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

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SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO

Document Scanning Lead Sheet

Jul-11-2011 9:45 am

Case Number: CGC-08-478453
Filing Date: Jul-11-2011 9:44
Juke Box: 001 Image: 03265014
ANSWER

‘EACON RESIDENTIAL COMMUNITY ASSOCIATION VS. CATELLUS THIRD AND K

001003265014

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

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Christian P. Lucia, Esq. (SBN - 203567)
Denae M. Olivieri, Esq. (SBN - 209130)

SELLAR HAZARD MANNING FICENEC & LUCIA

A Professional Law Corporation
1800 Sutter Street, Suite 460

Concord, CA 94520 Oe, "Loy,
Telephone: (925) 938-1430 AY
Facsimile: (925) 256-7508 aU,
Email: clucia@sellarlaw.com; dolivieri@sellarlaw.com Ry
Attorneys for:

N.V. Heathor, Inc.

SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO

Beacon Residential Community Association,
Plaintiff,
v

Catellus Third and King LLC; Catellus
Developement Corporation; Catellus Commerical
Developement Corporation; Catellus Operating
Limited Partnership; Catellus Urban Developement
Corporation; Third and King Investors LLC;
Catellus Urban Developement Group, LLC, a
Delaware limited liability company; 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 Coast Protective Coatings, Inc.; F, Rodgers
Insulation Residential, Inc.; F, Rodgers
Corporation; N.V. Heathorn, Inc.; Architectural
Glass & Aluminum Co., Inc.; Anning-Johnson
Company; Tractel, Inc.; Thyssen Krupp Elevator
Corporation; Allied Fire Protection; J.W.
McClenahan Co.; Critchfield Mechanical, Inc.;
Cupertino Electric, Inc.; Window Solutions dba
Window Solutions, Inc. and Does 52-200, inclusive,

Defendants

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Case No.: CGC08-478453
N.V. HEATHORN, INC.’S ANSWER TO

PLAINTIFF'S THIRD AMENDED
COMPLAINT

BY FAX

N.Y. HEATHORN, INC.’S ANSWER TO PLAINTIFF’S THIRD AMENDED COMPLAINT

88346.doc

Case No, CGC08-478453vw RF BW N +

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Defendant N.V. HEATHORN, INC. (hereinafter referred to as "this answering Defendant"),
answering for itself alone, hereby answers the Third Amended Complaint of Plaintiff, BEACON
RESIDENTIAL COMMUNITY ASSOCIATION (hereinafter referred to as “Plaintiff”, as follows:

GENERAL DENIAL

Pursuant to the provisions of Code of Civil Procedure section 431.30, this answering Defendant
denies generally and specifically each and every allegation contained in each cause of action of the
Complaint and further denies that Plaintiff has been damaged in any sums whatsoever, or at all,

FIRST AFFIRMATIVE DEFENSE

1. The Complaint in its entirety and each and every cause of action therein, fails to state
facts sufficient to constitute a cause of action against this answering Defendant.

SECOND AFFIRMATIVE DEFENSE

2. As a further and separate affirmative defense to the Complaint, this answering
Defendant alleges that any damage or injury allegedly suffered by Plaintiff was proximately caused or
contributed to by the negligence or fault of Plaintiff's agents, representatives and/or employees and
this answering Defendant is informed and believes and thereon alleges that said party was careless and
negligent. Thus, if Plaintiff is entitled to recover at all for any damages alleged, such recovery must be
diminished to the extent that said damages are attributable to the negligence of Plaintiff's agents,
representatives and/or employees.

