QUINN EMANUEL URQUHART OLIVER & HEDGES, LLP Christopher Tayback (Bar No. 145532) Susan L. Wines (Bar No. 168643) 2 Megan O'Neill (Bar No. 220147) 865 South Figueroa Street, 10th Floor 3 Los Angeles, California 90017-2543 Telephone: (213) 624-7707 4 Facsimile: (213) 624-0643 1 5 Attorneys for Defendant International Business Machines Corporation 6 7 8 9 10 11 SUMMERS GROUP, INC., a Delaware 12 corporation dba REXEL DATACOM, 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF ORANGE, LIMITED JURISDICTION
) ) ) ) Plaintiff, ) ) v. ) ) CLEARBROOK COMMUNICATIONS, ) INC.; JON H. JACKSON; JENNIFER ) JACKSON; DOES 1 through 50, inclusive, ) ) Defendants. ) ) )
CASE NO. 02CL01683 Limited Jurisdiction Dept: Judge: C56 Hon. Gregory Munoz
ANSWER OF CROSS-DEFENDANT INTERNATIONAL BUSINESS MACHINES CORPORATION TO CROSS-COMPLAINT OF CLEARBROOK COMMUNICATIONS, INC. D/B/A "THE CABLE CONNECTORS" Request for Jury Trial Filing Date: March 13, 2002 Trial Date: None Set
IBM'S ANSWER TO CABLE CONNECTORS' CROSS-COMPLAINT
1
Defendant International Business Machines Corporation ("IBM") answers to
2 plaintiff Clearbrooks Communications, Inc.'s, dba Cable Connectors ("Cable Connectors") 3 Cross-Complaint on file herein as follows: 4 1. Pursuant to the provisions of Cal. Civ. Proc. Code ' 431.30(d), IBM
5 denies, generally and specifically, each and every allegation of Cable Connectors and 6 further denies that Cable Connectors has been damaged in any manner, amount, or sum 7 whatsoever, by reason of any act or omission on the part of IBM or on the part of any of 8 their agents, servants or employees. 9 10 11 12 13 14 2. Cable Connectors is estopped from asserting each of the purported FIRST AFFIRMATIVE DEFENSE (Estoppel) And, for their affirmative defenses, IBM alleges as follows:
15 causes of action set forth in the Complaint. 16 17 18 19 20 3. Cable Connectors has waived any right to assert each of the purported SECOND AFFIRMATIVE DEFENSE (Waiver)
21 causes of action set forth in the Complaint. 22 23 24 25 26 27 28
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IBM'S ANSWER TO CABLE CONNECTORS' CROSS-COMPLAINT
1 2 3 4 4.
THIRD AFFIRMATIVE DEFENSE (Unclean Hands)
Each of the purported causes of action set forth in the Complaint is
5 barred by the doctrine of unclean hands and by reason of the unconscionability of Cable 6 Connectors' actions. 7 8 9 10 11 5. Each of the purported causes of action set forth in the Complaint is FOURTH AFFIRMATIVE DEFENSE (Laches)
12 barred by the doctrine of laches. 13 14 15 16 17 6. Cable Connectors has failed to mitigate its damages, if any, with FIFTH AFFIRMATIVE DEFENSE (Failure to Mitigate Damages)
18 respect to each of the purported causes of action set forth in the Complaint. 19 20 21 22 23 7. Cable Connectors, by its own acts and conduct, assumed the risk of SIXTH AFFIRMATIVE DEFENSE (Assumption of Risk)
24 the occurrences and damages alleged, and recognized and accepted the potential for any 25 damages in undertaking its actions. 26 27 28
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IBM'S ANSWER TO CABLE CONNECTORS' CROSS-COMPLAINT
1 2 3 4 8.
