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AIDC A
SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO
Document Scanning Lead Sheet
Feb-16-2012 1:22 pm
Case Number: CGC-10-498405
Filing Date: Feb-16-2012 1:21
Juke Box: 001 Image: 03497521
ANSWER
PERFORMING ARTS LLC, VS. KILLARNEY CONSTRUCTION CO., INC. et al
0010€03497521
Instructions:
Please place this sheet on top of the document to be scanned.RICHARD K. BAUMAN State Bar No. 118014
LAW OFFICES OF RICHARD K. BAUMAN
220 Montgomery Street, Suite 1500
San Francisco, CA 94104
Telephone: (415) 982-5230
Facsimile: (415) 397-1577
rbauman@att.net
Attomeys for Cross-Defendant
SANTOS & URRUTIA ASSOCIATES, INC.
£ LE. ‘Supericr Gow
FER 10 00:2
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO
UNLIMITED JURISDICTION
PERFORMING ARTS, LLC. , a Delaware
Limited Liability Company,
Plaintiff,
VS.
KILLARNEY CONSTRUCTION CO, INC.,
MID-MARKET DEVELOPMENT CO, INC,
CARDINAL CONSULTING, INC.,
CULLINANE CONSTRUCTION, ‘AL
NORMAN MECHANICAL, INC,
MICHAEL MURRAY, CONSTRUCTION
TESTING SERVICES, and DOES 1 through
200, inclusive,
Defendants.
CONSTRUCTION TESTING SERVICES,
INC.,, a California corporation,
Cross-Complainant,
vs.
ee
Case No. CGC-10-498405
ANSWER OF SANTOS & URRUTIA
ASSOCIATES, INC. TO CROSS-
COMPLAINT OF CONSTRUCTION
TESTING SERVICES, INC.
BY FAX
ANSWER OF SANTOS & URRUTIA ASSOCIATES, INC. TO CROSS-COMPLAINT OF CONSTRUCTION
TESTING SERVICES, INC., PAGE 1Coe Ya A HR PR WN
v BP RY RN oN eee
SR PRR EBS ERMREREBEHREL SE
on
a
KILLARNEY CONSTRUCTION CO. INC.,
MID-MARKET DEVELOPMENT, CO.,
INC., CARDINAL CONSULTING, INC..
CULLINANE CONSTRUCTION, AL
NORMAN MECHANICAL, INC. MICHAEL
MURRAY, and ROES | through 50 inclusive.
eee
Cross-Defendant Santos & Urrutia Associates, Inc. named in the amended Cross-
Complaint of Cross-Complainant Construction Testing Services, Inc. as ROE No. 2, answering
such Cross-Compliant, denies each and every allegation therein.
AFFIRMATIVE DEFENSES
The following separate affirmative defenses are alleged in response to the Cross-
Complaint and each cause of action therein:
FIRST AFFIRMATIVE DEFENSE
No Cause of Action Stated. The Cross-Complaint does not state facts sufficient
to constitute a cause of action against this answering Cross-Defendant.
SECOND AFFIRMATIVE DEFENSE
Comparative Negligence. Cross-Complainant’s or other’s own carelessness
and negligence has proximately contributed to the events and damages complained of if any there
were, and either bars or proportionately reduces any potential recovery to said Cross-
Complainant.
THIRD AFFIRMATIVE DEFENSE
Assumption of Risk. Cross-Complainant has assumed the risk, if any there was,
in connection with the matters referred to in the pleading, and recovery is therefore barred or
proportionately reduced to the extent of such assumption.
ANSWER OF SANTOS & URRUTIA ASSOCIATES, INC. TO CROSS-COMPLAINT OF CONSTRUCTION
TESTING SERVICES, INC., PAGE 2co em AW DH HR FF WN
NR BP NY NR NR NN DY Be Be ew oe eB Be em ee
IQ AA FF Gv f- SF ODA AA HA BR HN KK DS
FOURTH AFFIRMATIVE DEFENSE
Statute of Limitations, Any recovery sought by Cross-Complainant against this
answering Cross-Defendant is barred by the statute of limitations period set forth in Code of
Civil Procedure in section 335 through 349.4, more specifically, but not limited to, sections
335.1: 337(1)-(3); 337. L(a)-(P); 337.15(a)-(g); 338(a)-(d), (g); 339(1),(3); 340(a),(c); and 343
and all other subparts of said sections; and by section 2607(3), 2725(1) and(2) of the Commercial
Code.