THIRD AFFIRMATIVE DEFENSE

3. As a farther and separate affirmative defense to the Complaint, this answering
Defendant alleges that any injuries and damages suffered by Plaintiff, other parties, or any of them,
was caused or contributed to by the negligence or fault of persons or entities other than this answering
Defendant, thereby entitling this answering Defendant to an appropriate pro-ration of damages in
accordance with the provisions of the law applicable thereto.
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N.V. HEATHORN, INC.'S ANSWER TO PLAINTIFF’S THIRD AMENDED COMPLAINT
$8346.doc Case No. CGC08-478453ow YN A HA FF YW DN

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FOURTH AFFIRMATIVE DEFENSE
4, As a further and separate affirmative defense to the Complaint, this answering
Defendant alleges that the injuries and damages alleged and for which Plaintiff seeks recovery were
the result of causes independent of any purported acts or omissions on the part of this answering
Defendant, thereby eliminating or reducing the alleged liability of this answering Defendant.
FIFTH AFFIRMATIVE DEFENSE

5, As a further and separate affirmative defense to the Complaint, this answering
Defendant alleges that any and all of the injuries and damages asserted by Plaintiff were caused or
contributed to, in whole or in part, by the negligence or fault of Plaintiff or others, and said acts and
omissions entitle this answering Defendant to contribution from said individuals and entities, and each
of them.

SIXTH AFFIRMATIVE DEFENSE

6. As a further and separate affirmative defense to the Complaint, this answering
Defendant alleges that if this answering Defendant is found to have been negligent or liable in any
manner, such conduct was passive and secondary, while the negligence of Plaintiff or others were
active and primary, and such conduct bars, in whole or in part, the recovery requested or any recovery
at all, against this answering Defendant.

SEVENTH AFFIRMATIVE DEFENSE

7. As a further and separate affirmative defense to the Complaint, this answering
Defendant alleges that the negligence of Plaintiff or other parties or entities constitutes an intervening
and superseding cause of injuries and damages, if any, thereby barring or reducing Plaintiff's recovery
herein.

EIGHTH AFFIRMATIVE DEFENSE

8 As a further and separate affirmative defense to the Complaint, this answering
Defendant alleges that the Complaint on file herein is barred in whole or in part by reason of Plaintiff's
inequitable conduct and/or unclean hands, and the court should not give Plaintiff relief based upon the

facts alleged.

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N,V. HEATHORN, INC.’S ANSWER TO PLAINTIFF'S THIRD AMENDED COMPLAINT
88346.doc Case No. CGC08-478453Oo we a DO A B YW YM

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NINTH AFFIRMATIVE DEFENSE
9. As a further and separate affirmative defense to the Complaint, this answering
Defendant alleges that the Complaint and each purported cause of action stated therein is barred under
the doctrine of waiver.

TENTH AFFIRMATIVE DEFENSE

10. As a further and separate affirmative defense to the Complaint, this answering
Defendant alleges that Plaintiff, and each purported cause of action stated therein, are barred by the
doctrine of laches.

ELEVENTH AFFIRMATIVE DEFENSE

11. As a further and separate affirmative defense to the Complaint, this answering
Defendant alleges that the Complaint and each purported cause of action stated therein is barred under
the doctrine of estoppel.

TWELFTH AFFIRMATIVE DEFENSE

12. As a further and separate affirmative defense to the Complaint, this answering
Defendant alleges that the Complaint , and each purported cause of action stated therein, are barred as
a result of the Plaintiff's and Plaintiff's failure to mitigate their damages, if any were suffered, and by
their gratuitously incurring expenses that were not justified.

THIRTEENTH AFFIRMATIVE DEFENSE

13. As a further and separate affirmative defense to said Complaint, this answering
Defendant alleges by way of a plea of comparative negligence that the Plaintiff was negligent in and
about the matters and activities alleged in said Complaint , that said negligence contributed to and was
a proximate cause of Plaintiff's alleged injuries and damages, if any, and that if the Plaintiff is entitled
to recover damages against this answering Defendant, this answering Defendant prays that said
recovery be diminished by reason of the Plaintiff's actions in proportion to the degree of fault
attributable to Plaintiff.

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N.V. HEATHORN, INC.’S ANSWER TO PLAINTIFF"S THIRD AMENDED COMPLAINT
88346.doc Case No, CGC08-478453ow we

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FOURTEENTH AFFIRMATIVE DEFENSE

14. As a further and separate affirmative defense to said Complaint, this answering
Defendant is informed and believes, and therefore alleges, that this answering Defendant is entitled to
the right of indemnification by apportionment against all other parties and persons whose negligence
contributed to the alleged damages.

