e-filed...e-filed: sep 19, 2014 5:00 pm, superior court of ca, county of santa clara, case...
TRANSCRIPT
1 RICHARD N. SIEVING, ESQ. (SB #133634) LANCE M. MARTIN, ESQ. (SB #294457)
2 THE SIEVING LAW FIRM, A.P.C. Attorneys at Law
3 100 Howe Avenue, Suite 220N Sacramento, California 95825
4 Telephone: (916) 444-3366
5 Facsimile: (916) 444-1223
Attorneys for Defendant/Cross-Defendant JELD-WEN, inc. , 6 an Oregon Corporation dba SUMMIT WINDOW & PATIO DOOR
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(erroneously sued herein as "SUMMIT WINDOW & PATIO DOOR")
IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF SANTA CLARA
CILKER APARTMENTS, LLC, Case No.: 1-13-CV-258281
Plaintiff,
13 v. REPLY TO OPPOSITION TO JELDWEN, INC. DBA SUMMIT WINDOW & PATIO DOOR'S DEMURRER TO CROSS-COMPLAINT OF WESTERN NATIONAL CONSTRUCTION
14 WESTERN NATIONAL CONSTRUCTION, et al.
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Defendants. --------------------------~, WESTERN NATIONAL CONSTRUCTION,
Cross-Complainant,
v.
ADM CONSTRUCTION CO., INC., et al.
Cross-Defendants.
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Date: Time: Dept.: Judge:
September 26, 2014 9:00 a.m. 1 Hon. Peter H. Kirwan
23 Defendant/Cross-Defendant JELD-WEN, inc., an Oregon Corporation dba
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SUMMIT WINDOW & PATIO DOOR (erroneously sued herein as "SUMMIT WINDOW
& PATIO DOOR") (hereinafter "JELD-WEN") hereby replies to Defendant/Cross
Complainant WESTERN NATIONAL CONSTRUCTION's (hereinafter "WESTERN")
Opposition to JELD-WEN's Demurrer to WESTERN's Cross-Complaint.
/II
1 [Reply 10 Opp 10 JWs Demurrer 10 WSirn XCM 9 18 14.wpd (Imm: IIO]
REPLY TO OPPOSITION TO JELD-WEN, INC. DBA SUMMIT WINDOW & PATIO DOOR'S DEMURRER TO CROSS-COMPLAINT OF WESTERN NATIONAL CONSTRUCTION
E-FILEDSep 19, 2014 5:00 PM
David H. YamasakiChief Executive Officer/Clerk
Superior Court of CA, County of Santa ClaraCase #1-13-CV-258281 Filing #G-66331
By G. Duarte, Deputy
1 I.
2 WITHDRAWAL OF DEMURRER AS TO CERTAIN CLAIMS
3 After reviewing WESTERN's Opposition and attempting to meet and confer with
4 opposing counsel, JELD-WEN withdraws its Demurrer as to the First, Second, Sixth and
5 Seventh Causes of Action.
6 II.
7 ARGUMENT
8 A.
9 WESTERN's Equitable and Negligence Claims Are Duplicative
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of Its Contract Claims
WESTERN's duplicative claims are properly subject to demurrer. Careau & Co. v.
Security Pacific Business Credit, Inc. (1990) 222 Cal,App.3d 1371,1395. Courts routinely
sustain demurrers to multiple causes of action when they are simply re-asserting the
same claims. Holcomb v. Wells Fargo Bank, N.A. (2007) 155 Cal,AppAth 490,501 (court
properly sustained demurrer to duplicative negligent misrepresentation cause of action);
Award Metals v. Superior Court (Hernandez) (1991) 228 Cal,App.3d 1128, 1135 (court
properly sustained demurrer to same allegations plead in a breach of contract and
negligence cause of action as duplicative pleading); Careau & Co. v. Security Pacific
Business Credit, Inc. (1990) 222 Cal,App.3d 1371, 1395 (court properly sustained
demurrer without leave to amend following its ruling that breach of implied covenant
cause of action duplicated the contract cause of action); Rodriguez v. Campbell Industries
(1978) 87 Cal,App.3d 494, 501 (court properly . sustained demurrer as "fifth cause of
action contains, by necessary implication, all of the allegations of each of the preceding
four alleged causes and thus adds nothing to the complaint ... "); Curtis v. 20th Century
Fox Film Corp. (1956) 140 Cal,App.2d 461,464-465 (where counts for unfair competition
and unauthorized use of book title are based on the same allegations and a second count
adds nothing to the first, plaintiff was not prejudiced by ruling sustaining Demurrer to
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2 [Reply to O pp to jWs Demurrer to Wstrn XCM 918 14.wpd (lmm:ItO]
REPLY TO OPPOSITION TO JELD-WEN, INC. DBA SUMMIT WINDOW & PATIO DOOR'S DEMURRER TO CROSS-COMPLAINT OF WESTERN NATIONAL CONSTRUCTION
E-FILED: Sep 19, 2014 5:00 PM, Superior Court of CA, County of Santa Clara, Case #1-13-CV-258281 Filing #G-66331
1 second count). Thus, where, as here, the same claim for breach of contract is disguised
2 as an equitable or negligence claim, it is subject to demurrer and dismissal.
