Answer: LESLIE KILBY BLACK VS. TAMOTSU SAKAI et al

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San Francisco Superior Courts
Information Technology Group

Document Scanning Lead Sheet
Jun-25-2003 10:46 am

Case Number: CGC-02-405626
Filing Date: Jun-25-2003 10:45
Juke Box: 001 Image: 00720889
ANSWER

LESLIE KILBY BLACK VS. TAMOTSU SAKAI et al

001000720889

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

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AL. CHAPMAN, State Bar No. 167249
NIXON PEABODY LLP

Two Embarcadero Center, Suite 2700

San Francisco, AOAL 11-3996

Telephone: (415) 984-8200

Facsimile: (415) 984-8300

‘Attorneys for Defendant and C ross-Defendant
Ss. HANDA SONS, INC.

IN THE SUPERIOR COURT OF THE STATE O
}N AND FOR THE COUNTY OF SAN F,
ij

LESLIE KILBY BLACK,
Plaintiff,
vs.
TAMOTSU SAKAT, CHIEKO SAKAL S.
HANDA & SONS, INC.; T- OKAMOTO & co.
and DOES } through 500, inclusive,

Defendants.

AND RELATED CROSS-ACTION

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CALIFORNIA ~
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Case NO. CGC-02-405626

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ANSWER OF S. HANDA SONS, INC.

\ TO EROSS-COMPLAINT

Agtion Filed: March 14, 2002

Trial Date: March 8, 2004

COMES NOW cross-defendant Ss. HANDA SONS, INC. for itself alone, and for no others

(Canswering cross-defendant”), and answers the unverified cross-complaint of defendant and cross-

complainant, T. Okamoto & Co.

GENERAL

DENIAL

GENERAL DIES

Pursuant to Code of Civil Procedure § 431.30. this answering cross-defendant denies

generally and specifically each and every allegation contained in cross-complainant’s unverified

cross- complaint, and further denies that cross-complainant and/or plaintiff has been damaged in a

way by reason of any act oF omission of this answering cross-defendant.

ANSWER OF 8. HANDA SONS, INC.
tO CROSS-COMPLAINT
CASE NO. € GC-02-405626FIRST AFFIRMATIVE DEFENSE
(Failure to State A Cause of Action)

The cross-complaint and each and every purported cause of action stated therein, fails to state

facts sufficient to constitute a cause of action against this answering cross-defendant.
SECOND AFFIRMATIVE DEFENSE
(Statute of Limitations)

Some or all of cross-complainant’s purported causes of action and plaintiff's underlying

causes of action are barred by the applicable statutes of limitations.
THIRD AFFIRMATIVE DEFENSE
(Waiver and Estoppel)

Some or all of cross-complainant’s purported causes of action and plaintiff's underlying

causes of action are barred by the doctrines of waiver and estoppel.
FOURTH AFFIRMATIVE DEFENSE
(Laches)

Some or all of cross-complainant’s purported causes of action and plaintiff s underlying
causes of action are barred by the doctrine of laches.

FIFTH AFFIRMATIVE DEFENSE
(Failure to Mitigate)

Any recovery on the cross-complaint, and each and every cause of action purportedly set forth
therein, is barred in whole or in part by cross-complainant’s and/or plaintiff's failure to mitigate
damages.

SIXTH AFFIRMATIVE DEFENSE
(Negligent/Culpable Conduct of Others)

Some or all of cross-complainant’s purported causes of action and plaintiff's underlying
causes of action are barred in whole or in part by cross-complainant’s negligent or culpable conduct
and/or the negligent or culpable conduct of others and, accordingly, cross-complainant is entitled to

no relief of any kind against this answering cross-defendant.

-2-

ANSWER OF S. HANDA SONS, INC. $400266.1
TO CROSS-COMPLAINT
CASE NO. CGC-02-405626SEVENTH AFFIRMATIVE DEFENSE
(Superseding Acts of Third Parties)

The cross-complainant’ s alleged damages, ifany, were proximately caused by the
intervening, superseding or other wrongful conduct of other parties to this litigation and/or unknown
third parties, and not by this answering cross-defendant. This answering cross-defendant alleges that
such conduct of the other parties to this litigation or the unknown third parties, who are not under the
supervision of control of this answering cross-defendant, was unforeseeable to this answering cross-
defendant.

EIGHTH AFFIRMATIVE DEFENSE
(Comparative Fault)

The incident described in the complaint and cross-complaint and any damages sustained by
plaintiff or cross-complainant was caused solely by the negligence or other legal fault of persons,
including cross-complainant and/or plaintiff, and not this answering cross-defendant. Said conduct
was the substantial factor, i.¢., the proximate and/or legal cause of the incident which gave rise to
plaintiff's complaint and the cross-complaint, and was of such a nature as to deprive cross-
complainant of any right to indemnification or contribution against this answering cross-defendant.

