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1 ALLEN MATKINS LECK GAMBLE
MALLORY & NATSIS LLP
2 TODD E. WHITMAN (BAR NO. 173878)
1901 Avenue of the Stars, Suite 1800 ELECTRONICALLY
3 Los Angeles, California 90067-6019 FILED
Phone: (310) 788-2400 Superior Court of California,
4 Fax: (310) 788-2410 County of San Francisco
E-Mail: twhitman@allenmatkins.com 01/19/2021
5 Clerk of the Court
Attorneys for Defendant BY: EDWARD SANTOS
6 THREE EMBARCADERO CENTER VENTURE Deputy Clerk
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8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 FOR THE COUNTY OF SAN FRANCISCO
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11 CROWELL & MORING LLP. a District of Case No. CGC-20-588088
Columbia Limited Liability Partnership,
12 ANSWER TO COMPLAINT
Plaintiff,
13
vs. Complaint Filed: 12/02/2020
14 Trial Date: None Set
THREE EMBARCADERO CENTER
15 VENTURE, a California General
Partnership,
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Defendants.
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18 Defendant Three Embarcadero Center Venture (“Defendant”), for itself and for no
19 other defendants, answers the Complaint and admits, denies and alleges as follows:
20 GENERAL DENIAL
21 Pursuant to the provisions of California Code of Civil Procedure Section 431.30,
22 Defendant denies each and every allegation of Plaintiff's unverified Complaint, and
23 specifically denies that Defendant has damaged Plaintiff in any way.
24
25 FIRST AFFIRMATIVE DEFENSE
26 (Failure to State a Cause of Action)
27 1. As a first and separate affirmative defense, Defendant alleges, on
28 information and belief, that the causes of action alleged in the Complaint fail to state facts
LAW OFFICES
Allen Matkins Leck Gamble
Mallory & Natsis LLP
827977.01/WLA ANSWER TO COMPLAINT
1 sufficient to constitute a cause of action or causes of action upon which relief may be
2 granted against the Defendant and, by reason thereof, Plaintiff is barred from recovery
3 herein.
4 SECOND AFFIRMATIVE DEFENSE
5 (Discharge of Obligation)
6 2. As a second and separate affirmative defense, Defendant alleges that any
7 obligations owed to Plaintiff by Defendant has been satisfied, released or otherwise
8 discharged and, by reason thereof, Plaintiff is barred from recovery herein.
9 THIRD AFFIRMATIVE DEFENSE
10 (Waiver and Ratification)
11 3. As a third and separate affirmative defense, Defendant alleges on
12 information and belief that Plaintiff's actions and omissions constitute a waiver of
13 whatever rights it may have had, if any, to the relief demanded in its Complaint, and that it
14 has by its actions ratified the status quo.
15 FOURTH AFFIRMATIVE DEFENSE
16 (Unclean Hands)
17 4. As a fourth and separate affirmative defense, Defendant alleges on
18 information and belief that Plaintiff's claims against Defendant are barred by the doctrine
19 of unclean hands.
20 FIFTH AFFIRMATIVE DEFENSE
21 (Estoppel)
22 5. As a fifth and separate affirmative defense, Defendant alleges on information
23 and belief that Plaintiff's own conduct estops it from seeking the relief demanded in its
24 Complaint.
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LAW OFFICES
Allen Matkins Leck Gamble
Mallory & Natsis LLP -2-
827977.01/WLA ANSWER TO COMPLAINT
1 SIXTH AFFIRMATIVE DEFENSE
2 (Statute of Frauds)
3 6. As a sixth and separate affirmative defense, Defendant alleges on
4 information and belief that the contract claims alleged in the Complaint are barred by the
5 Statute of Frauds.
6 SEVENTH AFFIRMATIVE DEFENSE
7 (Failure to Do Equity)
8 7. As a seventh and separate affirmative defense, Defendant alleges on
9 information and belief that Plaintiff is not entitled to equitable relief because Plaintiff has
10 failed to do equity.
11 EIGHTH AFFIRMATIVE DEFENSE
12 (Contract)
13 8. As an eight and separate affirmative defense, Defendant alleges that
14 Plaintiff’s claims are barred by the express terms of the lease, including but not limited to,
15 Article 6 (Services and Utilities), Article 11 (Damage and Destruction), Article 19.5.2
16 (Abatement of Rent), and Article 29.16 (Force Majeure).
