the superior court of california, county of santa clara ......e-filed: sep 25, 2015 11:20 am,...

EXHIBIT “1”

EXHIBIT “1”

E-FILEDSep 25, 2015 11:20 AM

David H. YamasakiChief Executive Officer/Clerk

Superior Court of CA, County of Santa ClaraCase #1-13-CV-258281 Filing #G-76902

By R. Walker, Deputy

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1 JON B. ZIMMERMAN [SBN. 112281] GREGORY B. COHEN [SBN. 225510]

2 ROBINSON & WOOD, INC. 227 N 1 st Street

3 San Jose, California 95113 Telephone: (408) 298-7120

4 Facsimile: (408) 298-0477

5 Attorneys for Plaintiff, CILKER APARTMENTS, LLC

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SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF SANTA CLARA

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11 CILKER APARTMENTS, LLC, Case No. 113CV258281

12 Plaintiff, SECOND AMENDED COMPLAINT FOR DAMAGES

13 vs.

14 WESTERN NATIONAL CONSTRUCTION, MCLARAND, VASQUEZ & PARTNERS,

15 INC., GROUP M ENGINEERS, GENTRY ASSOCIATES CONSTRUCTION

16 CONSUL T ANTS, LARCO INDUSTRIES, FITCH PLASTERING, COURTNEY

17 WATERPROOFING, CELL-CRETE CORPORATION, LOS NIETOS

18 CONSTRUCTION, MADERA FRAMING, KELL Y DOOR, TARA COATINGS, LDI,

19 ADM PAINTING, ALLIANCE BUILDING PRODUCT, JOS. J. ALBANESE,

20 ANDERSON TRUSS, CALIFORNIA CLASSIC PAVERS, CASEY-FOGIL

21 CONCRETE CONTRACTORS, COMMERCIAL ROOF MANAGEMENT,

22 DA VEY ROOFING, INC., DIMETRIUS PAINTING II, INC., DOORWAY MFG.,

23 LANDSCAPE PROS, MULTI-BUILDING STRUCTURES, PARK WEST, PYRAMID

24 BUILDERS, ROBECKS WELDING & FABRICATION, RYLOCK COMPANY,

25 SUMMIT WINDOW & PATIO DOOR, AMP AM PARKS MECHANICAL,

26 CALIFORNIA CLASSIC PAVER DESIGNS, INC., JELD-WEN, INC. DBA SUMMIT

27 WINDOW & PATIO DOOR, MCLARAND VASQUEZ EMSIEK & PARTNERS, INC.,

28 CAPITAL DRYWAL &

SECOND AMENDED COMPLAINT FOR DAMAGES

E-FILED: Sep 25, 2015 11:20 AM, Superior Court of CA, County of Santa Clara, Case #1-13-CV-258281 Filing #G-76902

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1 PARTNERS, INC., MVE + PARTNERS, INC., AMP AM LDI MECHANICAL, INC.,

2 EASTERN LANDSCAPE COMPANY, INC., PACIFIC COAST BUILDING PRODUCTS

3 DBA ANDERSON TRUSS, COURTNEY, INC., ROUNDS & BROKER, INC. dba

4 MADERA CONSTRUCTION and DOES I-100, inclusive,

5

6 Defendants.

7 COMES NOW Plaintiff CILKER APARTMENTS, LLC and for causes of action against

8 Defendants, and each of them, complain and allege as follows:

9 1. PlaintiffCILKER APARTMENTS, LLC ("Plaintiff') is a limited liability company

10 operating in the County of Santa Clara and is the owner of the real property and improvements

11 commonly known as One Pearl Place Apartments, One Pearl Place, San Jose, California

~ 12 (hereinafter the "PROPERTY" or the "PROJECT"). The PROJECT consists of approximately ~~ g ;: 13 182 residential apartment units and other improvements including but not limited to a ~;;; ~ i;:j 14 recreation/leasing center. Plaintiff is the legal holder of all rights, claims, causes of action and

z z cr: ~ ~ 15 interests pertaining to the PROPERTY including all rights, claims, causes of action and interests z f-... < = 16 of Cilker Orchards. ~

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17 2. Plaintiff is informed and believes, and based thereon alleges that at all times herein

18 mentioned, Defendant WESTERN NATIONAL CONSTRUCTION (hereinafter "WNC") was a

19 California Corporation based in Orange County, but doing business in the County of Santa Clara,

20 California. Plaintiff entered into a written agreement with WNC pertaining to the construction of

21 the PROJECT.

22 3. Plaintiff is informed and believes, and based upon thereon alleges that at all times

23 herein mentioned, Defendant MCLARAND, VASQUEZ & PARTNERS, INC. (hereinafter

24 "MV &P") whose true business form and entity is unknown, was an architectural firm doing

25 business in the County of Santa Clara, California. Plaintiff entered into a written agreement with

26 MV&P pertaining to the design and construction of the PROJECT.


28 herein mentioned, Defendant GROUP M ENGINEERS (hereinafter "GROUP M"), whose true

2 SECOND AMENDED COMPLAINT FOR DAMAGES


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1 business form and entity is unknown, was an engineering firm doing business in the County of

2 Santa Clara, California.


4 herein mentioned, Defendant GENTRY ASSOCIATES CONSTRUCTION CONSULT ANTS

5 ("GENTR Y") whose true business form and entity is unknown, was doing business in the County

6 of Santa Clara, California. Plaintiff entered into an agreement with GENTRY pertaining to the

7 design and/or construction of the PROJECT.


