Answer: 88 TOWNSEND STREET OWNERS ASOCIATION, VS. 699 SECOND DEVELOPMENT LLC, et al

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SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO

Document Scanning Lead Sheet
Jun-24-2013 02:39 pm

Case Number: CGC-13-531203

Filing Date: Jun-24-2013 02:35 pm
Filed by: ROSSALY DELAVEGA

Juke Box: 001 Image: 04102794
ANSWER

88 TOWNSEND STREET OWNERS ASOCIATION, VS. 699 SECOND
DEVELOPMENT LLC, et al

001004102794

Instructions:
Please place this sheet on top of the document to be scanned.1

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Steven M. Cvitanovic (Bar No. 168031)
HAIGHT BROWN & BONESTEEL LLP
71 Stevenson Street, 20th Floor

San Francisco, California 94105-2981
Telephone: 415.546.7500

Facsimile: 415.546.7505

Attorneys for Defendants 699 SECOND
DEVELOPMENT, LLC; and CANNON
CONSTRUCTORS, INC.

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

88 TOWNSEND STREET OWNERS
ASSOCIATION, a California non-profit
mutual benefit corporation,

Case No. CGC-13-531203
ANSWER TO COMPLAINT

Plaintiff, Complaint Filed: | May 6, 2013
Trial Date: None Set

vs.

699 SECOND DEVELOPMENT, LLC, a
California limited liability company;
CANNON CONSTRUCTORS, INC., a
California corporation; and DOES 1-150,
inclusive,

| Defendants.

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Defendants 699 SECOND DEVELOPMENT, LLC; and CANNON CONSTRUCTORS,
| INC. (hereinafter referred to as “Defendants”) answer the COMPLAINT of Plaintiff as follows:

1. Pursuant to California Code of Civil Procedure section 431.30(d), these answering

Defendants deny the allegations of the COMPLAINT and each cause of action, and every

24 | paragraph of each and every cause of action, and each and every part thereof, including a denial

that Plaintiff was damaged in the sum or sums alleged, or in any other sum or sums whatsoever.

2. Defendants deny that by reason of any act or omission, fault, conduct or liability on

27 | the part of Defendants, as alleged, or otherwise, Plaintiff was injured or damaged in the amount or

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LAW OFFICES

HAIGHT, BROWN &

BONESTEEL, LLP.
San Francisco

amounts alleged, or in any manner or amount whatsoever.

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LAW OFFICES

HAIGHT, BROWN &

BONESTEEL, LLP.
‘San Francisco

FIRST AFFIRMATIVE DEFENSE
(Failure to State Sufficient Facts)
3. Defendants allege that Plaintiff's COMPLAINT and its purported causes of action

therein fails to set forth facts sufficient to state a cause of action or claim for relief against

Defendants.
SECOND AFFIRMATIVE DEFENSE
(Statute of Limitations)
4 Defendants are informed and believe and upon such information and belief allege

that Plaintiff is barred from recovery herein; that the alleged causes of action were filed after the
running of the statute of limitations, as set forth in California Code of Civil Procedure beginning

with § 335 and continuing through § 349.4 more particularly, but not limited to, §§ 335.1, 337,

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337.1, 337.15, 337.5, 338, 339, 340, and 343 and by §§ 2607 (3)(a), 2725 of the Uniform

Commercial Code of the State of California.
THIRD AFFIRMATIVE DEFENSE
(Liability in Proportion to Fault)

5. If it should be found that Defendants were in any way liable, which Defendants
expressly deny, the liability of Defendants for non-economic damages shall be several only and
shall not be joint. Defendants shall be liable for the amount of non-economic damages, allocated
to Defendants only in direct proportion to Defendants percentage of fault.

FOURTH AFFIRMATIVE DEFENSE
(Waiver)

6. All claims against Defendants are waived, in whole or in part, by the conduct of
Plaintiff.

FIFTH AFFIRMATIVE DEFENSE
(Unclean Hands)

7. Defendants allege that Plaintiff is not entitled to relief in equity because Plaintiff
acted and reacted to the matters alleged in the COMPLAINT with unclean hands.
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'SD29-0000001

9887889.1 ANSWER TO COMPLAINTSIXTH AFFIRMATIVE DEFENSE
| (Laches)

8. Defendants allege that Plaintiff unreasonably delayed bringing this action against
Defendants and that such delay substantially prejudiced Defendants. Therefore, this action is

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5 | barred by the equitable doctrine of laches.
6 SEVENTH AFFIRMATIVE DEFENSE
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(Estoppel)
| 9. All claims against Defendants are barred, in whole or in part, by estoppel.
9 EIGHTH AFFIRMATIVE DEFENSE
10] (Failure to Mitigate)
11] 10. Plaintiff has failed to take reasonable action to mitigate its alleged damages, in

12 | whole or in part, as required by law and, as a result of such failure and refusal to undertake
13 | reasonable mitigation efforts, Defendants are therefore entitled to have any sum to which Plaintiff
14 [is allegedly entitled reduced by the amount of damages attributable to the failure of Plaintiff to

15 |make reasonable efforts to mitigate, minimize and avoid said damages.