FIFTH AFFIRMATIVE DEFENSE
Alteration of Product. Cross-Complainant or others have altered, abused, or
modified, the product, service, equipment or materials involved proximately causing the events
and damages, if any there were, and recovery is therefore barred or proportionately reduced
accordingly.
SIXTH AFFIRMATIVE DEFENSE
Misuse of Product. Cross-Complainant or others modified, altered, abused, or
misused the work, services, equipment, or materials that are allegedly provided by the Cross-
Defendant, and such conduct caused and contributed to the loss, injuries, or damage alleged.
SEVENTH AFFIRMATIVE DEFENSE
Failure to Mitigate Damages. Cross-Complainant has failed or neglected to use
teasonable care for protection and to minimize the losses and damages, if any there were, and
recovery is therefore barred or proportionately reduced accordingly.
EIGHTH AFFIRMATIVE DEFENSE
Conduct of Others. The injuries and damages of which Cross-Complainant
complains, if any there were, have been proximately caused by the conduct of parties other than
ANSWER OF SANTOS & URRUTIA ASSOCIATES, INC. TO CROSS-COMPLAINT OF CONSTRUCTION
TESTING SERVICES, ENC., PAGE 32 eo YN DW BR WN
nN Rae a ea ie
8S ® 8 S23 BEBHR ES
26
27
om
Now
this answering Cross-Defendant, and recovery is therefore barred or proportionately reduced
accordingly.
NINTH AFFIRMATIVE DEFENSE
Active and Passive Conduct. If it is determined that this answering
Cross-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, Cross-
Complainant is not, as a matter of law, entitled to recovery from this answering Cross-Defendant
on any theory of indemnity.
TENTH AFFIRMATIVE DEFENSE
Apportionment. 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
fault of each party.
ELEVENTH AFFIRMATIVE DEFENSE
Laches. Cross-Complainant knew or should have known of the matters alleged
herein for an unreasonably long period of time prior to commencement of this litigation, and did
not give notice to this answering Cross-Defendant, and are therefore barred.
TWELFTH AFFIRMATIVE DEFENSE
Spoilation of Evidence. Cross-Complainant, either intentionally or negligently,
failed to preserve the primary evidence relevant to this litigation, thus failing to give this
answering Cross-Defendant an opportunity to inspect said evidence and thereby severely
damaging and prejudicing a defense. Cross-Complainant therefore should be barred from
introducing secondary or lesser evidence, and any recovery should be diminished accordingly.
ANSWER OF SANTOS & URRUTIA ASSOCIATES, INC. TO CROSS-COMPLAINT OF CONSTRUCTION
TESTING SERVICES, INC., PAGE 4co Om YN DW FF Ww YD
Boe eB ee Be ee Be me
So e822 A ARE HR ES
21
THIRTEENTH AFFIRMATIVE DEFENSE
Equitable Indemnity. The principles of comparative equitable indemnity should
be applied by the Court where appropriate, despite the absence of a cross-complaint specifically
requesting same.
FOURTEENTH AFFIRMATIVE DEFENSE
Doctrine of Unclean Hands. Cross-Complainant is barred by virtue of conduct
causing the alleged damages, under the doctrine of unclean hands.
FIFTEENTH AFFIRMATIVE DEFENSE
No Special Relationship. _No relationship existed between Cross-Complainant
and this answering Cross-Defendant which would give rise to indemnity.
SIXTEENTH AFFIRMATIVE DEFENSE
Estoppel. Cross-Complainant is estopped from recovery by virtue of acts of
directing, ordering, approving or ratifying the matters complained of herein.
SEVENTEENTH AFFIRMATIVE DEFENSE
Uncertain and Ambigous.The complaint and each cause of action are ambiguous
and uncertain so that there is a defect of parties pursuant to Code of Civil Procedure section
430.10(f).
EIGHTEENTH AFFIRMATIVE DEFENSE
Standing. Cross-Complainant lacks standing to raise the issues alleged and to seek
the relief prayed for in the complaint and each cause of action therein.
