, Suite 720, San Francisco, California 94104. On September 30, 2020, I served the attached paper identified below on the interested parties in said action, by placing a true copy thereof in sealed 4 envelope(s) addressed as indicated and served the named document in the manner indicated below 5 ANSWER-CONTRACT (TO COMPLAINT OF 281 ELLIS STREET, LLC) 6 7 Service upon: 8 Marco Quazzo, Esq. BARTKO, ZANKEL, BUNZEL & MILLER 9 One Embarcadero Center, Suite 800 San Francisco, CA 94111 10 Tel: 415-956-1900 11 Fax: 415-956-1152 Email: mquazzo@bzbm.com 12 Attorney for Plaintiff 281 ELLIS STREET, 13 LLC 14 BY MAIL: I caused true and correct copies of the above document(s) to be served by mail on the above date by personally placing and sealing said document(s) in an envelope or package suitable for mailing, 15 addressed to the addressee(s) and including this firm's return address, and then, following ordinary office practice, placing said sealed envelope in the office's usual location for collection and mailing with the United 16 States Postal Service. 17 BY NEXT-DAY OVERNIGHT SERVICE: I caused true and correct copies of the above document(s) to be placed within a sealed envelope or other package suitable for overnight shipment, 18 addressed to the addressee(s) and including this firm's return address, and delivered on the date stated above to an overnight delivery service for delivery to the addressee(s) on the following business day. 19 BY FACSIMILE: I caused true and correct copies of the above document(s) to be sent via facsimile to the addressee(s) on this date. The facsimile machine used complies with California Rule of Court 2003(3) 20 and no error was reported by the sending facsimile machine. The transmission record for this facsimile complies with California Rule of Court 2003(6). 21 BY EMAIL: I caused true and correct copies of the above document(s) to be sent via email to the 22 addressee(s) on this date. I did not receive a notice indicating delivery failure. X BY E-SERVICE: I caused true and correct copies of the above document(s) to be sent via electronic 23 transmission through the Court’s E-service vendor in conformity with San Francisco Superior Court Local Rule 2.10. 24 I declare under penalty of perjury under the laws of the State of California that the foregoing 25 is true and correct. Executed September 30, 2020, at South San Francisco, California. 26 27 Brenda Martinez-Eby 28 PROOF OF SERVICE