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 1:13 pm

Case Number: CGC-08-478453
Filing Date: Dec-10-2010 1:11
Juke Box: 001 Image: 03059201
ANSWER

3EACON RESIDENTIAL COMMUNITY ASSOCIATION VS. CATELLUS THIRD AND KING LL

001003059201

Instructions:
Please place this sheet on top of the document to be scanned.WOOD, SMITH, HENNING & BERMAN LLP:

Attomeys at Law
4401 WILLOW PASS ROAD, SUITE 700

CONCORD, CALIFORNIA 94520-7982
‘TELEPHONE 925 3588200 ¢ Fax 925356 6250

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FILED
David S. Webster (State Bar No. 154301) oe
Mark J. D'Argenio (State Bar No. 238006) WOODED 10 PM fs
Woon, SmitH, HENNING & BERMAN LLP
1401 Willow Pass Road, Suite 700

Concord, California 94520-7982 8y:
Phone: 925 356 8200 # Fax: 925 356 8250 .

Attorneys for Defendants WEBCOR CONSTRUCTION, INC.; WEBCOR BUILDERS,
INC.; WEBCOR CONSTRUCTION, INC dba WEBCOR BUILDERS on its own behalf and
erroneously sued as WEBCOR CONSTRUCTION LP dba WEBCOR BUILD

SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO

BEACON RESIDENTIAL COMMUNITY CASE NO. CGC-08-478453

ASSOCIATION,
ANSWER TO MISSION PLACE’S
Plaintiff, CROSS-COMPLAINT
Vv. Complaint Filed: August 8, 2009
CATELLUS THIRD AND KING LLC; Discovery Cutoff: None Set
CATELLUS DEVELOPMENT Motion Cutoff: None Set
CORPORATION; CATELLUS Trial Date: None Set
COMMERCIAL DEVELOPMENT CORP.;
CATELLUS OPERATING LIMITED

PARTNERSHIP; CATELLUS URBAN
DEVELOPMENT CORPORATION; THIRD
AND KING INVESTORS LLC;
PROLOGIS; MISSION PLACE LLC;
MISSION PLACE MEZZANINE LLC;
MISSION PLACE MEZZS HOLDINGS
LLC; MISSION PLACE PARTNERS LLC;
CENTURION REAL ESTATE
INVESTORS IV, LLC; CENTURION REAL
ESTATE PARTNERS, LLC; CENTURION
PARTNERS LLC; WEBCOR BUILDERS,
INC.; WEBCOR CONSTRUCTION, INC.
individually and doing business as
WEBCOR BUILDERS; WEBCOR
CONSTRUCTION LP individually and
doing business as WEBCOR BUILDERS;
SKIDMORE OWINGS & MERRILL LLP;
HKS, INC.; HKS ARCHITECTS, INC.;
HKS, INC. findividually and doing
business as HKS ARCHITECTS, INC. and
DOES 1 through 200

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ANSWER TO MISSION PLACE'S CROSS-COMPLAINT

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Defendants.

Defendants WEBCOR BUILDERS, INC.; WEBCOR CONSTRUCTION, INC dba
WEBCOR BUILDERS on its own behalf and erroneously sued as WEBCOR
CONSTRUCTION LP dba WEBCOR BUILDERS (hereinafter collectively "CROSS-
DEFENDANTS") for themselves alone and no other defendant or cross-defendant,
answer the Cross-Complaint by MISSION PLACE LLC; MISSION PLACE MEZZANINE
LLC; MISSION PLACE MEZZS HOLDINGS LLC; MISSION PLACE PARTNERS LLC;
CENTURION REAL ESTATE INVESTORS IV, LLC; CENTURION REAL ESTATE
PARTNERS, LLC; CENTURION PARTNERS LLC (hereinafter "Cross-Complainant") on
file herein and admit, deny and allege as follows:

GENERAL DENIAL

1. Pursuant to the provisions of Section 431.30(d) of the California Code of
Civil Procedure, CROSS-DEFENDANTS deny generally and specifically each and every
allegation of the Cross-Complaint, and deny generally and specifically that Cross-
Complainants are entitled to damages in any amount at all or to any relief whatsoever.
Further answering the Cross-Complaint, CROSS-DEFENDANTS deny that Cross-
Complainants sustained any injuries, damages or loss by reason of any act or omission
on the part of CROSS-DEFENDANTS, or any agents, servants or employees of CROSS-
DEFENDANTS.

