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
Dec-10-2010 4:04 pm

Case Number: CGC-08-478453
Filing Date: Dec-10-2010 4:02
Juke Box: 001 Image: 03059534
ANSWER

iEACON RESIDENTIAL COMMUNITY ASSOCIATION VS. CATELLUS THIRD AND KING LL

001003059534

Instructions:
Please place this sheet on top of the document to be scanned.Ropers Majeski Kohn & Bentley

A Professional Corporation

San Francisco

JOHN A. KOEPPEL (SBN 71526)

TODD J. WENZEL (SBN158880)
ROPERS, MAJESKI, KOHN & BENTLEY
201 Spear Street, Suite 1000

San Francisco, CA 94105-1667

Telephone : (415) 543-4800

Facsimile : (415) 972-6301
Email : jkoeppel@rmkb.com

: twenzel@rmkb.com

Attomeys for Cross-Defendant
THIRD AND KING INVESTORS LLC,
a Delaware limited liability corporation

FdediP
DEC 10 2010

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

BEACON RESIDENTIAL COMMUNITY
ASSOCIATION,

Plaintiff,
v.

CATELLUS THIRD AND KING LLC,
et. al.,

Defendants.

MISSION PLACE LLC, a Delaware limited
liability corporation; MISSION PLACE
MEZZ HOLDINGS LLC, a Delaware
limited liability corporation; MISSION
PLACE MEZZAMNE LLC, a Delaware
limited liability corporation; MISSION
PLACE PARTNERS LLC, a Delaware
limited liability corporation; CENTURION
REAL ESTATE INVESTORS IV, LLC, a
Delaware limited liability corporation; and
CENTURION REAL ESTATE
PARTNERS, LLC, a Delaware limited
liability corporation,

Cross-Complainants,

THIRD AND KING INVESTORS LLC, a
Delaware limited liability corporation;
WEBCOR BUILDERS, INC., a California
corporation; WEBCOR CONSTRUCTION,
INC., a California corporation, dba Webcor
Builders; WEBCOR CONSTRUCTION LP,

RC1/5785327.1/VS2

ANSWER OF CROSS-DEFENDANT THIRD AND KING INVESTORS LLC TO THE CROSS-COMPLAINT OF

CASE NO. CGC 08-478453
COMPLEX LITIGATION

Assigned to Hon. Richard A. Kramer,
Dept. 304

ANSWER OF CROSS-DEFENDANT
THIRD AND KING INVESTORS LLC
TO THE CROSS-COMPLAINT OF
THE MISSION PLACE CROSS-
COMPLAINANTS

-1-

THE MISSION PLACE CROSS-COMPLAINANTSRopers Majeski Kohn & Bentley

A Professiona! Corporation

San Francisco

~~
~

a California limited partnership, dba
Webcor Builders; SKIDMORE, OWINGS
& MERRILL LLP, an Illinois limited
partnership; HKS, Inc., a Texas corporation,
dba HKS Architects, Inc.; HKS, INC.,
WHICH WILL TRANSACT BUSINESS
IN CALIFORNIA AS HKS ARCHITECTS,
INC,, a Texas corporation; and ROES 100
to 200,

Cross-Defendants.

GENERAL DENIAL

Defendant THIRD AND KING INVESTORS LLC, (“THIRD AND KING” or “Cross-
Defendant”) in answer to the unverified Cross-Complaint of Cross-Complainants MISSION
PLACE LLC, MISSION PLACE MEZZ HOLDINGS LLC, MISSION PLACE MEZZAMNE
LLC, MISSION PLACE PARTNERS LLC, CENTURION REAL ESTATE INVESTORS IV,
LLC, and CENTURION REAL ESTATE PARTNERS, LLC (“MISSION PLACE” or “Cross-
Complainants”), herewith denies each and every, all and singular, the allegations of said
unverified Cross-Complaint and in this connection THIRD AND KING denies that MISSION
PLACE has been injured or damaged in any of the sums mentioned in said Cross-Complaint or in
any sum or at all as the result of any act or omission of THIRD AND KING.

FIRST AFFIRMATIVE DEFENSE

AS A FIRST, SEPARATE AND AFFIRMATIVE DEFENSE TO THE CROSS-
COMPLAINT ON FILE HEREIN, AND TO EACH ALLEGED CAUSE OF ACTION
CONTAINED THEREIN, this answering Cross-Defendant alleges that Cross-Complainant’s
Cross-Complaint fails to state facts sufficient to constitute a cause of action against this
answering Cross-Defendant.

