Stipulation and Order

Cal. Super. - 6th Dist.July 8, 2020

Electronically Filed by Superior Court of CA, County of Santa Clara, on 4/29/2021 10:40 AM Reviewed By: R. Nguyen Case #20CV368065 Envelope: 6342372 20CV368065 Santa Clara - Civil R. Nguyen "luur San |<'m\1ciacu, {Inlifiamia 941 ()4 'INI‘IH‘JJ) 86 PUIJTU, 1.1.], 4mg“ f Facsimile (415'! Ufifyl 1'52 cx 5‘ ,- tn II ‘4 E .E FJ ,u L: £1:- 0:; *4 '--u Cd n-I‘E OI VP ,- BRUCE W. LORBER (SBN 74719) blorber@lorberlaw.com MATTHEW H. WEINER (SBN 236394 mweincr@lorbcrlaw.com ' “JAMES” HUAN LY (SBN 289912) hl .(Dlorbcrlaw.com LORBER, GREENFIELD & POLITO, LLP 142 Sansome Street, Third Floor San Francisco, CA 94104 Telephone: 415-986-0688 Facsimile: 41 5-986-1 172 Attorneys for Defendant OLDCASTLE INFRASTRUCTURE, INC. SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SANTA CLARA - UNLIMITED JURISDICTION MCI COMMUNICATIONS SERVICES, INC., MCIMETRO ACCESS TRANSMISSION SERVICES CORR, and SPRINT COMMUNICATIONS CO., L.P., Plaintiffs, V. OLDCASTLE INFRASTRUCTURE, INC. f/k/a OLDCASTLE PRECAST, INC., Defendants. Case No. 20CV368065 STIPULATION FOR LEAVE TO FILE AMENDED ANSWER Complaint Filed: July 8, 2020 Trial Date: Not Set IT IS HEREBY STIPULATED by and between the parties, through their respective undersigned attorneys of record, that defendant Oldcastle Infrastructure, Inc. may file an amended answer t0 the Complaint, a copy of which is attached hereto as Exhibit A. Dated: February 9, 2021 PINEDO LAW } . . By: ad?flm Attorneys for Plaintiffs MCI COMMUNICATIONS SERVICES, INC., MCIMETRO ACCESS TRANSMISSION SERVICES CORR, and SPRINT COMMUNICATIONS C0,, L.P STIPULATION FOR LEAVE TO FILE AMENDED ANSWER l Dated: February 9, 2021 LORBER, GREENFIELD & POLITO, LLP 2 3 Bysjm/M 4 MATTHEW H. WEINER Attorneys for Defendant 5 OLDCASTLE INFRASTRUCTURE. INC. 6 7 8 9 10 :13- 1 1 2- |2 Siva 5%: ‘3 «3.32% 2.13 '4 2,3; I5 12:63? 16 £593": 53% I7 E Sf 53%;: 18 F 19 20 21 22 23 24 25 26 27 28 2 STIPULATION FOR LEAVE T0 FILE AMENDED ANSWER fi 986-1 |?2 mcisan Inlifilrma 94104 3 Uny-IJI’MH J' I-‘acaimiiu M1 'I'ulunhtmu I415! LURBIER, GRHHNFHELI) 8?. P( il.!‘l‘(), 1.1.1) 142 Samsmm: Strum. Third Huur San Fr: 10 11 12 13 I4 16 I7 18 19 20 21 22 23 24 25 26 27 28 Re: MCI-Communications Services, lnc., et a1. v. Oldcastle Infrastructure, Inc. Court: Superior Cour; 0f Califorrlia County of Santa Clara Case N0: 20CV368065 _ PROOF 0F SERVICE (Code Civ. Proc., §§ 1012, 1013a, 2015.5; Fed. Rules Civ. Proc., rule 5(b).) I am employed in the County of San Francisco, State of California. I am over the age 0f 18 and not a party to the within action. My business address is 142 Sansome Street, Third Floor, San Francisco, CA 941 04. On April 28, 2021, I served the foregoing document described as: STIPULATION FOR LEAVE TO FILE AMENDED ANSWER on the interested parties in this action addressed as follows: Craig A. Pinedo, Esq. ATTORNEYS FOR PLAINTIFFS PINEDOLAW 1700 North Broadway, Suite 4300 MCI COMMUNICATIONS SERVICES, INC., Walnut Creek, CA 94596 MCIMETRO ACCESS TRANSMISSION Tel: (415) 693-9155 / Fax: (415) 524-7564 SERVICES CORR, and SPRINT Email: cpinedo@pinedolaw.com COMMUNICATIONS CO., L.P. Jim Proszek, Esq. HALL ESTILL 320 South Boston Avenue Suite 200 Tulsa, OK 74103-3706 Tel: (918) 594-0529/ Fax: (918) 593-0505 iproszek@hallestil[-.com J (BY ELECTRONIC-MAIL) by attaching a copy of the document(s) in PDF format to the II email addresses