Answer: 2555 PULGAS EPA A CALIFORNIA LIMITED LIABILITY et al VS. SAN FRANCISCO TIFFANY GARDENS A CALIFORNIA LIMITED et al

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SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO

Document Scanning Lead Sheet
Aug-31-2009 11:17 am

Case Number: CGC-06-459175.
Filing Date: Aug-31-2009 11:14

Juke Box: 001 Image: 02602218
ANSWER

.A CALIFORNIA LIMITED LIABILITY et al VS. SAN FRANCISCO TIFFANY GARDENS A CF

001002602218

Instructions:
Please place this sheet on top of the document to be scanned.=

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GEORGE P. ESHOO, ESQ., SBC # 39081
Law Offices Of George P. Eshoo & Associates
702 Marshall Street, Suite 500

Redwood City, CA 94063

Tel: (650) 364-7030 -

Fax: (650) 364-3054

aAttomeys for Defendants
2555 PULGAS EPA, LLC and
29TH AND MISSION, LLC

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IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF SAN FRANCISCO
UNLIMITED JURISDICTION

NABEEL YOUSSEF, individually and doing
business as GOOD FRIKIN CHICKEN

Plaintiff
v

BRIAN MALONEY, et al;

Defendants.

SAN FRANCISCO TIFFANY GARDENS
HOMEOWNERS ASSOCIATION,

Cross-Complaint
v.

TIFFANY GARDENS, A California Limited
Partnership, SAN FRANCISCO TIFFANY
GARDENS, LLC,, et al.

Cross-Defendants

AND RELATED AND CONSOLIDATED
CROSS-ACTIONS

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ANSWER TO CROSS- COMPLAINT BY
DEFENDANTS 2555 PULGAS EPA, LLC & 29TH
& MISSION, LLC

Case No. ‘CGC-06-459175
(Consolidated with Case Nos. CGC-07-
459371 and CGC-07-465139)

ANSWER TO CROSS-COMPLAINT
FOR INDEMNITY AND .
DECLARATORY RELIEF FILED BY
CROSS-COMPLAINANT.SAN
FRNACISCO TIFFANY.GARDENS _—
ROMEOWNERS ASSOCIATION BY

“CROSS-DEFENDANTS 2855 PULGAS
EPA, LLC AND 29™ AND MISSION,
LLC-_

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COMES NOW cross-defendants 2555 PULGAS EPA, LLC and 29TH AND MISSION,
LLC (hereinafter collectively “cross- defendants”), and answering the unverified Cross-Complaint
for Indemnity and Delaratory Relief filed by Cross-Complainant SAN FRANCISCO TIFFANY
GARDENS HOMEOWNERS ASSOCIATION, (hereinafter “Cross-Complaint’) on file herein,
admit, deny and allege as follows:

1. Under the provisions of Section 431.30(d) of the California Code of Civil
Procedure, these answering cross-cross-defendants deny generally and specifically, each and every
allegation of the said Cross-Cross-Complaint, and the whole thereof; further answering the Cross-
Complaint, these answering cross-defendants deny that the plaintiffs, or any of them, were
damaged or injured in the sums alleged, or in any other sums, or at all, by reason of any act or
omission to act on the part of these answering cross-defendants.

FIRST AFFIRMATIVE DEFENSE

2. Asand fora First Affirmative Defense, these answering cross-defendants allege that
neither the Cross-Complaint nor any of its claims for relief states a cause of action against these
cross-defendant.

SECOND AFFIRMATIVE DEFENSE

3.  Asand fora Second Affirmative Defense, these answering cross-defendants allege
that damages, if any, alleged by the Cross-Complainant were due sole and totally to the acts and
omissions of third parties / entities over which this defendant had no control or responsibility.
These answering cross-defendants had no input or involvement into the drafting of the covenants,
conditions and restrictions ("C.C.&.R's) which have allegedly caused the problems, and cross-
defendants can have no liability for the same.

THIRD AFFIRMATIVE DEFENSE
4. Asand for a Fourth Affirmative Defense, these answering cross-defendants allege

that it can only be held liable for its proportional share of any loss suffered by the plaintiff and/or

eross-complainant.

ANSWER TO CROSS- COMPLAINT BY
DEFENDANTS 2555 PULGAS EPA, LLC & 29TH -
& MISSION, LLC_

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FOURTH AFFIRMATIVE DEFENSE
5. Asand fora Fourth Affirmative Defense, these answering cross-defendants allege
that the Cross-Complainant knew and acquiesced in cross-defendants’ actions which proximately
caused and contributed to Cross-Complainant’s alleged injuries and by reason thereof, Cross-
Complainant assumed the risk of injury and its recovery is barred herein.

FIFTH AFFIRMATIVE DEFENSE

6. Asand fora Fifth Affirmative Defense, these answering cross-defendants allege that
cross-complainant failed to mitigate its damages arising from the acts complained of, and the
recovery to which cross-complainant may be entitled should, therefore, be reduced.