SECOND AFFIRMATIVE DEFENSE

AS A SECOND, SEPARATE AND AFFIRMATIVE DEFENSE TO THE CROSS-
COMPLAINT ON FILE HEREIN AND TO EACH ALLEGED CAUSE OF ACTION
CONTAINED THEREIN, this answering Cross-Defendant alleges that Cross-Complainant has

waived and/or is estopped and barred from alleging the matters set forth in the Cross-Complaint.

RC1/S785327.1/VS2 -2-
ANSWER OF CROSS-DEFENDANT THIRD AND KING INVESTORS LLC TO THE CROSS-COMPLAINT OF
THE MISSION PLACE CROSS-COMPLAINANTSRopers Majeski Kohn & Bentiey
A Professionai Corporation

San Francisco

THIRD AFFIRMATIVE DEFENSE
AS A THIRD, SEPARATE AND AFFIRMATIVE DEFENSE TO THE CROSS-
COMPLAINT ON FILE HEREIN AND TO EACH ALLEGED CAUSE OF ACTION
CONTAINED THEREIN, this answering Cross-Defendant alleges that at all times and places
mentioned in the Cross-Complaint herein, Cross-Complainant failed to mitigate the amount of its
damages. The damages claimed by Cross-Complainant could have been mitigated by due
diligence on her part or by one acting under similar circumstances. Cross-Complainant’s failure
to mitigate is a bar to its recovery under the Cross-Complaint.
FOURTH AFFIRMATIVE DEFENSE
AS A FOURTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE CROSS-
COMPLAINT ON FILE HEREIN AND TO EACH ALLEGED CAUSE OF ACTION
CONTAINED THEREIN, this answering Cross-Defendant alleges that the alleged causes of
action set forth in the Cross-Complaint are, and each of them is, barred by the applicable
statute(s) of limitations including without limitation sections 321, 335.1, 337, 338, 339, 340 and
343 of the Code of Civil Procedure of the State of California.
FIFTH AFFIRMATIVE DEFENSE
AS A FIFTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE CROSS-
COMPLAINT ON FILE HEREIN AND TO EACH ALLEGED CAUSE OF ACTION
CONTAINED THEREIN, this answering Cross-Defendant alleges that any claim for equitable
relief by Cross-Complainant would be and is barred by the doctrine of unclean hands.
SIXTH AFFIRMATIVE DEFENSE
AS AN SIXTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE CROSS-
COMPLAINT ON FILE HEREIN AND TO EACH ALLEGED CAUSE OF ACTION
CONTAINED THEREIN, this answering Cross-Defendant alleges that any contractual duty it
might have has not been triggered because of the failure of a condition or conditions precedent to
occur.
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RC1/S785327.1/VS2 -3-

ANSWER OF CROSS-DEFENDANT THIRD AND KING INVESTORS LLC TO THE CROSS-COMPLAINT OF
THE MISSION PLACE CROSS-COMPLAINANTSRopers Majeski Kohn & Bentley

A Professional Corporation

San Francisco

on

SEVENTH AFFIRMATIVE DEFENSE

AS A SEVENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE CROSS-
COMPLAINT ON FILE HEREIN AND TO EACH ALLEGED CAUSE OF ACTION
CONTAINED THEREIN, this answering Cross-Defendant alleges that any contractual duty it
might have has been and is excused from performance.

EIGHTH AFFIRMATIVE DEFENSE

AS AN EIGHTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE CROSS-
COMPLAINT ON FILE HEREIN, AND TO EACH ALLEGED CAUSE OF ACTION
CONTAINED THEREIN, this answering Cross-Defendant alleges that it owed no duty to Cross-
Complainant, contractual or otherwise, based upon which Cross-Complainant may maintain the
causes of action herein.

NINTH AFFIRMATIVE DEFENSE

AS A NINTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE CROSS-
COMPLAINT ON FILE HEREIN, AND TO EACH ALLEGED CAUSE OF ACTION
CONTAINED THEREIN, this answering Cross-Defendant alleges that the sole and proximate
cause of the incident complained of by the Cross-Complainant in the Cross-Complaint was the
acts and/or omissions of persons and/or entities other than this answering Cross-Defendant.

TENTH AFFIRMATIVE DEFENSE

AS A TENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE CROSS-
COMPLAINT ON FILE HEREIN, AND TO EACH ALLEGED CAUSE OF ACTION
CONTAINED THEREIN, , this answering Cross-Defendant alleges that its conduct was not the
cause in fact or the proximate cause of any of the losses alleged by Cross-Complainant.

