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NOTE
SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO
Document Scanning Lead Sheet
- Nov-03-2010 1:35 pm
Case Number: CGC-10-498405
Filing Date: Nov-03-2010 1:34
Juke Box: 001 Image: 03021582
ANSWER
PERFORMING ARTS LLG, VS. KILLARNEY CONSTRUCTION CO., INC. et al
001C03021582
Instructions:
Please place this sheet on top of the document to be scanned.~ FILED
Superior Count iforni
Simy of San Fan ole
1 | LEWIS BRISBOIS BISGAARD & SMITH LLP
SUZANNE M. MARTIN, SB#167079 NOV 03 2010
2 KELTON M. BURGESS, SB#256621
One Sansome Street, Suite 1400 CLERK OF THE COURT
3 || San Francisco, California 94104 BY
Telephone: (415) 362-2580 Deputy
4 || Facsimile: (415) 434-0882
a
Attorneys for Defendants and Cross-Defendants CULLINANE CONSTRUCTION and AL
NORMAN MECHANICAL, INC.
6
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8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 COUNTY OF SAN FRANCISCO
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11 || PERFORMING ARTS, LLC, a Delaware CASE NO. CGC-10-498405
limited liability company,
)
)
) CROSS-DEFENDANTS CULLINANE
Plaintiff, ) CONSTRUCTION AND AL NORMAN
) MECHANICAL, INC.*S ANSWER TO
v. ) CROSS-COMPLAINT OF CONSTRUCTION
4 ) TESTING SERVICES
KILLARNEY CONSTRUCTION CO., INC., )
15 || MID-MARKET DEVELOPMENT CO., INC., )
CARDINAL CONSULTING, INC., )
16 |) CILLINANE CONSTRUCTION, AL )
NORMAN MECHANICAL, INC., MICHAEL )
7 || MURRAY, CONSTRUCTION TESTING )
SERVICES and DOES | through 200, inclusive,)
Defendants.
20 |) AND RELATED CROSS-ACTIONS
)
)
}
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)
)
)
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COME NOW Defendants and Cross-Defendants, CULLINANE CONSTRUCTION and AL
” NORMAN MECHANICAL, INC. (“CROSS-DEFENDANTS?”), in answer to Cross-Complainant,
°° CONSTRUCTION TESTING SERVICES, INC. ’s (“CROSS-COMPLAINANT”), unverified Cross-
* Complaint as follows, First and foremost, CROSS-DEFENDANTS generally and specifically deny
. each and every, all and singular, the allegations contained in the Cross- Complaint, and in connection,
Basse
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CROSS-DEFENDANTS deny CROSS-COMPLAINANT has been injured in any sums mentioned
in said Cross-Complaint or in any sum, or at all as the result of any act or omission of CROSS-
DEFENDANTS.
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AFFIRMATIVE DEFENSES
FIRST AFFIRMATIVE DEFENSE
COMPARATIVE NEGLIGENCE
AS A FIRST, SEPARATE AND AFFIRMATIVE DEFENSE to the Cross-Complaint, and to
each cause of action thereof, CROSS-DEFENDANTS allege by way of plea of comparative
negligence that the CROSS-COMPLAINANT was negligent in and about the matters and activities
alleged in the Cross-Complaint, that said negligence contributed to and was a proximate cause of
CROSS-COMPLAINANT’S alleged injuries and damages, if any, and that if CROSS-
COMPLAINANT is entitled to recover any damages against CROSS-DEFENDANTS for the Cross-
Complaint, CROSS-DEFENDANTS pray that said recovery be diminished by reason of the
negligence of the CROSS-COMPLAINANT in proportion to the degree of fault attributable to the
CROSS-COMPLAINANT.
SECOND AFFIRMATIVE DEFENSE
CONTRIBUTORY NEGLIGENCE
AS A SECOND, SEPARATE AND AFFIRMATIVE DEFENSE to the Cross- Complaint, and
to each cause of action thereof, CROSS-DEFENDANTS allege that CROSS-COMPLAINANT was
negligent with respect to the matters alleged in the Cross-Complaint and that said negligence
contributed to and proximately cause the alleged injuries and damages, if any to CROSS-
COMPLAINANT.
THIRD AFFIRMATIVE DEFENSE
FAILURE TO STATE A CAUSE OF ACTION
AS A THIRD, SEPARATE AND AFFIRMATIVE DEFENSE to the Cross-Complaint, and
to each cause of action thereof, CROSS-DEFENDANTS allege that CROSS-COMPLAINANT has
failed to state facts sufficient to constitute a cause of action against CROSS-DEFENDANTS.
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FOURTH AFFIRMATIVE DEFENSE
STATUTE OF LIMITATIONS (Other than Personal Injury)
AS A FOURTH, SEPARATE AND AFFIRMATIVE DEFENSE to the Cross-Complaint, and
to each cause of action thereof, CROSS-DEFENDANTS allege that CROSS-COMPLAINANT is
barred by the provisions of Code of Civil procedure Sections 338, 339, 337.1, 337.15 and 343.
FIFTH AFFIRMATIVE DEFENSE
FAILURE TO MITIGATE
AS A FIFTH, SEPARATE AND AFFIRMATIVE DEFENSE to the Cross-Complaint, and
to each cause of action thereof, CROSS-DEFENDANTS allege that CROSS-COMPLAINANT failed
to take the reasonable measurers to decrease or eliminate the damages of which CROSS-
COMPLAINANT now complains.
SIXTH AFFIRMATIVE DEFENSE
NEGLIGENCE OF CO-DEFENDANTS
AS A SIXTH, SEPARATE AND AFFIRMATIVE DEFENSE to the Cross-Complaint, and
to each cause of action thereof, CROSS-DEFENDANTS allege that defendants and cross-defendants
and any and all third parties were careless and negligent in the matters alleged, that said negligence
contributed to and was the proximate cause of CROSS-COMPLAINANT’S alleged injuries and
damages, if any, and that if the CROSS-COMPLAINANT is entitled to recover from CROSS-
DEFENDANTS, then the same pray that said recovery is diminished by reason of the negligence of
each defendant or cross-defendant or third party in proportion to their degree of fault attributable to
said defendants, cross-defendants or third party.
SEVENTH AFFIRMATIVE DEFENSE
NEGLIGENCE OF OTHERS
AS A SEVENTH, SEPARATE AND AFFIRMATIVE DEFENSE to the Cross-Complaint,
and to each cause of action thereof, CROSS-DEFENDANTS allege that if there was any negligence
causing the injuries, loss and/or damages allegedly sustained by CROSS-COMPLAINANT, if any,
such negligence was that of parties other than CROSS-DEFENDANTS.
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EIGHTH AFFIRMATIVE DEFENSE
CONSENT
AS A EIGHTH, SEPARATE AND AFFIRMATIVE DEFENSE to the Cross- Complaint, and
to each cause of action thereof, CROSS-DEFENDANTS allege that at all times mentioned, CROSS-
COMPLAINANT consented to the acts and events set forth herein.
NINTH AFFIRMATIVE DEFENSE
TRIVIAL DEFECT
AS A NINTH, SEPARATE AND AFFIRMATIVE DEFENSE to the Cross-Complaint, and
to each cause of action thereof, CROSS-DEFENDANTS allege that CROSS-COMPLAINANT is
barred by the fact that the dangerous condition alleged is a minor, trivial and insignificant defect
which does not create a substantial risk of injury.
TENTH AFFIRMATIVE DEFENSE
OBVIOUS DEFECT
AS A TENTH, SEPARATE AND AFFIRMATIVE DEFENSE to the Cross-Complaint, and
to each cause of action thereof, CROSS-DEFENDANTS allege that if, in fact, there was a defect,
CROSS-DEFENDANTS deny the defect is one that was known or should have been known by
CROSS-COMPLAINANT.