confirmed by the parties listed below, pursuant to California Code of Civil Procedure section 1010.6, subdivision (c)(l), allowing for electronic service 0f a notice or document that may be served by mail, express mail, overnight delivery, 0r facsimile transmission. I declare under penalty of perjury under the laws 0fthe State of California that the above is true and correct. Executed on April 28, 2021, in Vallejo, California. PROOF OF SERVICE EXHIBIT A ‘l‘clmiumu HIS] ‘Jfifl-Ufififl I Facsimile {415] 'Jfirn-l‘l72 L(aRBI-zk, Gmalcwnam 8; Pou‘ro, 11111) 142 Sanmmr Strum. 'l'hif‘d I‘lnnr San Francifim. (:alifomia 94] ()4 BRUCE W. LORBER (SBN 74719) blorbergcfllorberlawxom MATTHEW H. WEINER (SBN 236394) mweiner@10rberlaw.com “JAMES” HUAN LY (SBN 289912) hl lorberlaw.com LORBER, GREENFIELD & POLITO, LLP 142 Sansome Street, Third Floor San Francisco, CA 94104 Telephone: 415-986-0688 Facsimile: 41 5-986-1 1 72 Attorneys for Defendant OLDCASTLE INFRASTRUCTURE, INC. SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SANTA CLARA - UNLIMITED JURISDICTION MCI COMMUNICATIONS SERVICES, INC., Case No. 20CV368065 MCIMETRO ACCESS TRANSMISSION SERVICES CORR, and SPRINT COMMUNICATIONS CO., L.P., OLDCASTLE INFRASTRUCTURE, INC., f/k/a OLDCASTLE PRECAST, INC.’S FIRST Plaintiffs, AMENDED ANSWER TO MCI COMMUNICATIONS SERVICES, INC., v. MCIMETRO ACCESS TRANSMISSION SERVICES CORR, and SPRINT OLDCASTLE INFRASTRUCTURE, INC. f/k/a COMMUNICATIONS CO., L.P.’s OLDCASTLE PRECAST, INC., COMPLAINT FOR: Defendants. (1) NUISANCE; (2) TRESPASS TO CHATTELS; (3) NEGLIGENCE; (4) STATUTORY LIABILITY - CALIFORNIA GOVERNMENT CODE - REGIONAL NOTIFICATION CENTER; (5) STATUTORY LIABILITY - CALIFORNIA PUBLIC UTILITY CODE - INJURY TO PUBLIC PROPERTY; (6) STATUTORY LIABILITY - CALIFORNIA PUBLIC UTILITY CODE - TREBLE DAMAGES Complaint Filed: July 8, 2020 Trial Date: Not Set Defendant OLDCASTLE INFRASTRUCTURE, INC., f/k/a OLDCASTLE PRECAST, INC. (hereinafter “Defendant”) answers the unverified Complaint (hereinafter “Complaint”) of Plaintiffs MCI FIRST AMENDED ANSWER TO COMPLAINT OF PLAINTIFFS MCI COMMUNICATIONS SERVICES, INC., ET AL. BY DEFENDANT OLDCASTLE 1N FRASTRUCTURE, INC. 2 1" T: ".13" fii-Enun8 LE: F»: 751’- '5Va p-u'U = a8?h- ~15 :‘J'I 'I'dcnhunc HIS'I 9HG-lmfifl I 1":Icsimilu: HIS} ‘JHG-l I'.’ £11 28 I;l:\cases\|ibert muluaholdcasll e infaslrucrureml COMMUNICATIONS SERVICES, INC., MCIMETRO ACCESS TRANSMISSION SERVICES CORR, and SPRINT COMMUNICATIONS C0,, L.P. (hereinafter “P1aintiffs”) as follows: GENERAL DENIAL Pursuant to California Code 0f Civil Procedure section 431.30(d), Defendant denies generally and specifically, each and every, all and singular, generally and specifically, the allegations contained in the Complaint, and further denies that Plaintiffs have been damaged in the sum or sums alleged in the Complaint, or in any amount Whatsoever, by an act 0r omission on the part of Defendant. Defendant further denies that Plaintiffs are entitled to recover any 0f the relief Plaintiffs seeks in the Complaint. Defendant denies that it was negligent as alleged, or at all; Defendant further deny that Plaintiffs sustained any loss, damage, or detriment in any sum or amount, whatsoever, as a result of any act or acts, fault, carelessness, recklessness, or breach on the part of Defendant. Also, Defendant lacks information or belief sufficient t0 enable it to answer allegations concerning the