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

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                                WAT OTIAE

SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO

Document Scanning Lead Sheet
Oct-05-2011 11:34 am

Case Number: CGC-08-478453
Filing Date: Sep-30-2011 11:30
Juke Box: 001 Image: 03344937
ANSWER

EACON RESIDENTIAL COMMUNITY ASSOCIATION VS. CATELLUS THIRD AND KING LL

001003344937

Instructions:
Please place this sheet on top of the document to be scanned.CLOUD & OLSEN Spetion Cour of Califomia
ISCOTT B. CLOUD (State Bar No. 142503)

400 Oceangate, Seventh Floor SEP 3 0 2011
Long Beach, CA 90802

Telephone: (562) 901-1102 CLERK OR-THE CQURT
Facsimile; (562) 901-1172 BY: A
Deputy Crank

Attorneys for Defendant,

ThyssenKrupp Elevator Corporation (Erroneously named as “THYSSEN KRUPP ELEVATOR
i

CORPORATION”)

SUPERIOR COURT FOR THE STATE OF CALIFORNIA
FOR THE COUNTY OF SAN FRANCISCO

IBEACON RESIDENTIAL COMMUNITY
ASSOCIATION,

Case No.: CGC-08-478453

THYSSENKRUPP ELEVATOR
Plaintiff, CORPORATION’S ANSWER TO
PLAINTIFF’S THIRD AMENDED
v. COMPLAINT
CATELLUS THIRD AND KING LLC;
ICATELLUS DEVELOPMENT CORPORATION; BY F, AX

CATELLUS COMMERCIAL DEVELOPMENT
CORPORATION; CATELLUS OPERATING
LIMITED PARTNERSHIP; CATELLUS URBAN
DEVELOPMENT CORPORATION; THIRD
AND KING INVESTORS LLC; CATELLUS
URBAN DEVELOPMENT, LLC; SHOOTER &
BUTTS, INC.; CAREFREE TOLAND POOLS,
INC.; CREATIVE MASONRY, INC.; POMA
CORPORATION; VAN-MULDER SHEET
METAL, INC.; BLUE’S ROOFING CO.;
ROOFING CONSTRUCTORS, INC. dba
WESTERN ROOFING SERVICE; WEST
ICOAST PROTECTIVE COATINGS, INC.; F.
RODGERS INSULATION RESIDENTIAL, INC.;
IF. RODGERS CORPORATION; N.V.
IHEATHORN, INC.; ARCHITECTURAL GLASS )
& ALUMINUM CO., INC.; ANNING-JOHNSON )
COMPANY; TRACTEL, INC.; THYSSEN
IKRUPP ELEVATOR CORPORATION; ALLIED )
FIRE PROTECTION; J.W. MC CLENAHAN )
ICO.; CRITCHFIELD MECHANICAL, INC.; )
CUPERTINO ELECTRIC, INC.; WINDOW )
ISOLUTIONS, dba WINDOW SOLUTIONS, INC.,)
and Does 52-200, inclusive,

eee

Defendants.

THYSSENKRUPP ELEVATOR CORPORATION’S ANSWER TO PLAINTIFF'S THIRD AMENDED COMPLAINTCOMES NOW Defendant ThyssenKrupp Elevator Corporation (Erroneously named as
“THYSSEN KRUPP ELEVATOR CORPORATION”) [“ThyssenKrupp”and/or “Defendant”] and
answering Plaintiff's Third Amended Complaint (“Complaint”) alone and not for any other
Defendant herein, hereby alleges as follows:

1. Under the provisions of Section 431.30(d) of the Code of Civil Procedure of the State
lof California, this answering Defendant generally and specifically denies each, every and all of the
allegations contained in said unverified Complaint and the whole thereof, and each and every alleged
cause of action thereof, and particularly denies that Plaintiff sustained any injuries or damages in the
sum or sums alleged, or in any other sum or sums, or at all.

FOR A FIRST, SEPARATE AND DISTINCT AFFIRMATIVE
FEN: REIN, THI. ISWERING DEFENDA\ LL 3

2. The facts alleged in the Complaint failed to state facts sufficient to constitute a cause

; lof action against this answering Defendant.

F D. TE Al ISTINC IRMATIV.
DEFENSE HEREIN, THIS ANSWERING DEFENDANT ALLEGES:

3. Each and every cause of action of the Complaint is barred by the applicable provisions
lof the California Code of Civil Procedure §§ 335.1, 337, 337.1, 337.15, 338, 339, 340, 343 and
California Commercial Code § 2725.