ELEVENTH AFFIRMATIVE DEFENSE
NO NOTICE WARRANTY
AS AN ELEVENTH, SEPARATE AND AFFIRMATIVE DEFENSE to the Cross-Complaint,
and to each cause of action thereof, CROSS-DEFENDANTS allege that it received no notice of
breach of warranty, if any there was, as required by law.
TWELFTH AFFIRMATIVE DEFENSE
NO WARRANTIES & DISCLAIMERS
AS A TWELFTH, SEPARATE AND AFFIRMATIVE DEFENSE to the Cross-Complaint,
and to each cause of action thereof, CROSS-DEFENDANTS allege that the expressed and implied
warranties alleged to have been made were expressly disclaimed and executed by the label, and
pursuant to the law of the State of California, which provided that the manufacturer made no
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warranties, expressed or implied, concerning this product or its use which extended beyond the
description on the label; that all statements made concerning the product applied only when used as
directed.
THIRTEENTH AFFIRMATIVE DEFENSE
BARRED BY CODE SECTIONS
AS A THIRTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE to the Cross-Complaint,
and to each cause of action thereof, CROSS-DEFENDANTS allege the Cross-Complaint, and each
cause of action thereof, is barred by the statutes of limitation set forth in California Code of Civil
Procedure, commencing with Section 332 and continuing through 348.4, more particularly, but not
limited to the following: Section 337(1), Section 337.1. Section 337.15, Section 338, Section 338(d),
Section 340, and Section 343, additionally by Sections 1201(25)(c), 2601, 2602, 2513(1)(3), 2510(1),
2605(1)(a) and (b), 2606(1)(a) and (b), 2607(3)(a), 2715(2)(a), 2719(3), and 2725(1) and (2) of the
Uniform Commercial Code of the State of California.
FOURTEENTH AFFIRMATIVE DEFENSE
CONTRIBUTION AFFIRMATIVE DEFENSE
AS A FOURTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE to the Cross-
Complaint, and to each cause of action thereof, CROSS-DEFENDANTS allege that if the CROSS-
COMPLAINANT is entitled to a joint judgment against CROSS-DEFENDANTS and the remaining
defendants, or cross-defendants, or each of them, CROSS-DEFENDANTS pray that this Court order
each of the judgment debtors to pay the CROSS-COMPLAINANT their proportionate share of the
joint judgment, the judgment debtor’s proportionate share having been determined by the trier of fact;
and if CROSS-DEFENDANTS are required to pay to the CROSS-COMPLAINANT a
disproportionate share of any joint judgment, CROSS-DEFENDANTS pray leave of this Court to seek
contribution by motion against any other judgment debtor not paying the proportionate share allocated
to any such defendant or cross-defendant by the trier of fact.
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FIFTEENTH AFFIRMATIVE DEFENSE
PROPOSITION 51 DEFENSE
AS A FIFTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE to the Cross-Complaint,
and to each cause of action thereof, CROSS-DEFENDANTS allege that other defendants or cross-
defendants in this lawsuit, were themselves responsible for the CROSS-COMPLAINANT’S damages,
ifany there were, CROSS-DEFENDANTS request that their liability, if any, be assessed in proportion
to the liability of other co-defendants, persons or entities who are not parties to this action, and that
CROSS-DEFENDANTS be required to pay only for their proportionate share of fault, if any there be.
It is further requested that the Court order and determine that liability, if any, of CROSS-
DEFENDANTS for any damages shall be joint and several only for economic damages, and that
CROSS-DEFENDANTS’ liability for non-economic damages be allocated to CROSS-
DEFENDANTS in direct proportion to any percentage of fault attributable to CROSS-
DEFENDANTS.
SIXTEENTH AFFIRMATIVE DEFENSE
INTERVENING AND SUPERCEDING CAUSES
AS A SIXTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE to the Cross-Complaint,
and to each cause of action thereof, CROSS-DEFENDANTS allege the injuries sustained by the
CROSS-COMPLAINANT, if any, were proximately caused by intervening and superseding actions
of others, which intervening and superseding actions bar and/or diminish CROSS-COMPLAINANT'S
recovery, if any, against CROSS-DEFENDANTS.
SEVENTEENTH AFFIRMATIVE DEFENSE
FAILURE TO PROPERLY MAINTAIN PROPERTY
AS A SEVENTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE to the Cross-
Complaint, and to each cause of action thereof, CROSS-DEFENDANTS allege at all timed mentioned
in the Cross-Complaint, CROSS-COMPLAINANT and others so carelessly, recklessly, negligently,
and wrongfully maintained the property so as to cause and contribute in some way to the damages,
if any, alleged to have been sustained by CROSS-COMPLAINANT. Therefore, CROSS-
COMPLAINANT’S recovery herein as to any damaged and injuries sustained by CROSS-
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COMPLAINANT if any there were, shall be diminished to the extent that such injuries or damages
were proximately caused by the carelessness, recklessness, or wrongful conduct of CROSS-
COMPLAINANT, and other persons.
EIGHTEENTH AFFIRMATIVE DEFENSE
PASSIVE NEGLIGENCE
AS A EIGHTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE to the Cross-
Complaint, and to each cause of action thereof, CROSS-DEFENDANTS allege any and all injuries
allegedly suffered by the CROSS-COMPLAINANT, the fact of which are expressly denied by
CROSS-DEFENDANTS, are the direct and proximate result of the passive negligence, or other
passive actionable conduct, on the part of the CROSS-COMPLAINANT, and on the part of other
parties and non-parties.
NINETEENTH AFFIRMATIVE DEFENSE
FAILURE TO GIVE NOTICE OF DEFECTS
AS A NINETEENTH, SEPARATE AND AFFIRMATIVE DEFENSE to the Cross-
Complaint, and to each cause of action thereof, CROSS-DEFENDANTS allege that the Cross-
Complaint, and each cause of action contained therein, are barred by CROSS-COMPLAINANT’S
failure to give timely notice to CROSS-DEFENDANTS of the alleged defects, breaches, and/or
damages, if any, which any party may have sustained.
TWENTIETH AFFIRMATIVE DEFENSE
LACK OF PRIVITY
AS A TWENTIETH, SEPARATE AND AFFIRMATIVE DEFENSE to the Cross-Complaint,
and to each cause of action thereof, CROSS-DEFENDANTS allege the Cross-Complaint, and each
cause of action therein, fails to state facts sufficient to constitute a cause of action for indemnity or
contribution from CROSS-DEFENDANTS.
TWENTY-FIRST AFFIRMATIVE DEFENSE
INDEMNITY
AS A TWENTY-FIRST, SEPARATE AND AFFIRMATIVE DEFENSE to the Cross-
Complaint, and to each cause of action thereof, CROSS-DEFENDANTS allege should CROSS-
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COMPLAINANT recover damages from CROSS-DEFENDANTS, then CROSS-DEFENDANTS are
entitled to indemnification, either in whole or in part, from all persons or entities whose negligence
and/or fault proximately contributed to CROSS-COMPLAINANT’S damages, if any.
TWENTY-SECOND AFFIRMATIVE DEFENSE
ASSUMPTION OF RISK: PRIMARY
AS AN TWENTY-SECOND, SEPARATE AND AFFIRMATIVE DEFENSE to the Cross-
Complaint, and to each cause of action thereof, CROSS-DEFENDANTS allege that CROSS-
DEFENDANTS owed no legal duty to protect CROSS-COMPLAINANT from the particular risk of
harm that caused the alleged injury and CROSS-COMPLAINANT’S activity constituted primary
assumption of the risk and CROSS-COMPLAINANT’S claim it therefore completely barred.
