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
Jun-07-2011 12:51 pm

Case Number: CGC-08-478453
Filing Date: Jun-03-2011 12:49
Juke Box: 001 Image: 03234191
ANSWER

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

001003234191

Instructions:
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William H. Staples (Bar No. 64633)
wstaples@archernorris.com
ARCHER NORRIS

A Professional Law Corporation

2033 North Main Street, Suite 800
Wainut Creek, California 94596-3759
Telephone: 925.930.6600
Facsimile: 925.930.6620

Attorneys for Defendant
ANNING-JOHNSON COMPANY

SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO
UNLIMITED JURISDICTION

BEACON RESIDENTIAL COMMUNITY Case No. CGC-08-478453
ASSOCIATION,
COMPLEX LITIGATION
Plaintiff,
Assigned to Hon. Richard A. Kramer
vy. Dept. 304

CATELLUS THIRD AND KING LLC, et
al., ANSWER TO PLAINTIFF’S THIRD
AMENDED COMPLAINT ON BEHALF OF
Defendants. DEFENDANT ANNING-JOHNSON
COMPANY

AND RELATED CROSS-ACTIONS.

COMES NOW, defendant, ANNING-JOHNSON COMPANY, and, in answer to the
Third Amendment to the First Amended Complaint of plaintiff, denies each and every, all and
singular, generally and specifically, the allegations therein contained and further denies that said
plaintiff has been damaged in any sum, or sums, or at all.
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CHR858/1072746-1

ANSWER TO THIRD AMENDED COMPLAINTFIRST AFFIRMATIVE DEFENSE
(Failure to State a Cause of Action)

AS A SEPARATE, AFFIRMATIVE DEFENSE, defendant alleges that plaintiff's

Complaint fails to state a cause of action against this defendant.
SECOND AFFIRMATIVE DEFENSE
(Plaintiff Comparative Negligence)

AS A FURTHER, SEPARATE, AFFIRMATIVE DEFENSE, defendant alleges that
should it be determined that defendant is liable to plaintiff, any recovery to which plaintiff might
otherwise be entitled be proportionately reduced pursuant to the doctrine of comparative
negligence.

THIRD AFFIRMATIVE DEFENSE
(Misuse of Product)

AS A FURTHER, SEPARATE, AFFIRMATIVE DEFENSE, defendant alleges that the
sole cause of the events mentioned in plaintiff's Complaint was the misuse, abuse, abnormal use,
and negligent maintenance by plaintiff of the stucco and drywall products and component parts
identified in plaintiffs Complaint, and that such misuse, abuse, abnormal use, and negligent
maintenance was the direct and proximate cause of said incident and of the loss and damages
complained of, if any there were.

FOURTH AFFIRMATIVE DEFENSE
{Statute of Limitations)

AS A FURTHER, SEPARATE, AFFIRMATIVE DEFENSE, defendant alleges that each
cause of action of plaintiff's Complaint is barred by the applicable statute of limitations,
including, without limitation, Code of Civil Procedure §§318, 337.1, 337.15, 338(2), 338(3)
338(4), 339, 340 and/or 343 and Uniform Commercial Code §§2607(3)(a) and 2725.

FIFTH AFFIRMATIVE DEFENSE
(Failure to Mitigate Damages)
AS A FURTHER, SEPARATE, AFFIRMATIVE DEFENSE, defendant alleges that

plaintiff was bound to exercise reasonable care and diligence to avoid loss and to minimize its
CHR858/1072746-L 2

ANSWER TO THIRD AMENDED COMPLAINTdamages, if any there were, and that the plaintiff may not recover for losses which could have
been prevented by reasonable efforts on its part or by expenditures that it might reasonably have
made.

SIXTH AFFIRMATIVE DEFENSE

(Failure to Give Timely Notice)
AS A FURTHER, SEPARATE, AFFIRMATIVE DEFENSE, defendant alleges that
plaintiff failed to give timely notice to defendant of said alleged breaches of warranty within a
reasonable time after discovery of said alleged breaches by plaintiff.