ANSWER OF SANTOS & URRUTIA ASSOCIATES, INC. TO CROSS-COMPLAINT OF CONSTRUCTION
TESTING SERVICES, INC., PAGE 5Co mY DW eB ww we
YP YM DP NR NR NY DP ee ew we ee ee oe Oe
SR REBREBSEKREARBRERB ER IS
NINETEENTH AFFIRMATIVE DEFENSE
Pari Delicto, Cross-Complainant is in pari delicto.
TWENTIETH AFFIRMATIVE DEFENSE
Causation As a matter of law, Cross-Defendant’s conduct was not the legal,
proximate, or other cause of any alleged loss, injuries, or damages.
TWENTY-FIRST AFFIRMATIVE DEFENSE
Means and Methods. Cross-Defendant was not responsible for the method or
means of construction used by the contractor or its subcontractors, nor was the Cross-Defendant
responsible for the failure of the contractor or its subcontractors to carry out the work in
accordance with the contract documents.
TWENTY-SECOND AFFIRMATIVE DEFENSE
No Duty. Cross-Defendant owes no duty, contractual or otherwise, to Cross-
Complainant and therefore has no liability for any damages sought by Cross-Complainant.
TWENTY-THIRD AFFIRMATIVE DEFENSE
Notice. Cross-Complainant is barred from any relief against Cross-Defendant
because Cross-Complainant failed to give Cross-Defendant reasonable notice of the breaches of
the contract or other wrongful conduct alleged.
TWENTY-FOURTH AFFIRMATIVE DEFENSE
“| ANSWER OF SANTOS & URRUTIA ASSOCIATES, INC. TO CROSS-COMPLAINT OF CONSTRUCTION
TESTING SERVICES, INC., PAGE 6Ce YD DH WH RB WwW De
Re oP wv yD ~ ee ka
YR &PEBSBREPERESEERE DRA ETEBEB ES
Conformity. The alleged activities of Cross-Defendant conform to statutes,
government regulations, and industry standards based on the state of the knowledge existing at
the relevant time.
TWENTY-FIFTH AFFIRMATIVE DEFENSE
Knowledge. Cross-Complainant had full and complete knowledge if any alleged
defective or dangerous conditions which existed in or upon the property mentioned in the
complaint, and with full knowledge of said alleged dangerous or defective condition Cross-
Complainant assumed any such risk to Cross-Complainant’s safety involving the use of said
property.
TWENTY-SIXTH AFFIRMATIVE DEFENSE
Failure to Comply with Certificate of Merit Statute. Cross-Complainant failed to
comply with the code of civil procedure section 411.35, entitling Cross-Defendants to recover all
attorney’s fees and costs incurred in this matter.
TWENTY-SEVENTH AFFIRMATIVE DEFENSE
Economic Loss Doctrine. Cross-Complainant’s claims are barred by the
economic loss doctrine and in Aas v. Superior Court (2000) 24 Cal.4th 627.
TWENTY-EIGHT AFFIRMATIVE DEFENSE
Res Judicata, Collateral Estoppel. Cross-Complainant’s claims are barred by
tes judicata, collateral estoppel or issue preclusion.
TWENTY-NINTH AFFIRMATIVE DEFENSE
ANSWER OF SANTOS & URRUTIA ASSOCIATES, INC. TO CROSS-COMPLAINT OF CONSTRUCTION
TESTING SERVICES, INC., PAGE 7wo Oe WA DH PF WwW HY Be
my ty Ne N _ —
NR GE SOBREREBERBE TREES H ES
~
New’
Trivial Defect. Considering the surrounding circumstances, the alleged risks
created by the condition alleged was of such minor, trivial and insignificant nature that no
reasonable person could conclude that it had created a substantial risk of injury were subject
property was used with due care and in a manner that was reasonably foreseeable,
THIRTIETH AFFIRMATIVE DEFENSE
Performance. The action is barred by the provision of Civil Code section 1473
because prior to commencement of this action, the Cross-Defendant duly performed, satisfied,
and discharged any and all relevant duties and obligations arising out of any and all agreements,
representations, or contracts that may have been made by it or on its behalf.
THIRTY-FIRST AFFIRMATIVE DEFENSE
Wilful Misconduct, The alleged loss, injuries, or damages resulted from the willful
or reckless misconduct of others.