TWENTY-THIRD AFFIRMATIVE DEFENSE
ASSUMPTION OF RISK: SECONDARY
AS A TWENTY-THIRD, SEPARATE AND AFFIRMATIVE DEFENSE to the Cross-
Complaint, and to each cause of action thereof, CROSS-DEFENDANTS allege that even if CROSS-
DEFENDANTS owed a duty of care, CROSS-COMPLAINANT encountered a known risk imposed
by CROSS-DEFENDANTS’ alleged breach of duty and CROSS-COMPLAINANT’S activities
constituted a secondary assumption of the risk and CROSS-COMPLAINANT’S damages, ifany, shall
be reduced by CROSS-COMPLAINANT’S own proportionate responsibility.
TWENTY-FOURTH AFFIRMATIVE DEFENSE
ASSUMPTION OF RISK: EXPRESSED
AS A TWENTY-FOURTH, SEPARATE AND AFFIRMATIVE DEFENSE to the Cross-
Complaint, and to each cause of action thereof, CROSS-DEFENDANTS allege that CROSS-
COMPLAINANT expressly assumed the risk of injury or harm and therefore CROSS-
COMPLAINANT’S Cross-Complaint is completely barred.
TWENTY-FIFTH AFFIRMATIVE DEFENSE
FAILURE TO COMPLY WITH INSTRUCTIONS
AS A TWENTY-FIFTH, SEPARATE AND AFFIRMATIVE DEFENSE to the Cross-
Complaint, and to each cause of action thereof, CROSS-DEFENDANTS allege that the CROSS-
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COMPLAINANT failed to comply with the written and oral instructions relating to the use of said
product, and this failure caused the alleged damages, if any, suffered by CROSS-COMPLAINANT.
TWENTY-SIXTH AFFIRMATIVE DEFENSE
IMPROPER USE (Product)
AS A TWENTY-SIXTH, SEPARATE AND AFFIRMATIVE DEFENSE to the Cross-
Complaint, and to each cause of action thereof, CROSS-DEFENDANTS allege that if CROSS-
COMPLAINANT sustained injuries attributable to the use of any product manufactured by CROSS-
DEFENDANTS, which allegations are expressly denied, the injuries were solely cause by and
attributable to the unreasonable, unforeseeable, and inappropriate purpose and improper use made by
CROSS-COMPLAINANT of said product.
TWENTY-SEVENTH AFFIRMATIVE DEFENSE
MISUSE AND ABUSE (Product)
AS A TWENTY-SEVENTH, SEPARATE AND AFFIRMATIVE DEFENSE to the Cross-
Complaint, and to each cause of action thereof, CROSS-DEFENDANTS allege that any injury,
damage, or loss, if any, complained of in said Cross-Complaint was proximately caused by CROSS-
COMPLAINANT’s own acts and, further, by misuse and abuse of the product referred to in said
Cross-Complaint.
TWENTY-EIGHTH AFFIRMATIVE DEFENSE
RES JUDICATA
AS A TWENTY-EIGHTH, SEPARATE AND AFFIRMATIVE DEFENSE to the Cross-
Complaint, and to each cause of action thereof, CROSS-DEFENDANTS allege that by reason of a
prior adjudication, ,CROSS-COMPLAINANT’S Cross-Complaint is barred by the Doctrine of Res
Judicata.
TWENTY-NINTH AFFIRMATIVE DEFENSE
WAIVER AND ESTOPPEL
AS A TWENTY-NINTH, SEPARATE AND AFFIRMATIVE DEFENSE to the Cross-
Complaint, and to each cause of action thereof, CROSS-DEFENDANTS allege that CROSS-
COMPLAINANT has waived and is estopped from alleging the matters set forth in said Cross-
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THIRTIETH AFFIRMATIVE DEFENSE
UNCLEAN HANDS
AS A THIRTIETH, SEPARATE AND AFFIRMATIVE DEFENSE to the Cross-Complaint,
and to each cause of action thereof, CROSS-DEFENDANTS alleges that said CROSS-
COMPLAINANT is barred by the Doctrine of Unclean hands.
THIRTY-FIRST AFFIRMATIVE DEFENSE
LACHES
AS A THIRTY-FIRST, SEPARATE AND AFFIRMATIVE DEFENSE to the Cross-
Complaint, and to each cause of action thereot, CROSS-DEFENDANTS allege that said CROSS-
COMPLAINANT is barred by the Doctrine of Laches.
THIRTY-SECOND AFFIRMATIVE DEFENSE
ACT OF GOD
AS A THIRTY-SECOND, SEPARATE AND AFFIRMATIVE DEFENSE to the Cross-
Complaint, and to each cause of action thereof, CROSS-DEFENDANTS allege that the injuries and
damages, if any, sustained by CROSS-COMPLAINANT were caused by an Act of God without any
contribution on the part of CROSS-DEFENDANTS.
THIRTY-THIRD AFFIRMATIVE DEFENSE
SATISFACTION OF DUTIES, OBLIGATIONS
AS A THIRTY-THIRD, SEPARATE AND AFFIRMATIVE DEFENSE to the Cross-
Complaint, and to each cause of action thereof, CROSS-DEFENDANTS allege prior to
commencement of this action CROSS-DEFENDANTS duly performed, satisfied and discharged all
duties and obligations they may have owed to CROSS-COMPLAINANT arising out of any and all
agreements, representations, or contracts made by it on behalf of CROSS-DEFENDANTS, and this
action is therefore barred by the provisions of California Civil Code Sections 1473 - 1477.
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THIRTY-FOURTH AFFIRMATIVE DEFENSE
STANDING
AS A THIRTY-FOURTH, SEPARATE AND AFFIRMATIVE DEFENSE to the Cross-
Complaint, and to each cause of action thereof, CROSS-DEFENDANTS allege that CROSS-
COMPLAINANT lacks standing to sue CROSS-DEFENDANTS either jointly or individually.
THIRTY-FIFTH AFFIRMATIVE DEFENSE
DESIGN AND CONSTRUCTION
AS A THIRTY-FIFTH, SEPARATE AND AFFIRMATIVE DEFENSE to the Cross-
Complaint, and to each cause of action thereof, CROSS-DEFENDANTS allege that, as a matter of
law, CROSS-DEFENDANTS may not be held liable, either jointly or severally, for any injuries
caused by the plan, design, or construction of the area described in CROSS-COMPLAINANT’S
Cross-Complaint, in that said plan, design or construction of said property is not legally or factually
the responsibility of CROSS-DEFENDANTS.
THIRTY-SIXTH AFFIRMATIVE DEFENSE
NO LIABILITY FOR CONTRACT ERRORS
AS A THIRTY-SIXTH, SEPARATE AND AFFIRMATIVE DEFENSE to the Cross-
Complaint, and to each cause of action thereof, CROSS-DEFENDANTS allege that CROSS-
DEFENDANTS are not responsible for defects, errors, or omissions in the contract documents from
which CROSS-DEFENDANTS performed their work, including plans and specifications.
THIRTY-SEVENTH AFFIRMATIVE DEFENSE
CONSTRUCTION CONTRACT - WHEN PROVISIONS VOID AND UNENFORCEABLE
AS A THIRTY-SEVENTH, SEPARATE AND AFFIRMATIVE DEFENSE to the Cross-
Complaint, and to each cause of action thereof, CROSS-DEFENDANTS allege that the CROSS-
COMPLAINANT is barred by the provisions of California Civil Code Sections 2782 - 2784.
