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BREMER WHYTE BROWN &
‘O'MEARA LLP
NEWPORT BCH, CA $2660
949) 221-1000
BREMER WHYTE BROWN & O’MEARA LLP
Keith G. Bremer, State Bar No. 155920
kbremer@bremerwhyte.com
Alison K. Hurley, State Bar No. 234042
ahurley@bremerwhyte.com
Lilya Dishchyan, State Bar No. 309120
Idishchyan@bremerwhyte.com
20320 S.W. Birch Street
Second Floor
Newport Beach, California 92660
Telephone: (949) 221-1000
Facsimile: (949) 221-1001
Attorneys for Defendant and Cross-Defendant,
CROWN BUILDING MAINTENANCE CO. dba
ABLE BUILDING MAINTENANCE CO.
ELECTRONICALLY
FILED
Superior Court of California,
County of San Francisco
12/05/2018
Clerk of the Court
BY:EDWARD SANTOS
Deputy Clerk
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO
MARIE DE GUZMAN,
Plaintiff,
vs.
COLUMBIA PROPERTY TRUST; JONES
LANG LaSALLE AMERICAS, INC.; CROWN
BUILDING MAINTENANCE CO.; and DOES
1-50, inclusive,
Defendants.
JONES LANG LASALLE AMERICAS, INC.,
Cross-Complainant,
vs.
CROWN BUILDING MAINTENANCE CO.;
and ROES 1 TO S50, inclusive,
Cross-Defendants.
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Case No. CGC-17-561142
Judge: Hon. Teri L. Jackson
Ctrm: 610
CROWN BUILDING MAINTENANCE
CO. dba ALE BUILDING
MAINTENANCE CO.’S ANSWER TO
THE CROSS-COMPLAINT OF JONES
LANG LASALLE AMERICAS, INC.
Complaint Filed: September 5, 2017
Trial Date: June 3, 2019
COMES NOW, Cross-Defendant CROWN BUILDING MAINTENANCE CO. dba ABLE
BUILDING MAINTENANCE CO. (“Cross-Defendant”) for itself alone and no others answers the
ANSWER TO CROSS-COMPLAINT
3695.382 4846-0116-2881.1om ND HW BF BW HY =
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RRRRBEBERE ES Se BESR ES
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BREMER WHYTE BROWN &|
‘O'MEARA LLP
Cross-Complaint of Cross-Complainant, JONES LANG LASALLE AMERICAS, INC. (“Cross-
Complainant”) on file herein and admits, denies, and alleges as follows:
1, Pursuant to California Code of Civil Procedure section 431.30, Cross-Defendant
denies the allegations of the Cross-Complaint, and each cause of action, and each paragraph in each
cause of action, and each and every part thereof, including a denial that Cross-Complainant was
damaged in the sum or sums alleged, or to be alleged, or any other sum or sums whatsoever.
2. Cross-Defendant further denies, that by reason of any act or omission, fault, conduct
or liability on the part of this answering Cross-Defendant, whether negligent, careless, unlawful or
whether as alleged, or otherwise, cross-complainants were injured or damaged in any of the
amounts alleged, or in any other manner or amount whatsoever. Cross-Defendant further denies
that this answering Cross-Defendant was negligent, careless, reckless, wanton, acted unlawfully or
is liable, whether in the manner alleged or otherwise.
FIRST AFFIRMATIVE DEFENSE
(COMPARATIVE NEGLIGENCE)
3. Answering Cross-Defendant is informed and believes and on such information and
belief alleges that the injury and damage, if any, alleged in the Cross-Complaint occurred and was
proximately caused by either the sole or the partial negligence of Cross-Complainant, which
negligence bars or reduces Cross-Complainant’s recovery herein.
SECOND AFFIRMATIVE DEFENSE
FAILURE TO STATE A CAUSE OF ACTION)
4. Each of Cross-Complainant’s causes of action, individually, fails to state facts
sufficient to constitute a cause of action against this answering Cross-Defendant.
THIRD AFFIRMATIVE DEFENSE
(REDUCTION TO PERCENT OF FAULT)
5. The right of Cross-Complainant to recovery herein, if any right exists, is reduced
and limited to the percentage of negligence attributable to this answering Cross-Defendant pursuant
to Section 1431.2 of the California Civil Code.
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ANSWER TO CROSS-COMPLAINT
3695.382 4846-0116-2881.128
BREMER WHYTE BROWN a
O'MEARA LLP
20920 §.W. BIRCH STREET
‘SECOND FLOOA
NEWPORT BCH, CA #2660,
(949) 221-1000
FOURTH AFFIRMATIVE DEFENSE
(NEGLIGENCE OF OTHERS)
6. Answering Cross-Defendant denies that Cross-Complainant was damaged as a
proximate result of any conduct on the part of this answering Cross-Defendant. This answering
Cross-Defendant affirmatively alleges that Cross-Complainant’s damages, if any, were proximately
caused by the independent conduct of third parties or entities whether or not parties to this action.
Cross-Complainant’s recovery against this answering Cross-Defendant, if any, must therefore be
reduced to the extent that those damages, if any, were caused by the independent conduct of third
parties.
FIFTH AFFIRMATIVE DEFENSE
(ACTIVE-PASSIVE NEGLIGENCE DEFENSE)
7. If this answering Cross-Defendant is found responsible in damages to Cross-
Complainant or some other party, whether as alleged or otherwise, then Cross-Defendant is
informed and believes and, on that basis alleges, that the liability will be predicated upon the active
conduct of Cross-Complainant, whether by negligence, breach of warranty, strict liability in tort or
otherwise, which unlawful conduct proximately caused the alleged incident and that cross-
complainants’ action against Cross-Defendant is barred by that active and affirmative conduct.
SIXTH AFFIRMATIVE DEFENSE
(FAILURE TO MITIGATE)
8. Answering Cross-Defendant alleges that Cross-Complainant has failed to take
reasonable steps to mitigate its damages, if any.
SEVENTH AFFIRMATIVE DEFENSE
(STATUTE OF LIMITATIONS)
9 Answering Cross-Defendant alleges that the Cross-Complainant is barred by the
applicable statute of limitations, including California Code of Civil Procedure Sections 337, 337.1,
337.15, 338, 339 and 340.