THIRTY-SECOND AFFIRMATIVE DEFENSE
Permission or Consent. All the activities of Cross-Defendant alleged in the
complaint were conducted with the permission or consent, express or implied, of Cross-
Complainant or others.
THIRTY-THIRD AFFIRMATIVE DEFENSE
Additional Defenses. At this time Cross-Defendant has insufficient knowledge or
information as to whether it may have additional, but as yet unstated, affirmative defenses, and
accordingly it reserves the right to assert additional defenses in the event it is discovered that
such amendment would be appropriate.
ANSWER OF SANTOS & URRUTIA ASSOCIATES, INC, TO CROSS-COMPLAINT OF CONSTRUCTION
TESTING SERVICES, INC., PAGE 8oOo YN DA HR BF Www =
Re YP N PN oe o wea
S 8 GB SSkRSaSERDRREBSOER AS
Ne
WHEREAS, Cross-Defendant prays:
i. That Cross-Complainant take nothing against Cross-Defendant by this present
action;
2. That Cross-Defendant be dismissed from this Complaint with prejudice with costs
of suit incurred, Cross-Defendant’s attorney's fees, and for such other and further relief as the
Court deems proper.
DATED: February 16, 2012
By
Richard K. Bauman
Attomey for Cross-Defendant
Santos & Urrutia Associates, Inc.
ANSWER OF SANTOS & URRUTIA ASSOCIATES, INC. TO CROSS-COMPLAINT OF CONSTRUCTION
TESTING SERVICES, INC., PAGE 9eo MW YN DAW BR WwW DP
Roe Oe em a a ek
oC COC eM NY DH BHD PB FS
21
PROOF OF SERVICE
I, the undersigned, hereby declare: I am over 18 years of age and not a party to this action; my
business address is 220 Montgomery Street, Suite 1500, San Francisco, California 94104.
On this date I served the attached:
ANSWER OF SANTOS & URRUTIA ASSOCIATES, INC. TO CROSS-
COMPLAINT OF CONSTRUCTION TESTING SERVICES, INC.
by placing a true copy thereof, enclosed in a sealed envelope addressed as follows:
See attached service list
I caused such envelope with postage thereon fully paid to be deposited in a mailbox in
San Francisco, California. I declare under penalty of perjury under the laws of the State of
California that the foregoing is true and correct.
Dated: February 16, 2012
00 (2
Richard K. Bauman
ANSWER OF SANTOS & URRUTIA ASSOCIATES, INC. TO CROSS-COMPLAINT OF CONSTRUCTION
TESTING SERVICES, INC., PAGE 10Service List
Performing Arts vs Killarney, et al..
San Francisco Superior Court No. CGC-10-498405
Gary A. Angel, Esq.
Frear Stephen Schmid, Esq.
San Francisco, CA 94121
Law Offices of Gary A. Angel
177 Post Street, 8" Floor
San Francisco, CA 94108
Tel.: (415) 788-5935
Fax: (415) 788-5958
Attorneys for Plaintiff
Performing Arts, LLC
Jeffrey H. Lowenthal, Esq.
Steyer Lowenthal Boodrookas
Alvarez & Smith, LLP
One California Street, 3% Floor
San Francisco, CA 94111
Attorneys for Plaintiff
Performing Arts, LLC
Suzanne M. Martin, Esq.
Lewis Brisbois Bisgaard & Smith,
LLP
One Sansome Street, Suite 1400
San Francisco, CA, 94104
Tel.: (415) 438-6616
Fax: (415) 434-0882
Attorneys for Intervener Aspen
Insurance Uk, Ltd. On behalf of
Defendant Killarney
Construction Co., A California
Suspended Corporation; and
Defendants Cullinane
Construction and Al Norman
Mechanical, Inc.
Paul Manasian, Esq.
Manasian & Rougeau, LLP
400 Montgomery Street, Suite 1000
San Francisco, California 94104
Tel.:(415) 291-8425 x4
Fax (415) 291-8426
Attorneys for Defendants
Michael Murray and Mid-
Market Development Co.,Inc.
Dion N. Cominos, Esq.
Mark C. Russell, Esq.
Olivia J. Bradbury, Esq.
Gordon & Rees
275 Battery Street, Suite 2000
San Francisco, CA 9411]
Tel: (415) 986-5900
Fax: (415) 986-8054
Attorneys for Defendant
Cardinal Consulting, Inc.