17 NINTH AFFIRMATIVE DEFENSE
18 (Civil Code 1511(1))
19 9. As a ninth and separate affirmative defense, Defendant alleges that Plaintiff
20 is not entitled to the protections of Civil Code section 1511(1) as Plaintiff and Defendant
21 do not have a creditor-debtor relationship.
22 TENTH AFFIRMATIVE DEFENSE
23 (SFDPH Health Order No. C19-07 et seq. – Minimum Business Operations)
24 10. As a tenth and separate affirmative defense, Defendant alleges that to the
25 extent Plaintiff’s claims are based upon the San Francisco Department of Public Health
26 Order No. C19-07 et seq. (“SF Stay-At-Home Order”) and the requirements thereunder
27 relating to access to and/or use of premises by “Non-Essential Businesses,” such claims
28 fail because the SF Stay-At-Home Order does not prohibit Plaintiff’s access to and/or use
LAW OFFICES
Allen Matkins Leck Gamble
Mallory & Natsis LLP -3-
827977.01/WLA ANSWER TO COMPLAINT
1 of the subject premises for “Minimum Basic Operations,” as defined in the SF Stay-At-
2 Home Order.
3 ELEVENTH AFFIRMATIVE DEFENSE
4 (SFDPH Health Order No. C19-07 et seq. – Essential Business)
5 11. As an eleventh and separate affirmative defense, Defendant alleges that to
6 the extent Plaintiff’s claims are based upon the SF Stay-At-Home Order and the
7 requirements thereunder relating to access to and/or use of premises by “Non-Essential
8 Businesses,” such claims fail because the SF Stay-At-Home Order does not prohibit access
9 to and/or use of premises by “Essential Businesses,” and Plaintiff, either in whole or in
10 part, qualifies as an “Essential Business,” as defined in the SF Stay-At-Home Order.
11 TWELFTH AFFIRMATIVE DEFENSE
12 (SFDPH Health Order No. C19-07 et seq. – Suspension of Restrictions)
13 12. As a twelfth and separate affirmative defense, Defendant alleges that to the
14 extent Plaintiff’s claims are based upon the SF Stay-At-Home Order and the requirements
15 thereunder relating to access to and/or use of premises by “Non-Essential Businesses,”
16 such claims fail with respect to any period during which any such restrictions applicable to
17 the subject premises was suspended, either in whole or in part.
18 RESERVATION OF RIGHT TO ASSERT
19 ADDITIONAL AFFIRMATIVE DEFENSES
20 Defendant alleges that it presently has insufficient knowledge or information upon
21 which to form a belief as to whether it has additional, yet unstated, affirmative defenses.
22 Accordingly, Defendant expressly reserves the right to assert additional affirmative
23 defenses in the event that discovery indicates that additional affirmative defenses are
24 appropriate and available to Defendant.
25 PRAYER
26 WHEREFORE, Defendant prays for a judgment by the Court as follows:
27 1. That Plaintiff takes nothing by its Complaint herein;
28 2. That Defendant be awarded its cost of suit;
LAW OFFICES
Allen Matkins Leck Gamble
Mallory & Natsis LLP -4-
827977.01/WLA ANSWER TO COMPLAINT
1 3. That Defendant be awarded reasonable attorneys' fees according to proof to
2 the extent available by law; and
3 4. For such other and further relief as this Court deems just and proper.
4
5 Dated: January 19, 2021 ALLEN MATKINS LECK GAMBLE
MALLORY & NATSIS LLP
6 TODD E. WHITMAN
7
By:
8 TODD E. WHITMAN
Attorneys for Defendant
9 THREE EMBARCADERO CENTER
VENTURE
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LAW OFFICES
Allen Matkins Leck Gamble
Mallory & Natsis LLP -5-
827977.01/WLA ANSWER TO COMPLAINT
1 PROOF OF SERVICE
2 Crowell & Moring LLP v. Three Embarcadero Center Venture
San Francisco Superior Court Case No. CGC-20-588088
3
I am employed in the County of Los Angeles, State of California. I am over the age
4 of eighteen (18) and am not a party to this action. My business address is 1901 Avenue of
the Stars, Suite 1800, Los Angeles, California 90067-6019.