3 1. Duplicative Equitable Indemnity Claims
4 If parties have expressly contracted with respect to the duty to indemnify, the
5 extent of that duty must be determined from the contract and not from the independent
6 doctrine of equitable indemnity. Regional Steel Corp. v. Superior Court (1994) 25
7 Cal.App.4th 525, 529. Here, WESTERN has pled that all of JELD-WEN's purported
8 improper acts arose from its subcontract agreement with WESTERN. As such,
9 WESTERN cannot assert any claim for equitable indemnity based upon acts performed
10 as part of the written subcontract. These claims are duplicative and expressly barred by
11 Regional Steel.
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2. Duplicative Negligence Claim
A party may not recover in tort for the breach of duties that merely restate
contractual obligations. Aas v. Superior Court (2000) 24 Cal.4th 627, 643 (citing Erlich v.
Menezes (1999) 21 Cal.4th 543, 552) ("Courts will generally enforce the breach of a
contractual promise through contract law, except when the actions that constitute the
breach violate a social policy that merits the imposition of tort remedies."). Again, JELD
WEN's purported negligence is essentially the negligent breach of contract. This type of
claims is squarely within the realm of contract law and not a proper tort claim.
Therefore, JELD-WEN's Demurrer to WESTERN's Third Cause of Action for
Implied Indemnity, Fourth Cause of Action for Equitable Indemnity, Fifth Cause of Action
for Comparative Negligence and Contribution and Eight Cause of Action for Negligence
should be sustained, without leave to amend.
B.
WESTERN's Negligence Claim Does Not Allege Recoverable Damages
WESTERN does not and cannot plead property damage or physical injury because
WESTERN does not own the subject building. To sufficiently plead a cause of action for
negligence, WESTERN must allege that it has sustained recoverable damages,
3 [Reply to Opp to JWs Demurrer to Wstrn XCM 918 14.wpd (lmm:ltOJ
REPLY TO OPPOSITION TO JELD-WEN, INC. DBA SUMMIT WINDOW & PATIO DOOR'S DEMURRER TO CROSS-COMPLAINT OF WESTERN NATIONAL CONSTRUCTION
E-FILED: Sep 19, 2014 5:00 PM, Superior Court of CA, County of Santa Clara, Case #1-13-CV-258281 Filing #G-66331
1 specifically property damage or physical injury. Rosen v. State Farm General Ins. Co.
2 (2003) 30 Cal.4th 1070, 1079 ("[U]nder the economic loss rule, 'appreciable,
3 nonspeculative, present injury is an essential element of a tort cause of action"'). "No
4 recovery is allowed for economic loss alone." Aas v. Superior Court (2000) 24 Cal.4th
5 627,636 (citing Seely v. White Motor Co. (1965) 63 Cal.2d 9, 18). WESTERN does not
6 plead and cannot plead any noneconomic damages as it does not own the property that
7 is allegedly defectively constructed. Instead, WESTERN's entire cross-complaint is
8 based upon the allegation that if it is liable to Plaintiff (the actual owner of the building)
9 it will pass through liability to JELD-WEN through any settlement or judgment. (Cross-
10 Complaint at 11 43). These are purely economic losses which are unrecoverable by
11 WESTERN against JELD-WEN.
12 Moreover, WESTERN's assertion that by incorporating Plaintiff's First Amended
1 3 Complaint into its Cross-Complaint, it has asserted recoverable damages misses the
14 point. WESTERN's and Plaintiff's negligence claims are two separate and distinct claims.
15 Here, WESTERN's negligence claim is simply a disguised breach of contract claim for
16 indemnity. Since WESTERN cannot allege noneconomic damages, the Court must
17 sustain JELD-WEN's Demurrer without leave to amend .