THIRTY-EIGHTH AFFIRMATIVE DEFENSE
VAGUENESS OF ALLEGATIONS
AS A THIRTY-EIGHTH, SEPARATE AND AFFIRMATIVE DEFENSE to the Cross-
Complaint, and to each cause of action thereof, CROSS-DEFENDANTS allege that allegations
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contained in the Cross-Complaint, and each purported cause of action contained therein, are vague,
ambiguous, and uncertain.
THIRTY-NINTH AFFIRMATIVE DEFENSE
STATE OF THE ART
AS A THIRTY-NINTH, SEPARATE AND AFFIRMATIVE DEFENSE to the Cross-
Complaint, and to each cause of action thereof, CROSS-DEFENDANTS allege that the work
performed and products used by CROSS-DEFENDANTS were “state of the art” at the time of
construction and not defective in any legally actionable way.
FORTIETH AFFIRMATIVE DEFENSE
FAILURE TO COMPLY WITH CIVIL CODE PROVISIONS REQUIRING
MAINTENANCE, REPAIR, FEX, AND/OR OPPORTUNITY TO FIX OR REPAIR
AS A FORTIETH, SEPARATE AND AFFIRMATIVE DEFENSE to the Cross-Complaint,
and to each cause of action thereof, CROSS-DEFENDANTS allege CROSS-COMPLAINANT failed
to comply with the provisions of California Civil Code Sections 907, 944 and 9845.5 in maintaining
and repairing their property and in allowing builder and/or others to repair of fix the alleged
conditions.
FORTY-FIRST AFFIRMATIVE DEFENSE
OTHERS HAVE FAILED TO COMPLY WITH THE PROVISIONS OF CALIFORNIA
CIVIL CODE SECTION 896 IN BRINGING TIMELY ACTION AND/OR
UNDERTAKING ITS OBLIGATIONS
AS A FORTY-FIRST, SEPARATE AND AFFIRMATIVE DEFENSE to the Cross-
Complaint, and to each cause of action thereof, CROSS-DEFENDANTS allege that the action was
not brought in a timely manner under the provisions of California Civil Code Section 896 and/or that
others have failed to perform their obligations for construction as set out in California Civil Code
Section 896 and thus their actions have impacted on CROSS-DEFENDANTS and these CROSS-
DEFENDANTS contend they are not responsible for the violations.
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FORTY-SECOND AFFIRMATIVE DEFENSE
RIGHT TO RAISE OTHER AFFIRMATIVE DEFENSES
AS A FORTY-SECOND, SEPARATE AND AFFIRMATIVE DEFENSE to the Cross-
Complaint, and to each cause of action thereof, CROSS-DEFENDANTS assert the right to raise other
affirmative defenses when they become ascertained.
I.
PRAYER FOR ANSWER
WHEREFORE, CROSS-DEFENDANTS pray for judgement as follows:
1. That CROSS-COMPLAINANT take nothing by virtue of this action;
2. For reasonable attorneys fees;
3. For costs of suit incurred herein; and
4. For other such relief as the Court deems to be just and proper.
DATED: November 2, 2010 LEWIS BRISBOIS BISGAARD & SMITH LLP
Kélton M. Bi
Suzanne M. Martin
Attorneys for CULLINANE CONSTRUCTION and
AL NORMAN MECHANICAL, INC.
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CALIFORNIA STATE COURT PROOF OF SERVICE
Performing Arts, LLC, v. Killarney Construction Co., Inc., et al. - File No. TBD
San Francisco Superior Court No, CBC-10-498405
STATE OF CALIFORNIA, COUNTY OF SAN FRANCISCO
At the time of service, | was over 18 years of age and not a party to the action. My business
address is One Sansome Street, Suite 1400, San Francisco, California 94104.
On the date indicated below, I served the following document(s): CROSS-DEFENDANTS
CULLINANE CONSTRUCTION AND AL NORMAN MECHANICAL, INC.’S ANSWER TO
CROSS-COMPLAINT OF CONSTRUCTION TESTING SERVICES
I served the documents on the following persons at the following addresses (including fax
numbers and e-mail addresses, if applicable):
See Attached Service List
The documents were served by the following means:
[] (BY FAX TRANSMISSION) Based on an agreement of the parties to accept service by fax
transmission, | faxed the documents to the persons at the fax numbers listed above. No error was
reported by the fax machine that I used. A copy of the record of the fax transmission containing
the time, date, and sending fax machine telephone number, which I printed out, is attached.
[X] (BY U.S. MAIL) I enclosed the documents in a sealed envelope or package addressed to the
persons at the addresses listed above and (specify one):
[] Deposited the sealed envelope or package with the U.S. Postal Service, with the postage
fully prepaid. :
(X] Placed the envelope or package for collection and mailing, following our ordinary
business practices. I am readily familiar with the firm’s practice for collection and processing
correspondence for mailing. Under that practice, on the same day that correspondence is placed for
collection and mailing, it is deposited in the ordinary course of business with the U.S. Postal Service,
in a sealed envelope of package with the postage fully prepaid.
I declare under penalty of perjury under the laws of the State of California that the above is true
and correct.
Executed on November Sm , 2010, at San Francisco, California.
Pelocs A buh,
LECIA A. HAWKINS
4834-1035-8278.1LEWIS
BRISBOIS
BISGAARD
&SMIHUP
Service List
Performing Arts, LLC, v. Killarney Construction Co., Inc., et al. - File No. TBD
San Francisco Superior Court No. CGC-10-498405
Gary A. Angel, Esq.
Frear Stephen Schmid, Esq.
Law Offices of Gary A. Angel
177 Post St., 8" Fl.
San Francisco, CA 94108
Tel: 415.788.5935
Fax: 415.788.5958
Attorney for Plaintiff
Dion N. Cominos, Esq.
Gordon & Rees
275 Battery St., 20" Fl.
San Francisco, CA 94111
T: 415.986.5900
F: 415.986.8054
Attorneys for Defendant Cardinal
Consulting Inc.
John G. Dooling, Esq.
Ropers, Majeski, Kohn & Bentley
201 Spear Street, Ste. 1000
San Francisco, CA 94105
T: 415.543.4800
F: 415.972.6301
Attorneys for Defendant/Cross-
Complainant Construction Testing
Services, Inc,
4834-1035-8278.1
Jeffrey H. Lowenthal, Esq.
Steyer, Lowenthal, Boodrookas, Alvarez &
Smith LLP
One California St., 3° Fl.
San Francisco, CA 94111
Tel: 415.421.3400
Fax: 415.421.2234
Attorney for Plaintiff
Coque K. Dion, Esq.