FOR A THIRD, SEPARATE AND DISTINCT AFFIRMATIVE

DEFENSE HEREIN, THIS ANSWERING DEFENDANT ALLEGES:
4. The relief requested herein is barred by the statute of frauds.

FO ‘OURTH, SEPA! AND DISTINCT AFFI TIVE
DEFEN: REIN. s E ALLEGES:
5. Plaintiff is barred and precluded from the relief sought herein as the performance

alleged by Plaintiff herein was excused due to the non-occurrence of a condition precedent to such
performance.

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"THYSSENKRUPP ELEVATOR CORPORATION'S ANSWER TO PLAINTIFF'S THIRD AMENDED COMPLAINTFORA 'H, SEPARATE AND DISTI AFFI TI
DEFE) HEREIN, THIS ANSWERING DEFENDA| LLEGES:

6. Defendant reasonably and justifiably relied upon information furnished by the Plaintiff
and its officers, agents, representatives, and/or by other persons directly employed by them, and
Plaintiff is accordingly barred and precluded from the relief requested herein.

FOR A SIXTH, SEP. TE AND DISTINCT AFFIRMATIVE
D SE HEREIN. IS ANSWERING DEFENDA: EGES:

7. The losses and damages alleged by Plaintiff, the existence of which Defendant herein
expressly denies, were proximately caused by the conduct of persons other than this answering party,
which bars and/or otherwise diminishes Plaintiff's recovery, if any there be, against this answering
Defendant.

‘OR A SEV) PARA’ D DIS’ FFIRM. Vv.
DEFENSE HEREIN, THIS ANSWERING DEFENDANT GES:

8. The losses and damages alleged by Plaintiff, the existence of which Defendant herein
expressly denies, were proximately caused by the intervening and superseding acts of others, which
intervening and superseding acts bar and/or diminish Plaintiff's recovery, if any there be, against this
lanswering Defendant.

FOR AN EIGHTH, SEPARATE AND DISTI FFIRMATIVE
D ISE HEREIN, THIS ANSWERING DEFENDANT ALLEGES:

9. Plaintiff is equitably estopped from recovering damages from this answering
Defendant.

‘OR. iT S' RATE AND DISTINCT AFFI TIVE
DEFENSE HEREIN, THIS ANSWERING DEFENDANT ALLEGES:
10. Plaintiff has waived any and all rights to recover damages from this answering
Defendant.
FOR A TENTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE HEREIN, THIS ANSWERING DEFENDANT. ALLEGES:
11. Defendant is informed and believes and thereon alleges, that the Plaintiff has failed to

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THYSSENKRUPP ELEVATOR CORPORATION'S ANSWER TO PLAINTIFF'S THIRD AMENDED COMPLAINT1 |lmitigate damages, if any, in connection with the matters referred to in the Complaint, which failure

3 ljagainst this answering Defendant.

2 lIto mitigate damages either precludes and/or significantly diminishes Plaintiff's recovery, if any,

4 FOR AN ELEVENTH, SEPARATE AND DISTINCT AFFIRMATIVE
5 FENSE H! IN, THIS Al ERING D) IDANT ALL 3
6 12. This court lacks personal jurisdiction over this answering Defendant.

7 ORAT 'H, SEP. DD) AFFI IVE
8 DEFE) HERE]! 1s ANSW FE) iT G

13. Plaintiff's actions are barred by the Doctrine of Unclean Hands.
FOR A THIRT! SEPAI AND DI: T_AFFI [VE
DEFENSE HEREIN, THIS ANSWERING DEFENDANT ALLEGES:

12 | 14, Any and all damages alleged by Plaintiff are not proximately caused by any acts,

Homissions, or conduct of this answering Defendant.

FOR A FOURTEENTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE HEREIN, THIS ANSWERING DEFENDANT ALLEGES:

15. This answering Defendant is informed and believes, and on such information and

20 amount proportioned to the amount by which such fault of Plaintiff or other third parties contributed
21 |[to the damages alleged.

22 | FO) FIFTE 'H, SEP. TE AND DISTINCT AFFIRMATIV!

23 DEFENSE HEREIN, THI RING DE NT AL 3

16. Each and every cause of action as contained in the Complaint is barred by the doctrine
lof laches in that Plaintiff has unreasonably delayed in asserting the claims contained in this
(Complaint, and said delays have caused prejudice to this answering Defendant.