AFFIRMATIVE DEFENSES
FIRST AFFIRMATIVE DEFENSE

2. Cross-Complainant is barred from recovery herein by reason of the fact that
the Cross-Complaint, and each and every cause of action thereof, fails to state facts
sufficient to constitute a cause of action against these answering CROSS-
DEFENDANTS.

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Attomeys at Law:

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CONCORD, CALIFORNIA 84520-7882
‘TELEPHONE 925 356 8200 4 Fax 925.256 8250

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SECOND AFFIRMATIVE DEFENSE
3. The damages, if any, sustained by Cross-Complainant were proximately
caused or contributed to by the actions of Cross-Complainant and/or other parties to this
litigation and/or other persons or entities not as yet parties to this litigation. Therefore, it
is necessary that the proportionate degree of negligence or fault of each and every said
person or entity be determined and prorated such that any judgment rendered against
these answering CROSS-DEFENDANTS be reduced by that degree of negligence or
fault found to exist as to other plaintiffs, defendants, cross-complainants,
cross-defendants and/or persons or entities.
THIRD AFFIRMATIVE DEFENSE
4. Cross-Complainant directed, ordered, approved and/or ratified CROSS-
DEFENDANTS' conduct and Cross-Complainant is, therefore, estopped from asserting
any claims based herein.
FOURTH AFFIRMATIVE DEFENSE
5. Cross-Complainant is precluded from recovery against these answering
CROSS-DEFENDANTS in that the active or primary negligence of cross-complainant
was the proximate cause of damages, if any, sustained by Cross-Complainant, thereby
barring recovery from these answering CROSS-DEFENDANTS.
FIFTH AFFIRMATIVE DEFENSE
6. Should Cross-Complainant recover damages from these answering
CROSS-DEFENDANTS, these answering CROSS-DEFENDANTS are entitled to
indemnification, either in whole or in part, from alt persons or entities whose negligence
and/or fault proximately contributed to the damages, if any, sustained by
cross-complainant.
SIXTH AFFIRMATIVE DEFENSE
7. Cross-Complainant has failed and neglected to use reasonable care to
minimize and mitigate the losses, injuries and damages alleged in its Cross-Complaint.

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LEGAL:05863-0005/1558791.1

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ANSWER TO MISSION PLACE’S CROSS-COMPLAINTAttomeys at Law
1401 WILLOW PASS ROAD, SUITE 700
CONGORD, CALIFORNIA 94520-7982
TELEPHONE 925 3568200 ¢ Fax 925 358 8250

WOOD, SMITH, HENNING & BERMAN LLP.

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SEVENTH AFFIRMATIVE DEFENSE
8. Prior to the commencement of this action, these answering CROSS-
DEFENDANTS duly performed, satisfied and discharged all duties and obligations it may
have owed to Cross-Complainant arising out of any and all agreements, representations
or contracts made by it or on behalf these answering CROSS-DEFENDANTS, and
Cross-Complainant’s Cross-Compiaint is therefore barred.
EIGHTH AFFIRMATIVE DEFENSE
9. The damages sustained by Cross-Complainant, if any, were the result of
acts or omissions of others which acts or omissions were not and could not be foreseen
by these answering CROSS-DEFENDANTS.
NINTH AFFIRMATIVE DEFENSE
10. These answering CROSS-DEFENDANTS cannot be held liable to
Cross-Complainant because these answering CROSS-DEFENDANTS are informed and
believe, and based thereon alleges, that other parties owed a non-delegabie duty of care
to Cross-Compiainant, which duty, if breached at all, was not breached through any
conduct legally attributable to these answering CROSS-DEFENDANTS.
TENTH AFFIRMATIVE DEFENSE
11. Cross-Complainant is guilty of laches in pursuing its Cross-Complaint and
as a result thereof is barred from any recovery asserted therein.
ELEVENTH AFFIRMATIVE DEFENSE
12. — By the terms of its contract, these answering CROSS-DEFENDANTS is not liable
or otherwise accountable to Cross-Complainant for any damage or injury to
Cross-Complainant, however caused.
TWELFTH AFFIRMATIVE DEFENSE
13. | The work and/or activities of these answering CROSS-DEFENDANTS was
done in a professional and satisfactory manner.
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LEGAL:05863-0005/1558791.1

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ANSWER TO MISSION PLACE’S CROSS-COMPLAINTWOOD, SMITH, HENNING & BERMAN LLP
Attomeys at Law
1401 WILLOW PASS ROAD, SUITE 700
CONCORD, CALIFORNIA 94520-7982
TELEPHONE 925 356 8200 ¢ FAX 925 3568250