SEVENTH AFFIRMATIVE DEFENSE

(Assumption of the Risk)

AS A FURTHER, SEPARATE, AFFIRMATIVE DEFENSE, defendant alleges that if
there were any risks and dangers involved in the matters set forth in plaintiff's Complaint, which
defendant expressly denies, then said risks and dangers were open and apparent, fully understood
by and known to said plaintiff, and plaintiff voluntarily assumed said risks, and their assumption
of said risks was the sole, proximate cause of their alleged injuries and damages, if any there

were.

EIGHTH AFFIRMATIVE DEFENSE

(Third Party Negligence)

AS A FURTHER, SEPARATE, AFFIRMATIVE DEFENSE, defendant alleges that third
parties were careless and negligent in and about the matters alleged in the Complaint and that said
carelessness and negligence on the part of these third parties was the sole, legal cause of the
injuries, loss and/or damages complained of, if any there were, and that any damages that
defendant may otherwise be obligated to pay be proportionately reduced by the fault of others
pursuant to Civil Code §1431.1 et seq.

NINTH AFFIRMATIVE DEFENSE

(octrine of Unclean Hands)
AS A FURTHER, SEPARATE, AFFIRMATIVE DEFENSE, defendant alleges that

plaintiff is barred from relief on the grounds that it has acted with unclean hands.
CHR898/1072746-1 3

ANSWER TO THIRD AMENDED COMPLAINT15

16

TENTH AFFIRMATIVE DEFENSE
(Doctrine of Laches)

AS A FURTHER, SEPARATE, AFFIRMATIVE DEFENSE, defendant alleges that

plaintiff is barred from relief pursuant to the doctrine of laches.
ELEVENTH AFFIRMATIVE DEFENSE
{Alteration of Product)

AS A FURTHER, SEPARATE, AFFIRMATIVE DEFENSE, defendant alleges that
plaintiff or others may have altered the products involved, proximately causing the events and
damages, if any there were, and recovery is therefore barred or proportionately reduced
accordingly.

TWELFTH AFFIRMATIVE DEFENSE
(No Privity)

AS A FURTHER, SEPARATE, AFFIRMATIVE DEFENSE, defendant alleges that

plaintiff is barred from recovery for breach of warranty because of lack of privity.
THIRTEENTH AFFIRMATIVE DEFENSE
(Notice of Commercial Code)

AS A FURTHER, SEPARATE, AFFIRMATIVE DEFENSE, defendant alleges that the
claims of plaintiff are barred by Uniform Commercial Code §§12-1(25)(c), 2510, 2513(1) and
(3), 2601, 2605(1)(a) and (b), 2606(1)(a) and (b), 2607, 2715(2)(a) and 2719(3).

FOURTEENTH AFFIRMATIVE DEFENSE
(Active Passive)

AS A FURTHER, SEPARATE, AFFIRMATIVE DEFENSE, defendant alleges that if it is
determined that this answering defendant was negligent, said negligence was secondary and
passive, as contrasted with the active and primary negligence of other parties to this lawsuit, and
therefore, plaintiff is not, as a matter of law, entitled to recovery from this answering defendant
on any theory of indemnity.

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CHR858/1072746-1 4

ANSWER TO THIRD AMENDED COMPLAINT.ba Ww Ww

FIFTEENTH AFFIRMATIVE DEFENSE
(Apportionment)

AS A FURTHER, SEPARATE, AFFIRMATIVE DEFENSE, defendant alleges that if the
matters and damages alleged in the Complaint were proximately caused by the conduct of more
than one party, any recovery must be apportioned as to the fault of each party.

SIXTEENTH AFFIRMATIVE DEFENSE
(Spoliation of Evidence)

AS A FURTHER, SEPARATE, AFFIRMATIVE DEFENSE, defendant alleges that
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 severely damaging and prejudicing a defense. Plaintiff should therefore be
barred from introducing secondary or lesser evidence, and any recovery should be diminished
accordingly.

SEVENTEENTH AFFIRMATIVE DEFENSE
(No Special Relationship)

AS A FURTHER, SEPARATE, AFFIRMATIVE DEFENSE, defendant alleges that no
relationship existed between plaintiff and this answering defendant which would give rise to
indemnity.

EIGHTEENTH AFFIRMATIVE DEFENSE
(Waiver)

AS A FURTHER, SEPARATE, AFFIRMATIVE DEFENSE, defendant alleges that
plaintiff's actions are barred by the doctrine of waiver.