Manasian & Rougeau LLP
400 Montgomery St., Ste. 1000
San Francisco, CA 94104
T: 415.291.8425
F;
Attorneys for Defendants Mid-Market
Development Co., Inc. and Michael Murray
Preview
NOTE SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN FRANCISCO Document Scanning Lead Sheet - Nov-03-2010 1:35 pm Case Number: CGC-10-498405 Filing Date: Nov-03-2010 1:34 Juke Box: 001 Image: 03021582 ANSWER PERFORMING ARTS LLG, VS. KILLARNEY CONSTRUCTION CO., INC. et al 001C03021582 Instructions: Please place this sheet on top of the document to be scanned.~ FILED Superior Count iforni Simy of San Fan ole 1 | LEWIS BRISBOIS BISGAARD & SMITH LLP SUZANNE M. MARTIN, SB#167079 NOV 03 2010 2 KELTON M. BURGESS, SB#256621 One Sansome Street, Suite 1400 CLERK OF THE COURT 3 || San Francisco, California 94104 BY Telephone: (415) 362-2580 Deputy 4 || Facsimile: (415) 434-0882 a Attorneys for Defendants and Cross-Defendants CULLINANE CONSTRUCTION and AL NORMAN MECHANICAL, INC. 6 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 COUNTY OF SAN FRANCISCO 10 11 || PERFORMING ARTS, LLC, a Delaware CASE NO. CGC-10-498405 limited liability company, ) ) ) CROSS-DEFENDANTS CULLINANE Plaintiff, ) CONSTRUCTION AND AL NORMAN ) MECHANICAL, INC.*S ANSWER TO v. ) CROSS-COMPLAINT OF CONSTRUCTION 4 ) TESTING SERVICES KILLARNEY CONSTRUCTION CO., INC., ) 15 || MID-MARKET DEVELOPMENT CO., INC., ) CARDINAL CONSULTING, INC., ) 16 |) CILLINANE CONSTRUCTION, AL ) NORMAN MECHANICAL, INC., MICHAEL ) 7 || MURRAY, CONSTRUCTION TESTING ) SERVICES and DOES | through 200, inclusive,) Defendants. 20 |) AND RELATED CROSS-ACTIONS ) ) } ) ) ) ) 21 22 23 COME NOW Defendants and Cross-Defendants, CULLINANE CONSTRUCTION and AL ” NORMAN MECHANICAL, INC. (“CROSS-DEFENDANTS?”), in answer to Cross-Complainant, °° CONSTRUCTION TESTING SERVICES, INC. ’s (“CROSS-COMPLAINANT”), unverified Cross- * Complaint as follows, First and foremost, CROSS-DEFENDANTS generally and specifically deny . each and every, all and singular, the allegations contained in the Cross- Complaint, and in connection, Basse BISGAARD 4834-4327-6551.1 -l- SMITH LLP ANSWER TO CROSS-COMPLAINT STORNES AL LAWLEWIS BRISBOIS BISGAARD & SMITH LLP ATRREYS ATLA a Dw FF BN CROSS-DEFENDANTS deny CROSS-COMPLAINANT has been injured in any sums mentioned in said Cross-Complaint or in any sum, or at all as the result of any act or omission of CROSS- DEFENDANTS. L AFFIRMATIVE DEFENSES FIRST AFFIRMATIVE DEFENSE COMPARATIVE NEGLIGENCE AS A FIRST, SEPARATE AND AFFIRMATIVE DEFENSE to the Cross-Complaint, and to each cause of action thereof, CROSS-DEFENDANTS allege by way of plea of comparative negligence that the CROSS-COMPLAINANT was negligent in and about the matters and activities alleged in the Cross-Complaint, that said negligence contributed to and was a proximate cause of CROSS-COMPLAINANT’S alleged injuries and damages, if any, and that if CROSS- COMPLAINANT is entitled to recover any damages against CROSS-DEFENDANTS for the Cross- Complaint, CROSS-DEFENDANTS pray that said recovery be diminished by reason of the negligence of the CROSS-COMPLAINANT in proportion to the degree of fault attributable to the CROSS-COMPLAINANT. SECOND AFFIRMATIVE DEFENSE CONTRIBUTORY NEGLIGENCE AS A SECOND, SEPARATE AND AFFIRMATIVE DEFENSE to the Cross- Complaint, and to each cause of action thereof, CROSS-DEFENDANTS allege that CROSS-COMPLAINANT was negligent with respect to the matters alleged in the Cross-Complaint and that said negligence contributed to and proximately cause the alleged injuries and damages, if any to CROSS- COMPLAINANT. THIRD AFFIRMATIVE DEFENSE FAILURE TO STATE A CAUSE OF ACTION AS A THIRD, SEPARATE AND AFFIRMATIVE DEFENSE to the Cross-Complaint, and to each cause of action thereof, CROSS-DEFENDANTS allege that CROSS-COMPLAINANT has failed to state facts sufficient to constitute a cause of action against CROSS-DEFENDANTS. 4834-4327-6551.1 -2- ANSWER TO CROSS-COMPLAINTLEWIS BRISBOIS BISGAARD & SMITH LLP “) FOURTH AFFIRMATIVE DEFENSE STATUTE OF LIMITATIONS (Other than Personal Injury) AS A FOURTH, SEPARATE AND AFFIRMATIVE DEFENSE to the Cross-Complaint, and to each cause of action thereof, CROSS-DEFENDANTS allege that CROSS-COMPLAINANT is barred by the provisions of Code of Civil procedure Sections 338, 339, 337.1, 337.15 and 343. FIFTH AFFIRMATIVE DEFENSE FAILURE TO MITIGATE AS A FIFTH, SEPARATE AND AFFIRMATIVE DEFENSE to the Cross-Complaint, and to each cause of action thereof, CROSS-DEFENDANTS allege that CROSS-COMPLAINANT failed to take the reasonable measurers to decrease or eliminate the damages of which CROSS- COMPLAINANT now complains. SIXTH AFFIRMATIVE DEFENSE NEGLIGENCE OF CO-DEFENDANTS AS A SIXTH, SEPARATE AND AFFIRMATIVE DEFENSE to the Cross-Complaint, and to each cause of action thereof, CROSS-DEFENDANTS allege that defendants and cross-defendants and any and all third parties were careless and negligent in the matters alleged, that said negligence contributed to and was the proximate cause of CROSS-COMPLAINANT’S alleged injuries and damages, if any, and that if the CROSS-COMPLAINANT is entitled to recover from CROSS- DEFENDANTS, then the same pray that said recovery is diminished by reason of the negligence of each defendant or cross-defendant or third party in proportion to their degree of fault attributable to said defendants, cross-defendants or third party. SEVENTH AFFIRMATIVE DEFENSE NEGLIGENCE OF OTHERS AS A SEVENTH, SEPARATE AND AFFIRMATIVE DEFENSE to the Cross-Complaint, and to each cause of action thereof, CROSS-DEFENDANTS allege that if there was any negligence causing the injuries, loss and/or damages allegedly sustained by CROSS-COMPLAINANT, if any, such negligence was that of parties other than CROSS-DEFENDANTS. Mi 4834-4327-6551.1 -3- ANSWER TO CROSS-COMPLAINTLEWIS BRISBOIS BISGAARD 8 SMITH LLP ATIORN ESATA om ID 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 EIGHTH AFFIRMATIVE DEFENSE CONSENT AS A EIGHTH, SEPARATE AND AFFIRMATIVE DEFENSE to the Cross- Complaint, and to each cause of action thereof, CROSS-DEFENDANTS allege that at all times mentioned, CROSS- COMPLAINANT consented to the acts and events set forth herein. NINTH AFFIRMATIVE DEFENSE TRIVIAL DEFECT AS A NINTH, SEPARATE AND AFFIRMATIVE DEFENSE to the Cross-Complaint, and to each cause of action thereof, CROSS-DEFENDANTS allege that CROSS-COMPLAINANT is barred by the fact that the dangerous condition alleged is a minor, trivial and insignificant defect which does not create a substantial risk of injury. TENTH AFFIRMATIVE DEFENSE OBVIOUS DEFECT AS A TENTH, SEPARATE AND AFFIRMATIVE DEFENSE to the Cross-Complaint, and to each cause of action thereof, CROSS-DEFENDANTS