ELEVENTH AFFIRMATIVE DEFENSE

AS AN ELEVENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE CROSS-
COMPLAINT ON FILE HEREIN, AND TO EACH ALLEGED CAUSE OF ACTION
CONTAINED THEREIN, this answering Cross-Defendant alleges that the contract(s) upon
which Cross-Complainant’s claims are based was/were extinguished by Cross-Complainant’s

own conduct and/or conduct of third parties that Cross-Complainant has ratified and the benefit of
RC1/5785327.1/VS2 -4-
ANSWER OF CROSS-DEFENDANT THIRD AND KING INVESTORS LLC TO THE CROSS-COMPLAINT OF
THE MISSION PLACE CROSS-COMPLAINANTSRopers Majeski Kohn & Bentley

A Professional Corporation

San Francisco.

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which Cross-Complainant has accepted, and that no sums are owed to Cross-Complainant
accordingly.
TWELFTH AFFIRMATIVE DEFENSE

AS A TWELFTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE CROSS-
COMPLAINT ON FILE HERE, AND TO EACH ALLEGED CAUSE OF ACTION
CONTAINED THEREIN, this answering Cross-Defendant alleges that Cross-Complainant, by its
acts, errors, omissions and breaches of duties owed to this answering Cross-Defendant, caused
damages to this answering Cross-Defendant in an amount to be proven at trial and that this
answering Cross-Defendant is entitled to offset the full amount of said damages from any
judgment in favor of Cross-Complainant.

THIRTEENTH AFFIRMATIVE DEFENSE

AS A THIRTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE CROSS-
COMPLAINT ON FILE HERE, AND TO EACH ALLEGED CAUSE OF ACTION
CONTAINED THEREIN, this answering Cross-Defendant alleges that said injuries sustained by
Cross-Complainant were either wholly or in part negligently caused by persons, firms,
corporations or entities other than this answering Cross-Defendant, and said negligence is either
imputed to Cross-Complainant by reason of the relationship of said parties to Cross-Complainant
and/or said negligence comparatively reduces the percentage of negligence, if any, by this
answering Cross-Defendant.

FOURTEENTH AFFIRMATIVE DEFENSE

AS A FOURTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE CROSS-
COMPLAINT ON FILE HERE, AND TO EACH ALLEGED CAUSE OF ACTION
CONTAINED THEREIN, this answering Cross-Defendant alleges that any alleged
representations made by this answering Cross-Defendant which formed the basis of the subject
Cross-complaint herein, were true and honest at the time made. Said representations were made,
if any there were, without knowledge of any falsity, and were not made with the intent to deceive
the Cross-Complainant; Cross-Complainant is therefore barred from recovery herein.
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RCW5785327.1/VS2 -5-

ANSWER OF CROSS-DEFENDANT THIRD AND KING INVESTORS LLC TO THE CROSS-COMPLAINT OF
THE MISSION PLACE CROSS-COMPLAINANTSRopers Majeski Kohn & Bentley

A Professional Corporation

San Francisco

FIFTEENTH AFFIRMATIVE DEFENSE

AS A FOURTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE CROSS-
COMPLAINT ON FILE HERE, AND TO EACH ALLEGED CAUSE OF ACTION
CONTAINED THEREIN, this answering Cross-Defendant alleges that to the extent Cross-
Complainant seeks to impose liability on this answering Cross-Defendant based on one or more
provisions in an agreement between Cross-Complainant and this answering Cross-Defendant, this
answering Cross-Defendant alleges that there was a failure of consideration for one or more of the
provisions contained in the alleged agreement that Cross-Complainant seeks to enforce, caused by
Cross-Complainant, and that said failure of consideration bars Cross-Complainant’s rights to
relief under that provision against this answering Cross-Defendant.

SIXTEENTH AFFIRMATIVE DEFENSE

AS A SIX TEENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE CROSS-
COMPLAINT ON FILE HERE, AND TO EACH ALLEGED CAUSE OF ACTION
CONTAINED THEREIN, this answering Cross-Defendant alleges that at all times and places
mentioned in the Cross-Complaint herein, Cross-Complainant failed to exercise the quantity and
quality of care and caution which a reasonable entity, or reasonable individuals within such entity
or entities, in the same or similar circumstances would have exercised for the protection of person
and property; said failure and negligence of Cross-Complainant proximately caused and
contributed to the alleged injuries and damages sustained by the Plaintiffs herein and the Cross-
Complainants, if any, and therefore Cross-Complainant’s recovery (if any) is thereby diminished
or barred.