nature and extent of the damages and losses of the Plaintiff, if any, and basing its denial upon such a lack of information and belief, denies each and all allegations, generally and specifically, and further, for the purpose of placing the question of the nature and extent of the Plaintiffs’ damages and losses in issue, denies that the Plaintiffs are damaged as alleged, or at all. AS A SEPARATE AND FURTHER AFFIRMATIVE DEFENSES TO THE COMPLAINT, Defendant asserts the following separate, distinct, and affirmative defenses to the Complaint, and to each and every cause of action therein, pursuant to Code of Civil Procedure section 431.30(g). The following affirmative defenses are pled as a matter of law and customary practice, and do not waive any obligations by other parties, nor are they to be considered factual or evidentiary allegations. FIRST AFFIRMATIVE DEFENSE (Failure t0 State a Claim) The Complaint fails to state facts sufficient t0 constitute a cause of action. /// /// /// 2 FIRST AMENDED ANSWER TO COMPLAINT OF PLAINTIFFS MCI COMMUNICATIONS SERVICES, INC., ET AL. BY DEFENDANT OLDCASTLE INFRASTRUCTURE, lNC. ir. 52m l’rancisco, California 94104 l-‘Il-:I.I) & P011110, 11111) ‘JHfi-Ufiifli I |"acsimilc (415‘ 986-1172 L< )RBuR, GRH-‘N 'l‘clcphonc H I51 :1 142 Sansomc StrLt'l. 'l 28 l;| :\cases\liben‘ y mulua|\oldcastl e infasn uclure\m SECOND AFFIRMATIVE DEFENSE (Comparative Negligence) The Plaintiffs’ own carelessness and negligence may have proximately contributed to the events and damages complained of, if any there were, and, if so, either bars or proportionately reduces any potential recovery t0 said Plaintiffs. THIRD AFFIRMATIVE DEFENSE (Assumption of Risk) The Plaintiffs may have assumed the risk, if any there was, in connection with the matters referred t0 in the pleading, and recovery is therefore barred or proportionately reduced to the extent of such assumption. FOURTH AFFIRMATIVE DEFENSE (Statute of Limitations) Defendant alleges that this Complaint, and each cause of action thereof, is barred by the statute 0f limitations set forth in the California Code of Civil Procedure, commencing with section 312 and continuing through section 349.4, more particularly, but not limited to, the following sections: 312, 315- 318, 335, 337, section 337.], section 337.15, section 338(2)-338(3), section 338(4), section 339, section 340, section 342, section 343; and section 896. FIFTH AFFIRMATIVE DEFENSE (Failure to Mitigate Damages) The Plaintiffs have failed or neglected to use reasonable care for protection and to minimize the losses and damages, if any there were, and recovery is therefore barred or proportionately reduced accordingly. SIXTH AFFIRMATIVE DEFENSE (Conduct of Others) The injuries and damages of which Plaintiffs complain, if any there were, may have been proximately caused by the conduct of parties other than this answering Defendant, and recovery is therefore barred or proportionately reduced accordingly. 3 FIRST AMENDED ANSWER TO COM PLAINT OF PLAINTIFFS MCI COMMUNICATIONS SERVICES, INC., ET AL. BY DEFENDANT OLDCASTLE INFRASTRUCTURE, INC. ONGODN 11 12 13 14 15 16 17 'l'clcnhonc (4'13 986-0688 / I’acsimilc (413 986-1172 18 LORBHR, GRIiliNMIiLD & POLITO, LLP 142 Sansomc Strcct, Third Moor, San IV'rancisco, California 941U4 19 20 21 22 23 24 25 26 2? 