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THIRTEENTH AFFIRMATIVE DEFENSE
14. | The Cross-Complaint and each cause of action thereof is barred by the
applicable statute of limitations, including but not limited to California Code of Civil
Procedure, Sections 337(1), 337.1, 337.15, 338, 339, 340, 343 and 359.
FOURTEENTH AFFIRMATIVE DEFENSE
15, Any and all allegations in the Cross-Complaint, and any damages, if any,
resulting therefrom, are the exclusive result of Cross-Compiainant’s own negligence and
not the result of the acts, if any, of these answering CROSS-DEFENDANTS.
FIFTEENTH AFFIRMATIVE DEFENSE
16. These answering CROSS-DEFENDANTS are informed and believe, and
based thereon allege, that Cross-Complainant has suffered no cognizable damage as a
result of any and all of the matters alleged in the Cross-Complaint.
SIXTEENTH AFFIRMATIVE DEFENSE
17. | These answering CROSS-DEFENDANTS are informed and believe, and

based thereon allege, that Cross-Complainant is barred from recovery under any and all
causes of action alleged in the Cross-Complaint by reason of its failure and refusal to
mitigate its damages, if any, incurred as a result of any and all matters alleged in the
Cross-Complaint, despite its ability to do so by the exercise of reasonable effort.
SEVENTEENTH AFFIRMATIVE DEFENSE

18. Cross-Complainant is barred from recovery against these answering
CROSS-DEFENDANTS under the Cross-Complaint by reason of its prior waiver of its
tight to seek or obtain any recovery or relief herein.

EIGHTEENTH AFFIRMATIVE DEFENSE

19. As these answering CROSS-DEFENDANTS have been prevented from
performing its obligations, if any, by reason of Cross-Complainant's acts,
Cross-Complainant is barred from any recovery or relief herein.
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NINETEENTH AFFIRMATIVE DEFENSE

20. | Cross-Complainant has come into court with unclean hands, and as a

consequence thereof, is barred from any recovery or relief herein.
TWENTIETH AFFIRMATIVE DEFENSE

21. These answering CROSS-DEFENDANTS are informed and believe, and
based thereon allege, that at all times mentioned herein, Cross-Complainant was
negligent, careless, reckless and unlawfully conducted itself so as to directly and
proximately cause the alleged damages, all of which said negligence bars either
completely or partially the recovery sought by Cross-Complainant.

TWENTY-FIRST AFFIRMATIVE DEFENSE

22, These answering CROSS-DEFENDANTS are informed and believe, and
based thereon allege, that Cross-Complainant engaged in conduct and activities
sufficient to constitute a waiver of any recovery for damages, if any, sustained by
Cross-Complainant.

TWENTY-SECOND AFFIRMATIVE DEFENSE

23. These answering CROSS-DEFENDANTS are informed and believe, and
based thereon allege, that the injuries and damages of which Cross-Complainant
complains were proximately caused by or contributed to by the acts of other plaintiffs,
defendants, Cross-Compiainant, Cross-Defendants, persons and/or entities and that said
acts were an intervening and superseding cause of the complained of injuries and
damages, thus barring Cross-Complainant from any recovery against these answering
CROSS-DEFENDANTS.

TWENTY-THIRD AFFIRMATIVE DEFENSE
24. These answering CROSS-DEFENDANTS allege that Cross-Compiainant

expressly, voluntarily, and knowingly assumed all risks about which it complains in its
Cross-Complaint and, therefore, is barred either totally or to the extent of said
assumption of any damages.

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LEGAL:05863-0005/1558791.1

ANSWER TO MISSION PLACES CROSS-COMPLAINTWOOD, SMITH, HENNING & BERMAN LLP
Attormeys at Law
1401 WILLOW PASS ROAD, SUITE 700
CONCORD, CALIFORNIA 94520-7882
‘TELEPHONE 825356 8200 + FAX 925 356 8250

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TWENTY-FOURTH AFFIRMATIVE DEFENSE

25. These answering CROSS-DEFENDANTS have appropriately, completely

and fully performed and discharged any and all obligations and legal duties arising under

the matters alleged in the Cross-Complaint.

TWENTY-FIFTH AFFIRMATIVE DEFENSE

26. That Cross-Complainant has released these answering CROSS-
DEFENDANTS of all claims alleged in this action.

TWENTY-SIXTH AFFIRMATIVE DEFENSE

27. That all work and services performed by these answering CROSS-

DEFENDANTS met the standard of care known at the time the work was performed and

was the recognized state of the art at all relevant times herein.

