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
dun-02-2011 11:56 am

Case Number: CGC-08-478453
Filing Date: Jun-02-2011 11:54
Juke Box: 001 Image: 03229757
ANSWER

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

001003229757

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6/02/2011 . FIRST LEGAL

William H. McInerney, Jr., #95794
MCcINERNEY & DILLON, P.C.

1999 Harrison Street, Suite 1700
Oakland, California 94612
Telephone: (510) 465-7100

Fax: (510) 465-8556

Attorneys for Allied Fire Protection, defendant

IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO — UNLIMITED JURISDICTION

BEACON RESIDENTIAL COMMUNITY
ASSOCIATION,

Plaintiff,
vs.

CATELLUS THIRD AND KING LLC;
CATELLUS DEVELOPMENT
CORPORATION; 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 MASONTRY, INC.; POMA
CORPORATION; VAN-MULDER SHEET
METAL, INC; BLUE’S ROOFING CO.;
ROOFING CNSTRUCTORS, 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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JUN 02 2011
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PAIL. ED

Deputy

Case No. CGC-08-478453
CLASS ACTION

ALLIED FIRE PROTECTION’S
ANSWER TO UNVERIFIED THIRD
AMENDED COMPLAINT

Allied Fire Protection’s Answer to Unverified Third Amended Complaint Case No.: CGC-08-478453cer a KH mH kh YW NH

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6022011 FIRST LEGAL ™~ 156261331

Allied Fire Protection (“Allied Fire”) answers the unverified Third Amended Complaint of
plaintiff Beacon Residential Community Association (“Beacon”) and denies each and every, all
and singular, the allegations of said unverified Third Amended Complaint, and each alleged
cause of action thereof. Further, Allie Fire denies that Beacon has been injured or damaged in
any amount, or at all, by reason of any action or omission of Allied Fire.

GENERAL AFFIRMATIVE DEFENSES

AS A FURTHER, SEPARATE, AND FIRST AFFIRMATIVE DEFENSE TO THE THIRD
AMENDED COMPLAINT, it is alleged that Beacon has failed to state grounds on which any
relief may be granted.

AS A FURTHER, SEPARATE, AND SECOND AFFIRMATIVE DEFENSE TO THE
THIRD AMENDED COMPLAINT, it is alleged that Beacon fails to state facts sufficient to
constitute a cause of action for damages against Allied Fire.

AS A FURTHER, SEPARATE, AND THIRD AFFIRMATIVE DEFENSE TO THE THIRD
AMENDED COMPLAINT, it is alleged that Beacon is estopped by its own inequitable conduct
and unclean hands.

AS A FURTHER, SEPARATE, AND FOURTH AFFIRMATIVE DEFENSE TO THE
THIRD AMENDED COMPLAINT, Allied Fire is informed and believes, and on that basis
alleges, that Beacon has acted and omitted to act in ways which bar Beacon's claims under the
doctrines of estoppel, waiver, and laches.

AS A FURTHER, SEPARATE, AND FIFTH AFFIRMATIVE DEFENSE TO THE THIRD
AMENDED COMPLAINT, Beacon's Third Amended Complaint, and each cause of action
therein alleged against Allied Fire fails to state facts sufficient to support a claim for award of
attorneys’ fees under any legal or equitable theory.

AS A FURTHER, SEPARATE, AND SIXTH AFFIRMATIVE DEFENSE TO THE THIRD
AMENDED COMPLAINT, it is alleged that Beacon failed to exercise reasonable care and
diligence to minimize or mitigate the damages alleged occurring to it.

AS A FURTHER, SEPARATE, AND SEVENTH AFFIRMATIVE DEFENSE TO THE
THIRD AMENDED COMPLAINT, Beacon's Third Amended Complaint, and each cause of

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02/2011 FIRST LEGAL 7™ 156261331
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action thereof, fails to state a cause of action in that Beacon failed to give timely and proper
notice of breach of warranty.

AS A FURTHER, SEPARATE, AND EIGHTH AFFIRMATIVE DEFENSE TO THE
THIRD AMENDED COMPLAINT, Beacon and others unrelated to Allied Fire modified,
altered, abused,damaged, and/or misused the labor, equipment or materials provided by Allied
Fire and such conduct caused and contributed to the damages which are alleged in this action.

AS A FURTHER, SEPARATE, AND NINTH AFFIRMATIVE DEFENSE TO THE THIRD
AMENDED COMPLAINT, prior to the commencement of this action, Allied Fire duly
performed, satisfied and discharged all duties and obligations it may have owed to any party
arising out of any and all agreements, representations or contracts made by it, and this action is,
therefore, barred by the provisions of California Civil Code Section 1473.