28 |;| :\cases\l i bert y muluaholdcasll e infaslrucmrehn SEVENTH AFFIRMATIVE DEFENSE (Active and Passive Conduct) If it is determined that this answering Defendant was negligent, said negligence was secondary and passive, as contrasted with the active and primary negligence of other parties to this lawsuit, and therefore, Plaintiffs are not, as a matter of law, entitled t0 recovery from this answering Defendant on any theory of indemnity. EIGHTH AFFIRMATIVE DEFENSE (Apportionment) If the matters and damages alleged in the Complaint were proximately caused by the conduct of more than one party, any recovery must be apportioned as to the fault of each party. NINTH AFFIRMATIVE DEFENSE (Laches) The Plaintiffs may have known, or should have known, of the matters alleged herein for an unreasonably long period of time prior to commencement of this litigation, and did not give notice to this answering defendant, and is therefore barred by statutory and common law. TENTH AFFIRMATIVE DEFENSE (Equitable Indemnity) The principals 0f comparative equitable indemnity should be applied by the Court where appropriate. ELEVENTH AFFIRMATIVE DEFENSE (Doctrine 0f Unclean Hands) The Plaintiffs are barred by virtue of conduct causing the alleged damages, under the doctrine of unclean hands. TWELFTH AFFIRMATIVE DEFENSE (Waiver) Plaintiffs’ actions are barred by the doctrine of waiver; therefore, the defense of estoppel applies. /// /// 4 FIRST AMENDED ANSWER TO COMPLAINT 0F PLAINTIFFS MCI COMMUNICATIONS SERVICES, INC., ET AL. BY DEFENDANT OLDCASTLE INFRASTRUCTURE, INC. O‘DWNQ l ll 72 12 l 98f»! 1 5 13 l4 _uur, San I‘mmm. {Zalil’umin 94104 " 'll-ZH) 8c POLITU, JJJ’ 15 l6 l7 l’ulunhum- HIS! ‘Jfira-{Ifififl I Facsimile Hi 18 LoRm-ztz, Gm-z ' 142 ngmmu h'lrwt. 'l'hi 19 20 21 22 23 24 25 26 27 28 1;] :\cases\liben Y mutua|\oldcast| e infaslmcturehn THIRTEENTH AFFIRMATIVE DEFENSE (Estoppel) Plaintiffs, through its conduct, acts and omissions, are estopped from asserting or recovering under any of its causes of actions alleged against Defendant in the Complaint because of their own conduct at the subject property at issue in this action. Defendant alleges that the Plaintiffs knew or should have known 0f the damages claimed in the Complaint but failed t0 take any corrective measures and failed to notify any other party of the need for such corrective measures, thereby estopping the Plaintiffs from claiming damages as a result of these purposed conditions, defect or otherwise. FOURTEENTH AFFIRMATIVE DEFENSE (Compliance with Industry Standards) The alleged actions 0f Defendant were in conformance with generally accepted industry standards. FIFTEENTH AFFIRMATIVE DEFENSE (No Liability for Non-Economic Damages) In the event a judgment is rendered against it and in favor of Plaintiffs, Defendant can only be held responsible, if at all, for that portion of the “non-economic” damages for which it is found liable by jury or judicial determination in direct proportion to each Defendant’s percentage 0f fault, pursuant to Civil Code Section 143 1 .2, as rule ofjoint and several liability does not apply under such circumstances. SIXTEENTH AFFIRMATIVE DEFENSE (Comparative Negligence 0f Others) Other parties, other than this answering Defendant, failed t0 exercise ordinary care on their own behalf, which negligence and carelessness was a proximate cause of some portion, up t0 and including the whole thereof, of the injuries and damages complained of by Plaintiff in this action. The fault, if any, of Defendant should be compared with the fault of such other parties, and damages, if any, should be apportioned among those other parties in direct relation to each their comparative fault. Defendant should be obligated to pay only such damages, if any, which are directly attributable t0 its percentage 0f comparative fault. 