SEVENTEENTH AFFIRMATIVE DEFENSE

AS A SEVENTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE
CROSS-COMPLAINT ON FILE HERE, AND TO EACH ALLEGED CAUSE OF ACTION
CONTAINED THEREIN, this answering Cross-Defendant alleges that the Cross-Complainant
was comparatively negligent in and about the premises and Cross-defendant prays that any and all
damages sustained by Cross-Complainant be reduced by the percentage of its negligence.

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RCI/S785327.1/VS2 -6-

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ANSWER OF CROSS-DEFENDANT THIRD AND KING INVESTORS LLC TO THE CROSS-COMPLAINT OF

THE MISSION PLACE CROSS-COMPLAINANTSRopers Majeski Kohn & Bentley

A Professional Corporation

San Francisco.

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EIGHTEENTH AFFIRMATIVE DEFENSE

AS AN EIGHTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE
CROSS-COMPLAINT ON FILE HERE, AND TO EACH ALLEGED CAUSE OF ACTION
CONTAINED THEREIN, this answering Cross-Defendant alleges that at all times and places
mentioned in the underlying First Amended Complaint and Cross-Complaint herein, plaintiffs
and/or Cross-Complainant was or were aware, or in the exercise of reasonable care, should have
been aware of each and all of the conditions and circumstances then and there existing and
prevailing but nonetheless knowingly and voluntarily exposed themselves to the conditions
existing within the property, and to each and every risk which then and there may have been
attendant upon such circumstances and conditions; plaintiff and Cross-Complainant is therefore
barred from recovery herein.

NINETEENTH AFFIRMATIVE DEFENSE

AS A NINETEENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE CROSS-
COMPLAINT ON FILE HERE, AND TO EACH ALLEGED CAUSE OF ACTION
CONTAINED THEREIN, this answering Cross-Defendant alleges that that at all times and places
mentioned in the complaint herein, Cross-Complainant by its past conduct, past declarations, past
arguments, and past negotiating positions, acted with the intent to deliberately lead this answering
Cross-Defendant into a position of helplessness. This answering Cross-Defendant believed the
representations of Cross-Complainant and acted upon such belief to the detriment of this
answering Cross-Defendant. To permit Cross-Complainant to prevail would work as injustice
and therefore this answering Cross-Defendant asks the Court to protect it in equity by decreeing
that Cross-Complainant is barred from recovery and/or has waived its rights, if any. The conduct
of Cross-Complainant acts to bar by estoppel its right to complain at the present time.
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RC1/5785327.1/VS2 -7-
ANSWER OF CROSS-DEFENDANT THIRD AND KING INVESTORS LLC TO THE CROSS-COMPLAINT OF
THE MISSION PLACE CROSS-COMPLAINANTSRopers Majeski Kohn & Bentley

A Professional Corporation

San Francisco

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PRAYER
WHEREFORE: Defendant THIRD AND KING prays for judgment as follows:
1. That Cross-Complainant take nothing by its Cross-Complaint;
2. For reasonable attorney fees and costs; and
3. For such other and further relief as the Court deems proper.

Dated: December 10, 2010 ROPERS, MAJESKI, KOHN & BENTLEY

By:

JO . KOEPPEL

TODD J. WEN4ZBL

Attomeys for Créss-Defendant

THIRD AND KING INVESTORS LLC

RC1/5785327.1/VS2 -8-
ANSWER OF CROSS-DEFENDANT THIRD AND KING INVESTORS LLC TO THE CROSS-COMPLAINT OF
THE MISSION PLACE CROSS-COMPLAINANTSRopers Majeski Kohn & Bentley

A Professtonat Carporation

San Francisco.

CASE NAME ; BEACON RESIDENTIAL v. CATELLUS THIRD AND KING LLC
ACTION NO. : CGC 08-478453
PROOF OF SERVICE

METHOD OF SERVICE

Ge) First Class Mail OO Facsimile O Messenger Service

D1 Overnight Delivery [1 E-Mail/Electronic Delivery
1. At the time of service | was over 18 years of age and not a party to this action.
2. My business address is 201 Spear Street, Suite 1000, San Francisco, CA 94105.
3. On December 10, 2010, I served the following document:

ANSWER OF CROSS-DEFENDANT THIRD AND KING INVESTORS LLC TO
THE CROSS-COMPLAINT OF THE MISSION PLACE CROSS-COMPLAINANTS

4. I served the document on the persons at the address below (along with their fax numbers
and/or email addresses if service was by fax or email):

Daniel E. Angius, Esq. David S. Webster, Esq.

Julia Mouser, Esq. Mark J. D’Argenio, Esq.