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ANSWER TO CROSS-COMPLAINT
3695.382 4846-0116-2881.128
BREMER WHYTE BROWN &|
YMEARA LLP
120320 $.W. BIRCH STREET
(949) 221-1000
EIGHTH AFFIRMATIVE DEFENSE
UNAVOIDABLE ACCIDENT)
10. Answering Cross-Defendant is informed and believes and on that basis alleges that
any and all injuries, losses or damages, if any, were the direct and proximate result of an
unavoidable incident or condition and, as such, were an act of God without fault or liability on the
part of the Cross-Defendant.
NINTH AFFIRMATIVE DEFENSE
SUPERSEDING CAUSES)
11. Answering Cross-Defendant is informed and believes and on that basis alleges that
any and all damages, if any, were the direct and proximate result of the intervening and superseding
actions of other parties, either served or unserved, and not this answering Cross-Defendant, and
that such intervening and superseding actions of other parties, whether or not served, bar recovery
herein on behalf of Cross-Complainant.
TENTH AFFIRMATIVE DEFENSE
(FAILURE TO PERFORM CONDITIONS PRECEDENT)
12. Answering Cross-Defendant is informed and believes and on such information and
belief alleges that Cross-Complainant failed to perform express contractual conditions precedent to
Cross-Defendant’s performance, and such failure excuses any nonperformance by this answering
Cross-Defendant.
ELEVENTH AFFIRMATIVE DEFENSE
(BREACH OF CONTRACT BY CROSS-COMPLAINANT)
13. Answering Cross-Defendant is informed and believes and thereon alleges that
actions and omissions by Cross-Complainant constituted a breach of contract by Cross-
Complainant, and such breach excuses any nonperformance by this answering Cross-Defendant.
TWELFTH AFFIRMATIVE DEFENSE
(PRODUCT USED IN AN ABNORMAL MANNER)
14. Answering Cross-Defendant is informed and believes and thereon alleges that
Cross-Complainant’s damages, if any, proximately resulted from the use of the product in question
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ANSWER TO CROSS-COMPLAINT
3695.382 4846-01 16-2881.128
‘BREMER WHYTE BROWN &
1 ce
(949) 221-1000
in an unintended and abnormal manner and not from any defect or mechanical failure of, or failure
to service properly, said product or any of its components,
THIRTEENTH AFFIRMATIVE DEFENSE
(EXTRA CONTRACTUAL DAMAGES BARRED)
15. Cross-Complainant’s alleged claims for extra contractual damages are barred by the
provisions of California Code of Civil Procedure Section 1021.
FOURTEENTH AFFIRMATIVE DEFENSE
(LACHES)
16. | Cross-Complainant has unreasonably delayed the commencement of the within
action to the substantial prejudice of this answering Cross-Defendant and by reason thereof has
been guilty of laches, and Cross-Complainant is thereby precluded from recovery in the within
action.
FIFTEENTH AFFIRMATIVE DEFENSE
(UNCLEAN HANDS)
17. Cross-Complainant’s conduct with respect to the matters alleged in the cross-
complaint deprives Cross-Complainant of clean hands, and by reason of not coming into court with
clean hands Cross-Complainant is precluded from recovery in the within action.
SIXTEENTH AFFIRMATIVE DEFENSE
(COMPLAINT FRIVOLOUS AND IN BAD FAITH)
18. | Answering Cross-Defendant alleges that Cross-Complainant’s cross-complaint is
frivolous and is not based on good faith as to answering Cross-Defendant within the meaning of
California Code of Civil Procedure Section 128.5, and thus answering Cross-Defendant is entitled
to recover its reasonable expenses, including attorneys’ fees, in defending this action.
SEVENTEENTH AFFIRMATIVE DEFENSE
(FAILURE OF CONSIDERATION)
19. Atall times mentioned, there was, has been, and continues to be a material failure of
consideration on the part of Cross-Complainant herein, as a consequence of which failure this
answering Cross-Defendant’s duty of performance has been discharged.
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ANSWER TO CROSS-COMPLAINT
3695.382 4846-0116-2881.128
BREMER WHYTE BROWN &|
‘OMEARALLP
20820 S.W. BIRCH STREET
‘SECOND FLOOR,
NEWPORT BCH, CA 92660
(949) 221-1000
EIGHTEENTH AFFIRMATIVE DEFENSE
(MISUSE OR MODIFICATION OF PRODUCT)
20. Answering Cross-Defendant is informed and believes and based thereon alleges that
if there was any defect in the product referred to in the cross-complaint at the time of said accident,
that such defect did not exist at the time said product left the possession of this answering Cross-
Defendant and was caused by the misuse, abuse, changes, modifications and alterations of others,
including plaintiffs and cross-complainants herein and that said accident was caused by such
misuse, abuse, changes, alterations and modifications.
NINETEENTH AFFIRMATIVE DEFENSE
(PLAINTIFF’S NEGLIGENCE)
21. Answering Cross-Defendant alleges that at all times herein, Cross-Complainant was
negligent and proximately caused the incident which is the basis for Cross-Complainant’s cross-
complaint. Cross-complainant’s recovery, if any should be reduced by the amount proportionate to
the amount which cross-complainant’s negligence contributed to the happening of the alleged
incident.
TWENTIETH AFFIRMATIVE DEFENSE
(ESTOPPEL)
22. Answering Cross-Defendant is informed and believes and thereon alleges that the
Cross-Complainant engaged in conduct and activity with respect to the subject of this litigation,
contracts and incidents, which are the subject of Cross-Complainant’s cross-complaint, and by
reason of said conduct and activities is estopped from asserting any claims for damages or seeking
any other relief against this answering Cross-Defendant.
TWENTY-FIRST AFFIRMATIVE DEFENSE
(WAIVER)
23. Answering Cross-Defendant is informed and believes and thereon alleges that the
Cross-Complainant has engaged in conduct and activity sufficient to constitute a waiver of any
alleged breach of warranty, breach of duty, negligence, act, omission, or any other conduct, if any,
as set forth in Cross-Complainant’s cross-complaint.
