Answer: BEACON RESIDENTIAL COMMUNITY ASSOCIATION VS. CATELLUS THIRD AND KING LLC et al

• 
• 
• 
• 
• 
• 
• 
• 

						
                                
Preview
                                IONE

SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO

Document Scanning Lead Sheet
Oct-27-2011 2:52 pm

Case Number: CGC-08-478453
Filing Date: Oct-27-2011 2:51
Juke Box: 001 Image: 03365854
ANSWER

;EACON RESIDENTIAL COMMUNITY ASSOCIATION VS. CATELLUS THIRD AND KING LL

Instructions:

001003365854

Please place this sheet on top of the document to be scanned.KEVIN P. McCARTHY, BAR NO. 144227
McCARTHY & McCARTHY

The Arlington Building

492 Ninth Street, Suite 220

Oakland, CA 94607

Tel: (510) 839-8100

Fax: (510) 839-8108

Attomeys for Defendant
WINDOW SOLUTIONS, INC. (sued herein as DOE 50)

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF SAN FRANCISCO

BEACON RESIDENTIAL COMMUNITY ) Case No.: CGC 08-478453
ASSOCIATION, )
) DEFENDANT WINDOW SOLUTIONS,

Plaintiff, ) INC.’S ANSWER TO PLAINTIFF’S THIRD
y. ) AMENDED COMPLAINT
CATELLIUS THIRD AND KING, LLC, et al. }
Defendants. }
) BY FAX

COMES NOW, Defendant WINDOW SOLUTIONS, INC. (sued herein as DOE 50),
(answering defendant") in answer to the THIRD AMENDED COMPLAINT (“Complaint”) of
Plaintiff on file herein, as follows:

This answering defendant denies, generally and specifically, each and every, all and
singular, the allegations of the Complaint on file herein, and further denies plaintiff has been injured
or damaged in any of the sums mentioned in the Complaint.

AS A FIRST, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT, and
each alleged cause of action thereof, this answering defendant alleges that said Complaint, and each
alleged cause of action thereof, fails to state facts sufficient to constitute a cause of action against

this answering defendant.

le

DEFENDANT WINDOW SOLUTIONS, ING.’S ANSWER TO PLAINTIFF'S THIRD AMENDED COMPLAINT~~
i

3

AS A SECOND, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT,
and each alleged cause of action thereof, this answering defendant alleges that the plaintiff was itself
careless and negligent in and about the matters alleged in the Complaint, and that said carelessness
and negligence on the plaintifi’s own part proximately contributed to the happening of the loss and
damages complained of, if any there were. Under the doctrine of comparative negligence, plaintiff's
comparative negligence shall reduce any and all damages sustained by said plaintiff.

AS A THIRD, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT, and
each alleged cause of action thereof, this answering defendant alleges that said damages sustained
by plaintiff was either fully or in part the fault of others, whether that fault be the proximate result of
negligence, breach of warranty, breach of contract or any other type of fault caused by persons,
firms, corporations or entities other than this answering defendant, and that said negligence or fault
comparatively reduces the percentage or fault of negligence, if any, by this answering defendant.

AS A FOURTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT,
and each alleged cause of action thereof, this answering defendant alleges that the plaintiff failed to
meet and perform all necessary covenants, conditions and promises required by it to be performed in
accordance with the terms and conditions of any alleged written or implied warranty.

AS A FIFTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT, and
each alleged cause of action thereof, this answering defendant alleges that the Complaint and each
alleged cause of action thereof, fails to state facts sufficient to constitute a cause of action in that
said Complaint, and each alleged cause of action thereof, is barred by the statute of limitations stated
in Part 2, Title 2, Chapter 3 of the California Code of Civil Procedure, beginning with Section 335
and continuing through Section 349.4 and, more particularly, but not limited to, Sections 337, 337.1,
337.15, 337.5, 338, 339, 340 and 343.

AS A SIXTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT, and
each alleged cause of action thereof, this answering defendant alleges that the plaintiff unreasonably

delayed in bringing this action against defendant and that such delay prejudiced this defendant, and

2s

DEFENDANT WINDOW SOLUTIONS, INC.’S ANSWER TO PLAINTIFF’S THIRD AMENDED COMPLAINTtherefore, this action against this defendant is barred by the Doctrine of Laches.

AS A SEVENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT,
and each alleged cause of action thereof, this answering defendant alleges that the acts or omissions
complained of in the Complaint by this defendant were consented to by complainant, and therefore
plaintiff cannot complain of the damages alleged in the Complaint.

AS AN EIGHTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT,
and each alleged cause of action thereof, this answering defendant is informed and believes and
thereon alleges that complainant's willful appreciation of the particular conditions involved,
nevertheless knowingly and voluntarily assumed the risks and hazards of the conditions complained
of and the damages, if any, resulting therefrom.

AS A NINTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT, and
each alleged cause of action thereof, this answering defendant alleges that plaintiff failed to mitigate
its damages.

AS A TENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT, and
each alleged cause of action thereof, this answering defendant alleges that plaintiff is equitably
estopped from asserting the claims set forth in its Complaint by reason of its own acts and
omissions.