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THYSSENKRUPP ELEVATOR CORPORATION’S ANSWER TO PLAINTIFF'S THIRD AMENDED COMPLAINTwo ond Dn OH F&F WN PB

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FOR A SIXTEENTH, SEPARATE AND DISTINCT AFFIRMATIVE
E E HERE 1S ANS ING DEFEND. EGES:

17. This answering Defendant alleges on information and belief that due to Plaintiff's
failure to disclose certain material information, Defendant did not have either actual or constructive
notice of the conditions or circumstances, if any, which existed at the times and places mentioned in
the Complaint, in order to have taken any measures to protect against such conditions. Accordingly
Plaintiff is barred and precluded from the relief requested herein.

FOR A SEVENTEENT! PARATE DISTY AFFIRMATIVE
DEFENSE HEREIN, THIS ANSWERING DEFENDANT ALLEGES:

18. Plaintiff consented to the acts allegedly taken by this answering Defendant, thereby
barring them from recovering damages from this answering Defendant.

FOR A EIGHTEENTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE HEREIN, THIS ANSWERING DEFENDANT ALLEGES:

19. This answering Defendant is informed and believes, and on such information and
belief, alleges that any equipment, materials or supplies identified in the Complaint, if any, were sold
“as is” and that all warranties were waived, thereby precluding the relief requested herein.

FOR A NINETEENTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE HEREIN, THIS ANSWERING DEFENDANT ALLEGES:

20. Plaintiff is barred and precluded from the relief requested herein as any performance
by Defendant herein was excused due to the doctrine of impossibility.
FOR A TWENTIETH, SEPARATE AND DISTINCT AFFIRMATIVE
EFE! HEREIN, THIS ANSWERING DE IDANT ALLEGES:
21. Plaintiff is barred and precluded from the relief requested herein as Plaintiff did not
reasonably or justifiably rely on any promise or representation of Defendant herein.
FOR ATW) 'Y-FIRST, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE HEREIN, THIS ANSWERING DEFENDANT ALLEGES:
22. The Complaint fails to state facts sufficient to constitute a cause of action against this

answering Defendant due to the failure of any adequate consideration.

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THYSSENKRUPP ELEVATOR CORPORATION'S ANSWER TO PLAINTIFF'S THIRD AMENDED COMPLAINTan on &® WN H

FOR A TWENTY-SECO) SEPARATE AND DISTINCT AFFIRMATIVE
DE! ISE HEREIN, THIS WERIN FENDANT. GES:

23. Plaintiff is not entitled to the amount sought in the Complaint, or any relief at all, as
the purported agreement, offer, and/or promise alleged in the Complaint is barred by the provisions
lof Civil Code Section 1565, 1568, 1572 and 1573.

FORA ENTY-THIRD, SEPARATE AND DISTINCT AFF! ATIVE
DEFENSE HEREIN, THIS ANSWERING DEFENDANT ALLEGES:

24. Plaintiff is not entitled to the amount sought in the Complaint, or any relief at all due to
the doctrine of mutual and/or unilateral mistake.

R.A TWENTY-FOURTH. RATE AND DISTINCT AFFIRMATIVE
DEFENSE HEREIN, THIS ANSWERING DEFENDANT. ALLEGES:

25. This answering Defendant did not know nor have reason to know the needs and
requirements of Plaintiff as alleged, thereby precluding recovery of the damages alleged.

FORA -FIFTH, SEPARA’ N’ TINCT AFFIRMATIVE
DEFENSE HEREIN, THIS ANSWERING DEFENDANT ALLEGES:

26. Plaintiff is barred and precluded from the relief sought herein due to the doctrine of
commercial frustration of purpose.

FOR A TWENTY-SIXTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEF E HEREIN, THIS ANSWERING DEFENDANT ALLEGES:

27. This answering Defendant denies that by reason of any act or omission, fault, conduct
or liability on the part of this answering Defendant, whether negligent, careless, unlawful or whether
as alleged or otherwise, Plaintiff was damaged in the manner or amounts alleged, or in any other
manner or amount whatsoever; this answering Defendant further denies that it is negligent, careless,
reckless, wanton, acted willfully, or are liable, whether in the manner alleged or otherwise.