John C. Dooling
Devin C. Courteau
Ropers, Majeski, Kohn &
Bentley
201 Spear Street, Suite 1000
San Francisco, CA 94105-1667
Tel: (415) 543-4800
Fax: (415) 972-6301
Attorneys for Defendant
Construction Testing Services,
Inc,
Preview
AIDC A SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN FRANCISCO Document Scanning Lead Sheet Feb-16-2012 1:22 pm Case Number: CGC-10-498405 Filing Date: Feb-16-2012 1:21 Juke Box: 001 Image: 03497521 ANSWER PERFORMING ARTS LLC, VS. KILLARNEY CONSTRUCTION CO., INC. et al 0010€03497521 Instructions: Please place this sheet on top of the document to be scanned.RICHARD K. BAUMAN State Bar No. 118014 LAW OFFICES OF RICHARD K. BAUMAN 220 Montgomery Street, Suite 1500 San Francisco, CA 94104 Telephone: (415) 982-5230 Facsimile: (415) 397-1577 rbauman@att.net Attomeys for Cross-Defendant SANTOS & URRUTIA ASSOCIATES, INC. £ LE. ‘Supericr Gow FER 10 00:2 SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN FRANCISCO UNLIMITED JURISDICTION PERFORMING ARTS, LLC. , a Delaware Limited Liability Company, Plaintiff, VS. KILLARNEY CONSTRUCTION CO, INC., MID-MARKET DEVELOPMENT CO, INC, CARDINAL CONSULTING, INC., CULLINANE CONSTRUCTION, ‘AL NORMAN MECHANICAL, INC, MICHAEL MURRAY, CONSTRUCTION TESTING SERVICES, and DOES 1 through 200, inclusive, Defendants. CONSTRUCTION TESTING SERVICES, INC.,, a California corporation, Cross-Complainant, vs. ee Case No. CGC-10-498405 ANSWER OF SANTOS & URRUTIA ASSOCIATES, INC. TO CROSS- COMPLAINT OF CONSTRUCTION TESTING SERVICES, INC. BY FAX ANSWER OF SANTOS & URRUTIA ASSOCIATES, INC. TO CROSS-COMPLAINT OF CONSTRUCTION TESTING SERVICES, INC., PAGE 1Coe Ya A HR PR WN v BP RY RN oN eee SR PRR EBS ERMREREBEHREL SE on a KILLARNEY CONSTRUCTION CO. INC., MID-MARKET DEVELOPMENT, CO., INC., CARDINAL CONSULTING, INC.. CULLINANE CONSTRUCTION, AL NORMAN MECHANICAL, INC. MICHAEL MURRAY, and ROES | through 50 inclusive. eee Cross-Defendant Santos & Urrutia Associates, Inc. named in the amended Cross- Complaint of Cross-Complainant Construction Testing Services, Inc. as ROE No. 2, answering such Cross-Compliant, denies each and every allegation therein. AFFIRMATIVE DEFENSES The following separate affirmative defenses are alleged in response to the Cross- Complaint and each cause of action therein: FIRST AFFIRMATIVE DEFENSE No Cause of Action Stated. The Cross-Complaint does not state facts sufficient to constitute a cause of action against this answering Cross-Defendant. SECOND AFFIRMATIVE DEFENSE Comparative Negligence. Cross-Complainant’s or other’s own carelessness and negligence has proximately contributed to the events and damages complained of if any there were, and either bars or proportionately reduces any potential recovery to said Cross- Complainant. THIRD AFFIRMATIVE DEFENSE Assumption of Risk. Cross-Complainant has assumed the risk, if any there was, in connection with the matters referred to in the pleading, and recovery is therefore barred or proportionately reduced to the extent of such assumption. ANSWER OF SANTOS & URRUTIA ASSOCIATES, INC. TO CROSS-COMPLAINT OF CONSTRUCTION TESTING SERVICES, INC., PAGE 2co em AW DH HR FF WN NR BP NY NR NR NN DY Be Be ew oe eB Be em ee IQ AA FF Gv f- SF ODA AA HA BR HN KK DS FOURTH AFFIRMATIVE DEFENSE Statute of Limitations, Any recovery sought by Cross-Complainant against this answering Cross-Defendant is barred by the statute of limitations period set forth in Code of Civil Procedure in section 335 through 349.4, more specifically, but not limited to, sections 335.1: 337(1)-(3); 337. L(a)-(P); 337.15(a)-(g); 338(a)-(d), (g); 339(1),(3); 340(a),(c); and 343 and all other subparts of said sections; and by section 2607(3), 2725(1) and(2) of the Commercial Code. FIFTH AFFIRMATIVE