SEVENTH AFFIRMATIVE DEFENSE (Comparative Negligence)
The injuries and damages suffered by Cable Connectors, if suffered at
5 all, were ultimately caused and aggravated by Cable Connectors' own actions, or by the 6 actions of others. Cable Connectors' recovery, if any, should be reduced in proportion to 7 the percentage of its negligence, fault or comparative bad faith and/or that of others. 8 9 10 11 12 9. Any claim for prejudgment interest is barred as to any purported cause EIGHTH AFFIRMATIVE DEFENSE (No Entitlement To Prejudgment Interest)
13 of action for which such relief is not available. 14 15 16 17 18 10. Each of the purported causes of action set forth in the Complaint fails NINTH AFFIRMATIVE DEFENSE (Failure To State Causes of Action)
19 to state facts sufficient to constitute a cause of action. 20 21 22 23 24 11. Each of the purported causes of action set forth in the Complaint fails TENTH AFFIRMATIVE DEFENSE (Failure To Plead With Particularity)
25 to state facts with sufficient particularity. 26 27 28
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IBM'S ANSWER TO CABLE CONNECTORS' CROSS-COMPLAINT
1 2 3 4 12.
ELEVENTH AFFIRMATIVE DEFENSE (Statute of Limitations)
Each of the purported causes of action set forth in the Complaint is
5 barred by the applicable statute of limitations, including without limitation Cal. Civ. Code 6 '' 3249 and Cal. Civ. Proc. Code ' 359.5 and 337. 7 8 9 10 11 13. The nature of the work performed by Cable Connectors required TWELFTH AFFIRMATIVE DEFENSE (Lack of Contractor's License)
12 Cable Connectors to be licensed by the Contractors State License Board. At no time while 13 Cable Connectors performed its work was it properly licensed. 14 15 16 17 18 14. Cable Connectors has been paid all sums earned by Cable Connectors THIRTEENTH AFFIRMATIVE DEFENSE (Payment)
19 and that are due and owing to Cable Connectors by virtue of its performance of work 20 alleged in the Complaint. 21 22 23 24 25 15. Cable Connectors' claims are barred, in whole or in part, by amounts FOURTEENTH AFFIRMATIVE DEFENSE (Offsets)
26 IBM is entitled to offset against Cable Connectors including, without limitation, damage 27 28
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IBM'S ANSWER TO CABLE CONNECTORS' CROSS-COMPLAINT
1 claims for defective work, damage to the work of other trades on the project, project 2 delays and payments made directly to Cable Connectors' subcontractors. 3 4 5 6 19. Cable Connectors' claims are barred by reason of Cable Connectors' FIFTEENTH AFFIRMATIVE DEFENSE
7 prior material breach of the agreements on which it bases its Complaint. 8 9 10 11 19. Cable Connectors' claims are barred by reason of Cable Connectors' SIXTEENTH AFFIRMATIVE DEFENSE
12 pleading the very same causes of action in a separate lawsuit. 13 14 15 16 20. IBM has not completed its investigation and discovery regarding the SEVENTEENTH AFFIRMATIVE DEFENSE
17 facts and claims asserted by Cable Connectors. Accordingly, IBM reserves the right to 18 assert such additional affirmative defenses as necessary based on such ongoing 19 investigation and discovery. 20 21 22 23 24 25 26 27 28
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IBM'S ANSWER TO CABLE CONNECTORS' CROSS-COMPLAINT
1 2 3 4 5 6 7 8
WHEREFORE, IBM prays for judgment as follows: 1. That Cable Connectors takes nothing from IBM by reason of its Complaint; 2. 3. 4. That the Complaint against IBM be dismissed with prejudice; That IBM be awarded costs and attorneys' fees; and That IBM be awarded any other and further relief as the Court may deem just and proper.
9 DATED: July 30, 2002 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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QUINN EMANUEL URQUHART OLIVER & HEDGES, LLP
By Naomi J. Harlin Attorneys for Defendant International Business Machines Corporation
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IBM'S ANSWER TO CABLE CONNECTORS' CROSS-COMPLAINT