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ANSWER TO CROSS-COMPLAINT
3695.382 4846-0116-2881.1YD WF WwW N
28
BREMER WHYTE BROWN a
om
(949) 221-1000
TWENTY-SECOND AFFIRMATIVE DEFENSE
(ASSUMPTION OF RISK)
24. Answering Cross-Defendant alleges that Cross-Complainant 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 from recovering any damages.
TWENTY-THIRD AFFIRMATIVE DEFENSE
(RESERVATION)
25. Answering Cross-Defendant presently has insufficient knowledge or information on
which to form a belief as to whether it may have additional, as yet, unstated affirmative defenses
available. Answering Cross-Defendant reserves herein the right to assert additional defenses in the
event that the discovery indicates they would be appropriate.
TWENTY-FOURTH AFFIRMATIVE DEFENSE
(STANDARD OF CARE)
26. Answering Cross-Defendant alleges that Cross-Complainant is barred and precluded
from any recovery in this action because this answering Cross-Defendant at all times complied with
the applicable standard of care required of the subcontractor of the type of this answering Cross-
Defendant at the time and location where the professional services were rendered.
TWENTY-FIFTH AFFIRMATIVE DEFENSE
(FAILURE TO NOTIFY)
27. Answering Cross-Defendant is informed and believes, and based thereon alleges
that if any defects or inadequacies in the work performed by this answering Cross-Defendant exist,
which this Cross-Defendant denies, Cross-Complainant failed to timely notify this Cross-
Defendant of such conditions and failed to give this Cross-Defendant timely opportunity to remedy
such conditions. This conduct by Cross-Complainant bars it from any relief from this answering
Cross-Defendant herein.
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ANSWER TO CROSS-COMPLAINT
3695.382 4846-01 16-2881.128
BREMER WHYTE BROWN a
1949) 721-1000
TWENTY-SIXTH AFFIRMATIVE DEFENSE
‘CONSTRUCTION CONTRACT - PROVISIONS VOID AND UNENFORCEABLE)
28. Answering Cross-Defendant is informed and believes and on that basis alleges that
the causes of action as set forth in the cross-complaint, and any damage alleged therein, are barred
by California Civil Code Section 2782.
TWENTY-SEVENTH AFFIRMATIVE DEFENSE
(NO PRIVITY OF CONTRACT)
29. Answering Cross-Defendant is informed and believes and on that basis alleges that
with respect to all causes of action in the cross-complaint, based on express or implied warranty,
there is no privity of contract or contractual or other relationship, between Cross-Complainant and
this answering Cross-Defendant, which provides a basis for an implied warranty or duty in favor of
plaintiff/cross-complainant with respect to the property described in the complaint/cross-complaint
on file in this matter.
TWENTY-EIGHTH AFFIRMATIVE DEFENSE
(LACK OF STANDING)
30. Plaintiff and Cross-Complainant lack standing to sue for the damages alleged in the
pleadings.
TWENTY-NINTH AFFIRMATIVE DEFENSE
(RESULTANT DAMAGE)
31. To the extent any plaintiff/cross-complainant seeks recovery for defects and/or
deficient work product which have not caused personal injury or property damages, such claims are
barred as a matter of law.
THIRTIETH AFFIRMATIVE DEFENSE
(NOT A LEGAL ENTITY)
32. Cross-Complainant is not a registered entity with the California Secretary of State,
or Department of Corporations, or other governmental agency, therefore, Cross-Complainant has
no standing to sue.
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ANSWER TO CROSS-COMPLAINT
3695.382 4846-0116-2881.1BREMER WHYTE BROWN a
MBAR
NEWPORT BCH, CA 92660
(949) 221-1000
a A wA FW HN
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THIRTY-FIRST AFFIRMATIVE DEFENSE
(CONTRACTOR’S LICENSE)
33. | Cross-Complainant did not hold a valid California contractor’s license or similar
professional license and/or registration at all relevant times, including without limitation, during the
course of construction/improvement of the property/project which is the subject matter of the
instant litigation. Therefore, Cross-Complainant is unable to sue or defend itself in this matter as a
matter of law.
THIRTY-SECOND AFFIRMATIVE DEFENSE
(NEGLIGENT HIRING)
34. Cross-Complainant is liable for its negligent hiring and supervision of its general
contractor, professionals, and other subcontractors, which were negligent and actually caused all or
some of the damages suffered by plaintiffs/cross-complainants and/or the subject property.
THIRTY-THIRD AFFIRMATIVE DEFENSE
(SPLITTING A CAUSE OF ACTION)
35. Answering Cross-Defendant is informed and believes and on that basis alleges that
to the extent any judgment and/or settlement in favor of plaintiff is funded by any other entity other
than Cross-Complainant, including Cross-Complainant’s insurance companies, if any, and those
other entities then claim a right to recover the same funds in this or another action, then Cross-
Complainant is barred from claiming that the funds were paid by them pursuant to Ferraro v. So.
Calif, Gas Co. (1980) 102 Cal.App.3d 33. Pursuant to Ferraro, Cross-Complainant is prohibited
from attempting to split a cause of action.
THIRTY-FOURTH AFFIRMATIVE DEFENSE
(FAILURE TO GIVE REASONABLE NOTICE)
36. Cross-Complainant failed to give reasonable notice of the action or proceeding to
Cross-Defendant, including Cross-Defendant’s insurance companies, if any.
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ANSWER TO CROSS-COMPLAINT
3695.382 4846-01 16-2881.1BREMER WHYTE BROWN &
OMEARALIP
20920 $.W. BIRCH STREET
IND
NEWPORT BCH, CA 82660
(949) 221-1000
THIRTY-FIFTH AFFIRMATIVE DEFENSE
(RECOVERY NOT SUFFERED IN GOOD FAITH)
37. Any potential recovery sought from Cross-Defendant, including Cross-Defendant’s
insurance companies, was not suffered by Cross-Complainant in good faith.
THIRTY-SIXTH AFFIRMATIVE DEFENSE
(UNFORESEEN ACT OF NATURE)
38. Answering Cross-Defendant is informed and believes, and on such information and
belief alleges, that the damages, if any, alleged in the Cross-Complaint occurred and were
proximately caused by unforeseen acts of nature. Thus, this Answering Cross-Defendant is
excused in whole or in part from such injury or damage.