NINETEENTH AFFIRMATIVE DEFENSE
({Estoppel)

AS A FURTHER, SEPARATE, AFFIRMATIVE DEFENSE, defendant alleges that
plaintiff is estopped from recovery by virtue of acts of directing, ordering, approving or ratifying
the matters complained of herein.

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CHR858/1072746-1 5

ANSWER TO THIRD AMENDED COMPLAINTx

TWENTIETH AFFIRMATIVE DEFENSE
(Leave to Set Forth Further Affirmative Defenses)

AS A FURTHER, SEPARATE, AFFIRMATIVE DEFENSE, defendant alleges that it
presently has insufficient knowledge or information on which to form a belief as to whether it
may have additional, as yet unstated, defenses available. Defendant reserves herein the right to
assert additional defenses in the event discovery and investigation indicates that they would be
appropriate.

TWENTY-FIRST AFFIRMATIVE DEFENSE
(Incorporation of Affirmative Defenses)

AS A FURTHER, SEPARATE, AFFIRMATIVE DEFENSE, defendants incorporate
Affirmative Defenses of all other defendants that it may not have pled.

WHEREFORE, this answering defendant prays that plaintiff take nothing by its
Complaint, that this defendant have judgment for costs of suit, and for such other and further
relief as the Court may deem proper.

Dated: June 1, 2011 ARCHER NORRIS

William H. Staples
Attorneys for Defendant
ANNING-JOHNSON COMPANY

CHR858/1072746-1 6

ANSWER TO THIRD AMENDED COMPLAINTPROOF OF SERVICE

Name of Action: Beacon Residential Community Assn. vs. Catellus Third and King LLC
Court and Action No: San Francisco County Superior Court Action No. CGC 08-478453

I, the undersigned, declare that I am over the age of eighteen years and not a party to this

action or proceeding. My business address is 2033 North Main Street, Suite 800, Walnut Creck,
California 94596-3759. On this date, | caused the following document(s) to be served:

ANSWER TO PLAINTIFF’S THIRD AMENDED
COMPLAINT ON BEHALF OF DEFENDANT ANNING-
JOHNSON COMPANY

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 5:00 p.m. The transmission
was reported as complete without error by a report issued by the transmitting facsimile
machine.

by having personal delivery by of 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 UPS, 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 set forth below.

Kenneth S. Katzoff, Esq. Ann Rankin, Esq.

Katzoff & Riggs Law Offices of Ann Rankin
1500 Park #300 3911 Harrison Street

Emeryville, CA 94608 Oakland, CA 94611

Tel: 510-597-1990 Tel: 510-653-8886

Fax: 510-597-0295 Fax: 510-653-8889

Attorneys for Plaintiff Attorney for Plaintiff

BEACON RESIDENTIAL BEACON RESIDENTIAL
COMMUNITY ASSOCIATION COMMUNITY ASSOCIATION

CHR&58/1072778-1

PROOF OF SERVICEKevin P. McCarthy
McCarthy & McCarthy LLP
505 14th Street, Suite 1150
Oakland, CA 94612

Phone: 510-839-8100

Fax: 510-839-8108

Attorneys for Cross-Defendant
WINDOW SOLUTIONS, INC.

David S. Webster, Esq.

Mark J. D’Argenio, Esq.

Wood Smith Henning Berman LLP
1401 Willow Pass Road, Suite 700
Concord, CA 94520-7982

Phone: 925-356-8200

Fax: 925-356-8250

Email: dwebster@wshblaw.com;
mdargenio@wshblaw.com

Attorneys for Defendants

PROLOGIS; THIRD AND KING
INVESTORS LLC; CATELLUS URBAN
DEVELOPMENT CORP.’ CATELLUS
DEVELOPMENT CORP.; CATELLUS
THIRD AND KING INVESTORS LLC;
CATELLUS COMMERCIAL
DEVELOPMENT CORP.; CATELLUS
OPERATING LIMITED PARTNERSHIP
and WEBCOR BUILDERS, INC.;
WEBCOR CONSTRUCTION, INC.,
individually and dba WEBCOR
BUILDERS; WEBCOR CONSTRUCTION
LP, individually and dba WEBCOR
BUILDERS

Peter J. Laufenberg, Esq.