16 NINTH AFFIRMATIVE DEFENSE
17 | (intervening Acts)
18 11. _ Plaintiff's causes of action are barred in that any alleged act or omission was

19 Jintervened and/or superseded by the acts and omissions of others, named and unnamed, including
20 | Plaintiff and/or their agents, which was the sole cause of injury, damage or loss, if any, which

21 || Defendants expressly denied, to the Plaintiff herein.

22 | TENTH AFFIRMATIVE DEFENSE
23 (Comparative Fault as to Others)
24 | 12. Defendants allege that the alleged incident and damages complained of by Plaintiff,

25 jit any there actually were, said incident and damages being expressly denied by Defendants were
26 | proximately caused by the negligence of firms, persons, corporations, or entities other than
27 |Defendants, and said negligence comparatively reduces the percentage of any fault, if it should be

28 | found that Defendants were at fault, which Defendants expressly denied.

LAW OFFICES

HAIGHT, BROWN & 3
BONESTEEL, LLP. 'SD29-0000001

San Francisco 9887889. ANSWER TO COMPLAINT_

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LAW OFFICES

HAIGHT, BROWN & |

BONESTEEL, L.LP.
San Francisco

ELEVENTH AFFIRMATIVE DEFENSE
(Comparative Fault as to Plaintiff)

13. Defendants allege that if Plaintiff was injured or damaged in the manner alleged, or
otherwise, which Defendants denied, then Plaintiff was comparatively negligent, and such
comparative negligence proximately caused Plaintiff's injuries and damages, if any; accordingly,
Plaintiffs damages should be reduced in proportion to their own fault.

TWELFTH AFFIRMATIVE DEFENSE
(Assumption of Risk)

14. Defendants allege that Plaintiff expressly, voluntarily, and knowingly assumed all
risks about which are complained in the COMPLAINT, and are therefore barred either totally or to
the extent of said assumption from any damages.

THIRTEENTH AFFIRMATIVE DEFENSE
(Failure to Provide Notice)

15. Defendants are informed and believe, and upon such information and belief alleges,
that Plaintiff is barred from relief because it failed to provide timely notice or notification
regarding their claims in accordance with contract provisions and/or applicable law.

FOURTEENTH AFFIRMATIVE DEFENSE
(Unforeseen Causes)

16. Defendants are informed and believe and on that basis allege that any and all
injuries, losses or damages, if any, was the direct and proximate result of an unavoidable incident
or condition and, as such, was an act of God and/or irresistible forces of nature without fault or
liability on the part of the Defendants.

FIFTEENTH AFFIRMATIVE DEFENSE
(Excused Performance)

17. Defendants allege that their performance of any contract alleged in the
COMPLAINT and/or arising from the COMPLAINT was excused and/or prevented by the
action(s) of other parties, including, but not limited to Plaintiff.

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9887889.1 ANSWER TO COMPLAINTLAW OFFICES
HAIGHT, BROWN

BONESTEEL,1.L.P. _ || SD29-0000001

‘San Francisco

SIXTEENTH AFFIRMATIVE DEFENSE

(Misuse or Modification of Property)

18. Defendants are informed and believe and based thereon alleges that if there was any
defect in the property referred to in the COMPLAINT at the time Plaintiff's alleged damage arose,
that such defect did not exist at the time said property left the possession of Defendants and was
caused by the misuse, abuse, changes, modifications and alterations of others, including Plaintiff,
and that any alleged damages was caused by such misuse, abuse, changes, alteration and

modifications.

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SEVENTEENTH AFFIRMATIVE DEFENSE

10 (Contribution)

ll 19. Defendants allege that in the event they are held liable to Plaintiff, which liability is
12 | expressly denied, and any co-defendants are likewise held liable, Defendants are entitled to a

13 | percentage contribution of the total liability from said co-defendants in accordance with the

14 | principles of equitable indemnity and comparative contribution.

15 | EIGHTEENTH AFFIRMATIVE DEFENSE

16 (Non-Compliance with Civil Code § 1375)

17 20. This action is barred as result of Plaintiff's failure to comply with Civil Code §

18 | 1375.

19 NINETEENTH AFFIRMATIVE DEFENSE

20 (Reservation)

21 21. Defendants presently have insufficient knowledge or information on which to form

22 la belief as to whether it may have additional, as yet, unstated affirmative defenses available.
23 || Defendants, therefore, reserve herein the right to assert additional defenses in the event that the
24 |\discovery indicates they would be appropriate.

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LAW OFFICES

HAIGHT, BROWN &
BONESTEEL, LLLP.
San Francisco

TWENTIETH AFFIRMATIVE DEFENSE

(Unforeseen Act of Nature per Civil Code Section 945.5(a))

22. Defendants are informed and believe and on that basis allege that any and all
injuries, losses or damages, if any, was the direct and proximate result of an unforeseen act of
nature and, as such, was an act without fault or liability on the part of the Defendants.