Jimmy Ly, Esq. Wood, Smith, Henning & Berman LLP
Angius & Terry LLP 1401 Willow Pass Road, Suite 700

P. O. Box 8077 Concord, CA 94520-7982

Walnut Creek, CA 94596 (925) 356-8200/FAX (925) 356-8250
(925) 939-9933/FAX (925) 939-9934 dwebster@wshblaw.com
dangius@angius-terry.com mdargenio@wshblaw.com
jmouser@angius-terry.com Attorneys for Defendants PROLOGIS; THIRD
jly@angius-terry.com AND KING INVESTORS LLC; CATELLUS
Attorneys for Plaintitf BEACON URBAN DEVELOPMENT CORPORATION;
RESIDENTIAL COMMUNITY CATELLUS DEVELOPMENT
ASSOCIATION CORPORATION, CATELLUS THIRD

AND KING INVESTORS LLC; CATELLUS
Peter J. Laufenberg, Esq. COMMERCIAL DEVELOPMENT
Gregory Jung, Esq. CORPORATION; CATELLUS OPERATING
Wendel, Rosen, Black & Dean LIMITED PARTNERSHIP and WEBCOR
1111 Broadway, 24" Floor BUILDERS, INC.; WEBCOR
Oakland, CA 94607-4036 CONSTRUCTION, INC, individually and
(510) 834-6600/FAX (510) 834-1928 dba WEBCOR BUILDERS; WEBCOR
plaufenberg@wendel.com CONSTRUCTION LP, individually and
GJung@wendel.com dba WEBCOR BUILDERS
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
MEZZANINE, LLC; and MISSION
PLACE PARTNERS, LLC.

RC1/5229973.1/VS2 -l-

PROOF OF SERVICEA Professional Corporation

Ropers Majeski Kohn & Bentley

San Francisco

B WON

Steven M. Cvitanovic, Esq.

Haight, Brown & Bonesteel

71 Stevenson Street, 20" Floor

San Francisco, CA 94105-2981

(415) 546-7500/FAX (415) 546-7505
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.

Steven H. Schwartz, Esq.

Thomas Matteson, Esq.

Schwartz & Janzen

12100 Wilshire Boulevard, Suite 1125
Los Angeles, CA 90025

(310) 979-4090/FAX (310) 207-3344
sschwartz@sj-law.com
tmatteson@sj-law.com

Attorneys for Defendants HKS, INC., HKS
ARCHITECTS, INC., HKS, INC, individually
and doing business as HKS ARCHITECTS,
INC,

James Castle, Esq.

Richard Young, Esq.

Robles, Castle & Meredith

540 Pacific Avenue

San Francisco, CA 94133

(415) 743-9300/FAX (415) 743-9305
jim@roblesandcastleslaw.com
tick@rcmlawgroup.com

Attorneys for Defendants SKIDMORE
OWINGS & MERRILL LLP

FP RC1/9229973.1/vS2

5. [served the document by the following means:

a. &] By United States mail: I enclosed the document in a sealed envelope or package
addressed to the persons at the addresses specified in item 4 and placed the envelope for collection
and mailing, following our ordinary business practices. I am readily familiar with this business’s
practice for collecting and processing correspondence for mailing. On the same day that corres-
pondence is placed for collection and mailing, it is deposited in the ordinary course of business
with the United States Postal Service, in a sealed envelope with postage fully prepaid.

b. O By overnight delivery: I enclosed the document in an envelope or package provided
by an overnight delivery carrier and addressed to the persons at the addresses in item 4. | placed
the envelope or package for collection and overnight delivery at an office or a regularly utilized
drop box of the overnight delivery carrier.

c. O By messenger: I served the document by placing them in an envelope or package
addressed to the persons at the addresses listed in item 4 and providing them to a messenger
for service. (Separate declaration of personal service to be provided by the messenger.)

d. O By fax transmission: Based on an agreement between the parties and in conformance
with Rule 2.303, and/or as a courtesy, I faxed the document to the persons at the fax numbers
listed in item 4. (Separate Proof of Transmission by Fax to be provided.)

e. O By email or electronic transmission: Based on an agreement between the parties
and/or as a courtesy, I sent the document to the persons at the email addresses listed in item 4.
1 did not receive, within a reasonable time after the transmission, any electronic message or
other indication that the transmission was unsuccessful.

Hit

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-2-

PROOF OF SERVICERopers Majeski Kohn & Bentley

A Professional Corporation

San Francisco

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

Date: _December 10, 2010

Vija D. Strauts ls DX
Sighature

Type Name

RC1/5229973.1/VS2 -3-

PROOF OF SERVICE