AS A FURTHER, SEPARATE, AND TENTH AFFIRMATIVE DEFENSE TO THE THIRD
AMENDED COMPLAINT, Allied Fire alleges that Beacon occupied and accepted the project
after its inspection or the opportunity to inspect and has waived any claims against Allied Fire.

AS A FURTHER, SEPARATE, AND ELEVENTH AFFIRMATIVE DEFENSE TO THE
THIRD AMENDED COMPLAINT, Allied Fire alleges if Allied Fire failed to perform the terms
and conditions of any contract with Beacon, it was because such performance was prevented by
Beacon.

AS A FURTHER, SEPARATE, AND TWELFTH AFFIRMATIVE DEFENSE TO THE
THIRD AMENDED COMPLAINT, Beacon was itself careless and negligent in and about the
matters alleged in the Third Amended Complaint, that said carelessness and negligence on its
own part proximately contributed to the happenings of the incident and to the injuries, loss and
damage complained of, if any there were; that should Beacon recover damages, or relief, Allied
Fire is entitled to have the amount thereof abated, reduced or eliminated to the extent that
Beacon's negligence caused or contributed to its damages, if any.

AS A FURTHER, SEPARATE, AND THIRTEENTH AFFIRMATIVE DEFENSE TO THE
THIRD AMENDED COMPLAINT, Allied Fire alleges that if Beacon recovers damages from it,

then Allied Fire is entitled to indemnification, either in whole or in part, from other persons or

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6/02/2011 FIRST LEGAL “456261331

entities whose negligence and/or fault proximately contributed to or caused Beacon's damages, if
any exist.

AS A FURTHER, SEPARATE, AND FOURTEENTH AFFIRMATIVE DEFENSE TO THE,
THIRD AMENDED COMPLAINT, Allied Fire alleges that because Beacon’s Third Amended
Complaint is couched in conclusions, Allied Fire cannot fully anticipate all the affirmative
defenses that might be applicable to this Third Amended Complaint. Accordingly, the right to
assert additional affirmative defenses, if and to the extent such affirmative defenses, when
known, are applicable, is hereby reserved.

WHEREFORE, Allied Fire prays for judgment against Beacon as follows:

1. Beacon take nothing by way of its Third Amended Complaint,
2. Reasonable attorneys' fees if so authorized by law;

3. Costs of suit incurred herein; and

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. Such other and further relief as the Court deems just and proper.

DATED: June L. 2011 McINERNEY & DILLON, P.C.

By: —
‘illiam H. Mcdnerney, Jr.

Attorneys for defendant
Allied Fire Protection

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PROOF OF SERVICE
I, the undersigned, declare:

I am employed by the law office of McInerney & Dillon, P.C., located at 1999 Harrison
Street, Suite 1700, Oakland, California 94612, am over the age of 18 years and am not a party to
the within titled cause. On the date last written below/typed below, I caused the following
document(s):

ALLIED FIRE PROTECTION’S ANSWER TO UNVERIFIED THIRD
AMENDEDCOMPLAINT

to be served on the parties, through their attorneys of record by placing true and correct copies
thereof:

X (By First Class Mail). In the ordinary course of business such correspondence is

deposited with the U.S. Postal Service at Oakland, California, in a sealed envelope, with
proper postage affixed, the same day that the envelope is sealed and placed for collection
and mailing.

(By First Class Certified Mail, Return Receipt Requested). In the ordinary course of
business such correspondence is deposited with the U.S. Postal Service at Oakland,
California, in a sealed envelope, with proper postage affixed, the same day that the
envelope is sealed and placed for collection and mailing.

(By Facsimile transmission). Based on the agreement of the parties to accept service by
fax transmission, I faxed the documents to the persons at the fax numbers listed below.
No error was reported by the fax machine that I used. A copy of the record of the fax
transmission, which | printed out, is attached.

(By UPS Overnight delivery). In the ordinary course of business such correspondence
is picked up by an agent from UPS at Oakland, California, the same day that the envelope
is sealed and placed for collection and transmittal.

(By Messenger service). I served the documents by placing them in an envelope or
package addressed to the persons at the addresses listed below and providing them to a
professional messenger service for service.

(By e-mail or electronic transmission). Based on a court order or an agreement of the
parties to accept service by e-mail or electronic transmission, | caused the documents to
be sent to the persons at the e-mail addresses listed below. I did not receive, within a
reasonable time after the transmission, any electronic message or other indication that the
transmission was unsuccessful.