FIFTEENTH AFFIRMATIVE DEFENSE

15. As a further and separate affirmative defense to said Complaint, this answering
Defendant is informed and believes, and therefore alleges, that any and all mandatory duties imposed
on this answering Defendant, and/or its agents or employees, the failure of which allegedly created the
condition at the time and place which is the subject of this Complaint, were exercised with reasonable
diligence and therefore, this answering Defendant is not liable for the alleged damages.

SIXTEENTH AFFIRMATIVE DEFENSE

16. As a further and separate affirmative defense to said Complaint, this answering
Defendant is informed and believes, and therefore alleges, that this answering Defendant is not
vicariously liable for the damages, if any, alleged in Plaintiff's Complaint, caused by the acts or
omissions of the other Defendants.

SEVENTEENTH AFFIRMATIVE DEFENSE

17. As a further and separate affirmative defense to said Complaint, this answering
Defendant is informed and believes, and therefore alleges, that the injuries and damages complained of
by the Plaintiff, if there were any, are properly attributable to a modification, alteration or other change
in some manner to the installed work of improvement for which the Plaintiff herein secks to hold this
answering Defendant legally responsible, which modification, alteration or change was not performed
by or participated in or consented to or approved by this answering Defendant, or any agent, servant or
employee of this answering Defendant, Accordingly, any recovery against this answering Defendant
should be barred or otherwise diminished.

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N.V. HEATHORN, INC.’S ANSWER TO PLAINTIFF'S THIRD AMENDED COMPLAINT
88346.doc Case No. CGC0B-478453EIGHTEENTH AFFIRMATIVE DEFENSE

18. As a further and separate affirmative defense to said Complaint, this answering
Defendant is informed and believes, and therefore alleges, that the Complaint is barred by the
applicable statute of limitations contained in Code of Civil Procedures sections 337(1), 337(3), 337.1,
337.15, 338(a), 338(b), 338(c), 338(d), 339, 340 and 343, among others.

NINETEENTH AFFIRMATIVE DEFENSE

19. As a further and separate affirmative defense to said Complaint, this answering
Defendant is informed and believes, and therefore alleges, that Plaintiff or others failed to perform to
the degree of maintenance on the work of improvement performed on the property that is the subject
matter of this action, necessary to protect such work of improvement from deterioration from the
elements. Such failure to maintain the said work of improvement bars or otherwise diminishes the
claim or recovery of Plaintiff.

TWENTIETH AFFIRMATIVE DEFENSE

20. As a further and separate affirmative defense to said Complaint, this answering
Defendant is informed and believes, and therefore alleges that this answering Defendant has
appropriately, completely and fully performed and discharged any and all obligations and legal duties
arising out of the matters alleged in the Complaint .

TWENTY-FIRST AFFIRMATIVE DEFENSE

21. As a further and separate affirmative defense to said Complaint, this answering
Defendant is informed and believes, and therefore alleges that at the times and places mentioned in the
Complaint, the Plaintiff or others failed to exercise the quality and quantity of care and caution which a
reasonable person in the same or similar circumstances would have exercised for the protection of
themselves and their property; said failure and negligence by the Plaintiff or others proximately caused
and contributed to the damages, if any, sustained by the Plaintiff. Plaintiff's recovery, therefore, if
any, should be reduced by an amount proportionate to the amount by which Plaintiff's or other’s
negligence contributed to the happening of the alleged accident, injury, damage and/or loss.

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NV. HEATHORN, INC.’S ANSWER TO PLAINTIFF’S THIRD AMENDED COMPLAINT
88346.doc Case No. CGC08-478453TWENTY-SECOND AFFIRMATIVE DEFENSE

22. As a further and separate affirmative defense to said Complaint, this answering
Defendant is informed and believes, and therefore alleges, that the Plaintiff was already in breach of
their alleged contractual relationships, if any, at or before the time of the matters alleged to have arisen
from acts or omissions by this answering Defendant and, therefore, no act or omission of this
answering Defendant was a direct or proximate cause of any of the matters alleged in the Complaint.