allege that if, in fact, there was a defect, CROSS-DEFENDANTS deny the defect is one that was known or should have been known by CROSS-COMPLAINANT. ELEVENTH AFFIRMATIVE DEFENSE NO NOTICE WARRANTY AS AN ELEVENTH, SEPARATE AND AFFIRMATIVE DEFENSE to the Cross-Complaint, and to each cause of action thereof, CROSS-DEFENDANTS allege that it received no notice of breach of warranty, if any there was, as required by law. TWELFTH AFFIRMATIVE DEFENSE NO WARRANTIES & DISCLAIMERS AS A TWELFTH, SEPARATE AND AFFIRMATIVE DEFENSE to the Cross-Complaint, and to each cause of action thereof, CROSS-DEFENDANTS allege that the expressed and implied warranties alleged to have been made were expressly disclaimed and executed by the label, and pursuant to the law of the State of California, which provided that the manufacturer made no 4834-4327-6551.1 -4- ANSWER TO CROSS-COMPLAINTLEWIS BRISBOIS BISGAARD &SIMTTH LLP TORS A A Co Om Ia nH A 10 ul 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 warranties, expressed or implied, concerning this product or its use which extended beyond the description on the label; that all statements made concerning the product applied only when used as directed. THIRTEENTH AFFIRMATIVE DEFENSE BARRED BY CODE SECTIONS AS A THIRTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE to the Cross-Complaint, and to each cause of action thereof, CROSS-DEFENDANTS allege the Cross-Complaint, and each cause of action thereof, is barred by the statutes of limitation set forth in California Code of Civil Procedure, commencing with Section 332 and continuing through 348.4, more particularly, but not limited to the following: Section 337(1), Section 337.1. Section 337.15, Section 338, Section 338(d), Section 340, and Section 343, additionally by Sections 1201(25)(c), 2601, 2602, 2513(1)(3), 2510(1), 2605(1)(a) and (b), 2606(1)(a) and (b), 2607(3)(a), 2715(2)(a), 2719(3), and 2725(1) and (2) of the Uniform Commercial Code of the State of California. FOURTEENTH AFFIRMATIVE DEFENSE CONTRIBUTION AFFIRMATIVE DEFENSE AS A FOURTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE to the Cross- Complaint, and to each cause of action thereof, CROSS-DEFENDANTS allege that if the CROSS- COMPLAINANT is entitled to a joint judgment against CROSS-DEFENDANTS and the remaining defendants, or cross-defendants, or each of them, CROSS-DEFENDANTS pray that this Court order each of the judgment debtors to pay the CROSS-COMPLAINANT their proportionate share of the joint judgment, the judgment debtor’s proportionate share having been determined by the trier of fact; and if CROSS-DEFENDANTS are required to pay to the CROSS-COMPLAINANT a disproportionate share of any joint judgment, CROSS-DEFENDANTS pray leave of this Court to seek contribution by motion against any other judgment debtor not paying the proportionate share allocated to any such defendant or cross-defendant by the trier of fact. tif Hil Mf 4834-4327-6551.1 -5- ANSWER TO CROSS-COMPLAINTLEWIS BRISBOIS BISGAARD & SMITH UP DTORNEYS aE Law nA vA FF wh So FIFTEENTH AFFIRMATIVE DEFENSE PROPOSITION 51 DEFENSE AS A FIFTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE to the Cross-Complaint, and to each cause of action thereof, CROSS-DEFENDANTS allege that other defendants or cross- defendants in this lawsuit, were themselves responsible for the CROSS-COMPLAINANT’S damages, ifany there were, CROSS-DEFENDANTS request that their liability, if any, be assessed in proportion to the liability of other co-defendants, persons or entities who are not parties to this action, and that CROSS-DEFENDANTS be required to pay only for their proportionate share of fault, if any there be. It is further requested that the Court order and determine that liability, if any, of CROSS- DEFENDANTS for any damages shall be joint and several only for economic damages, and that CROSS-DEFENDANTS’ liability for non-economic damages be allocated to CROSS- DEFENDANTS in direct proportion to any percentage of fault attributable to CROSS- DEFENDANTS. SIXTEENTH AFFIRMATIVE DEFENSE INTERVENING AND SUPERCEDING CAUSES AS A SIXTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE to the Cross-Complaint, and to each cause of action thereof, CROSS-DEFENDANTS allege the injuries sustained by the CROSS-COMPLAINANT, if any, were proximately caused by intervening and superseding actions of others, which intervening and superseding actions bar and/or diminish CROSS-COMPLAINANT'S recovery, if any, against CROSS-DEFENDANTS. SEVENTEENTH AFFIRMATIVE DEFENSE FAILURE TO PROPERLY MAINTAIN PROPERTY AS A SEVENTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE to the Cross- Complaint, and to each cause of action thereof, CROSS-DEFENDANTS allege at all timed mentioned in the Cross-Complaint, CROSS-COMPLAINANT and others so carelessly, recklessly, negligently, and wrongfully maintained the property so as to cause and contribute in some way to the damages, if any, alleged to have been sustained by CROSS-COMPLAINANT. Therefore, CROSS- COMPLAINANT’S recovery herein as to any damaged and injuries sustained by CROSS- 4834-4327-655 1.1 -6- ANSWER TO CROSS-COMPLAINTLEWIS BRISBOIS BISGAARD & SMITH LLP ATTORNEYS A LW oOo 0D Hm I KD OH RB WN RS n = COMPLAINANT if any there were, shall be diminished to the extent that such injuries or damages were proximately caused by the carelessness, recklessness, or wrongful conduct of CROSS- COMPLAINANT, and other persons. EIGHTEENTH AFFIRMATIVE DEFENSE PASSIVE NEGLIGENCE AS A EIGHTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE to the Cross- Complaint, and to each cause of action thereof, CROSS-DEFENDANTS allege any and all injuries allegedly suffered by the CROSS-COMPLAINANT, the fact of which are expressly denied by CROSS-DEFENDANTS, are the direct and proximate result of the passive negligence, or other passive actionable conduct, on the part of the CROSS-COMPLAINANT, and on the part of other parties and non-parties. NINETEENTH AFFIRMATIVE DEFENSE FAILURE TO GIVE NOTICE OF DEFECTS AS A NINETEENTH, SEPARATE AND AFFIRMATIVE DEFENSE to the Cross- Complaint, and to each cause of action thereof, CROSS-DEFENDANTS allege that the Cross- Complaint, and each cause of action contained therein, are barred by CROSS-COMPLAINANT’S failure to give timely notice to CROSS-DEFENDANTS of the alleged defects, breaches, and/or damages, if any, which any party may have sustained. TWENTIETH AFFIRMATIVE DEFENSE LACK OF PRIVITY AS A TWENTIETH, SEPARATE AND AFFIRMATIVE DEFENSE to the Cross-Complaint, and to each cause of action thereof, CROSS-DEFENDANTS allege the Cross-Complaint, and each cause of action therein, fails to state facts sufficient to