AS AN ELEVENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE
COMPLAINT, and each alleged cause of action thereof, this answering defendant alleges that
plaintiff failed to give timely notice of any alleged breach of warranty or contract, expressed or
implied.

AS A TWELFTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT,
and each alleged cause of action thereof, this answering defendant alleges that plaintiff was actively
negligent in and about the matters alleged in the Complaint, and is thereby barred from any
recovery.

ttf

ae

DEFENDANT WINDOW SOLUTIONS, INC.’S ANSWER TO PLAINTIFF'S THIRD AMENDED COMPLAINTAS A THIRTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE
COMPLAINT, and each alleged cause of action thereof, this answering defendant alleges that the
sole and/or proximate cause of the alleged damage is due to the conduct of other persons and other
parties for whose conduct this answering defendant is not responsible; including, but not limited to
plaintiff, and this answering defendant requests that the conduct of all other parties and persons be
compared and apportioned under the theory of AMA v. Superior Court of Los Angeles.

AS A FOURTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE
COMPLAINT, and each alleged cause of action thereof, this answering defendant alleges that the
actions of the plaintiff prevented this defendant from performing in any way, and released this
defendant from any duty or liability to complainant. Should any breach of duty have occurred on
the part of this defendant, said breach was waived by the conduct and actions of plaintiff.

AS A FIFTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE
COMPLAINT, and each alleged cause of action thereof, this answering defendant alleges that
plaintiff is barred from any recovery against defendant because plaintiff was not in contractual
privity to recover for any implied or expressed warranty.

AS A SIXTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE
COMPLAINT, and each alleged cause of action thereof, this answering defendant alleges that the
agreement referred to herein is unenforceable as violative of the statute of frauds in that no writing
exists as to some or all of the provisions alleged herein.

AS A SEVENTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE
COMPLAINT, aid each alleged cause of action thereof, this answering defendant is informed and
believes and thereon alleges that plaintiff was guilty of willful misconduct in and about the matters
complained of, and that the aforesaid misconduct on plaintiff's part proximately contributed to the
happenings alleged and the damages, if any, sustained herein,

AS AN EIGHTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE

COMPLAINT, and each alleged cause of action thereof, this answering defendant alleges that with

ohe

DEFENDANT WINDOW SOLUTIONS, INC.’S ANSWER TO PLAINTIFF'S THIRD AMENDED COMPLA {NT10

W

respect to the acts, omissions and other conduct complained of by plaintiff, and with respect to the
resulting actions taken, or other actions not taken by plaintiff, there does not exist and/or was not
justifiable reliance by plaintiff.

AS A NINETEENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE
COMPLAINT, and each alleged cause of action thereof, this answering defendant atleges plaintiff
directed, ordered, approved and/or ratified this answering defendant's conduct and plaintiff is
therefore estopped from asserting any claim based thereon.

AS A TWENTIETH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE
COMPLAINT, and each alleged cause of action thereof, this answering defendant alleges that
plaintiff's Complaint is barred by the doctrine of waiver.

AS A TWENTY-FIRST, SEPARATE AND AFFIRMATIVE DEFENSE TO THE
COMPLAINT, and each alleged cause of action thereof, this answering defendant alleges that
plaintiff is barred from recovering damages against this answering defendant by virtue of the
doctrine of estoppel.

AS A TWENTY-SECOND, SEPARATE AND AFFIRMATIVE DEFENSE TO THE
COMPLAINT, and each alleged cause of action thereof, this answering defendant alleges that
plaintiff is barred from recovering damages in that plaintiff's sole and willful misconduct was the
proximate cause of the damages complained of herein.

AS A TWENTY-THIRD, SEPARATE AND AFFIRMATIVE DEFENSE TO THE
COMPLAINT, and each alleged cause of action thereof, this answering defendant alleges that the
product referred to in the Complaint was abused in a manner which was not reasonably foreseeable
and that such abuse proximately contributed to the happening of the incident and to the injuries, loss
and damage complained of, if any there were.

AS A TWENTY-FOURTH, SEPARATE AND AFFIRMATIVE DEFENSE TO. THE
COMPLAINT, and each alleged cause of action thereof, this answering defendant alleges that
plaintiff failed to use the product referred to in the Complaint in the manner it was intended to be

*Se
DEFENDANT WINDOW SOLUTIONS, INC.’S ANSWER TO PLAINTIFEF’S THIRD AMENDED ‘COMPLAINTused and that such misuse proximately contributed to the happening of the incident and the injuries,
joss and damages complained of, if any there were.