THIRTY-SEVENTH AFFIRMATIVE DEFENSE
(FAILURE TO MINIMIZE OR PREVENT DAMAGE)
39. Answering Cross-Defendant is informed and believes, and on such information and
belief alleges, that Plaintiff and Cross-Complainant failed to minimize or prevent the damages
alleged in the pleadings. Thus, this Answering Cross-Defendant is excused in whole or in part
from such damage.
THIRTY-EIGHTH AFFIRMATIVE DEFENSE
(FAILURE TO PROVIDE TIMELY NOTICE)
40. Answering Cross-Defendant is informed and believes, and on such information and
belief alleges, that Cross-Complainant and Plaintiff failed to provide timely notice of some or all of
the alleged injuries suffered. Thus, this Answering Cross-Defendant is excused in whole or in part
from liability for such injuries.
THIRTY-NINTH AFFIRMATIVE DEFENSE
(FAILURE TO COMPLY WITH MAINTENANCE OBLIGATIONS)
41. Answering Cross-Defendant is informed and believes, and upon such information
and belief alleges, that Cross-Complainant has failed to comply with manufacturer’s suggested
maintenance recommendations and commonly accepted maintenance obligations. Thus, this
Answering Cross-Defendant is excused in whole or in part from damage arising there from.
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ANSWER TO CROSS-COMPLAINT
3695.382 4846-0116-2881.128
BREMER WHYTE BROWN &
O'MEARA
(94a) 221-1000,
FORTIETH AFFIRMATIVE DEFENSE
(PLAINTIFF ALTERATION OR MISUSE)
42. Answering Cross-Defendant is informed and believes, and upon such information
and belief alleges, that Cross-Complainant has altered the condition of the construction, has
misused the construction or has otherwise neglected or abused the property in question, and/or used
the property in a manner other than its intended purpose. Thus, this Answering Cross-Defendant is
excused in whole or in part from damage arising there from.
FORTY-FIRST AFFIRMATIVE DEFENSE
(THIRD PARTY ALTERATION OR MISUSE)
43. Answering Cross-Defendant is informed and believes, and upon such information
and belief alleges, that someone other than Plaintiff or this Answering Cross-Defendant has altered
the condition of the construction, has misused the construction or has otherwise neglected or
abused the construction, and/or used the construction in a manner other than its intended purpose.
Thus, this Answering Cross-Defendant is excused in whole or in part from damage arising there
from,
FORTY-SECOND AFFIRMATIVE DEFENSE
(SUCCESSFUL CORRECTIVE MEASURES)
44, Answering Cross-Defendant is informed and believes, and upon such information
and belief alleges, that the deficiencies alleged in the instant Cross-Complaint were successfully
rectified by either this Answering Cross-Defendant or a third party. Thus, Plaintiff and Cross-
Complainant are barred from pursuing the corrected defects as against this Answering Cross-
Defendant.
Wherefore, this answering Cross-Defendant requests relief as follows:
1. That Cross-Complainant take nothing by way of its Cross-Complaint;
2. For judgment in favor of answering Cross-Defendant and that Cross-Complainant’s
action be dismissed in its entirety with prejudices to Answering Cross-Defendant;
3. For costs of suit;
4. For attorney’s fees; and
ANSWER TO CROSS-COMPLAINT
3695.382 4846-0116-2881.11 5. For such other and further relief as the Court deems appropriate.
2 || Dated: December 4, 2018 BREMER WHYTE BROWN & O’MEARA LLP
: slug RyeicbJand
4 By:
Keith G, Bremer 7
5 Alison K. Hurley
Lilya Dishchyan
6 Attorneys for Defendant and Cross-
Defendant
7 CROWN BUILDING MAINTENANCE
CO. dba
8 ABLE BUILDING MAINTENANCE CO.
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snenen nvr son a R
Mem EOOND FLOOR ANSWER TO CROSS-COMPLAINT
NewPoRT Bch CA 52660
40) 2213000
3695382 4846-01 16-2881.1we
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PROOF OF SERVICE
1 am employed in the County of Orange, State of California. I am over the age of 18 and
not a party to the within action. My business address is 20320 S.W. Birch Street, Second Floor,
Newport Beach, California 92660.
On December 5, 2018, I served the within document(s) described as:
CROWN BUILDING MAINTENANCE CO. dba ABLE BUILDING MAINTENANCE
CO.S ANSWER TO THE CROSS-COMPLAINT OF JONES LANG LASALLE
AMERICAS, INC
on the interested parties in this action as stated on the attached mailing list.
(BY MAIL) By placing a true copy of the foregoing document(s) in a sealed envelope
addressed as set forth on the attached mailing list. | placed each such envelope for
collection and mailing following ordinary business practices. I am readily familiar with this
Firm's practice for collection and processing of correspondence for mailing. Under that
practice, the correspondence would be deposited with the United States Postal Service on
that same day, with postage thereon fully prepaid at Newport Beach, California, in the
ordinary course of business. [ am aware that on motion of the party served, service is
presumed invalid if postal cancellation date or postage meter date is more than one day after
date of deposit for mailing in affidavit.
Executed on December 5, 2018, at Newport Beach, California.