5 FIRST AMENDED ANSWER TO COMPLAINT OF PLAINTIFFS MCI COMMUNICATIONS SERVICES, lNC., ET AL. BY DEFENDANT OLDCASTLE INFRASTRUCTURE, INC. H.105 10 1127 12 13 14 15 'NHHLD & P0LI'1‘0, 111,1) 142 Sunsomc Street, 'l'hl Moor, San Francisco, California 94104 -U688 / ll'acsimilc (415} 986-11 16 l7 'l'clcnhonc (415\ 986 18 LORBHR, GRI' I9 20 21 22 23 24 25 26 27 28 |;l :\ca ses\liben y mulua|\oldcasll e infastruc [u l‘e\m SEVENTEENTH AFFIRMATIVE DEFENSE (Superseding Cause) If Plaintiffs suffered any damage, which is denied, then any such damage was proximately caused by the intervening and superseding actions of others, which bar Plaintiffs’ recovery, if any, against Defendant. EIGHTEENTH AFFIRMATIVE DEFENSE (Independent Causes) The alleged injuries, damages or loss, if any, for which Plaintiffs seek recovery were result 0f 9 causes independent of any purported acts or omissions on the part of Defendant, or any of its agents, representatives or employees, thereby eliminating or reducing the alleged liability of Defendant. NINETEENTH AFFIRMATIVE DEFENSE (Unavoidable Conditions) The alleged injuries, damages or loss, if any, for which Plaintiffs seeks recovery were the direct and proximate result of unavoidable accidents or conditions without fault or liability 0n the part 0f Defendant. TWENTIETH AFFIRMATIVE DEFENSE (Passive Acts) If Defendant is found to have been negligent 0r liable in any manner, such negligence or liability was passive and secondary while the negligence or liability of Plaintiffs and others was active and primary, and such active negligence and liability bars, in whole 0r in part, the recovery requested, or any recovery, against Defendant. TWENTY-FIRST. AFFIRMATIVE DEFENSE (Lack of Notice) The Complaint, and each cause 0f action alleged therein, is barred by Plaintiffs’ failure to timely notify Defendant of the alleged defects, breach and/or damages, if any, which any party may have sustained. /// /// 6 FIRST AMENDED ANSWER TO COMPLAINT OF PLAINTIFFS MCI COMMUNICATIONS SERVICES, INC., ET AL. BY DEFENDANT OLDCASTLE INFRASTRUCTURE, INC. 72 3 142 Mnsnmc Smart. 'I'Ilird I‘lunr. San i‘mncism. California 9+104 LURBIER, GRl-tI-zNI-‘Ilim 8: PULI'm LLP 'l'ulunhmu: 3-H 5\ 'JWMJGHK 4" i’ncsimih.‘ HIS! 98641 E 24 25 26 27 28 |;|:\cases\|ibert 3“ mutua|\oldcasll c infasll‘ucturehn TWENTY-SECOND AFFIRMATIVE DEFENSE mo Reliance) Plaintiffs did not rely on any representations or conduct of Defendant and therefore Defendant is not responsible for any damages, if any exist. TWENTY-THIRD AFFIRMATIVE DEFENSE (No Breach of Warranties) Defendant did not breach any warranties, express or implied, and no warranties, express or implied, arose in the instant situation. TWENTY-FOURTH AFFIRMATIVE DEFENSE (Excuse) Plaintiffs’ failure to perform pursuant to the agreements, if any, between the parties excused Defendant from performing any obligations it did not perform, if there was any such performance due. TWENTY-FIFTH AFFIRMATIVE DEFENSE (Lack 0f Standing) Plaintiff lacks standing to seek the relief against Defendant that it pursues in