1 TWENTY-FIRST AFFIRMATIVE DEFENSE
(Homeowner Failure per Civil Code Section 945.5(b))

23. Defendants are informed and believe and on that basis allege that any and all

injuries, losses or damages, if any, was the direct and proximate result of homeowner unreasonable

| failure to minimize or prevent those damages in a timely manner, including the failure of the
homeowner to allow reasonable and timely access for inspections and repairs under Civil Code
Section 941 et seq. and, as such, was without fault or liability on the part of the Defendants.
TWENTY-SECOND AFFIRMATIVE DEFENSE
(Homeowner Failure per Civil Code Section 945.5(c))

24. Defendants are informed and believe and on that basis allege that any and all
lias, losses or damages, if any, was the direct and proximate result of homeowner or his or her
agent, employee, general contractor, subcontractor, independent contractor, or consultant by virtue
of their failure to follow the builder’s or manufacturer’s recommendations, or commonly accepted
homeowner maintenance obligations and, as such, was without fault or liability on the part of the
Defendants.

TWENTY-THIRD AFFIRMATIVE DEFENSE
(Homeowner Failure per Civil Code Section 945.5(d))

25. Defendants are informed and believe and on that basis allege that any and all
injuries, losses or damages, if any, was the direct and proximate result of homeowner or his or her
agent’s or an independent third party’s alterations, ordinary wear and tear, misuse, abuse, or
neglect, or by the structure’s use for something other than its intended purpose, and, as such, was
| without fault or liability on the part of the Defendants.

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9887889.) ANSWER TO COMPLAINT1 TWENTY-FOURTH AFFIRMATIVE DEFENSE
2 | (Time Barred per Civil Code Section 945.5(e))
3 | 26. Defendants are informed and believe and upon such information and belief allege
4 | that Plaintiff is barred from recovery herein; that the alleged causes of action were filed after the
5 {running of the statute of limitations.
6 TWENTY-FIFTH AFFIRMATIVE DEFENSE
7 (Valid Release(s) per Civil Code Section 945.5(f))
8 | 27. Defendants allege that Plaintiff is barred from relief as to any and all particular
9 | violations for which Defendants have obtained a valid release.
10 | TWENTY-SIXTH AFFIRMATIVE DEFENSE
ll (Successful Repair(s) per Civil Code Section 945.5(g))
12 28. Defendants allege that Plaintiff is barred from relief as to any and all repair(s) that

13 | were successful in correcting the particular violation(s) of the applicable standard(s).

14 WHEREFORE, these answering Defendants pray:

15 | 1. That Plaintiff take nothing by its unverified COMPLAINT for damages and that the
16 same be dismissed;

17 2. That the comparative fault of Plaintiff and third parties for the injuries and damages
18 | claimed by Plaintiff, if any, be ascertained and apportioned;

19 3. That Defendants be awarded their costs of suit herein incurred; and

20 4. For such other and further relief as the Court may deem just and proper under the
21 circumstances.

22 || Dated: June 24, 2013 IT BROWN & BONESTEEL LLP

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Steven M. Cvifanovic

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Attorneys for Defendants

26 699 SECOND DEVELOPMENT, LLC; and
CANNON CONSTRUCTORS, INC.

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LAW OFFICES
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‘San Francisco

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PROOF OF SERVICE

STATE OF CALIFORNIA )
) ssi:
COUNTY OF SAN FRANCISCO )

88 TOWNSEND STREET OWNERS v. 699 SECOND STREET DEVELOPMENT, et al.
CGC-13-531203

I am employed in the County of San Francisco, State of California. I am over the age of 18
and not a party to the within action. My business address is 71 Stevenson Street, 20th Floor, San
Francisco, California 94105.

On June 24, 2013, I served the within document(s) described as:

ANSWER TO COMPLAINT

on the interested parties in this action as stated below:

Thomas E. Miller, Esq. Plaintiff,

THE MILLER LAW FIRM 88 TOWNSEND STREET OWNERS
235 MONTGOMERY ST, STE 930

SAN FRANCISCO, CA 94104

(415) 437-1800

J (MAIL) by placing a true copy thereof in sealed envelope(s) addressed above. I am readily
familiar with this firm's practice of collection and processing correspondence for mailing.
Under that practice it would be deposited with the U.S. postal service on that same day
with postage thereon fully prepaid at San Francisco, California, in the ordinary course of
business. I am aware that on motion of party served, service is presumed invalid if postal
cancellation date or postage meter date is more than I day after date of deposit for mailing
in affidavit.

Executed on June 24, 2013, at San Francisco, California.
I declare under penalty of perjury under the laws of the State of California that the

foregoing is true and correct.

Meykuei Saephan
(Type or print name) (S{gndture)

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'$D29-0000001

9887889.1 PROOF OF SERVICE