I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct. Ne
Deborah Hernandez
(Type or print name) us
3695382 4822-8212-6938.1BREMER WHYTE BROWN 8
MEA
NEWPORT BCH, CA 92660
949) 221-1000
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Marie De Guzman v. Columbia Property Trust, et al,
BWB&O CLIENT:
BWB&O FILE NO.: 3695.382
Case No. CGC-17-561142
SERVICE LIST
Crown Building Maintenance dba Able Building Maintenance
Nikolaus W. Reed
Law Offices of Nikolaus Reed
135 10" Street
San Francisco, CA 94103
T: (415) 940-7766
F: (415) 940-7706
Attorneys for Plaintiff; Marie
De Guzman
Brian C. O’Hara
SKEBBA, ISAAC, BISHOP
& HENDERSON
One Montgomery Street, Suite
2550
San Francisco, CA 94104
T: (415) 836-2626
F: (415) 836-3104
Attorneys for Defendant,
Jones Lang LaSalle Americas
Debra Steel Sturmer
Nicole A. Deterding
LERCH STURMER LLP
One Sansome Street, Ste. 2060
San Francisco, CA 94104
T: (415) 217-6340
dstrumer@lerchsturmer.com
ndeterding@lerchsturmer.com
Attorneys for Defendant,
Columbia Party Trust
3695.382 4822-8212-6938.1
Preview
28 BREMER WHYTE BROWN & ‘O'MEARA LLP NEWPORT BCH, CA $2660 949) 221-1000 BREMER WHYTE BROWN & O’MEARA LLP Keith G. Bremer, State Bar No. 155920 kbremer@bremerwhyte.com Alison K. Hurley, State Bar No. 234042 ahurley@bremerwhyte.com Lilya Dishchyan, State Bar No. 309120 Idishchyan@bremerwhyte.com 20320 S.W. Birch Street Second Floor Newport Beach, California 92660 Telephone: (949) 221-1000 Facsimile: (949) 221-1001 Attorneys for Defendant and Cross-Defendant, CROWN BUILDING MAINTENANCE CO. dba ABLE BUILDING MAINTENANCE CO. ELECTRONICALLY FILED Superior Court of California, County of San Francisco 12/05/2018 Clerk of the Court BY:EDWARD SANTOS Deputy Clerk SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN FRANCISCO MARIE DE GUZMAN, Plaintiff, vs. COLUMBIA PROPERTY TRUST; JONES LANG LaSALLE AMERICAS, INC.; CROWN BUILDING MAINTENANCE CO.; and DOES 1-50, inclusive, Defendants. JONES LANG LASALLE AMERICAS, INC., Cross-Complainant, vs. CROWN BUILDING MAINTENANCE CO.; and ROES 1 TO S50, inclusive, Cross-Defendants. eee Case No. CGC-17-561142 Judge: Hon. Teri L. Jackson Ctrm: 610 CROWN BUILDING MAINTENANCE CO. dba ALE BUILDING MAINTENANCE CO.’S ANSWER TO THE CROSS-COMPLAINT OF JONES LANG LASALLE AMERICAS, INC. Complaint Filed: September 5, 2017 Trial Date: June 3, 2019 COMES NOW, Cross-Defendant CROWN BUILDING MAINTENANCE CO. dba ABLE BUILDING MAINTENANCE CO. (“Cross-Defendant”) for itself alone and no others answers the ANSWER TO CROSS-COMPLAINT 3695.382 4846-0116-2881.1om ND HW BF BW HY = RM DY Be ee ee eee RRRRBEBERE ES Se BESR ES 28 BREMER WHYTE BROWN &| ‘O'MEARA LLP Cross-Complaint of Cross-Complainant, JONES LANG LASALLE AMERICAS, INC. (“Cross- Complainant”) on file herein and admits, denies, and alleges as follows: 1, Pursuant to California Code of Civil Procedure section 431.30, Cross-Defendant denies the allegations of the Cross-Complaint, and each cause of action, and each paragraph in each cause of action, and each and every part thereof, including a denial that Cross-Complainant was damaged in the sum or sums alleged, or to be alleged, or any other sum or sums whatsoever. 2. Cross-Defendant further denies, that by reason of any act or omission, fault, conduct or liability on the part of this answering Cross-Defendant, whether negligent, careless, unlawful or whether as alleged, or otherwise, cross-complainants were injured or damaged in any of the amounts alleged, or in any other manner or amount whatsoever. Cross-Defendant further denies that this answering Cross-Defendant was negligent, careless, reckless, wanton, acted unlawfully or is liable, whether in the manner alleged or otherwise. FIRST AFFIRMATIVE DEFENSE (COMPARATIVE NEGLIGENCE) 3. Answering Cross-Defendant is informed and believes and on such information and belief alleges that the injury and damage, if any, alleged in the Cross-Complaint occurred and was proximately caused by either the sole or the partial negligence of Cross-Complainant, which negligence bars or reduces Cross-Complainant’s recovery herein. SECOND AFFIRMATIVE DEFENSE FAILURE TO STATE A CAUSE OF ACTION) 4. Each of Cross-Complainant’s causes of action, individually, fails to state facts sufficient to constitute a cause of action against this answering Cross-Defendant. THIRD AFFIRMATIVE DEFENSE (REDUCTION TO PERCENT OF FAULT) 5. The right of Cross-Complainant to recovery herein, if any right exists, is reduced and limited to the percentage of negligence attributable to this answering Cross-Defendant pursuant to Section 1431.2 of the California Civil Code. Mf 2 ANSWER TO CROSS-COMPLAINT 3695.382 4846-0116-2881.128 BREMER WHYTE BROWN a O'MEARA LLP 20920 §.W. BIRCH STREET ‘SECOND FLOOA NEWPORT BCH, CA #2660, (949) 221-1000 FOURTH AFFIRMATIVE DEFENSE (NEGLIGENCE OF OTHERS) 6. Answering Cross-Defendant denies that Cross-Complainant was damaged as a proximate result of any conduct on the part of this answering Cross-Defendant. This answering Cross-Defendant affirmatively alleges that Cross-Complainant’s damages, if any, were proximately caused by the independent conduct of third parties or entities whether or not parties to this action. Cross-Complainant’s recovery against this answering Cross-Defendant, if any, must therefore be reduced to the extent that those damages, if any, were caused by the independent conduct of third parties. FIFTH AFFIRMATIVE DEFENSE (ACTIVE-PASSIVE NEGLIGENCE DEFENSE) 7. If this answering Cross-Defendant is found responsible in damages to Cross- Complainant or some other party, whether as alleged or otherwise, then Cross-Defendant is informed and believes and, on that basis alleges, that the liability will be predicated upon the active conduct of Cross-Complainant, whether by negligence, breach of warranty, strict liability in tort or otherwise, which unlawful conduct proximately caused the alleged incident and that cross- complainants’ action against Cross-Defendant is barred by that active and affirmative