constitute a cause of action for indemnity or contribution from CROSS-DEFENDANTS. TWENTY-FIRST AFFIRMATIVE DEFENSE INDEMNITY AS A TWENTY-FIRST, SEPARATE AND AFFIRMATIVE DEFENSE to the Cross- Complaint, and to each cause of action thereof, CROSS-DEFENDANTS allege should CROSS- 4834-4327-6551,1 -7- ANSWER TO CROSS-COMPLAINTLEWIS BRISBOIS BISGAARD &.SMITH LLP w OND COMPLAINANT recover damages from CROSS-DEFENDANTS, then CROSS-DEFENDANTS are entitled to indemnification, either in whole or in part, from all persons or entities whose negligence and/or fault proximately contributed to CROSS-COMPLAINANT’S damages, if any. TWENTY-SECOND AFFIRMATIVE DEFENSE ASSUMPTION OF RISK: PRIMARY AS AN TWENTY-SECOND, SEPARATE AND AFFIRMATIVE DEFENSE to the Cross- Complaint, and to each cause of action thereof, CROSS-DEFENDANTS allege that CROSS- DEFENDANTS owed no legal duty to protect CROSS-COMPLAINANT from the particular risk of harm that caused the alleged injury and CROSS-COMPLAINANT’S activity constituted primary assumption of the risk and CROSS-COMPLAINANT’S claim it therefore completely barred. TWENTY-THIRD AFFIRMATIVE DEFENSE ASSUMPTION OF RISK: SECONDARY AS A TWENTY-THIRD, SEPARATE AND AFFIRMATIVE DEFENSE to the Cross- Complaint, and to each cause of action thereof, CROSS-DEFENDANTS allege that even if CROSS- DEFENDANTS owed a duty of care, CROSS-COMPLAINANT encountered a known risk imposed by CROSS-DEFENDANTS’ alleged breach of duty and CROSS-COMPLAINANT’S activities constituted a secondary assumption of the risk and CROSS-COMPLAINANT’S damages, ifany, shall be reduced by CROSS-COMPLAINANT’S own proportionate responsibility. TWENTY-FOURTH AFFIRMATIVE DEFENSE ASSUMPTION OF RISK: EXPRESSED AS A TWENTY-FOURTH, SEPARATE AND AFFIRMATIVE DEFENSE to the Cross- Complaint, and to each cause of action thereof, CROSS-DEFENDANTS allege that CROSS- COMPLAINANT expressly assumed the risk of injury or harm and therefore CROSS- COMPLAINANT’S Cross-Complaint is completely barred. TWENTY-FIFTH AFFIRMATIVE DEFENSE FAILURE TO COMPLY WITH INSTRUCTIONS AS A TWENTY-FIFTH, SEPARATE AND AFFIRMATIVE DEFENSE to the Cross- Complaint, and to each cause of action thereof, CROSS-DEFENDANTS allege that the CROSS- 4834-4327-6551.1 -8- ANSWER TO CROSS-COMPLAINTLEWIS BRISBOIS BISGAARD &.SMiITH UP anonmeys ata COMPLAINANT failed to comply with the written and oral instructions relating to the use of said product, and this failure caused the alleged damages, if any, suffered by CROSS-COMPLAINANT. TWENTY-SIXTH AFFIRMATIVE DEFENSE IMPROPER USE (Product) AS A TWENTY-SIXTH, SEPARATE AND AFFIRMATIVE DEFENSE to the Cross- Complaint, and to each cause of action thereof, CROSS-DEFENDANTS allege that if CROSS- COMPLAINANT sustained injuries attributable to the use of any product manufactured by CROSS- DEFENDANTS, which allegations are expressly denied, the injuries were solely cause by and attributable to the unreasonable, unforeseeable, and inappropriate purpose and improper use made by CROSS-COMPLAINANT of said product. TWENTY-SEVENTH AFFIRMATIVE DEFENSE MISUSE AND ABUSE (Product) AS A TWENTY-SEVENTH, SEPARATE AND AFFIRMATIVE DEFENSE to the Cross- Complaint, and to each cause of action thereof, CROSS-DEFENDANTS allege that any injury, damage, or loss, if any, complained of in said Cross-Complaint was proximately caused by CROSS- COMPLAINANT’s own acts and, further, by misuse and abuse of the product referred to in said Cross-Complaint. TWENTY-EIGHTH AFFIRMATIVE DEFENSE RES JUDICATA AS A TWENTY-EIGHTH, SEPARATE AND AFFIRMATIVE DEFENSE to the Cross- Complaint, and to each cause of action thereof, CROSS-DEFENDANTS allege that by reason of a prior adjudication, ,CROSS-COMPLAINANT’S Cross-Complaint is barred by the Doctrine of Res Judicata. TWENTY-NINTH AFFIRMATIVE DEFENSE WAIVER AND ESTOPPEL AS A TWENTY-NINTH, SEPARATE AND AFFIRMATIVE DEFENSE to the Cross- Complaint, and to each cause of action thereof, CROSS-DEFENDANTS allege that CROSS- COMPLAINANT has waived and is estopped from alleging the matters set forth in said Cross- 4834-4327-6551.1 -9- ANSWER TO CROSS-COMPLAINTLEWIS BRISBOIS BISGAARD & SMITH LLP ATIORNEYS AF ar Complaint. THIRTIETH AFFIRMATIVE DEFENSE UNCLEAN HANDS AS A THIRTIETH, SEPARATE AND AFFIRMATIVE DEFENSE to the Cross-Complaint, and to each cause of action thereof, CROSS-DEFENDANTS alleges that said CROSS- COMPLAINANT is barred by the Doctrine of Unclean hands. THIRTY-FIRST AFFIRMATIVE DEFENSE LACHES AS A THIRTY-FIRST, SEPARATE AND AFFIRMATIVE DEFENSE to the Cross- Complaint, and to each cause of action thereot, CROSS-DEFENDANTS allege that said CROSS- COMPLAINANT is barred by the Doctrine of Laches. THIRTY-SECOND AFFIRMATIVE DEFENSE ACT OF GOD AS A THIRTY-SECOND, SEPARATE AND AFFIRMATIVE DEFENSE to the Cross- Complaint, and to each cause of action thereof, CROSS-DEFENDANTS allege that the injuries and damages, if any, sustained by CROSS-COMPLAINANT were caused by an Act of God without any contribution on the part of CROSS-DEFENDANTS. THIRTY-THIRD AFFIRMATIVE DEFENSE SATISFACTION OF DUTIES, OBLIGATIONS AS A THIRTY-THIRD, SEPARATE AND AFFIRMATIVE DEFENSE to the Cross- Complaint, and to each cause of action thereof, CROSS-DEFENDANTS allege prior to commencement of this action CROSS-DEFENDANTS duly performed, satisfied and discharged all duties and obligations they may have owed to CROSS-COMPLAINANT arising out of any and all agreements, representations, or contracts made by it on behalf of CROSS-DEFENDANTS, and this action is therefore barred by the provisions of California Civil Code Sections 1473 - 1477. Mi Mt Mt 4834-4327-6551.1 -10- ANSWER TO CROSS-COMPLAINTLEWIS BRISBOIS BISGAARD & SMITH LiP wn THIRTY-FOURTH AFFIRMATIVE DEFENSE STANDING AS A THIRTY-FOURTH, SEPARATE AND AFFIRMATIVE DEFENSE to the Cross- Complaint, and to each cause of action thereof, CROSS-DEFENDANTS allege that CROSS- COMPLAINANT lacks standing to sue CROSS-DEFENDANTS either jointly or individually. THIRTY-FIFTH AFFIRMATIVE DEFENSE DESIGN AND CONSTRUCTION AS A THIRTY-FIFTH, SEPARATE AND AFFIRMATIVE DEFENSE to the Cross- Complaint, and to each cause of action thereof, CROSS-DEFENDANTS allege that, as a matter of law, CROSS-DEFENDANTS may not be held liable, either jointly or severally, for any injuries caused by the plan, design, or construction of the area described in CROSS-COMPLAINANT’S Cross-Complaint, in that said plan, design or construction of said property is not legally or factually the responsibility of CROSS-DEFENDANTS. THIRTY-SIXTH AFFIRMATIVE DEFENSE NO LIABILITY FOR CONTRACT ERRORS AS A THIRTY-SIXTH, SEPARATE AND AFFIRMATIVE DEFENSE to the Cross- Complaint, and to each cause of action thereof, CROSS-DEFENDANTS