FO E H. 'E AND DISTINCT TR! Vv)
DEFENSE HEREIN, THIS ANSWERING DEFENDANT ALLEGES:
28. Damages as are complained of were directly and proximately caused by Plaintiff's own

deliberate actions and/or own negligence, carelessness and recklessness in conducting Plaintiff's own

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THYSSENKRUPP ELEVATOR CORPORATION'S ANSWER TO PLAINTIFF'S THIRD AMENDED COMPLAINTaffairs, if at all, and not the result of any negligence or other conduct on the part of this answering
Defendant and that Plaintiff is thereby barred and precluded from recovery herein.
FOR A TWENTY- 'H, SEPA! AND DISTINCT A! TIVE
DE E HEREIN, THIS ANSWERING ENDANT ALLEGES:

29. This answering Defendant is entitled to a set-off against any amount recovered because
lof Plaintiff's own negligence, and other valid claims of Defendant arising from the incident in
question.

FORA ITY-NINTH, SEPARATE, AND DISTINCT AFFI TIVE
DEFENSE, THIS ANSWERING DEFENDANT ALLEGES:

30. That if Plaintiff sustained any damages, some or all of the damages were the proximate
result of Plaintiff's actions and/or omissions in relation to the matters alleged in the Complaint and
Plaintiff is barred from recovery against this answering Defendant for that portion of injuries and/or
damages which were result of Plaintiff's actions and/or omissions.

FOR A THIRTIETH, SEPARATE, AND. I AFF) [VE
DEFENSE, THIS ANSWERING DEFENDANT ALLEGES:

31. That if the Plaintiff sustained any injuries and/or damages, some or all of the injuries
and/or damages were the proximate result of the actions and/or omissions of others, both named and
not named, in relation to matters alleged in the Complaint and Plaintiff is barred from recovery
against this answering Defendant for that portion of the injuries and/or damages which were the
result of those actions and/or omissions.

FOR A THIRTY-FIRST, SEP, TE, AND DISTINCT AFFIRMATIVE
FENSE, T. ANSWERIN FENDANT. GES:

32. Plaintiff's right to seek any relief in their Complaint herein is barred in whole or in part
by virtue of the acts or omissions of Plaintiff, their agents, servants, employees, attorneys and others
within their control.

IRTY-S IND, SEPA: ‘E, AND DI FFI TIV)
DEFE] THIS ERING D) DANT ALLE 3
33. Plaintiff's right to seek any relief in its Complaint herein is barred by virtue of the fact

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THYSSENKRUPP ELEVATOR CORPORATION'S ANSWER TO PLAINTIFF'S THIRD AMENDED COMPLAINTthat Defendant was not a party to any contractual relationship with Plaintiff whether written, oral or
by way of third party beneficiary.
FOR A THIRTY-THIRD, SEPARATE, AND DISTIN FFIRMATI
DEFENSE, THIS ANSWERING DEFENDANT ALLEGES:

34. If Defendant is held liable to Plaintiff, it will solely be the direct and proximate result
lof the improper use, care, modification, repair, storage and/or maintenance of the product by
Plaintiff, and/or other third party individuals and/or entities, if any, and that Plaintiff is therefore
barred and precluded from the recovery herein.

FOR A THIRTY-FOURTH RAT! ND DISTINCT AFFIRMATIVE

DEFENSE, THIS ANSWERING DEFENDANT ALLEGES:

35. Damages alleged by Plaintiff has been remedied by Defendant pursuant to a
maintenance agreement entered into with this answering Cross-Defendant.

FO) TH -FIFTH SEPA! ND DISTINCT AFFIRMATIVE
DEFENSE, THIS ANSWERING DEFENDANT ALLEGES:

36. Defendant is informed and believes, and thereon alleges, that it did not make any
warranties or guaranties, express, implied, or apparent, upon which Plaintiff may rely herein.

FOR A THIRTY-SIXTH SEPARATE, AND DISTINCT AFFIRMATIVE
DEFENSE, THIS ANSWERING DEFENDANT ALLEGES:

37. Defendant is informed and believes, and thereon alleges, that any warranties or
guaranties, express, implied, or apparent, made by Defendant were excluded orally, in writing, by
course of dealing, by course of performance, by usage of trade, or were limited to exclude the relief
now requested by Plaintiff.

‘OR A THIRTY-SEVE! EPA! D DI AF IVE
DEF! TH ;WERING DEFENDANT ALLEGES:

38. Defendant is informed and believes, and thereon alleges, that Plaintiff's conduct,
including but not limited to the refusal by the Plaintiff to allow Defendant reasonable opportunities to
cure any alleged defects or deficiencies in the subject property, estops and bars Plaintiff from any
claim herein against Defendant.