DEFENSE Alteration of Product. Cross-Complainant or others have altered, abused, or modified, the product, service, equipment or materials involved proximately causing the events and damages, if any there were, and recovery is therefore barred or proportionately reduced accordingly. SIXTH AFFIRMATIVE DEFENSE Misuse of Product. Cross-Complainant or others modified, altered, abused, or misused the work, services, equipment, or materials that are allegedly provided by the Cross- Defendant, and such conduct caused and contributed to the loss, injuries, or damage alleged. SEVENTH AFFIRMATIVE DEFENSE Failure to Mitigate Damages. Cross-Complainant has failed or neglected to use teasonable care for protection and to minimize the losses and damages, if any there were, and recovery is therefore barred or proportionately reduced accordingly. EIGHTH AFFIRMATIVE DEFENSE Conduct of Others. The injuries and damages of which Cross-Complainant complains, if any there were, have been proximately caused by the conduct of parties other than ANSWER OF SANTOS & URRUTIA ASSOCIATES, INC. TO CROSS-COMPLAINT OF CONSTRUCTION TESTING SERVICES, ENC., PAGE 32 eo YN DW BR WN nN Rae a ea ie 8S ® 8 S23 BEBHR ES 26 27 om Now this answering Cross-Defendant, and recovery is therefore barred or proportionately reduced accordingly. NINTH AFFIRMATIVE DEFENSE Active and Passive Conduct. If it is determined that this answering Cross-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, Cross- Complainant is not, as a matter of law, entitled to recovery from this answering Cross-Defendant on any theory of indemnity. TENTH AFFIRMATIVE DEFENSE Apportionment. 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 fault of each party. ELEVENTH AFFIRMATIVE DEFENSE Laches. Cross-Complainant knew or should have known of the matters alleged herein for an unreasonably long period of time prior to commencement of this litigation, and did not give notice to this answering Cross-Defendant, and are therefore barred. TWELFTH AFFIRMATIVE DEFENSE Spoilation of Evidence. Cross-Complainant, either intentionally or negligently, failed to preserve the primary evidence relevant to this litigation, thus failing to give this answering Cross-Defendant an opportunity to inspect said evidence and thereby severely damaging and prejudicing a defense. Cross-Complainant therefore should be barred from introducing secondary or lesser evidence, and any recovery should be diminished accordingly. ANSWER OF SANTOS & URRUTIA ASSOCIATES, INC. TO CROSS-COMPLAINT OF CONSTRUCTION TESTING SERVICES, INC., PAGE 4co Om YN DW FF Ww YD Boe eB ee Be ee Be me So e822 A ARE HR ES 21 THIRTEENTH AFFIRMATIVE DEFENSE Equitable Indemnity. The principles of comparative equitable indemnity should be applied by the Court where appropriate, despite the absence of a cross-complaint specifically requesting same. FOURTEENTH AFFIRMATIVE DEFENSE Doctrine of Unclean Hands. Cross-Complainant is barred by virtue of conduct causing the alleged damages, under the doctrine of unclean hands. FIFTEENTH AFFIRMATIVE DEFENSE No Special Relationship. _No relationship existed between Cross-Complainant and this answering Cross-Defendant which would give rise to indemnity. SIXTEENTH AFFIRMATIVE DEFENSE Estoppel. Cross-Complainant is estopped from recovery by virtue of acts of directing, ordering, approving or ratifying the matters complained of herein. SEVENTEENTH AFFIRMATIVE DEFENSE Uncertain and Ambigous.The complaint and each cause of action are ambiguous and uncertain so that there is a defect of parties pursuant to Code of Civil Procedure section 430.10(f). EIGHTEENTH AFFIRMATIVE DEFENSE Standing. Cross-Complainant lacks standing to raise the issues alleged and to seek the relief prayed