the Complaint. TWENTY-SIXTH AFFIRMATIVE DEFENSE (Natural Causes) The alleged injuries, damages or loss, if any, for which Plaintiffs seeks recovery, were the direct and proximate result of natural deterioration, wear and tear or other natural causes. TWENTY-SEVENTH AFFIRMATIVE DEFENSE (Absence ofNecessary Parties) The purported claims and causes 0f action contained in the Complaint require, for their complete adjudication, the joining of additional, necessary or indispensable parties, without whom the purported claims and causes 0f action cannot be fully, finally and completely resolved. TWENTY-EIGHTH AFFIRMATIVE DEFENSE (Speculative and Uncertain Damages) Plaintiffs’ losses, if any, are speculative and/or uncertain and, therefore, are not compensable. 7 FIRST AMENDED ANSWER TO COMPLAINT OF PLAINTIFFS MCI COMMUNICATIONS SERVICES, INC., ET AL. BY DEFENDANT OLDCASTLE INFRASTRUCTURE, INC. ll2 12 l3 l‘runcmcu. (Zalifilmin 94104 I‘ulunmu r4152 usmmxa ‘J mmmm- ms» 936.117 l4 15 16 17 18 19 20 21 22 23 24 25 26 27 2.8 |;|:\cases\libert mutual\01dcasll e inf‘astruclul'dm TWENTY-NINTH AFFIRMATIVE DEFENSE (No Proximate Cause) The acts and/or omissions, if any, of Defendant were not the proximate cause of the losses, damage or injuries alleged in the Complaint. THIRTIETH AFFIRMATIVE DEFENSE (Act of God) The damages and defects of which Plaintiffs complains, if any there are, were caused by acts of God for which Defendant has n0 responsibility. THIRTY-FIRST AFFIRMATIVE DEFENSE (Implied Consent) Plaintiffs implicitly consented to the actions alleged to have caused it damages. THIRTY-SECOND AFFIRMATIVE DEFENSE (Lack of Maintenance) The alleged injuries, damages 0r loss, if any, for which Plaintiffs seeks recovery, were the direct and proximate result of lack of maintenance, which were unforeseeable and without fault or liability on the part of the Defendant. THIRTY-THIRD AFFIRMATIVE DEFENSE (Attomeys’ Fees Barred) Defendant alleges that Plaintiffs’ claim for attomeys' fees is barred by the provisions of California Code ofCivil Procedure § 1021. THIRTY-FOURTH AFFIRMATIVE DEFENSE (Authorization) Defendant alleges that by virtue of the acts of the Plaintiffs, and/or the persons and/or entities acting 0n its behalf, Plaintiffs are barred from prosecuting the purported causes of action set forth in the Complaint by the doctrine of authorization. THIRTY-FIFTH AFFIRMATIVE DEFENSE (Compliance with the Law) Defendant alleges that the actions taken by Defendant were in full compliance with the law. 8 FIRST AMENDED ANSWER TO COMPLAINT OF PLAINTIFFS MCI COMMUNICATIONS SERVICES, INC., ET AL. BY DEFENDANT OLDCASTLE INFRASTRUCTURE, INC. ‘4 -O\ U1 10 112 12 13 14 -|unr. 5.111 Francisco. (Inlifimuin 9-H 04 15 16 l7 'I'uIL-rlhunu (45‘ ‘JHfa-llfiflfi f I‘aesimilr; €415! 98h“? l8Lc mmm, GRI-zl NH lam a: P01.rm, L1 .1: 142 Sunmmu Sm“, 'l'hi 19 20 21 22 23 24 25 26 27 28 |;| :\cases\libelt mulual\oldcastl e in fastruclurehn THIRTY-SIXTH AFFIRMATIVE DEFENSE (Consent) Defendant alleges that Plaintiffs are barred from prosecuting the purported causes 0f action set forth in the Complaint because Plaintiffs and/or the persons and/or entities acting on its behalf, consented to and acquiesced in the subject conduct. THIRTY-SEVENTH AFFIRMATIVE DEFENSE (Justification/Excuse) Defendant alleges that by virtue of the acts of the Plaintiffs and/or the persons and/or entities acting on its behalf, Plaintiffs