TWENTY-THIRD AFFIRMATIVE DEFENSE

23. As a further and separate affirmative defense to said Complaint, this answering
Defendant is informed and believes, and therefore alleges, that it performed each of its obligations
pursuant to any and all contracts and agreements described in the Complaint , if any there were, except
those obligations this answering Defendant was prevented and/or excused from performing by the acts
and/or omissions of Plaintiff, and/or other individuals or entities not named as Defendants in the
Complaint herein.

TWENTY-FOQURTH AFFIRMATIVE DEFENSE,

24. As a further and separate affirmative defense to the Complaint, this answering
Defendant alleges that if it is determined that this answering Defendant did not perform one or more
obligations under any contract or agreement, this answering Defendant contends that Plaintiff did not
perform its obligations under each contract or agreement as aforesaid, and that those obligations were a
condition precedent to any performance by this answering Defendant in each instance.

‘TWENTY-FIFTH AFFIRMATIVE DEFENSE

25. As a further and separate affirmative defense to the Complaint, this answering
Defendant alleges that the acts or omissions alleged to have been committed by this answering
Defendant was justified as part of the regular course of business and the fulfillment of its own
contractual obligations.

TWENTY-SIXTH AFFIRMATIVE DEFENSE

26. As a further and separate affirmative defense to the Complaint, this answering

Defendant alleges that a valid contractual relationship, of the nature and scope alleged by the Plaintiff,

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NV. HEATHORN, INC.’S ANSWER TO PLAINTIFF'S THIRD AMENDED COMPLAINT
88346.doc Case No. CGC08-478453did not exist between this answering Defendant and the Plaintiff and that the absence of such a
contractual relationship acts to bar any recovery by the Plaintiff against this answering Defendant.
TWENTY-SEVENTH AFFIRMATIVE DEFENSE
27. As a further and separate affirmative defense to the Complaint, this answering
Defendant alleges that any damages or injuries sustained by the Plaintiff, was a part of the business
risk assumed by the Plaintiff upon entering into its alleged contractual relationships.

TWENTY-EIGHTH AFFIRMATIVE DEFENSE

28. Asa further and separate affirmative defense to said Complaint, these Defendants are
informed and believe and thereon allege that Plaintiffs lacks standing to the claims alleged in the
Complaint.

TWENTY-NINTH AFFIRMATIVE DEFENSE

29. Asa further and separate affirmative defense to said Complaint, this answering
Defendant alleges that the Complaint, and each alleged cause of action therein, is absolutely barred by
the provisions of Civil Code Sections 1474, 1475, 1476, 1477, and each of them,

THIRTIETH AFFIRMATIVE DEFENSE

30. Asa further and separate affirmative defense to said Complaint, this answering
Defendant alleges that the Plaintiff is barred by the following provisions of the Uniform Commercial
Code: Sections 1201(25)(c), 2601, 2602(1), 2513(1)(3), 2510(1), 2605(1)(a) and (b), 2606(1)(a) and
(b), 2607, 2715(2)(a), and 2719(3).

THIRTY-FIRST AFFIRMATIVE DEFENSE

31. Asa further and separate affirmative defense to said Complaint, this answering
Defendant alleges that the Plaintiff is barred by the provisions of California Civil Code Sections 2782-
2784.

THIRTY-SECOND AFFIRMATIVE DEFENSE

32. Asa further and separate affirmative defense to said Complaint, this answering

Defendant alleges that the Plaintiff, and each alleged cause of action therein, fails to state facts

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‘NV. HEATHORN, INC,’S ANSWER TO PLAINTIFF'S THIRD AMENDED COMPLAINT
88346.doc Case No. CGC08-478453sufficient to constitute a cause of action for indemnity or contribution when based on strict liability,
breach of contract, rescission, fraud, or negligent misrepresentation.
THIRTY-THIRD AFFIRMATIVE DEFENSE
33. Asa further and separate affirmative defense to said Complaint, this answering
Defendant alleges that the Plaintiff's recovery, if any, is forbidden or otherwise limited by the
application of the anti-deficiency statutes.

THIRTY-FOURTH AFFIRMATIVE DEFENSE

34. Asa further and separate affirmative defense to said Complaint, this answering
Defendant alleges that by the terms of its contract, this answering Defendant is not responsible for
defects and/or errors in the plans, specifications, or other contract documents.