SIXTH AFFIRMATIVE DEFENSE

7. Asand fora Sixth Affirmative Defense, these answering cross-defendants allege
that at the times and place alleged in the Cross-Complaint, Cross-Complainant inserted itself into
the controversy by requesting leave to intervene in the action, and any damages that it sustains will
be the result of its own voluntary actions, for which this Cross-Defendant cannot be held
responsible,

SEVENTH AFFIRMATIVE DEFENSE

8. Asand for a Seventh Affirmative Defense, these answering cross-defendants allege
that they are informed and believes that Cross-Complainant, during the course of their activities
described in the Cross-Complaint, and by acts, errors or omissions on its own part, waived any right|
to claim damage or injury allegedly suffered by virtue of any acts or omissions of this answering
defendant.

EIGHTH AFFIRMATIVE DEFENSE

9. Asand for an Eighth Affirmative Defense, these answering cross-defendants allege
that in connection with the matters sued upon in the Cross-Complaint, the Cross-Complainant is
estopped from asserting any of the alleged causes of action.

NINTH AFFIRMATIVE DEFENSE

10. Asand fora Ninth Affirmative Defense, these answering cross-defendants allege that

ANSWER TO CROSS- COMPLAINT BY
DEFENDANTS 2555 PULGAS EPA, LLC & 29TH -
& MISSION, LLC

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in a quiet title action, the complaint/cross-complaint shall include the title of the plaintiff/cross-
complainant as to which a determination is sought and the basis of the title Further, when the title
is based on adverse possession, the complaint shall allege the specific facts constituting the adverse
possession. (Code Civ. Proc. § 761 .020(b); see Stafford v. Ballinger (1962) 199 Cal. App. 2d 289,
18 Cal. Rptr. 568 ). San Francisco Tiffany Gardens Homeowners Association’s Cross-Complaint
which alleges a claim for quiet title does not comply with this requirement and does not include the

title of the Cross-Complainant as to which a determination is sought, nor the basis for the title.

TENTH AFFIRMATIVE DEFENSE

11. Asand fora Tenth Affirmative Defense, these answering cross-defendants allege that]

with respect to a claim for quiet title, Code of Civil Procedure § 761.020 states:

“The complaint shall be verified and shall include all of the following:

(a) A description of the property that is the subject of the action. In the
case of tangible personal property, the description shall include its usual
location. In the case of real property, the description shall include both its legal
description and its street address or common designation, if any.

(b) The title of the plaintiff as to which a determination under this chapter
is sought and the basis of the title. If the title is based upon adverse possession,
the complaint shall allege the specific facts constituting the adverse possession.

(c) The adverse claims to the title of the plaintiff against which a
determination is sought.

(d) The date as of which the determination is sought. If the determination
is sought as of a date other than the date the complaint is filed, the complaint
shall include a statement of the reasons why a determination as of that date is
sought.

(e) A prayer for the determination of the title of the plaintiff against the
adverse claims.”

In this case, the Cross-Complaint is not verified. The Cross-Complaint docs not set forth all of he
parties against whom quict title is being sought, or the basis for Cross-Complainant’s claim. It

does not set forth all of the requirements of Code of Civil Procedure § 761.020. The Cross-

Complaint, or the claim for quiet title, must be stricken.
WHEREFORE, cross-defendants pray for judgment against Cross-Complainant on each
ANSWER TO CROSS- COMPLAINT BY

DEFENDANTS 2585 PULGAS EPA, LLC & 29TH -
& MISSION, LLC-

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and every claim for relief as follows:

1. That Cross-Complainant take nothing by his action.

2. That Cross-Defendants have judgment for costs and expenses of suit incurred herein
and a reasonable attomey fee, if permitted by statute or contract;

3. That cross-defendants be entitled to an off-set for all sums of money paid to the
plaintiff and a judgment apportioning liability, if any, between cross-defendant and others named in
this action.

4. That the Court award such further and other relief as it deems just and proper.

DATED: August 16, 2009

LAW DFFICES OF GEORGE P. ESHOO

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Attorneys fdf Defendant
2555 PULGAS EPA, LLC AND 29TH
AND MISSION, LLC

ANSWER TO CROSS- COMPLAINT BY.
DEFENDANTS 2555 PULGAS EPA, LLC & 29TH -
& MISSION, LLC-FROOF_OF 'SERVICE

Name of Action: NABEEL YOUSSEF vs. BRIAN MALONEY, et al.