are barred from prosecuting the purported causes 0f action set forth in the Complaint because the acts and/or omissions alleged in the Complaint were justified and/or excused. THIRTY-EIGHTH AFFIRMATIVE DEFENSE (Mootness) Defendant alleges that the actions complained 0f are moot and not likely to recur. THIRTY-NINTH AFFIRMATIVE DEFENSE (No Injury or Damage) Defendant alleges that Plaintiffs have not been injured or damaged as a proximate result of any act or omission for which Defendant is responsible. FORTIETH AFFIRMATIVE DEFENSE (Not Liable for Act or Omission of Subordinate) Defendant alleges that insofar as Defendant have delegated any duty t0 any subordinate, such delegation was at all times done in good faith, and with due care. Defendant is therefore not liable for any act or omission of any subordinate. FORTY-FIRST AFFIRMATIVE DEFENSE (Ratification) Defendant alleges that by virtue 0f the acts of Plaintiffs and/or the persons and/or entities acting on its behalf, Plaintiffs are barred from prosecuting the purported causes of action set forth in the Complaint by the doctrine of ratification. 9 FIRST AMENDED ANSWER TO COMPLAINT OF PLAINTIFFS MCI COMMUNICATIONS SERVICES, INC., ET AL. BY DEFENDANT OLDCASTLE INFRASTRUCTURE, INC. IU 11 72 12\9HG-I1 5 l3 I4 15 16 17 'I'clunhlil'lu H] S'f WWHIJFIHR 1’ i‘flcsimiic F-H 14 )RBI m, IGRIN {NH I‘I].D & P( FLHI 3, Ll J) 142 Sanflrmc Strum. ‘l'hinl I‘lunr. San l-mncnmn. (Inlifimfin 94104 l8 1'9 20 21 22 23 24 25 26 27 28 kl :\cases\l ibel‘t y mutuaholdcastl e i n fasmlcturehn FORTY-SECOND AFFIRMATIVE DEFENSE (Conduct was Justified) The conduct of the Defendant in regard to the matters alleged in the Complaint was justified, and by reason of the foregoing, the Plaintiffs are barred from any recovery against the Defendant. FORTY-THIRD AFFIRMATIVE DEFENSE (Standard 0f Care) Plaintiffs are barred and precluded from any recovery in this action because Defendant was at all times complied with the applicable standard 0f care required at the applicable time and location. FORTY-FOURTH AFFIRMATIVE DEFENSE (State of the Art) Defendant is informed and believe and based thereon allege that the subject property conformed to generally accepted industry standards and was safe for its intended uses. At all relevant times, the subject property conformed to the "state of the art" in the industry, and the Defendant should not be held liable for any unknown and undiscoverable dangers 0r damages. FORTY-FIFTH AFFIRMATIVE DEFENSE (Unjust Enrichment) Defendant is informed and believes that the Complaint is barred by the doctrine of unjust enrichment, and that the Plaintiffs would be unj ustly enriched by the requested relief. FORTY-SIXTH AFFIRMATIVE DEFENSE (Unstated Additional Defenses) Defendant presently have insufficient knowledge and information on which to form a belief as to whether there exist additional, as yet unstated, affirmative defenses. Defendant reserves herein the right t0 assert additional affirmative defenses in the event that discovery indicates that such a defense would be appropriate. FORTY-SEVENTH AFFIRMATIVE DEFENSE (Federal Law Preemption) Plaintiffs’ Complaint and/or claims against Defendant may be barred in whole 0r in part and/or preempted by applicable federal law through express, implied or conflict preemption. 