THIRTY-FIFTH AFFIRMATIVE DEFENSE

35. Asa further and separate affirmative defense to said Complaint, this answering
Defendant alleges that the Plaintiff and/or others may have altered the product involved, proximately
causing the events and damages, if any there were, and recovery is therefore barred or proportionately
reduced accordingly.

THIRTY-SIXTH AFFIRMATIVE DEFENSE

36. Asa further and separate affirmative defense to said Complaint, this answering
Defendant alleges that the Plaintiff either intentionally or negligently failed to preserve the primary
evidence relevant to this litigation, thus failing to give this answering Defendant an opportunity to
inspect said evidence and thereby damaging and prejudicing a defense. Plaintiff, therefore, should be
barred from introducing secondary or lesser evidence, and any recovery should be diminished
accordingly.

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N.V, HEATHORN, INC.’S ANSWER TO PLAINTIFF'S THIRD AMENDED COMPLAINT
88346.doc Case No. CGC08-478453a A wA PF YN

WHEREFORE, this answering Defendant prays as follows:

1. That Plaintiff takes nothing by reason of its Complaint;

2. For costs of suit incurred herein; and
3, For such other and further relief as the Court may deem just and proper.
DATED: July 8, 2011 SELLAR HAZARD MANNING FICENEC & LUCIA

j

Depnea oun
DENAE M. OLIVIERI, ESQ.
Attorney For N.V. Heathorn, Inc.

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N.Y, HEATHORN, INC.’S ANSWER TO PLAINTIFE’S THIRD AMENDED COMPLAINT
88346.doc Case No. CGCO8-478453PROOF OF SERVICE
J, Amanda Pikman, declare:

1am employed in the County of Contra Costa, California in the offices of amember of the Bar

of this Court, at whose direction this service was made. My business address is 1800 Sutter Street,
Suite 460, Concord, California. I am over the age of eightecn years and not a party to this action. On
the date given, I served the following document(s):

NV. HEATHORN, INC.’S ANSWER TO PLAINTIFF’S THIRD AMENDED COMPLAINT

In the case entitled: Beacon Residential v Catellus Third and King, et al., San Francisco Superior

Court, Case No. CGC08-478453, on all interested parties through their attorneys of record by placing a

true and correct copy thereof addressed as shown on the attached service list, as designated below
(SEE ATTACHED SERVICE LIST)

XX__ BY FIRST CLASS MAIL (C.C_P. §81013A. et sea.):
I caused said document(s) to be deposited in the United States Mail in a sealed envelope with
postage fully prepaid at Concord, California, following the ordinary practice at my place of
business of collection and processing of mail on the same day as shown on this declaration.

BY FACSIMILE (C.C.P. §§1012.5, et sea.)

I served such document(s) by fax to the fax number(s) provided by each of the parties in this
litigation at Concord, California. I received a confirmation sheet indicating said fax was
transmitted completely.

_____ OVERNIGHT DELIVERY

I caused such envelope to be delivered to the addresses identified on the attached service list by
means of an overnight delivery service pursuant to California Code of Civil Procedure Section

1013

BY PERSONAL SERVICE
1 delivered such envelope by hand to the offices of the addressee.
Messenger Service: ONE HOUR DELIVERY

BY ELECTRONIC SERVICE (C.C.P. §187):
I caused said document to be served using LexisNexis File & Serve/One Legal File & Serve.

I declare under the penalty of perjury, under the laws of the State of California, that the above is true
and correct.