5
On January 19, 2021, I served the within document(s) described as:
6
ANSWER TO COMPLAINT
7
on the interested parties in this action as stated below:
8
Gregory D. Call, Esq. Counsel for Plaintiff
9 A. Marisa Chun, Esq. Crowell & Moring LLP
Ryan Merker, Esq.
10 Crowell & Moring LLP
3 Embarcadero Center, 26th Floor
11 San Francisco, CA 94111
Telephone: (415) 986-2800
12 Facsimile; (415) 986-2827
E-Mail: cgall@crowell.com
13 mchun@crowell.com
rmerker@crowell.com
14
15 BY E-MAIL OR ELECTRONIC TRANSMISSION: Pursuant to California
Superior Courts Emergency Rule 12, or agreement of the parties to accept service
16 by e-mail or electronic transmission, I caused a true copy of the document to be sent
to the persons at the corresponding electronic address as indicated above on the
17 above-mentioned date. My electronic notification address is
fzaidi@allenmatkins.com. I am readily familiar with this firm’s Microsoft Outlook
18 electronic mail system and did not receive any electronic message or other
indication that the transmission was unsuccessful.
19
BY MAIL: I placed a true copy of the document in a sealed envelope or package
20 addressed as indicated above on the above-mentioned date in Los Angeles,
California for collection and mailing pursuant to the firm's ordinary business
21 practice. I am familiar with the firm's practice of collection and processing
correspondence for mailing. Under that practice it would be deposited with the U.S.
22 Postal Service on that same day in the ordinary course of business. I am aware that
on motion of party served, service is presumed invalid if postal cancellation date or
23 postage meter date is more than one day after date of deposit for mailing in
affidavit.
24
I declare under penalty of perjury under the laws of the State of California that the
25 foregoing is true and correct. Executed on January 19, 2021, at Los Angeles, California.
26 Farida A. Zaidi
(Type or print name) (Signature of Declarant)
27
28
LAW OFFICES
Allen Matkins Leck Gamble
Mallory & Natsis LLP -6-
827977.01/WLA ANSWER TO COMPLAINT
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1 ALLEN MATKINS LECK GAMBLE MALLORY & NATSIS LLP 2 TODD E. WHITMAN (BAR NO. 173878) 1901 Avenue of the Stars, Suite 1800 ELECTRONICALLY 3 Los Angeles, California 90067-6019 FILED Phone: (310) 788-2400 Superior Court of California, 4 Fax: (310) 788-2410 County of San Francisco E-Mail: twhitman@allenmatkins.com 01/19/2021 5 Clerk of the Court Attorneys for Defendant BY: EDWARD SANTOS 6 THREE EMBARCADERO CENTER VENTURE Deputy Clerk 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 FOR THE COUNTY OF SAN FRANCISCO 10 11 CROWELL & MORING LLP. a District of Case No. CGC-20-588088 Columbia Limited Liability Partnership, 12 ANSWER TO COMPLAINT Plaintiff, 13 vs. Complaint Filed: 12/02/2020 14 Trial Date: None Set THREE EMBARCADERO CENTER 15 VENTURE, a California General Partnership, 16 Defendants. 17 18 Defendant Three Embarcadero Center Venture (“Defendant”), for itself and for no 19 other defendants, answers the Complaint and admits, denies and alleges as follows: 20 GENERAL DENIAL 21 Pursuant to the provisions of California Code of Civil Procedure Section 431.30, 22 Defendant denies each and every allegation of Plaintiff's unverified Complaint, and 23 specifically denies that Defendant has damaged Plaintiff in any way. 24 25 FIRST AFFIRMATIVE DEFENSE 26 (Failure to State a Cause of Action) 27 1. As a first and separate affirmative defense, Defendant alleges, on 28 information and belief, that the causes of action alleged in the Complaint fail to state facts LAW OFFICES Allen Matkins Leck Gamble Mallory & Natsis LLP 827977.01/WLA ANSWER TO COMPLAINT 1 sufficient to constitute a cause of action or causes of action upon which relief may be 2 granted against the Defendant and, by reason thereof, Plaintiff is barred from recovery 3 herein. 