WHEREFORE, Cross-Defendants pray for relief as follows:

(a) That Cross-Complainant take nothing against these answering
CROSS-DEFENDANTS;
(b) That these answering CROSS-DEFENDANTS have and recover their costs

of suit herein;

(c) That these answering CROSS-DEFENDANTS have and recover their

reasonable attorneys’ fees incurred herein; and

(d) For such other and further relief as the Court may deem just and proper.
DATED: December 10, 2010 WOOD, SMITH, HENNING & BERMAN LLP

LEGAL:05863-0005/1558791.1

Attorneys for Defendants WEBCOR
CONSTRUCTION, INC.; WEBCOR BUILDERS,
INC.; WEBCOR CONSTRUCTION, INC dba
WEBCOR BUILDERS on its own behalf and
erroneously sued as WEBCOR CONSTRUCTION
LP dba WEBCOR BUILDERS

ANSWER TO MISSION PLACE’S CROSS-COMPLAINT%
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PROOF OF SERVICE
STATE OF CALIFORNIA, COUNTY OF CONTRA COSTA

| am employed in the County of Contra Costa, State of California. | am over the
age of eighteen years and not a party to the within action; my business address is 1401
Willow Pass Road, Suite 700, Concord, California 94520-7982.

On December 10, 2010, | served the following document(s) described as
ANSWER TO MISSION PLACE'S CROSS-COMPLAINT on the interested parties in this
action as follows:

SEE ATTACHED LIST

BY MAIL: | placed true copies of the foregoing document(s) enclosed in sealed
envelopes addressed as shown on the Service List. | am “readily familiar” with Wood,
Smith, Henning & Berman's practice for collecting and processing correspondence for
mailing with the United States Postal Service. Under that practice, it would be deposited
with the United States Postal Service that same day in the ordinary course of business.
Such envelope(s) were placed for collection and mailing with postage thereon fully
prepaid at Concord, California, on that same day following ordinary business practices.
(Cade Civ. Proc. §1013, subd. (a) and 1013a(3).)

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

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FIRST LEGAL

4156261331

SERVICE LIST
Beacon Residential Community Association v. Catellus Third and King LLC
Case No. CGC-08-478453

Danie! L. Angius, Esq.

Angius & Terry

1990 N. California Boulevard

Suite 960

P.O. Box 8077

Walnut Creek, CA 94596

Tel: (925) 939-9933/Fax: (925) 939-9934
Attomey for Plaintiff THE BEACON

Charles A. Hansen, Esq.

Peter Laufenberg, Esq.

Wendel, Rosen, Black & Dean

1141 Broadway

24" Floor

Oakland, CA 94607-4036

Tel: (510) 834-6600/Fax: (510) 834-1928
Attorneys for Defendants MISSION
PLACE LLC; MISSION PLACE MEZZ
HOLDING LLC; MISSION PLACE
MEZZANINE LLC; MISSION PLACE
PARTNERS LLC; CENTURION REAL
ESTATE INVESTORS IV, LLC; and
CENTURION REAL ESTATE
PARTNERS, LLC

Steven H. Schwartz, Esq.

Schwartz & Janzen, LLP

12100 Wilshire Boulevard

Suite 1125

Los Angeles, CA 90025-7117

Tel: (310) 979-4090/Fax: (310) 207-3344
Attorneys for Defendants HKS, INC;
HKS ARCHITECTS, INC.; HKS, INC.

Todd Wenzel, Esq.

John Koeppel, Esq.

Terry Anastassiou, Esq.

Ropers, Majeski, Kohn & Bentley

201 Spear Street

Suite 1000

San Francisco, CA 94105

Tel: (415) 543-4800/Fax: (415) 972-6301
Co-counsel for PROLOGIS; THIRD AND
KING INVESTORS LLC; CATELLUS
URBAN DEVELOPMENT
CORPORATION; CATELLUS
DEVELOPMENT CORPORATION,
CATELLUS THIRD AND KING
INVESTORS LLC; CATELLUS
COMMERCIAL DEVELOPMENT
CORPORATION; CATELLUS
OPERATING LIMITED PARTNERSHIP

Steven M. Cvitanovic, Esq.

Haight, Brown & Bonesteel

71 Stevenson Street

20" Floor

San Francisco, CA 94105-2981

Tel: (415) 546-7500/Fax: (415) 546-7505
Attorneys for Defendant MISSION
PLACE LLC

James Castle

Robles & Castle

540 Pacific Avenue

San Francisco, CA 94133

Tel: (415) 743-9300/Fax: (415) 743-9305
Attorneys for Defendant SKIDMORE
OWINGS & MERRILL LP