18 C.
19 A Demurrer is a Proper Vessel to Challenge WESTERN's Declaratory Relief
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Claims As They Are Derivative and Repetitive of WESTERN's Contract Claims
In this instance, a demurrer is proper as WESTERN's Declaratory Relief Claims
for Duty to Defend and Duty to Indemnify are identical to WESTERN's claims for Breach
of Contract and Express Indemnity. General demurrers to declaratory relief actions are
proper "where its declaration or determination is not necessary or proper at the time under
all the circumstances." Cal. Code. Civ. Proc. §1 061; Ball v. Fleet Boston Financial Corp.
(2008) 164 Cal.App.4th 794, 800; cf Moss v. Moss (1942) 20 Cal.2d 640, 643-644. This
is particularly true in the present action where the declaratory relief claim is redundant of
the other cla ims alleged by WESTERN.
4 [Reply to Opp to JWs Dernurrer to Wstrn XCM 9 18 14.wpd Ihnrn: ltOl
REPLY TO OPPOSITION TO JELD-WEN , INC. DBA SUMMIT WINDOW & PATIO DOOR'S DEMURRER TO CROSS-COMPLAINT OF WESTERN NATIONAL CONSTRUCTION
E-FILED: Sep 19, 2014 5:00 PM, Superior Court of CA, County of Santa Clara, Case #1-13-CV-258281 Filing #G-66331
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WESTERN seeks defense and indemnity from JELD-WEN under the purported
contract between WESTERN and JELD-WEN in its First Cause of Action for Breach of
Contract (Cross-Complaint at ~ 11, 14) and Second Cause of Action for Express
Indemnity and Defense (Cross-Complaint at ~ 17-19). The determination WESTERN
seeks under its Ninth and Tenth Causes of Action is no different than what would be
determined in these first two claims. The language of WESTERN's Ninth and Tenth
Causes of Action for declaratory relief shows that it was wholly derivative of other causes
of action.
Additionally, WESTERN misses the point as JELD-WEN is not testing the merits
of WESTERN's declaratory relief claims under Code of Civil Procedure § 1060 but rather
under Code of Civil Procedure §1 061 . WESTERN's cited authority do not address Code
of Civil Procedure §1 061 , thus are readily distinguishable. In Qualified Patients Ass'n v.
City of Anaheim (2010) 187 Cal.AppAth 734, the issue before the Court was whether or
not the plaintiff stated a legally sufficient complaint for declaratory relief under Code of
Civil Procedure §1060. Similarly, Ludgate Ins. Co v. Lockheed Martin Corp. (2000) 82
Cal.App.4th 592, addressed the same issue.
Because a demurrer is the proper vessel to challenge WESTERN's derivative and
redundant declaratory relief claims, the Court must sustain JELD-WEN's Demurrer
without leave to amend.
III.
CONCLUSION
For the reasons stated above, JELD-WEN respectfully requests this Court sustain
its Demurrer to the Third Cause of Action for Implied Indemnity, Fourth Cause of Action
for Equitable Indemnity, Fifth Cause of Action for Comparative Negligence and
Contribution, Eighth Cause of Action for Negligence, Ninth Cause of Action for
Declaratory Relief and Tenth Cause of Action for Declaratory Relief RE: Duty to Defend
in WESTERN's Cross-Complaint.
5 [Reply 10 Opp 10 JWs Dernurrer 10 Wstrn XCM 9 18 14.wpd (i rn rn: IIOj
REPLY TO OPPOSITION TO JELD-WEN , INC. DBA SUMMIT WINDOW & PATIO DOOR'S DEMURRER TO CROSS-COMPLAINT OF WESTERN NATIONAL CONSTRUCTION
E-FILED: Sep 19, 2014 5:00 PM, Superior Court of CA, County of Santa Clara, Case #1-13-CV-258281 Filing #G-66331
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HE SIEVING LAW FIRM, A.P.c. 100 Howe Ave., Suile 220N Sacramento, CA 95825
(916) 444-3366
DATED: September 19, 2014 THE SIEVING LAW FIRM, AP,C,
By: Lc-- ~~ LANCE M. MARTIN Attorney for Defendant!Cross-Defendant! Cross-Complainant JELD-WEN, inc" an Oregon Corporation
6 [Reply to Opp to JWs Demurrer to Wstrn XCM 9 18 14.wpd (Imm:ltnJ
REPLY TO OPPOSITION TO JELD-WEN, INC. DBA SUMMIT WINDOW & PATIO DOOR'S DEMURRER TO CROSS-COMPLAINT OF WESTERN NATIONAL CONSTRUCTION
E-FILED: Sep 19, 2014 5:00 PM, Superior Court of CA, County of Santa Clara, Case #1-13-CV-258281 Filing #G-66331
ATTORNEY OR PARTY WITHOUT ATTORNEY (Name and Address): TELEPHONE NO.:
Richard N. Sievin~, Esq. ~SB #133634) (916) 444-3366 Lance M. Martin, s1= W #294457) THE SIEVING LAW I M, A.P.C. Attorneys at Law 100 Howe Avenue, Suite 220N Sacramento, CA 95825 ATTORNEY FOR (Name) : (D/X-D) JELD-WEN, inc., an Oregon Corporation dba Summit
Window & Patio Door
Insert name of court and name of judicial district, if any:
Santa Clara County Superior Court
SHORT TITLE OF CASE:
Cilker Apartments, LLC v. Western National Construction , et al.