SAN FRANCISCO SUPERIOR COURT — CASE NO. CGC-06-459175

I, Sharon Renee Gallagher, declare that I am over the age of eighteen years and not a party to thi
action or proceeding. My business address is 702 Marshal] St, #600, Redwood City, California
94063. On August 17, 2009, I caused the following document(s) to be served:

ANSWER TO CROSS-COMPLAINT FOR INDEMNITY AND DECLARATORY RELIEF
FILED BY CROSS-COMPLAINANT SAN FRANCISCO TIFFANY GARDENS
HOMEOWNERS ASSOCIATION BY CROSS-DEFENDANTS 2555 PULGAS EPA, LLC
AND 29™ AND ISSION, LLC

_X__by placing a true copy of the document(s) listed above, enclosed in a sealed envelope,
addressed as set forth below, for collection and mailing on the date and at the business address
shown above following our ordinary business practices. I am readily familiar with this business’
practice for collection and processing of correspondence for

mailing with the United States Postal Service. On the same day that a sealed envelope

is placed for collection and mailing, it is deposited in the ordinary course of business

with the United States postal Service with postage fully prepaid.

by having a true copy of the document(s) listed above transmitted by facsimile to the
person(s) at the facsimile number(s) set forth below before 4:00p.m. The transmission
was reported as complete without error by a report issued by the transmitting facsimile
machine.

by having personally delivered a true copy of the document(s) listed above, enclosed in
a sealed envelope, to the person(s) and at the address(es) set forth below,

by placing a true copy of the document(s) listed above, in a box or other facility
regularly maintained by Federal Express, an express service carrier, or delivered to a
courier or driver authorized by the express service carrier to receive documents, in an
envelope designated by the express service carrier, with delivery fees paid or provided
for, addressed as sct forth below.
SEE ATTACHED LIST

I declare under penalty of perjury that the foregoing is true and correct. Executed this
17th day of August, 2009 at Redwood City, California.

Sharon Renee Gallagher

Proof

a ET TTLT TTT © AT HTZachary Smith, Esq.

Valerian, Patterson, et al.

1650 Harbor Bay Parkway, #100
Alameda, CA 94502

Tel: (510) 521-0612

Email: Zachary-smith@farmersinsurance.com

Fax: ($10) 337-0125

Allan Schwartz, Esq.

Law Offices of Allan Schwartz
§50 California St., Suite 700
San Francisco, CA 94104
Tel: 415-956-0712

Email: allo7@aol.com

John F, Van De Poel,Esq.

Jennifer R. Thoams, Esq.

VAN DE POEL, LEVY & ALLEN, LLP
1600 South Main Plaza, Suite 325
Walnut Creek, CA 94596

Tel: 925-934-6102

Email: jvandepoel@vanlevylaw.com
Email: jthomas@vanlevylaw.com

Denis Francis Shanagher, Esq.

Luce, Forward, Hamilton & Scripps, LLP
121 Spear Street, #200

San Francisco, CA 94105

Tete: (415) 356-4600

Honorable William L. Bettinelli
JAMS.

Two Embarcadero Center, #1500
San Francisco, CA 94111

Lucas Jerome Otona, Esq.

Selman Breitmann LLP

33 New Montgomery St,, 6” Floor
San Francisco, Ca 94105

Telephone (415) 979-0400

Email: Lolona@seimanbreitman.com

~

Daniel L. Rottinghaus, Esq.

Paul W Windust, Esq.

Andrew M. Baugh, Esq.

Berding & Weit

3240 Stone Valley Road West, Suite 202
Alamo, CA 94507

Tel: (925) 838-2090

Email: dir@berding-weil.com

Elizabeth Ekhardt, Esq.

SIDEMAN & BANCROFT LLP

One Embarcadero Center, 8" Floor
San Francisco, CA 94104

Tel: 415-733-3930

Email: eerhardt@sideman.com

Lucas J. Olona, Esq.
Boornazian, Jensen & Garthe
5S5 12" Street, Suite 1800
Oakland, CA 94607

Tel: 510-834-4350

Email: aswerdlow@bjg.com

Ayhan M. Menekshe, Esq.
Menekshe Cardwell & Ruiz
16275 Los Gatos Blvd.

Los Gatos, Ca 95032

Tel: (408) 358-1200

Fax (408) 358-1205

Alan £, Swerdlow
Boornaztan, Jensen & Garthe
” Street, Suite 1800

P.O. Box 12925

Oakland, CA 94604

John W. Busby Il, Esq.

251 Lafayette Circle, Suite 350
Lafayette, CA 94549

Tel: (925) 299-9600

Fax: (925) 299-9608

cee REE FLEES FOES D 2 IIDion C. Cominos, Esq.
George K.Millionis, Esq.
Gordon & Rees, LLP
Embarcadero Center West
275 Battery St., 20" Floor
San Francisco, CA 941211
Telephone: (415) 986-5900
Facsimile: (415) 986-8054

James J. Keenan, Jr. Esq.

Law offices of James J. Keenan, sr.
535 Main St., Third Floor
Martinez, CA 94553

Telephone: (925) 335-9561
Facsimile: (925) 335-9570

C

Andrea S. Viswveshwara
Andrew J. Schultz

199 Tiffany Avenue, #203

San Francisco, Ca 94110
Telephone (415) 407-8416
Facsimile: (510) 339-9204
Email: andrewvish@gmail.com
Email: aschultz203@gmail.com

Janet Everson, Esq.

Murphy Pearson Bradley & Feeney
88 Kearny Street, Suite 1000

San Francisco, CA 94108
Telephone: (415) 788-1900

a CT PTS SRT