for in the complaint and each cause of action therein. ANSWER OF SANTOS & URRUTIA ASSOCIATES, INC. TO CROSS-COMPLAINT OF CONSTRUCTION TESTING SERVICES, INC., PAGE 5Co mY DW eB ww we YP YM DP NR NR NY DP ee ew we ee ee oe Oe SR REBREBSEKREARBRERB ER IS NINETEENTH AFFIRMATIVE DEFENSE Pari Delicto, Cross-Complainant is in pari delicto. TWENTIETH AFFIRMATIVE DEFENSE Causation As a matter of law, Cross-Defendant’s conduct was not the legal, proximate, or other cause of any alleged loss, injuries, or damages. TWENTY-FIRST AFFIRMATIVE DEFENSE Means and Methods. Cross-Defendant was not responsible for the method or means of construction used by the contractor or its subcontractors, nor was the Cross-Defendant responsible for the failure of the contractor or its subcontractors to carry out the work in accordance with the contract documents. TWENTY-SECOND AFFIRMATIVE DEFENSE No Duty. Cross-Defendant owes no duty, contractual or otherwise, to Cross- Complainant and therefore has no liability for any damages sought by Cross-Complainant. TWENTY-THIRD AFFIRMATIVE DEFENSE Notice. Cross-Complainant is barred from any relief against Cross-Defendant because Cross-Complainant failed to give Cross-Defendant reasonable notice of the breaches of the contract or other wrongful conduct alleged. TWENTY-FOURTH AFFIRMATIVE DEFENSE “| ANSWER OF SANTOS & URRUTIA ASSOCIATES, INC. TO CROSS-COMPLAINT OF CONSTRUCTION TESTING SERVICES, INC., PAGE 6Ce YD DH WH RB WwW De Re oP wv yD ~ ee ka YR &PEBSBREPERESEERE DRA ETEBEB ES Conformity. The alleged activities of Cross-Defendant conform to statutes, government regulations, and industry standards based on the state of the knowledge existing at the relevant time. TWENTY-FIFTH AFFIRMATIVE DEFENSE Knowledge. Cross-Complainant had full and complete knowledge if any alleged defective or dangerous conditions which existed in or upon the property mentioned in the complaint, and with full knowledge of said alleged dangerous or defective condition Cross- Complainant assumed any such risk to Cross-Complainant’s safety involving the use of said property. TWENTY-SIXTH AFFIRMATIVE DEFENSE Failure to Comply with Certificate of Merit Statute. Cross-Complainant failed to comply with the code of civil procedure section 411.35, entitling Cross-Defendants to recover all attorney’s fees and costs incurred in this matter. TWENTY-SEVENTH AFFIRMATIVE DEFENSE Economic Loss Doctrine. Cross-Complainant’s claims are barred by the economic loss doctrine and in Aas v. Superior Court (2000) 24 Cal.4th 627. TWENTY-EIGHT AFFIRMATIVE DEFENSE Res Judicata, Collateral Estoppel. Cross-Complainant’s claims are barred by tes judicata, collateral estoppel or issue preclusion. TWENTY-NINTH AFFIRMATIVE DEFENSE ANSWER OF SANTOS & URRUTIA ASSOCIATES, INC. TO CROSS-COMPLAINT OF CONSTRUCTION TESTING SERVICES, INC., PAGE 7wo Oe WA DH PF WwW HY Be my ty Ne N _ — NR GE SOBREREBERBE TREES H ES ~ New’ Trivial Defect. Considering the surrounding circumstances, the alleged risks created by the condition alleged was of such minor, trivial and insignificant nature that no reasonable person could conclude that it had created a substantial risk of injury were subject property was used with due care and in a manner that was reasonably foreseeable, THIRTIETH AFFIRMATIVE DEFENSE Performance. The action is barred by the provision of Civil Code section 1473 because prior to commencement of this action, the Cross-Defendant duly performed, satisfied, and discharged any and all relevant duties and obligations arising out of any and all agreements, representations, or contracts that may have been made by it or on its behalf. THIRTY-FIRST AFFIRMATIVE DEFENSE Wilful Misconduct, The alleged loss, injuries, or damages resulted