Gregory Jung, Esq.

Wendel, Rosen, Black & Dean
1111 Broadway, 24th Floor
Oakland, CA 94607-4036
Phone: 510-834-6600

Fax: 510-834-1928

Email: plaufenberg@wendel.com;
GJung@wendel.com

Attorneys for Defendants

MISSION PLACE LLC; CENTURION
REAL ESTATE PARTNERS, LLC;
MISSION PLACE MEZZ HOLDINGS
LLC, erroneously named as MISSION
PLACE HOLDINGS LLC; MISSION
PLACE HOLDINGS LLC; MISSION
PLACE MEZZANINE, LLC; and
MISSION PLACE PARTNERS, LLC

Steven M. Cvitanovic, Esq.
Haight, Brown & Bonesteel

71 Stevenson Street, 20th Fl.

San Francisco, CA 94105-2981
Phone: 415-546-7500

Fax: 415-546-7505

Email: scvitanovic@hbblaw.com

Co-Counsel for Defendants

MISSION PLACE LLC; CENTURION
REAL ESTATE PARTNERS, LLC;
MISSION PLACE MEZZ HOLDINGS
LLC, erroneously named as MISSION
PLACE HOLDINGS LLC; MISSION
PLACE MEZZANINE, LLC; and
MISSION PLACE PARTNERS, LLC

CHR858/1072778-1

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PROOF OF SERVICE.14
15

Steven H. Schwartz, Esq.
Schwartz & Janzen

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

Phone: 310-979-4090

Fax: 310-207-3344

Email: sschwartz@sj-law.com;
tmatteson@sj-law.com

Attorneys for Defendants

HKS, INC.; HKS ARCHITECTS, INC.;
HKS, INC., individually and dba HKS
ARCHITECTS, INC.

James Castle, Esq.

Richard Young, Esq.

Robles, Castle & Meredith

540 Pacific Avenue

San Francisco, CA 94133

Phone: 415-743-9300

Fax: 415-743-9305

Email: jim@roblesandcastleslaw.com;
rick@remlawgroup.com

Attorneys for Defendants
SKIDMORE OWINGS & MERRILL LLP

John A. Koeppel, Esq.

Todd J. Wenzel, Esq.

Ropers, Majeski, Kohn & Bentley
201 Spear Street, Suite 1000

San Francisco, CA 94105-1667
Phone: 415-543-4800

Fax: 415-972-6301

Email: jkoeppel@mnkb.com;
twenzel@rmkb.com

Attorneys for Crass-Defendant
THIRD AND KING INVESTORS LLC

Adam Brezine, Esq.

Julien E. Capers, Esq.

Holme Roberts & Owen LLP
560 Mission Street, 25th Floor
San Francisco, CA 94105
Phone: 415-268-2000

Fax: 415-268-1999

Email: adam.brezine@hro.com
Julien.capers@hro.com

Attorneys for Cross-Defendant
SOLUTIA, INC,

5S. Mitchell Kaplan, Esq.
Gordon & Rees LLP

275 Battery Street, Suite 2000
San Francisco, CA 94111
Tel: 415-986-5900

Fax: 415-986-8054

Attorneys for Cross-Defendant
WEBCOR CONSTRUCTION, INC. DBA
WEBCOR BUILDERS

Christian P. Lucia, Esq.

Denae M. Olivieri, Esq.

Sellar Hazard Manning Ficenec Lucia
1800 Sutter Street, Suite 460
Concord, CA 94520

Tel: 925-938-1430

Fax: 925-256-7508

Attorneys for Cross-Defendant
CUPERTINO ELECTRIC, INC.

Hon. Richard M. Sabraw (Ret)
JAMS

Two Embarcadero Center, Ste. 1500
San Francisco, CA 94111

Tel: 415-982-5267

Fax: 415-982-5287

Special Master

Aiken & Welch

One Kaiser Plaza, Suite 275
Oakland, CA 94612

Tel: 510-451-1580

Fax: 510-451-3797

Document Depository

I declare under penalty of perjury that the foregoing is true andcorrect. Executed on June
2, 2011, at Walnut Creek, California.

(CHR858/1072778-1

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PROOF OF SERVICE