conduct. SIXTH AFFIRMATIVE DEFENSE (FAILURE TO MITIGATE) 8. Answering Cross-Defendant alleges that Cross-Complainant has failed to take reasonable steps to mitigate its damages, if any. SEVENTH AFFIRMATIVE DEFENSE (STATUTE OF LIMITATIONS) 9 Answering Cross-Defendant alleges that the Cross-Complainant is barred by the applicable statute of limitations, including California Code of Civil Procedure Sections 337, 337.1, 337.15, 338, 339 and 340. //1 Vl 3 ANSWER TO CROSS-COMPLAINT 3695.382 4846-0116-2881.128 BREMER WHYTE BROWN &| YMEARA LLP 120320 $.W. BIRCH STREET (949) 221-1000 EIGHTH AFFIRMATIVE DEFENSE UNAVOIDABLE ACCIDENT) 10. Answering Cross-Defendant is informed and believes and on that basis alleges that any and all injuries, losses or damages, if any, were the direct and proximate result of an unavoidable incident or condition and, as such, were an act of God without fault or liability on the part of the Cross-Defendant. NINTH AFFIRMATIVE DEFENSE SUPERSEDING CAUSES) 11. Answering Cross-Defendant is informed and believes and on that basis alleges that any and all damages, if any, were the direct and proximate result of the intervening and superseding actions of other parties, either served or unserved, and not this answering Cross-Defendant, and that such intervening and superseding actions of other parties, whether or not served, bar recovery herein on behalf of Cross-Complainant. TENTH AFFIRMATIVE DEFENSE (FAILURE TO PERFORM CONDITIONS PRECEDENT) 12. Answering Cross-Defendant is informed and believes and on such information and belief alleges that Cross-Complainant failed to perform express contractual conditions precedent to Cross-Defendant’s performance, and such failure excuses any nonperformance by this answering Cross-Defendant. ELEVENTH AFFIRMATIVE DEFENSE (BREACH OF CONTRACT BY CROSS-COMPLAINANT) 13. Answering Cross-Defendant is informed and believes and thereon alleges that actions and omissions by Cross-Complainant constituted a breach of contract by Cross- Complainant, and such breach excuses any nonperformance by this answering Cross-Defendant. TWELFTH AFFIRMATIVE DEFENSE (PRODUCT USED IN AN ABNORMAL MANNER) 14. Answering Cross-Defendant is informed and believes and thereon alleges that Cross-Complainant’s damages, if any, proximately resulted from the use of the product in question 4 ANSWER TO CROSS-COMPLAINT 3695.382 4846-01 16-2881.128 ‘BREMER WHYTE BROWN & 1 ce (949) 221-1000 in an unintended and abnormal manner and not from any defect or mechanical failure of, or failure to service properly, said product or any of its components, THIRTEENTH AFFIRMATIVE DEFENSE (EXTRA CONTRACTUAL DAMAGES BARRED) 15. Cross-Complainant’s alleged claims for extra contractual damages are barred by the provisions of California Code of Civil Procedure Section 1021. FOURTEENTH AFFIRMATIVE DEFENSE (LACHES) 16. | Cross-Complainant has unreasonably delayed the commencement of the within action to the substantial prejudice of this answering Cross-Defendant and by reason thereof has been guilty of laches, and Cross-Complainant is thereby precluded from recovery in the within action. FIFTEENTH AFFIRMATIVE DEFENSE (UNCLEAN HANDS) 17. Cross-Complainant’s conduct with respect to the matters alleged in the cross- complaint deprives Cross-Complainant of clean hands, and by reason of not coming into court with clean hands Cross-Complainant is precluded from recovery in the within action. SIXTEENTH AFFIRMATIVE DEFENSE (COMPLAINT FRIVOLOUS AND IN BAD FAITH) 18. | Answering Cross-Defendant alleges that Cross-Complainant’s cross-complaint is frivolous and is not based on good faith as to answering Cross-Defendant within the meaning of California Code of Civil Procedure Section 128.5, and thus answering Cross-Defendant is entitled to recover its reasonable expenses, including attorneys’ fees, in defending this action. SEVENTEENTH AFFIRMATIVE DEFENSE (FAILURE OF CONSIDERATION) 19. Atall times mentioned, there was, has been, and continues to be a material failure of consideration on the part of Cross-Complainant herein, as a consequence of which failure this answering Cross-Defendant’s duty of performance has been discharged. 5 ANSWER TO CROSS-COMPLAINT 3695.382 4846-0116-2881.128 BREMER WHYTE BROWN &| ‘OMEARALLP 20820 S.W. BIRCH STREET ‘SECOND FLOOR, NEWPORT BCH, CA 92660 (949) 221-1000 EIGHTEENTH AFFIRMATIVE DEFENSE (MISUSE OR MODIFICATION OF PRODUCT) 20. Answering Cross-Defendant is informed and believes and based thereon alleges that if there was any defect in the product referred to in the cross-complaint at the time of said accident, that such defect did not exist at the time said product left the possession of this answering Cross- Defendant and was caused by the misuse, abuse, changes, modifications and alterations of others, including plaintiffs and cross-complainants herein and that said accident was caused by such misuse, abuse, changes, alterations and modifications. NINETEENTH AFFIRMATIVE DEFENSE (PLAINTIFF’S NEGLIGENCE) 21. Answering Cross-Defendant alleges that at all times herein, Cross-Complainant was negligent and proximately caused the incident which is the basis for Cross-Complainant’s cross- complaint. Cross-complainant’s recovery, if any should be reduced by the amount proportionate to the amount which cross-complainant’s negligence contributed to the happening of the alleged incident. TWENTIETH AFFIRMATIVE DEFENSE (ESTOPPEL) 22. Answering Cross-Defendant is informed and believes and thereon alleges that the Cross-Complainant engaged in conduct and activity with respect to the subject of this litigation, contracts and incidents, which are the subject of Cross-Complainant’s cross-complaint, and by reason of said conduct and activities is estopped from asserting any claims for damages or seeking any other relief against this answering Cross-Defendant. TWENTY-FIRST AFFIRMATIVE DEFENSE (WAIVER) 23. Answering Cross-Defendant is informed and believes and thereon alleges that the Cross-Complainant has engaged in conduct and activity sufficient to constitute a waiver of any alleged breach of warranty, breach of duty, negligence, act, omission, or any other conduct, if any, as set forth in Cross-Complainant’s cross-complaint. 