4 SECOND AFFIRMATIVE DEFENSE 5 (Discharge of Obligation) 6 2. As a second and separate affirmative defense, Defendant alleges that any 7 obligations owed to Plaintiff by Defendant has been satisfied, released or otherwise 8 discharged and, by reason thereof, Plaintiff is barred from recovery herein. 9 THIRD AFFIRMATIVE DEFENSE 10 (Waiver and Ratification) 11 3. As a third and separate affirmative defense, Defendant alleges on 12 information and belief that Plaintiff's actions and omissions constitute a waiver of 13 whatever rights it may have had, if any, to the relief demanded in its Complaint, and that it 14 has by its actions ratified the status quo. 15 FOURTH AFFIRMATIVE DEFENSE 16 (Unclean Hands) 17 4. As a fourth and separate affirmative defense, Defendant alleges on 18 information and belief that Plaintiff's claims against Defendant are barred by the doctrine 19 of unclean hands. 20 FIFTH AFFIRMATIVE DEFENSE 21 (Estoppel) 22 5. As a fifth and separate affirmative defense, Defendant alleges on information 23 and belief that Plaintiff's own conduct estops it from seeking the relief demanded in its 24 Complaint. 25 /// 26 /// 27 /// 28 LAW OFFICES Allen Matkins Leck Gamble Mallory & Natsis LLP -2- 827977.01/WLA ANSWER TO COMPLAINT 1 SIXTH AFFIRMATIVE DEFENSE 2 (Statute of Frauds) 3 6. As a sixth and separate affirmative defense, Defendant alleges on 4 information and belief that the contract claims alleged in the Complaint are barred by the 5 Statute of Frauds. 6 SEVENTH AFFIRMATIVE DEFENSE 7 (Failure to Do Equity) 8 7. As a seventh and separate affirmative defense, Defendant alleges on 9 information and belief that Plaintiff is not entitled to equitable relief because Plaintiff has 10 failed to do equity. 11 EIGHTH AFFIRMATIVE DEFENSE 12 (Contract) 13 8. As an eight and separate affirmative defense, Defendant alleges that 14 Plaintiff’s claims are barred by the express terms of the lease, including but not limited to, 15 Article 6 (Services and Utilities), Article 11 (Damage and Destruction), Article 19.5.2 16 (Abatement of Rent), and Article 29.16 (Force Majeure). 17 NINTH AFFIRMATIVE DEFENSE 18 (Civil Code 1511(1)) 19 9. As a ninth and separate affirmative defense, Defendant alleges that Plaintiff 20 is not entitled to the protections of Civil Code section 1511(1) as Plaintiff and Defendant 21 do not have a creditor-debtor relationship. 22 TENTH AFFIRMATIVE DEFENSE 23 (SFDPH Health Order No. C19-07 et seq. – Minimum Business Operations) 24 10. As a tenth and separate affirmative defense, Defendant alleges that to the 25 extent Plaintiff’s claims are based upon the San Francisco Department of Public Health 26 Order No. C19-07 et seq. (“SF Stay-At-Home Order”) and the requirements thereunder 27 relating to access to and/or use of premises by “Non-Essential Businesses,” such claims 28 fail because the SF Stay-At-Home Order does not prohibit Plaintiff’s access to and/or use LAW OFFICES Allen Matkins Leck Gamble Mallory & Natsis LLP -3- 827977.01/WLA ANSWER TO COMPLAINT 1 of the subject premises for “Minimum Basic Operations,” as defined in the SF Stay-At- 2 Home Order. 3 ELEVENTH AFFIRMATIVE DEFENSE 4 (SFDPH Health Order No. C19-07 et seq. – Essential Business) 5 11. As an eleventh and separate affirmative defense, Defendant alleges that to 6 the extent Plaintiff’s claims are based upon the SF Stay-At-Home Order and the 7 requirements thereunder relating to access to and/or use of premises by “Non-Essential 8 Businesses,” such claims fail because the SF Stay-At-Home Order does not prohibit access 9 to and/or use of premises by “Essential Businesses,” and Plaintiff, either in whole or in 10 part, qualifies as an “Essential Business,” as defined in the SF Stay-At-Home Order. 