WHEREFORE, this answering defendant prays for relief as follows:

lL That plaintiff takes nothing by its Complaint against this answering defendant:
2. For this answering defendant’s reasonable attorneys’ fees;
3. For this answering defendant’s cost of suit; and
4. For such other relief as the Court may deem just and proper.
“
Dated: OctoberZ>, 2011 McCARTHY & McCARTHY, LLP
we a 1p -"

Y

2 oY
ZZ f
UKEVIN P. MeCARTHY
” Attorney for Defendant
WINDOW SOLUTIONS, INC.
{sued herein as DOE 50)

+6
DEFENDANT WINDOW SOLUTIONS, ING’S ANSWER TO PLAINTIFF'S THIRD AMENDED COMPLAINTPROOF OF SERVICE

I DECLARE THAT: I am employed in the County of Alameda, California. 1 am over the
age of eighteen years and not a party to the within entitled cause; my business address is 492 Ninth
Street, Suite 220, Oakland, California 94607,

On October AZ 2011, I served a true copy of the attached:

DEFENDANT WINDOW SOLUTIONS, INC.’S ANSWER TO PLAINTIFF’S THIRD
AMENDED COMPLAINT

on the involved parties in said cause, in the manner indicated as follows.

q BY MAIL: | placed a true copy thereof in a sealed envelope, with postage thereon
fully prepaid for first-class mail, in the designated outgoing mail receptacle at
McCarthy & McCarthy for collection by another employee who is responsible in the
normal course of business, for depositing the stamped envelopes for mailing this
same day in the United States Mail at Oakland, California.

fl BY PERSONAL SERVICE: J placed a true copy thereof in a sealed envelope, and
caused such envelope to be delivered by hand to the addressee(s) noted on the service
list.

[Xx] BY_FACSIMILE: I personally sent to the addressee’s telecopier number indicated
after the address(es) noted on the service list, a true copy of the above-described

document(s) and verified transmission.

Ul BY_EXPRESS MAIL: 1 caused each such envelope to be deposited into a
designated express mail box for pick up on the date of execution of this declaration.

I declare under penalty of perjury that the foregoing js true and correct, and that this
declaration was executed at Oakland, California, on October. £2011.

Carol J. a d

+7

DEFENDANT WINDOW SOLUTIONS, INC.’S ANSWER TO PLAINTIFF’S THIRD AMENDED COMPLAINT~~
~~

SERVICE LIST

Beacon Residential Community Association v. Catellus Third and King LLC
San Francisco County Superior Court No. CGC 08-478453

Attys for Plaintiff

Dan Angius, Esq.
ANGIUS & TERRY
1990 N, California
Boulevard

Suite 950

Walnut Creek, CA 94596
925.939.9933

FAX: 925.939.9934

Attys for Catellus
Development Corporation;
Catellus Commercial
Development Corporation;
Catellus Operating Limited
Partnership; Successor to
Catellus Development
Corporation; Catellus
Third and King, LLC;
ProLogis and Webcor
Construction, Inc. dba
Webcor Builders

David S. Webster, Esq.
Stacey Blank Esq.

WOOD, SMITH, HENNING
& BERMAN, LLP

1401 Willow Pass Road,
Suite 700

Concord, CA 94520
925.356.8200

FAX: 925.356.8250

Attys for Catellus
Development Corporation;
Catellus Commercial
Development Corporation;
Catellus Operating
Limited Partnership;
Successor to Catellus
Development Corporation;
Catellus Third and King,
LLC; ProLogis and
Webcor Construction, Inc.
dba Webcor Builders

John A. Koeppel, Esq.

Todd J. Wenzel, Esq.
ROPERS, MAJESKI,
KOHN & BENTLEY

201 Spear Street, 10" Floor
San Francisco, CA 94105
415.543.4800

FAX: 415.972.6301

Attys for Mission Place,
LLC; Mission Place Mez
Holding, LLC; Mission
Place Mezzanine LLC;
Mission Place Partners,
LLC; Centurion Real
Estate Investors, IV, LLC;
and Centurion Real Estate
Partners

Charles A. Hansen, Esq.
Peter J. Laufenberg, Esq.
WENDEL, ROSEN,
BLACK & DEAN LLP
1111 Broadway, 24" Floor
Oakland, CA 94607
510.834.6600

FAX: 510.834.1928

Attys for Mission Place,

LLC; Mission Place Mez
Holding, LLC; Mission
Place Mezzanine LLC;
Mission Place Partners,
LLC; Centurion Real
Estate Investors, IY, LLC;
and Centurion Real Estate
Partners

Steven M. Cvitanovic, Esq.
Eugenie G. Baumann, Esq.
HAIGHT, BROWN &
BONESTEEL LLP

71 Stevenson St., 20" Floor
San Francisco, CA 94105
415.546.7500

FAX: 415.546.7505

Attys for Skidmore Owings
& Merrill LLP

James P. Castle, Esq.
ROBLES & CASTLES

540 Pacific Ave., 2™ Floor
San Francisco, CA 94133
415.743.9300

LEAX: 415,743,9305

Attys for HKS, Inc.,
individually and dba HKS
Architects, Inc.

Steven H. Schwartz, Esq.
SCHWARTZ & JANZEN,
LLP

12100 Wilshire Blvd., Suite
1125

Los Angeles, CA 90025
310.970.4090

FAX: 310.207.3344

+B

DEFENDANT WINDOW SOLUTIONS, INC.’S ANSWER TO PLAINTIFF'S THIRD AMENDED COMPLAINT