DATED: July 8.2011 Crunk. Pabercor—

Amanda Pikman

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N.V, HEATHORN, INC."S ANSWER TO PLAINTIFF'S THIRD AMENDED COMPLAINT

88346.doc Case No, CGC08-478453Case No.:

Case Name: Beacon Residential y Catellus Third and King, et al.
San Francisco Superior Court Case No. CGC08-478453

Ann Rankin

Law Offices of Ann Rankin
3911 Harrison Street
Oakland, CA 94611

Mark J. D’Argenio

1001 Galaxy Way, Suite 308
Concord. CA 94520

James Castile

Robles, Castle & Meredith
The Arlington Building
492 Ninth Street, Suite 200
Oakland, CA 94607

Steven M. Cvitanovic

Haight, Brown & Bonestee!, LLP
71 Stevenson Street, 20th Floor
San Francisco. CA 94105-2981

Peter J, Laufenberg

Wendel, Rosen, Black & Dean
1111 Broadway, 24th Floor
Oakland, CA 94607

Sandy Kaplan

Gordon & Rees

275 Battery St, Ste. 2000
San Francisco, CA 94111

John A. Koeppel

Ropers, Majeski, Kohn & Bentley
333 Market Street, Suite 3150
San Francisco, CA 94105

Kevin P. McCarthy
MeCarthy & MeCarthy, LLP
505 14th Street, Suite 1150
Oakland, CA 94612

Wood Smith Henning & Berman LLP

Attorney For:

Plaintiff

Telephone: (510) 653-8886
Facsimile: (510) 653-8889

Attorney For:

Catellus Commercial Development
Telephone: (925) 295-1141
Facsimile: (925) 295-1145

Attorney For:

Skidmore Owings & Merrill, LLP
Telephone:

Facsimile:

Attorney For:

Centurion Partners, LLC; Mission Place, LLC
Telephone: (415) 546-7500

Facsimile: (415) 546-7505

Attorney For: Mission Place Holdings, LLC;
Mission Place Mezzanine, LLC; and Mission
Place Partners, LLC

Mission Place, LLC; Centurion Real Estate
Partners, LLC; Mission Place Mezz Holdings,
LLC,

Telephone: (510) 834-6600

Facsimile: (510) 808-4660

Attorney For:

Cross-defendant, Webcor Builders, Inc.
Telephone: (415) 986-5900

Facsimile: (415) 986-8054

Attorney For:

Defendant, Catellus Commercial Development
Corporation

Telephone: (415) 543-4800

Facsimile: (415) 274-6301

Attorney For:

Cross-Defendant, Window Solutions, Inc.
Telephone: (510) 839-8100

Facsimile: (510) 839-8108

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88346.doc

N.V. HEATHORN, INC.’S ANSWER TO PLAINTIFF'S THIRD AMENDED COMPLAINT

Case No. CGC08-478453Co wm a DA A RW HY

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Steven H. Schwartz

Schwartz & Janzen, LLP

12100 Wilshire Blvd., Suite 1125
Los Angeles, CA 90025

David S. Webster

Wood, Smith, Henning & Berman, LLP

1401 Willow Pass Road, Suite 700
Concord, CA 94520-7982

Brandt L. Wolkin

Wolkin, Curran, LLP

555 Montgomery St., Suite 1100
San Francisco, CA 94111

Adam Brezine

Holme Roberts & Owen LLP
560 Mission Street, 25th Floor
San Francisco. CA 94105

William H. Staples
Archer Norris

P.O, Box 8035

Walnut Creek. CA 94596

William H. McInerney, Jr.
Mclnemey & Dillon

1999 Harrison Street, Suite 1700
Oakland, CA 94612-7100

Attorney For:
Defendant, HKS, Inc, and dba HKS Architects,

Inc.
Telephone: (310) 979-4090
Facsimile:

Attorney For:

Defendant, Catellus Residential Construction,
Cross-Complainant, Webcor

Telephone: (925) 356-8200

Facsimile: (925) 356-8250

Attorney For:

Third Party, Architectural Glass & Aluminium
Co, Inc.

Telephone: (415) 982-9390

Facsimile:

Attorney For:

Solutia, Inc.

Telephone: (415) 268-2000
Facsimile: (415) 268-1999

Attorney For:

Anning Johnson
Telephone: (925) 930-6600
Facsimile: (925) 930-6620

Attorney For:

Allied Fire Protection
Telephone: (510) 465-7100
Facsimile: (510) 465-8556

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N.V, HEATHORN, INC.’S ANSWER TO PLAINTIFF'S THIRD AMENDED COMPLAINT

88346.doc

‘Case No, CGCO8-478453