11 TWELFTH AFFIRMATIVE DEFENSE 12 (SFDPH Health Order No. C19-07 et seq. – Suspension of Restrictions) 13 12. As a twelfth and separate affirmative defense, Defendant alleges that to the 14 extent Plaintiff’s claims are based upon the SF Stay-At-Home Order and the requirements 15 thereunder relating to access to and/or use of premises by “Non-Essential Businesses,” 16 such claims fail with respect to any period during which any such restrictions applicable to 17 the subject premises was suspended, either in whole or in part. 18 RESERVATION OF RIGHT TO ASSERT 19 ADDITIONAL AFFIRMATIVE DEFENSES 20 Defendant alleges that it presently has insufficient knowledge or information upon 21 which to form a belief as to whether it has additional, yet unstated, affirmative defenses. 22 Accordingly, Defendant expressly reserves the right to assert additional affirmative 23 defenses in the event that discovery indicates that additional affirmative defenses are 24 appropriate and available to Defendant. 25 PRAYER 26 WHEREFORE, Defendant prays for a judgment by the Court as follows: 27 1. That Plaintiff takes nothing by its Complaint herein; 28 2. That Defendant be awarded its cost of suit; LAW OFFICES Allen Matkins Leck Gamble Mallory & Natsis LLP -4- 827977.01/WLA ANSWER TO COMPLAINT 1 3. That Defendant be awarded reasonable attorneys' fees according to proof to 2 the extent available by law; and 3 4. For such other and further relief as this Court deems just and proper. 4 5 Dated: January 19, 2021 ALLEN MATKINS LECK GAMBLE MALLORY & NATSIS LLP 6 TODD E. WHITMAN 7 By: 8 TODD E. WHITMAN Attorneys for Defendant 9 THREE EMBARCADERO CENTER VENTURE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 LAW OFFICES Allen Matkins Leck Gamble Mallory & Natsis LLP -5- 827977.01/WLA ANSWER TO COMPLAINT 1 PROOF OF SERVICE 2 Crowell & Moring LLP v. Three Embarcadero Center Venture San Francisco Superior Court Case No. CGC-20-588088 3 I am employed in the County of Los Angeles, State of California. I am over the age 4 of eighteen (18) and am not a party to this action. My business address is 1901 Avenue of the Stars, Suite 1800, Los Angeles, California 90067-6019. 5 On January 19, 2021, I served the within document(s) described as: 6 ANSWER TO COMPLAINT 7 on the interested parties in this action as stated below: 8 Gregory D. Call, Esq. Counsel for Plaintiff 9 A. Marisa Chun, Esq. Crowell & Moring LLP Ryan Merker, Esq. 10 Crowell & Moring LLP 3 Embarcadero Center, 26th Floor 11 San Francisco, CA 94111 Telephone: (415) 986-2800 12 Facsimile; (415) 986-2827 E-Mail: cgall@crowell.com 13 mchun@crowell.com rmerker@crowell.com 14 15 BY E-MAIL OR ELECTRONIC TRANSMISSION: Pursuant to California Superior Courts Emergency Rule 12, or agreement of the parties to accept service 16 by e-mail or electronic transmission, I caused a true copy of the document to be sent to the persons at the corresponding electronic address as indicated above on the 17 above-mentioned date. My electronic notification address is fzaidi@allenmatkins.com. I am readily familiar with this firm’s Microsoft Outlook 18 electronic mail system and did not receive any electronic message or other indication that the transmission was unsuccessful. 19 BY MAIL: I placed a true copy of the document in a sealed envelope or package 20 addressed as indicated above on the above-mentioned date in Los Angeles, California for collection and mailing pursuant to the firm's ordinary business 21 practice. I am familiar with the firm's practice of collection and processing correspondence for mailing. Under that practice it would be deposited with the U.S. 22 Postal Service on that same day in the ordinary course of business. I am aware that on motion of party served, service is presumed invalid if postal cancellation date or 23 postage meter date is more than one day after date of deposit for mailing in affidavit. 24 I declare under penalty of perjury under the laws of the State of California that the 25 foregoing is true and correct. Executed on January 19, 2021, at Los Angeles, California. 26 Farida A. Zaidi (Type or print name) (Signature of Declarant) 27 28 LAW OFFICES Allen Matkins Leck Gamble Mallory & Natsis LLP -6- 827977.01/WLA ANSWER TO COMPLAINT