6 ANSWER TO CROSS-COMPLAINT 3695.382 4846-0116-2881.1YD WF WwW N 28 BREMER WHYTE BROWN a om (949) 221-1000 TWENTY-SECOND AFFIRMATIVE DEFENSE (ASSUMPTION OF RISK) 24. Answering Cross-Defendant alleges that Cross-Complainant 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 from recovering any damages. TWENTY-THIRD AFFIRMATIVE DEFENSE (RESERVATION) 25. Answering Cross-Defendant presently has insufficient knowledge or information on which to form a belief as to whether it may have additional, as yet, unstated affirmative defenses available. Answering Cross-Defendant reserves herein the right to assert additional defenses in the event that the discovery indicates they would be appropriate. TWENTY-FOURTH AFFIRMATIVE DEFENSE (STANDARD OF CARE) 26. Answering Cross-Defendant alleges that Cross-Complainant is barred and precluded from any recovery in this action because this answering Cross-Defendant at all times complied with the applicable standard of care required of the subcontractor of the type of this answering Cross- Defendant at the time and location where the professional services were rendered. TWENTY-FIFTH AFFIRMATIVE DEFENSE (FAILURE TO NOTIFY) 27. Answering Cross-Defendant is informed and believes, and based thereon alleges that if any defects or inadequacies in the work performed by this answering Cross-Defendant exist, which this Cross-Defendant denies, Cross-Complainant failed to timely notify this Cross- Defendant of such conditions and failed to give this Cross-Defendant timely opportunity to remedy such conditions. This conduct by Cross-Complainant bars it from any relief from this answering Cross-Defendant herein. Mth ‘if Mf 7 ANSWER TO CROSS-COMPLAINT 3695.382 4846-01 16-2881.128 BREMER WHYTE BROWN a 1949) 721-1000 TWENTY-SIXTH AFFIRMATIVE DEFENSE ‘CONSTRUCTION CONTRACT - PROVISIONS VOID AND UNENFORCEABLE) 28. Answering Cross-Defendant is informed and believes and on that basis alleges that the causes of action as set forth in the cross-complaint, and any damage alleged therein, are barred by California Civil Code Section 2782. TWENTY-SEVENTH AFFIRMATIVE DEFENSE (NO PRIVITY OF CONTRACT) 29. Answering Cross-Defendant is informed and believes and on that basis alleges that with respect to all causes of action in the cross-complaint, based on express or implied warranty, there is no privity of contract or contractual or other relationship, between Cross-Complainant and this answering Cross-Defendant, which provides a basis for an implied warranty or duty in favor of plaintiff/cross-complainant with respect to the property described in the complaint/cross-complaint on file in this matter. TWENTY-EIGHTH AFFIRMATIVE DEFENSE (LACK OF STANDING) 30. Plaintiff and Cross-Complainant lack standing to sue for the damages alleged in the pleadings. TWENTY-NINTH AFFIRMATIVE DEFENSE (RESULTANT DAMAGE) 31. To the extent any plaintiff/cross-complainant seeks recovery for defects and/or deficient work product which have not caused personal injury or property damages, such claims are barred as a matter of law. THIRTIETH AFFIRMATIVE DEFENSE (NOT A LEGAL ENTITY) 32. Cross-Complainant is not a registered entity with the California Secretary of State, or Department of Corporations, or other governmental agency, therefore, Cross-Complainant has no standing to sue. /11 8 ANSWER TO CROSS-COMPLAINT 3695.382 4846-0116-2881.1BREMER WHYTE BROWN a MBAR NEWPORT BCH, CA 92660 (949) 221-1000 a A wA FW HN 28 THIRTY-FIRST AFFIRMATIVE DEFENSE (CONTRACTOR’S LICENSE) 33. | Cross-Complainant did not hold a valid California contractor’s license or similar professional license and/or registration at all relevant times, including without limitation, during the course of construction/improvement of the property/project which is the subject matter of the instant litigation. Therefore, Cross-Complainant is unable to sue or defend itself in this matter as a matter of law. THIRTY-SECOND AFFIRMATIVE DEFENSE (NEGLIGENT HIRING) 34. Cross-Complainant is liable for its negligent hiring and supervision of its general contractor, professionals, and other subcontractors, which were negligent and actually caused all or some of the damages suffered by plaintiffs/cross-complainants and/or the subject property. THIRTY-THIRD AFFIRMATIVE DEFENSE (SPLITTING A CAUSE OF ACTION) 35. Answering Cross-Defendant is informed and believes and on that basis alleges that to the extent any judgment and/or settlement in favor of plaintiff is funded by any other entity other than Cross-Complainant, including Cross-Complainant’s insurance companies, if any, and those other entities then claim a right to recover the same funds in this or another action, then Cross- Complainant is barred from claiming that the funds were paid by them pursuant to Ferraro v. So. Calif, Gas Co. (1980) 102 Cal.App.3d 33. Pursuant to Ferraro, Cross-Complainant is prohibited from attempting to split a cause of action. THIRTY-FOURTH AFFIRMATIVE DEFENSE (FAILURE TO GIVE REASONABLE NOTICE) 36. Cross-Complainant failed to give reasonable notice of the action or proceeding to Cross-Defendant, including Cross-Defendant’s insurance companies, if any. Mt //t ‘1 9 ANSWER TO CROSS-COMPLAINT 3695.382 4846-01 16-2881.1BREMER WHYTE BROWN & OMEARALIP 20920 $.W. BIRCH STREET IND NEWPORT BCH, CA 82660 (949) 221-1000 THIRTY-FIFTH AFFIRMATIVE DEFENSE (RECOVERY NOT SUFFERED IN GOOD FAITH) 37. Any potential recovery sought from Cross-Defendant, including Cross-Defendant’s insurance companies, was not suffered by Cross-Complainant in good faith. THIRTY-SIXTH AFFIRMATIVE DEFENSE (UNFORESEEN ACT OF NATURE) 38. Answering Cross-Defendant is informed and believes, and on such information and belief alleges, that the damages, if any, alleged in the Cross-Complaint occurred and were