HRG DATE: 9/26/14 I TIME: 9:00 a.m.
I, the undersigned, declare:
I DEPT: 1
PROOF OF SERVICE [C.C.P. §§1013A and 2015.5]
FOR COURT USE ONL Y
CASE NUMBER:
1-13-CV -258281
I am a citizen of the United States and am employed in the County of Sacramento, California. I am over the age of eighteen (18) years, not a party to the above-entitled action, and my business address is located in the County of Sacramento at 100 Howe Avenue, Suite 220N , Sacramento, California 95825.
On the date executed below, I served the document(s) described as:
1.} REPLY TO OPPOSITION TO JELD-WEN, INC.'S DBA SUMMIT WINDOW & PATIO DOOR'S DEMURRER TO CROSS-COMPLAINT OF WESTERN NATIONAL CONSTRUCTION.
on interested parties in this action addressed as follows:
[ X ] BY ELECTRONIC TRANSFER: I caused all of the above-entitled document(s) to be served through the Santa Clara County Superior Court's Electronic Filing System to all parties appearing on the Court's electronic service list on the date executed below. The file transmission was reported as complete and a copy of the uSC Superior Court E-Filing Receipt" page will be maintained with the original document(s) in our office.
[ ] BY FIRST CLASS U.S. MAIL: I placed a true copy in a sealed envelope addressed as indicated above. I am "readily familiar" with the firm's practice of collection and processing correspondence for mailing. It is deposited with the U.S. Postal Service on that same day in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if postal cancellation or postage meter date is more than one day after date of deposit for mailing in affidavit.
I declare under penalty of perjury that the foregoing is true and correct. Executed on September 19, 2014 at Sacramento, California.
cfo-7~ ARINA T. FALCONA
E-FILED: Sep 19, 2014 5:00 PM, Superior Court of CA, County of Santa Clara, Case #1-13-CV-258281 Filing #G-66331
Re: Cilker Apartments, LLC v. Western National Construction Santa Clara County Superior Court Case Number 1-13-CV-258281
SERVICE LIST
Attor~e~ds} Phone .& Fax Numbers
Jon B. Zimmerman, Esq. Phone: 408/298-7120 Gregory B. Cohen, Esq. Fax: 408/298-0477 ROBINSON & WOOD, INC. 227 N. 1st Street [email protected] San Jose, CA 95113 [email protected]
Robert L. Green, Esq . Phone: 714/918-7000 Michael J. Pepek, Esq. Fax: 714/918-6996 Megan J. Rechberg, Esq. GREEN & HALL 1851 East First Street, 10th Floor Santa Ana CA 92705 [email protected]
Daniel A. Serot, Esq. Phone: 415/291-8844 VAN DE POEL, LEVY, ALLEN & ext. 5242 ARNEAL, LLP Fax: 925/934-6060 1600 South Main Plaza, Suite 325 Walnut Creek, CA 94596 [email protected]
Alison S. Flowers, Esq. Phone: 562/436-9201 TAUBMAN, SIMPSON, YOUNG & Fax: 562/590-9695 SULENTOR, APC One World Trade Center, Suite 400 Long Beach, CA 90831 [email protected]
Eileen Booth-, Esq. Phone: 916/971-4100 JACOBSEN & McELROY PC Fax: 916/971 -4150 2401 American River Drive Sacramento, CA 95825 [email protected]