from the willful or reckless misconduct of others. THIRTY-SECOND AFFIRMATIVE DEFENSE Permission or Consent. All the activities of Cross-Defendant alleged in the complaint were conducted with the permission or consent, express or implied, of Cross- Complainant or others. THIRTY-THIRD AFFIRMATIVE DEFENSE Additional Defenses. At this time Cross-Defendant has insufficient knowledge or information as to whether it may have additional, but as yet unstated, affirmative defenses, and accordingly it reserves the right to assert additional defenses in the event it is discovered that such amendment would be appropriate. ANSWER OF SANTOS & URRUTIA ASSOCIATES, INC, TO CROSS-COMPLAINT OF CONSTRUCTION TESTING SERVICES, INC., PAGE 8oOo YN DA HR BF Www = Re YP N PN oe o wea S 8 GB SSkRSaSERDRREBSOER AS Ne WHEREAS, Cross-Defendant prays: i. That Cross-Complainant take nothing against Cross-Defendant by this present action; 2. That Cross-Defendant be dismissed from this Complaint with prejudice with costs of suit incurred, Cross-Defendant’s attorney's fees, and for such other and further relief as the Court deems proper. DATED: February 16, 2012 By Richard K. Bauman Attomey for Cross-Defendant Santos & Urrutia Associates, Inc. ANSWER OF SANTOS & URRUTIA ASSOCIATES, INC. TO CROSS-COMPLAINT OF CONSTRUCTION TESTING SERVICES, INC., PAGE 9eo MW YN DAW BR WwW DP Roe Oe em a a ek oC COC eM NY DH BHD PB FS 21 PROOF OF SERVICE I, the undersigned, hereby declare: I am over 18 years of age and not a party to this action; my business address is 220 Montgomery Street, Suite 1500, San Francisco, California 94104. On this date I served the attached: ANSWER OF SANTOS & URRUTIA ASSOCIATES, INC. TO CROSS- COMPLAINT OF CONSTRUCTION TESTING SERVICES, INC. by placing a true copy thereof, enclosed in a sealed envelope addressed as follows: See attached service list I caused such envelope with postage thereon fully paid to be deposited in a mailbox in San Francisco, California. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Dated: February 16, 2012 00 (2 Richard K. Bauman ANSWER OF SANTOS & URRUTIA ASSOCIATES, INC. TO CROSS-COMPLAINT OF CONSTRUCTION TESTING SERVICES, INC., PAGE 10Service List Performing Arts vs Killarney, et al.. San Francisco Superior Court No. CGC-10-498405 Gary A. Angel, Esq. Frear Stephen Schmid, Esq. San Francisco, CA 94121 Law Offices of Gary A. Angel 177 Post Street, 8" Floor San Francisco, CA 94108 Tel.: (415) 788-5935 Fax: (415) 788-5958 Attorneys for Plaintiff Performing Arts, LLC Jeffrey H. Lowenthal, Esq. Steyer Lowenthal Boodrookas Alvarez & Smith, LLP One California Street, 3% Floor San Francisco, CA 94111 Attorneys for Plaintiff Performing Arts, LLC Suzanne M. Martin, Esq. Lewis Brisbois Bisgaard & Smith, LLP One Sansome Street, Suite 1400 San Francisco, CA, 94104 Tel.: (415) 438-6616 Fax: (415) 434-0882 Attorneys for Intervener Aspen Insurance Uk, Ltd. On behalf of Defendant Killarney Construction Co., A California Suspended Corporation; and Defendants Cullinane Construction and Al Norman Mechanical, Inc. Paul Manasian, Esq. Manasian & Rougeau, LLP 400 Montgomery Street, Suite 1000 San Francisco, California 94104 Tel.:(415) 291-8425 x4 Fax (415) 291-8426 Attorneys for Defendants Michael Murray and Mid- Market Development Co.,Inc. Dion N. Cominos, Esq. Mark C. Russell, Esq. Olivia J. Bradbury, Esq. Gordon & Rees 275 Battery Street, Suite 2000 San Francisco, CA 9411] Tel: (415) 986-5900 Fax: (415) 986-8054 Attorneys for Defendant Cardinal Consulting, Inc. John C. Dooling Devin C. Courteau Ropers, Majeski, Kohn & Bentley 201 Spear Street, Suite 1000 San Francisco, CA 94105-1667 Tel: (415) 543-4800 Fax: (415) 972-6301 Attorneys for Defendant Construction Testing Services, Inc,