NINTH AFFIRMATIVE DEFENSE
(Proportionate Fault)

If this answering cross-defendant is in any way negligent or otherwise legally responsible in
this litigation, then any damages to which plaintiff and/or cross-complainant would otherwise be
entitled to recover should be reduced in proportion to the amount of negligence or legal fault

attributable to cross-complainant, plaintiff, and other persons in causing the claimed damages.

3.

[ANSWER OF 8. HANDA SONS, INC. $400260.1
TO CROSS-COMPLAINT
CASE NO. CGC-02-405626nN

14

On

TENTH AFFIRMATIVE DEFENSE
(Failure to Maintain)

This answering cross-defendant is informed and believes and thereon alleges that cross-
complainant failed to perform that degree of maintenance on the work performed by this answering
cross-defendant on the property, which is the subject matter of this action, necessary to protect such
work from deterioration from the elements. Such failure to maintain the said work bars or otherwise
diminishes the claim of recovery of cross-complainant and correspondingly bars or otherwise
diminishes any claim of the cross-complainant herein as against this answering cross-defendant.

ELEVENTH AFFIRMATIVE DEFENSE
(Failure to Provide Notice)

Tf cross-complainant sustained damages as alleged in its cross-complaint, cross-complainant
failed to give this answering cross-defendant notice of all or part of the alleged defective work within
a reasonable time after it knew or should have known of the alleged negligence.

TWELFTH AFFIRMATIVE DEFENSE
(No Damages)

This answering cross-defendant is informed and believes and thereon alleges that cross-
complainant has sustained no cognizable damage as a result of any and all of the matters alleged in
the cross-complaint.

THIRTEENTH AFFIRMATIVE DEFENSE
(Consent)

This answering cross-defendant is informed and believes and thereon alleges that cross-
complainant and/or its agents, including its design professionals, knew of, consented to, directed and
participated in each and all of the acts, transactions and defects complained of, and by reason thereof,
are estopped to complain. Cross-complainant prevented this answering cross-defendant from

addressing and/or correcting some or all of the alleged defects.

ANSWER OF S. HANDA SONS, INC, $400266.1
TO CROSS-COMPLAINT
CASE NO. CGC-02-405626FOURTEENTH AFFIRMATIVE DEFENSE
(Cross-Complainant Prevented Performance)

As this answering cross-defendant has been prev ented from performing its obligations, if any,
by reason of cross-complainant’s acts, cross-complainant is barred from any recovery oF relief herein.
FIFTEENTH AFFIRMATIVE DEFENSE
(Assumption of the Risk)

This answering cross-defendant alleges that the cross-complainant expressly, voluntarily, and
knowingly assumed all risks about which it complained in its cross-complaint and, therefore, is
barred either totally or to the extent of said assumption of any damages.

SIXTEENTH AFFIRMATIVE DEFENSE
(Full and Proper Performance)

This answering cross-defendant had appropriately, completely and fully performed and
discharged any and all obligations and legal duties arising under the matters alleged in the cross-
complaint.

SEVENTEENTH AFFIRMATIVE DEFENSE
(Answering Cross-Defendant Caused No Defects)

This answering cross-defendant is informed and believes, and based thereon alleges, that if
there was any defect in the work or materials referred to in the cross-complaint at the time of said
damages, that such defect did not exist at the time said materials left the possession of this answering
cross-defendant and was caused by the misuse, abuse, changes, modifications, improper preparation,
maintenance, and alterations of others, including cross-complainant herein, and that said damages
were caused by such improper preparation, misuse, abuse, changes, alterations, lack of maintenance

and modifications.

on

ANSWER OF S. HANDA SONS. INC. $400266.1
TO CROSS-COMPLAINT
CASE NO. CGC-02-405626N

10
11

EIGHTEENTH AFFIRMATIVE DEFENSE
(Answering Cross-Defendant Met the Standard of Care)

This answering cross-defendant is informed and believes and thereon alleges that all work and
services performed by this answering cross-defendant met the standard of care known at the time the
work was performed and was the recognized state of the art at all relevant times herein.

NINETEENTH AFFIRMATIVE DEFENSE
(Insufficient Knowledge or Information)

This 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, defenses available. This
answering cross-defendant reserves the right to assert additional defenses in the event discovery
indicates that they would be appropriate.

TWENTIETH AFFIRMATIVE DEFENSE
(Proposition 51)

The Fair Responsibility Act of 1986, codified at California Civil Code Section 1431 through
1431.5, limits any damages governed thereby which are awarded to cross-complainant against this
answering cross-defendant to that portion of cross-complainant’s non-economic damages which are
attributable to this answering cross-defendant’s percentage of fault or liability, if any.