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THYSSENKRUPP ELEVATOR CORPORATION'S ANSWER TO PLAINTIFF'S THIRD AMENDED COMPLAINTa

FOR A TIPRTY-ELGHTH SEPARATE, AND DISTINCT AFFIRMATIVE

DEFENSE, THIS ANSWERING DEFENDANT ALLEGES:

39, Defendant is informed and believes, and thereon alleges. that the allegations of the
Complaint refer to obligations non-existant, not contracted for, and/or outside of any agreements
between this answering Defendant and Plaintiff, thus barring or diminishing recovery of Plaintiff
herein.

FOR A THIRTY-NINTH SEPARATE, AND DISTINCT AFFIRMATIVE

DEFENSE, THIS ANSWERING DEFENDANT ALLEGES:

40. Defendant is informed and believes, and thereon alleges, that any and all agreements
between this answering Defendant and Plaintiff contain valid and enforceable limits of liability,
Which reduce or bar Plainuf?s recovery.

FOR A FORTIRTH SEPARATE, AND DISTINCT AFFIRMATIVE

DEFENSE, THIS ANSWERING DEFENDANT ALLEGES:

41. Defendant is informed and believes, and thereon alleges. that any and all agreements
between this answering Defendant and Plaintiff preclude recovery of any consequential, special,

and/or contingent damages from this answering Defendant.

WHEREFORE, this answering Delendant prays as follows:

1. That Plaintiff take nothing by reason of their Complaint:

2. That this answering Defendant be awarded judgment in this action:

3. For reasonable attorney's fees incurred herein:

4. For costs of suit incurred herein: and

5. For such other and further relief as the Court may deem just and proper.

DATED: September 30, 2011 CLOUD & OLSEN

SCOTT B. CLOUD
Attorneys for Defendant
ThyssenKrupp Elevator Corporation

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YSSENKRUPP ELEVATOR CORPORATION AWER TO PLAINTIIFS THIRD AMENDED COMPLADPROOF OF SERVICE

STATE OF CALIFORNIA )
) ss.
COUNTY OF LOS ANGELES )

1am employed in the aforesaid county; [am over the age of eighteen years and not a party to
the within entitled action; my business address is: 400 Oceangate, Seventh Floor in Long
Beach, CA 90802.

On September 30, 2011, | served the foregoing document described as:

THYSSENKRUPP ELEVATOR CORPORATION’S ANSWER TO PLAINTIFF'S
THIRD AMENDED COMPLAINT

on all interested parties in this action by placing a true and correct copy thereof, enclosed in a
sealed envelope addressed as follows:

Kenneth Katzoff, Esq.

erry J. Sung Shim, Esq.
LAW OFFICES OF ANN RANKIN KATZOFF & RIGGS
3911 Harrison Street 1500 Park Ave., #300
Oakland, CA 94611 Emeryville. CA 94608
Tel: (510) 653-8886 Te 10) 597-1990
Fax: (510) 653-8889 ax: (510) 597-0895

Attorneys for Plaintiff Beacon Residential Attorneys for Plaintiff Beacon Residential

EK] (BY MAIL) I placed a true copy in a sealed envelope addressed as indicated above.

on the above-mentioned date. | am familiar with the firm’s practice of collection
and processing correspondence for mailing. It is deposited with the U.S. Postal
Service on that same day in the ordinary course of business. | am aware that on
motion of party served, service is presumed invalid if postal cancellation date or
postage meter date is more than one day after date of deposit for mailing in
affidavit.

(BY OVERNIGHT NENT DAY DELIVERY) On the above-mentioned date, |
4 placed a true copy of the above-mentioned document(s) in a sealed envelope or
package to be delivered via overnight delivery to the party(ies) listed above.

(BY FACSIMILE) From facsimile number (562) 901-1172, I caused each such
document to be transmitted by facsimile machine. to the parties and numbers
indicated above, pursuant to Rule 2008. The facsimile machine | used complied
with California Rules of Court, Rule 2003(3) and no error was reported by the
machine. Pursuant to Rule 2008(e)(4), I caused the machine to print a transaction
record of the transmission, a copy of which is attached to the original of this
declaration.

Executed on September 12, 2011 at Long Beach, California.

X_ (State) I declare under penalty of perjury ander the laws of the State of California
that the above is true and correct. S