Tom Kirvin, Esq . Phone: 415/777-1308 LAW OFFICES OF HELEN SANTANA Fax: 415/896-9063 71 Stevenson Street, Suite 700 San Francisco, CA 94105 tom0689.kirvin@libertymutual .com
Michael L. Marx, Esq . Phone: 415/705-0400 GOODMAN NEUMAN Fax: 415/705-0411 HAMIL TON, LLP 417 Montgomery Street, 10th Floor San Francisco , CA 94104 mmarx@gnhll~ .com
Joseph Ryan, Esq. Phone: 925/884-2080 RYAN & LIFTER Fax: 925/884-2090 2010 Crow Canyon Place, Suite 330 San Ramon, CA 94583 [email protected]
G Geoffrey Wood, Esq. Phone: 510/832-7770 Ross C. Dwyer, Esq. ext. 116 ERICKSEN ARBUTHNOT Fax: 510/832-0102 155 Grand Avenue, Suite 1050 Oakland, CA 94612 [email protected]
David M. Levy, Esq. Phone: 925/934-6102 VAN DE POEL, LEVY & ALLEN , LLP Fax: 925/934-6060 1600 South Main Plaza, Suite 325 Walnut Creek, CA 94596 [email protected]
Alexander Moore Phone: 51 0/834-4350 BOORNAZIAN, JENSEN & GARTHE Fax: 510/839-1897 555 12th Street, Suite 1800 Oakland, CA 94607 amoore@bjg .com
CILKER APTS., LLC v. WESTERN NAT'L CONSTRUCTION SERVICE LIST
(Updated September 18, 2014)
~Clrtv(ies}
Plaintiff Cilker Apartments, LLC
Defendant Western National Construction
ADM Painting Company
AMPAM Parks Mechanical, Inc
Anderson Truss
California Classic Paver Designers, Inc.
Casey-Fogli Concrete Contractors Joseph J. Albanese, Inc.
Cell-Crete Corporation
Dimetrius Painting II, Inc.
LDI Mechanical, Inc.
Madera Framing, Inc.
PAGE -1-
E-FILED: Sep 19, 2014 5:00 PM, Superior Court of CA, County of Santa Clara, Case #1-13-CV-258281 Filing #G-66331
Attolille¥{~ 1 Phone .. & .FaxNumbers j;)a~¥{ie5}
Richard A. Dana, Esq. Phone: 51 0/844-51 00 McLarand, Vasquez & Partners, COLLINS COLLINS MUIR & Fax: 510/844-5101 Inc. STEWART, LLP 1999 Harrison Street, Suite 1700 Oakland, CA 94612 [email protected]
Michael J. Estep, Esq. Phone: 925/901-2294 Pyramid Builders, Inc. LAW OFFICES OF TIMOTHY R. Fax: 866/386-1186 WAGNER 2633 Camino Ramon, Suite 210 San Ramon, CA 94583 michael [email protected]
Lori R. Mayfield, Esq. Phone: 916/921-9353 Roebeck's Welding & Fabrication, LAW OFFICES OF DAVID A. WALLIS Fax: 916/921-9040 Inc. 2251 Harvard Street, Suite 100 Sacramento, CA 95815 mayfiel1 @nationwide.com
Bruce A. Trevithick, Esq. Phone: 714/571-0407 Roebeck's Welding & Fabrication, LAW OFFICES OF MELISSA M. Fax: 877 /369-5799 Inc. BALLARD 1551 North Tustin Avenue, Suite 830 Santa Ana, CA 92705 [email protected]
Thomas B. Wait, Esq. Phone: 909/621-5672 Tara Coatings, Inc. Robert A. Hufnagel, Esq. Fax: 909/399-0645 WAIT & COLFER 250 West First Street, Suite 222 Claremont, CA 91711 [email protected]
Served by: Richard N. Sieving, Esq. Phone: 916/444-3366 JELD-WEN, inc., an Oregon Lance M. Martin, Esq. Fax: 916/444-1223 Corporation dba Summit Window THE SIEVING LAW FIRM, A.P.C. & Patio Door 100 Howe Avenue, Suite 220N rsieving@sieving lawfirm .com Sacramento, CA 95825 [email protected]
CILKER APTS.! LLC v. WESTERN NAT'L CONSTRUCTION SERVICE LIST PAGE -2-
E-FILED: Sep 19, 2014 5:00 PM, Superior Court of CA, County of Santa Clara, Case #1-13-CV-258281 Filing #G-66331