allege that CROSS- DEFENDANTS are not responsible for defects, errors, or omissions in the contract documents from which CROSS-DEFENDANTS performed their work, including plans and specifications. THIRTY-SEVENTH AFFIRMATIVE DEFENSE CONSTRUCTION CONTRACT - WHEN PROVISIONS VOID AND UNENFORCEABLE AS A THIRTY-SEVENTH, SEPARATE AND AFFIRMATIVE DEFENSE to the Cross- Complaint, and to each cause of action thereof, CROSS-DEFENDANTS allege that the CROSS- COMPLAINANT is barred by the provisions of California Civil Code Sections 2782 - 2784. THIRTY-EIGHTH AFFIRMATIVE DEFENSE VAGUENESS OF ALLEGATIONS AS A THIRTY-EIGHTH, SEPARATE AND AFFIRMATIVE DEFENSE to the Cross- Complaint, and to each cause of action thereof, CROSS-DEFENDANTS allege that allegations 4834-4327-6551.1 -ll- ANSWER TO CROSS-COMPLAINTLEWIS BRISBOIS BISGAARD &.SMITH LLP SROMES ATLA ay nw contained in the Cross-Complaint, and each purported cause of action contained therein, are vague, ambiguous, and uncertain. THIRTY-NINTH AFFIRMATIVE DEFENSE STATE OF THE ART AS A THIRTY-NINTH, SEPARATE AND AFFIRMATIVE DEFENSE to the Cross- Complaint, and to each cause of action thereof, CROSS-DEFENDANTS allege that the work performed and products used by CROSS-DEFENDANTS were “state of the art” at the time of construction and not defective in any legally actionable way. FORTIETH AFFIRMATIVE DEFENSE FAILURE TO COMPLY WITH CIVIL CODE PROVISIONS REQUIRING MAINTENANCE, REPAIR, FEX, AND/OR OPPORTUNITY TO FIX OR REPAIR AS A FORTIETH, SEPARATE AND AFFIRMATIVE DEFENSE to the Cross-Complaint, and to each cause of action thereof, CROSS-DEFENDANTS allege CROSS-COMPLAINANT failed to comply with the provisions of California Civil Code Sections 907, 944 and 9845.5 in maintaining and repairing their property and in allowing builder and/or others to repair of fix the alleged conditions. FORTY-FIRST AFFIRMATIVE DEFENSE OTHERS HAVE FAILED TO COMPLY WITH THE PROVISIONS OF CALIFORNIA CIVIL CODE SECTION 896 IN BRINGING TIMELY ACTION AND/OR UNDERTAKING ITS OBLIGATIONS AS A FORTY-FIRST, SEPARATE AND AFFIRMATIVE DEFENSE to the Cross- Complaint, and to each cause of action thereof, CROSS-DEFENDANTS allege that the action was not brought in a timely manner under the provisions of California Civil Code Section 896 and/or that others have failed to perform their obligations for construction as set out in California Civil Code Section 896 and thus their actions have impacted on CROSS-DEFENDANTS and these CROSS- DEFENDANTS contend they are not responsible for the violations. Uf Mit 4834-4327-6551.1 -12- ANSWER TO CROSS-COMPLAINTLEWIS BRISBOIS. BISGAARD & SMITH LLP ATTORNEYS AT FORTY-SECOND AFFIRMATIVE DEFENSE RIGHT TO RAISE OTHER AFFIRMATIVE DEFENSES AS A FORTY-SECOND, SEPARATE AND AFFIRMATIVE DEFENSE to the Cross- Complaint, and to each cause of action thereof, CROSS-DEFENDANTS assert the right to raise other affirmative defenses when they become ascertained. I. PRAYER FOR ANSWER WHEREFORE, CROSS-DEFENDANTS pray for judgement as follows: 1. That CROSS-COMPLAINANT take nothing by virtue of this action; 2. For reasonable attorneys fees; 3. For costs of suit incurred herein; and 4. For other such relief as the Court deems to be just and proper. DATED: November 2, 2010 LEWIS BRISBOIS BISGAARD & SMITH LLP Kélton M. Bi Suzanne M. Martin Attorneys for CULLINANE CONSTRUCTION and AL NORMAN MECHANICAL, INC. 4834-4327-6551.1 -13- ANSWER TO CROSS-COMPLAINTLEWIS BRISBOIS BISGAARD & SMHUP CALIFORNIA STATE COURT PROOF OF SERVICE Performing Arts, LLC, v. Killarney Construction Co., Inc., et al. - File No. TBD San Francisco Superior Court No, CBC-10-498405 STATE OF CALIFORNIA, COUNTY OF SAN FRANCISCO At the time of service, | was over 18 years of age and not a party to the action. My business address is One Sansome Street, Suite 1400, San Francisco, California 94104. On the date indicated below, I served the following document(s): CROSS-DEFENDANTS CULLINANE CONSTRUCTION AND AL NORMAN MECHANICAL, INC.’S ANSWER TO CROSS-COMPLAINT OF CONSTRUCTION TESTING SERVICES I served the documents on the following persons at the following addresses (including fax numbers and e-mail addresses, if applicable): See Attached Service List The documents were served by the following means: [] (BY FAX TRANSMISSION) Based on an agreement of the parties to accept service by fax transmission, | faxed the documents to the persons at the fax numbers listed above. No error was reported by the fax machine that I used. A copy of the record of the fax transmission containing the time, date, and sending fax machine telephone number, which I printed out, is attached. [X] (BY U.S. MAIL) I enclosed the documents in a sealed envelope or package addressed to the persons at the addresses listed above and (specify one): [] Deposited the sealed envelope or package with the U.S. Postal Service, with the postage fully prepaid. : (X] Placed the envelope or package for collection and mailing, following our ordinary business practices. I am readily familiar with the firm’s practice for collection and processing correspondence for mailing. Under that practice, on the same day that correspondence is placed for collection and mailing, it is deposited in the ordinary course of business with the U.S. Postal Service, in a sealed envelope of package with the postage fully prepaid. I declare under penalty of perjury under the laws of the State of California that the above is true and correct. Executed on November Sm , 2010, at San Francisco, California. Pelocs A buh, LECIA A. HAWKINS 4834-1035-8278.1LEWIS BRISBOIS BISGAARD &SMIHUP Service List Performing Arts, LLC, v. Killarney Construction Co., Inc., et al. - File No. TBD San Francisco Superior Court No. CGC-10-498405 Gary A. Angel, Esq. Frear Stephen Schmid, Esq. Law Offices of Gary A. Angel 177 Post St., 8" Fl. San Francisco, CA 94108 Tel: 415.788.5935 Fax: 415.788.5958 Attorney for Plaintiff Dion N. Cominos, Esq. Gordon & Rees 275 Battery St., 20" Fl. San Francisco, CA 94111 T: 415.986.5900 F: 415.986.8054 Attorneys for Defendant Cardinal Consulting Inc. John G. Dooling, Esq. Ropers, Majeski, Kohn & Bentley 201 Spear Street, Ste. 1000 San Francisco, CA 94105 T: 415.543.4800 F: 415.972.6301 Attorneys for Defendant/Cross- Complainant Construction Testing Services, Inc, 4834-1035-8278.1 Jeffrey H. Lowenthal, Esq. Steyer, Lowenthal, Boodrookas, Alvarez & Smith LLP One California St., 3° Fl. San Francisco, CA 94111 Tel: 415.421.3400 Fax: 415.421.2234 Attorney for Plaintiff Coque K. Dion, Esq. Manasian & Rougeau LLP 400 Montgomery St., Ste. 1000 San Francisco, CA 94104 T: 415.291.8425 F; Attorneys for Defendants Mid-Market Development Co., Inc. and Michael Murray