TWENTY-FIRST AFFIRMATIVE DEFENSE
(Incorporation by Reference)
Cross-defendant incorporates by reference each and every affirmative defense to plaintiff's

complaint as if the same were set forth herein.

PRAYER
WHEREFORE, this answering cross-defendant prays for judgment as follows:
1. That cross-complainant take nothing from this answering cross-defendant by way of

the cross-complaint herein and that the cross-complaint be dismissed with prejudice,

2. That this answering cross-defendant recover its attorneys fees in defense of this action,
3. That this answering cross-defendant recover its costs in defense of this action;
-6-
ANSWER OF S. HANDA SONS, INC. $400266.)

TO CROSS-COMPLAINT
CASE NO. CGC-02-4056264. For such other relief as the court deems proper.

DATED: June 24, 2003 Respectfully submitted,
NIXON PEABODY LLP

ie ‘i
By: fart shsprar

LAURA L. CHAPMAN
Attorneys for Defendant
S. HANDA SONS, INC.

[ANSWER OF S. HANDA SONS. INC.
TO CROSS-COMPLAINT.
CASE NO. CGC-02-405626

$400206.1wv

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PROOF OF SERVICE

CASE NAME: Leslie Kilby Black v. Tamotsu Sakai, et al.

COURT: San Francisco Superior Court
CASE NO.: CGC-02-405626
NP FILE: 003620.000006

1, the undersigned, certify that | am. employed in the City and County of San Francisco,
California; that I am over the age of eighteen years and not a party to the within action; and that my
business address is Two Embarcadero Center, Suite 2700, San Francisco, CA 94111-3996. On June
24, 2003, I served the following document(s):

ANSWER OF S. HANDA SONS, INC. TO CROSS-COMPLAINT

on the parties stated below, through their attorneys of record, by placing true copies thereof in sealed
envelopes addressed as shown below by the following means of service:

_X_: By First-Class Mail — I am readily familiar with the firm’s practice for collection and
processing of correspondence for mailing. Under that practice, the correspondence is deposited with
the United States Postal Service on the same day as collected, with first-class postage thereon fully
prepaid, in San Francisco, California, for mailing to the office of the addressee following ordinary
business practices.

__: By Personal Service —- I caused each such envelope to be given to a courier messenger to
personally deliver to the office of the addressee.

: By Overnight Courier — I caused each such envelope to be given to an overnight mail service
at San Francisco, California, to be hand delivered to the office of the addressee on the next business
day.

_ By Facsimile — From facsimile number (415) 984-8300 at I caused each such
document to be transmitted by facsimile machine, to the parties and numbers listed below, pursuant
to Rule 2008. The facsimile machine I used complied with Rule 2003(3) and no error was reported by
the machine. Pursuant to Rule 2008(e)(4), I caused the machine to print a transmission record of the
transmission, a copy of which is attached to the original of this declaration.

Addressee(s)
See Attached Service List of Attorneys of Record

I declare under penalty of perjury that the foregoing is true and correct. Executed on June 24,
2003, at San Francisco, California.

Joan M. Cartwrig!

$391468.1wn

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SERVICE LIST

Black v. Sakai, et

al.

San Francisco Superior Court Case No. CGC-02-405626

John C. Miller Jr.
Whitney A. Davis
Charter Miller Davis LLP

: 1515 K Street, Ste. 500

Sacramento, CA 95814

Facsirr

‘Atiomeys for Plaintiff Leslie Kilby Black

Telephone: (916) 448-9000

nile: (916) 448-9009

Barbara Ann Caulfield
Jackson & Harrigan

One Market Plaza

Spear Street Tower, 8th Fl.

| San Francisco, CA 94105

Facsir

Telephone: (415) 543-3434

nile: (415) 546-7019

Attomeys for Tamotsu Sakai, Chieko Sakai

Samuel E. Meredith

Nicole L. Meredith

Vogl & Meredith

456 Montgomery Street, 20th Fl.
San Francisco, CA 94104-1233

Attorneys for T. Okamoto & Co.

“Telephone: (415) 398-0200
Facsimile: (415) 398-2820

S391468.1IOV

San Francisco Superior Courts
Information Technology Group

Document Scanning Lead Sheet
Jun-25-2003 10:46 am

Case Number: CGC-02-405626
Filing Date: Jun-25-2003 10:45
Juke Box: 001 Image: 00720889
ANSWER

LESLIE KILBY BLACK VS. TAMOTSU SAKAI et al

001000720889

Instructions:
Please place this sheet on top of the document to be scanned.“pauueds aq 0} JUBUNDOP au} Jo do} UO JoaYs sI4} edeId aseaiq
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