10 FIRST AMENDED ANSWER TO COMPLAINT OF PLAINTIFFS MCI COMMUNICATIONS SERVICES, INC, ET AL. BY DEFENDANT OLDCASTLE INFRASTRUCTURE, INC. 10 ll ?3 l2 l3 I4 15 16 l7 'I'cIunhnm: HIS'I ‘JHb-lll’afifl 1" Facsimile (-1 lS‘I ()Hfi-H Lt)RBHR,'GRIEI'CNFII'Z].D 81 P( )lJ'l'U, LIP 142 Sarasota: Sum. 'l'hrrd |-'Tn(ur. Sun I‘mnciscn, California 94104 18 l9 20 21 22. 23 24 25 26 27 28 l;| :\cases\] iben y mutua|\oldcast| e infastl'ucture\m FORTY-EIGHTH AFFIRMATIVE DEFENSE (Good Faith Compliance with Applicable Statutes) Defendant complied in good faith with all relevant applicable federal and state statutes and administrative regulations existing at the time ofthe events at issue in as alleged in the Complaint. FORTY-NINTH AFFIRMATIVE DEFENSE (Cal. Gov. Code Section 4216.7(b)) The Complaint and/or claims is barred by Cal. Gov. Code Section 4216.7(b), which states that “If an operator has failed t0 become a member of, participate in, 0r share in the costs of, a regional notification center, that operator shall forfeit his 0r her claim for damages t0 his 0r her subsurface installation arising from an excavation against an excavator who has complied with this article t0 the extent damages were proximately caused by the operator’s failure t0 comply with this article.” Defendant is informed and believes that Plaintiffs had failed to become a member 0f, participate in, 0r share in the costs 0f, a regional notification center. FIFTIETH AFFIRMATIVE DEFENSE (Cal. Gov. Code Section 4216.7(d)) The Complaint and/or claims is barred by Cal. Gov. Code Section 4216.7(d), which states that “[a]n excavator who damages a subsurface installation due t0 an inaccurate field mark by an operator, 0r by a third party under contract to perform field marking for the operator, shall not be liable for damages, replacement costs, or other expenses arising from damages to the subsurface installation ifthe excavator complied with Section 4216.10 0r Sections 4216.2 and 4216.4.” Defendant is informed and believes there were inaccurate field markings by an operate or by a third party under contract t0 perform field marking by the operator and Defendant com plied complied with Section 4216.10 or Sections 4216.2 and 4216.4. PRAYER Wherefore, Defendant prays as follows: 1. Plaintiffs take nothing by their Complaint; 2. That Judgment be entered in favor of Defendant on each cause of action; 11 FIRST AMENDED ANSWER TO COMPLAINT OF PLAINTIFFS MCI COMMUNICATIONS SERVICES, INC., ET AL. BY DEFENDANT OLDCASTLE INFRASTRUCTURE, INC. l 3. That Plaintiffs’ recovery against Defendant, if any, be diminished by the amount equal t0 2 the degree of negligence of fault attributable to Plaintiffs; 3 4. That Plaintiff’s recovery against Defendant, if any, be diminished by an amount equal to 4 the degree of negligence or fault attributable to parties, individuals and/or entities other than 5 Defendant in this action; 6 5. Defendant be awarded costs of suit and reasonable attorneys’ fees; and 7 6. The Court grants such other and further relief as it deems just and proper. 8 9 Dated: December 1, 2020 LORBER, GREENFIELD & POLITO, LLP 10 23;: ” By; 3g; [2 MATTHEW H. WEINER E 5;}; Attorneys for Defendant gig |3 OLDCASTLE INFRASTRUCTURE. INC. o2: é? mfg. I4 : i I5 '22? I6 (9‘35 5-35 I7 3 ETEx 1e: F 19 20 21 22 23 24 25 26 27 28 l;I :\cases\liben 12 lynmuanoldcasfl FIRST AMENDED ANSWER T0 COMPLAINT 0F PLAINTIFFS MCI COMMUNICATIONS SERVICES, INC., ET AL. e BY DEFENDANT OLDCASTLE INFMSTRUCTURE, INC. infastmctuxehn