By e-mail or electronic transmission with the U.S. District Court. 1 certify that on the
date written below, I electronically transmitted the attached document to the United
States District Court and/or the US District Clerk’s Office using the ECF System for
filing and transmittal of a Notice of Electronic Filing to the ECF registrants/recipients as
listed below on the attached Service List.

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

Executed this June 2, 2011, at Oakland, California.

Letiofa Rubio

Proof of Serviceom ODN Hh BR HW DBD

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6/02/2011 FIRST LEGAL 4156261334
ADDRESEE(s):

Ann Rankin Kenneth Katzoff

Terry Wilkens Sung Shim

Law Offices of Ann Rankin Katzoff & Riggs

3911 Harrison Street

Oakland, CA 94611

Phone: 510-653-8886

Fax: 510-597-0295

Attorneys for plaintiff Beacon Residential
Community Association

Peter J. Laufenberg

Greg Jung

Matthew Graham

Wendel Rosen Black & Dean LLP

1111 Broadway, 24" Floor

Oakland, Ca 94607

Phone: 510-834-6600

Fax: 510-834-1928

Attorneys for defendants Mission Place LLC;
Centurion Real estate Partners, LLC, Mission
Place Mezz Holdings, LLC; Mission Place
Mezzanine, LLC; Mission Place Partners,
LLC

1500 Park Ave., #300

Emeryville, CA 94608

Phone: 510-597-1990

Fax: 510-597-0295

Co-counsel for plaintiff Beacon Residential
Community Association

John A. Koeppel

Terry Anastassiou

Todd J. Wenzel

Ropers, Majeski, Kohn & Bentley

201 Spear Street, Suite 1000

San Francisco, CA 94105

Phone: 415-543-4800

Fax 415-972-6301

Attorneys for defendants Prologis; Third and
King Investors LLC; Catellus Urban
Development Corporation; Catellus
Development Corp.; Catellus Third and King
Investors LLC; Catellus Commercial
Development Corp.; Catellus Operating Ltd.
Partnership; Webcor Construction, Inc.

Steven M. Cvitanovic

Haight, Brown & Bonesteel LLP

71 Stevenson St., 20" Fl.

San Francisco, CA 94105-2981

Phone: 415-546-7500

Fax: 415-546-7505

Attorneys for defendants Mission Place LLC;
Centurion Real estate Partners LLC; Mission
Place Mezz Holdings LLC; Mission Place
Mezzanine, LLC, Mission Place Partners,

S. Mitchell Kaplan

Gordon & Rees LLP

275 Battery St., suite 2000

San Francisco, CA 94111

Phone: 415-986-5900

Fax: 415-988-8054

Attorneys for defendant Webcor Construction,
inc.

12100 Wilshire Blvd., Suite 1125

Los Angeles, CA 90025

Phone; 310-979-4090

Fax: 310-207-3344

Attorneys for defendants HKS, Inc.; HKS
Architects, Inc.; HKS, Inc.

LLC
Steven H. Schwartz Kevin P. McCarthy
Schwartz & Jansen McCarthy & MeCorthy LLP

505 14" Street, Suite 1150
Oakland, CA 94612

Phone: 510-839-8100

Fax: 510-839-8108

Attorneys for cross-defendant Window
Solutions, Inc.

David S. Webster

Mark J. D’Argenio

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

Phone: 925-356-8200

Fax: 925-356-8250

Attorneys for defendants Prologis; Third and King
Investors LLC; Catellus Urban Development
Corporation; Catellus Development Corp.;
Catellus Third and King Investors LLC; Catellus
Commercial Development Corp.; Catellus
Operating Ltd. Partnership

James Castles

Richard Young

Robles, Casteles & Meredith

492 Ninth Street, Suite 200

Oakland, CA 94607

Phone: 415-632-1586

Fax: 415-743-9305

Attorneys for defendants Skidmore Owings &
Merrill LLP

Proof of Servicewon

6/02/2011, FIRST LEGAL

™4156261331

Christian Lucia

Denae Olivieri

Sellar Hazard Manning Ficenec & Lucia
1800 Sutter Street, Suite 460

Concord, CA 94520

Phone: 925-938-1430

Fax: 925-256-7508

Attorneys for defendants Cupertino Electric,
Ine.

William H. Staples

Archer Norris

2033 North Main St., Suite 800

Walnut Creek, CA 94596

Main Phone: 925-930-6600

Direct dial 925-952-5473

Fax: 925-930-6620

Attorneys for defendants Anning-Johnson
Company

Proof of Service