proximately caused by unforeseen acts of nature. Thus, this Answering Cross-Defendant is excused in whole or in part from such injury or damage. THIRTY-SEVENTH AFFIRMATIVE DEFENSE (FAILURE TO MINIMIZE OR PREVENT DAMAGE) 39. Answering Cross-Defendant is informed and believes, and on such information and belief alleges, that Plaintiff and Cross-Complainant failed to minimize or prevent the damages alleged in the pleadings. Thus, this Answering Cross-Defendant is excused in whole or in part from such damage. THIRTY-EIGHTH AFFIRMATIVE DEFENSE (FAILURE TO PROVIDE TIMELY NOTICE) 40. Answering Cross-Defendant is informed and believes, and on such information and belief alleges, that Cross-Complainant and Plaintiff failed to provide timely notice of some or all of the alleged injuries suffered. Thus, this Answering Cross-Defendant is excused in whole or in part from liability for such injuries. THIRTY-NINTH AFFIRMATIVE DEFENSE (FAILURE TO COMPLY WITH MAINTENANCE OBLIGATIONS) 41. Answering Cross-Defendant is informed and believes, and upon such information and belief alleges, that Cross-Complainant has failed to comply with manufacturer’s suggested maintenance recommendations and commonly accepted maintenance obligations. Thus, this Answering Cross-Defendant is excused in whole or in part from damage arising there from. 10 ANSWER TO CROSS-COMPLAINT 3695.382 4846-0116-2881.128 BREMER WHYTE BROWN & O'MEARA (94a) 221-1000, FORTIETH AFFIRMATIVE DEFENSE (PLAINTIFF ALTERATION OR MISUSE) 42. Answering Cross-Defendant is informed and believes, and upon such information and belief alleges, that Cross-Complainant has altered the condition of the construction, has misused the construction or has otherwise neglected or abused the property in question, and/or used the property in a manner other than its intended purpose. Thus, this Answering Cross-Defendant is excused in whole or in part from damage arising there from. FORTY-FIRST AFFIRMATIVE DEFENSE (THIRD PARTY ALTERATION OR MISUSE) 43. Answering Cross-Defendant is informed and believes, and upon such information and belief alleges, that someone other than Plaintiff or this Answering Cross-Defendant has altered the condition of the construction, has misused the construction or has otherwise neglected or abused the construction, and/or used the construction in a manner other than its intended purpose. Thus, this Answering Cross-Defendant is excused in whole or in part from damage arising there from, FORTY-SECOND AFFIRMATIVE DEFENSE (SUCCESSFUL CORRECTIVE MEASURES) 44, Answering Cross-Defendant is informed and believes, and upon such information and belief alleges, that the deficiencies alleged in the instant Cross-Complaint were successfully rectified by either this Answering Cross-Defendant or a third party. Thus, Plaintiff and Cross- Complainant are barred from pursuing the corrected defects as against this Answering Cross- Defendant. Wherefore, this answering Cross-Defendant requests relief as follows: 1. That Cross-Complainant take nothing by way of its Cross-Complaint; 2. For judgment in favor of answering Cross-Defendant and that Cross-Complainant’s action be dismissed in its entirety with prejudices to Answering Cross-Defendant; 3. For costs of suit; 4. For attorney’s fees; and ANSWER TO CROSS-COMPLAINT 3695.382 4846-0116-2881.11 5. For such other and further relief as the Court deems appropriate. 2 || Dated: December 4, 2018 BREMER WHYTE BROWN & O’MEARA LLP : slug RyeicbJand 4 By: Keith G, Bremer 7 5 Alison K. Hurley Lilya Dishchyan 6 Attorneys for Defendant and Cross- Defendant 7 CROWN BUILDING MAINTENANCE CO. dba 8 ABLE BUILDING MAINTENANCE CO. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 snenen nvr son a R Mem EOOND FLOOR ANSWER TO CROSS-COMPLAINT NewPoRT Bch CA 52660 40) 2213000 3695382 4846-01 16-2881.1we 5 6 PROOF OF SERVICE 1 am employed in the County of Orange, State of California. I am over the age of 18 and not a party to the within action. My business address is 20320 S.W. Birch Street, Second Floor, Newport Beach, California 92660. On December 5, 2018, I served the within document(s) described as: CROWN BUILDING MAINTENANCE CO. dba ABLE BUILDING MAINTENANCE CO.S ANSWER TO THE CROSS-COMPLAINT OF JONES LANG LASALLE AMERICAS, INC on the interested parties in this action as stated on the attached mailing list. (BY MAIL) By placing a true copy of the foregoing document(s) in a sealed envelope addressed as set forth on the attached mailing list. | placed each such envelope for collection and mailing following ordinary business practices. I am readily familiar with this Firm's practice for collection and processing of correspondence for mailing. Under that practice, the correspondence would be deposited with the United States Postal Service on that same day, with postage thereon fully prepaid at Newport Beach, California, in the ordinary course of business. [ am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit. Executed on December 5, 2018, at Newport Beach, California. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Ne Deborah Hernandez (Type or print name) us 3695382 4822-8212-6938.1BREMER WHYTE BROWN 8 MEA NEWPORT BCH, CA 92660 949) 221-1000 fw N w 28 Marie De Guzman v. Columbia Property Trust, et al, BWB&O CLIENT: BWB&O FILE NO.: 3695.382 Case No. CGC-17-561142 SERVICE LIST Crown Building Maintenance dba Able Building Maintenance Nikolaus W. Reed Law Offices of Nikolaus Reed 135 10" Street San Francisco, CA 94103 T: (415) 940-7766 F: (415) 940-7706 Attorneys for Plaintiff; Marie De Guzman Brian C. O’Hara SKEBBA, ISAAC, BISHOP & HENDERSON One Montgomery Street, Suite 2550 San Francisco, CA 94104 T: (415) 836-2626 F: (415) 836-3104 Attorneys for Defendant, Jones Lang LaSalle Americas Debra Steel Sturmer Nicole A. Deterding LERCH STURMER LLP One Sansome Street, Ste. 2060 San Francisco, CA 94104 T: (415) 217-6340 dstrumer@lerchsturmer.com ndeterding@lerchsturmer.com Attorneys for Defendant, Columbia Party Trust 3695.382 4822-8212-6938.1