9 herein mentioned, Defendant LARCO INDUSTRIES ("LARCO") whose true business form and

10 entity is unknown, was doing business in the County of Santa Clara, California. WNC entered

11 into a written subcontract agreement with LARCO pertaining to the construction of the PROJECT

12 on behalf of Plaintiff. In said written subcontract agreement, said subcontractor agreed to, for due

13 consideration, to defend, indemnify and save Plaintiff harmless to the fullest extent possible under

14 the law from and against any and all loss, damages, liability, claims, demands, costs, and expenses

15 of any kind, including attorneys' fees and expert fees, arising out of or in any manner directly or

16 indirectly connected with the PROJECT.


18 herein mentioned, Defendant FITCH PLASTERING ("FITCH") was a California Corporation,

19 doing business in the County of Santa Clara, California. WNC entered into a written subcontract

20 agreement with FITCH pertaining to the construction of the PROJECT on behalf of Plaintiff. In

21 said written subcontract agreement, said subcontractor agreed to, for due consideration, to defend,

22 indemnify and save Plaintiff harmless to the fullest extent possible under the law from and against

23 any and all loss, damages, liability, claims, demands, costs, and expenses of any kind, including

24 attorneys' fees and expert fees, arising out of or in any manner directly or indirectly connected

25 with the PROJECT.


27 herein mentioned, Defendant COURTNEY WATERPROOFING ("COURTNEY") was a

28 California Corporation, doing business in the County of Santa Clara, California. WNC entered



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1 into a written subcontract agreement with COURTNEY pertaining to the construction of the

2 PROJECT on behalf of Plaintiff. In said written subcontract agreement, said subcontractor agreed

3 to, for due consideration, to defend, indemnify and save Plaintiff harmless to the fullest extent

4 possible under the law from and against any and all loss, damages, liability, claims, demands,

5 costs, and expenses of any kind, including attorneys' fees and expert fees, arising out of or in any

6 manner directly or indirectly connected with the PROJECT.


8 herein mentioned, Defendant CELL CRETE was a California Corporation, doing business in the

9 County of Santa Clara, California. WNC entered into a written subcontract agreement with CELL

10 CRETE pertaining to the construction of the PROJECT on behalf of Plaintiff. In said written

11 subcontract agreement, said subcontractor agreed to, for due consideration, to defend, indemnify

12 and save Plaintiff harmless to the fullest extent possible under the law from and against any and all

13 loss, damages, liability, claims, demands, costs, and expenses of any kind, including attorneys'

14 fees and expert fees, arising out of or in any manner directly or indirectly connected with the

15 PROJECT.


17 herein mentioned, Defendant LOS NIETOS CONSTRUCTION ("LOS NIETOS") whose true

18 business form and entity is unknown, was doing business in the County of Santa Clara, California.

19 WNC entered into a written subcontract agreement with LOS NIETOS pertaining to the

20 construction of the PROJECT on behalf of Plaintiff. In said written subcontract agreement, said

21 subcontractor agreed to, for due consideration, to defend, indemnify and save Plaintiff harmless to

22 the fullest extent possible under the law from and against any and all loss, damages, liability,

23 claims, demands, costs, and expenses of any kind, including attorneys' fees and expert fees, arising

24 out of or in any manner directly or indirectly connected with the PROJECT.


26 herein mentioned, Defendant MADERA FRAMING ("MADERA") whose true business form and

27 entity is unknown, was doing business in the County of Santa Clara, California. WNC entered

28 into a written subcontract agreement with MADERA pertaining to the construction of the



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1 PROJECT on behalf of Plaintiff. In said written subcontract agreement, said subcontractor agreed

2 to, for due consideration, to defend, indemnify and save Plaintiff harmless to the fullest extent

3 possible under the law from and against any and all loss, damages, liability, claims, demands,

4 costs, and expenses of any kind, including attorneys' fees and expert fees, arising out of or in any

5 manner directly or indirectly connected with the PROJECT.


7 herein mentioned, Defendant KELLY DOOR whose true business form and entity is unknown,

8 was doing business in the County of Santa Clara, California. WNC entered into a written

9 subcontract agreement with KELLY DOOR pertaining to the construction of the PROJECT on

10 behalf of Plaintiff. In said written subcontract agreement, said subcontractor agreed to, for due






16 herein mentioned, Defendant TARA COATINGS ("TARA") whose true business form and entity

17 is unknown, was doing business in the County of Santa Clara, California. WNC entered into a

18 written subcontract agreement with TARA pertaining to the construction of the PROJECT on

19 behalf of Plaintiff. In said written subcontract agreement, said subcontractor agreed to, for due






25 herein mentioned, Defendant LDI whose true business form and entity is unknown, was doing

26 business in the County of Santa Clara, California. WNC entered into a written subcontract

27 agreement with LDI pertaining to the construction of the PROJECT on behalf of Plaintiff. In said

28 written subcontract agreement, said subcontractor agreed to, for due consideration, to defend,



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4 with the PROJECT.

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15. Plaintiff is informed and believes, and based upon thereon alleges that at all times

herein mentioned, Defendant ALLIANCE BUILDING PRODUCTS (hereinafter "ALLIANCE")

whose true business form and entity is unknown, was doing business in the County of Santa Clara,

California. WNC entered into a written subcontract agreement with ALLIANCE pertaining to the

construction of the PROJECT on behalf of Plaintiff. In said written subcontract agreement, said

subcontractor agreed to, for due consideration, to defend, indemnify and save Plaintiff harmless to

the fullest extent possible under the law from and against any and all loss, damages, liability,

claims, demands, costs, and expenses of any kind, including attorneys' fees and expert fees, arising

out of or in any manner directly or indirectly connected with the PROJECT.


herein mentioned, Defendant JOS. J. ALBANESE (hereinafter "JJA") whose true business form

and entity is unknown, was doing business in the County of Santa Clara, California. WNC entered

into a written subcontract agreement with JJA pertaining to the construction of the PROJECT on

behalf of Plaintiff. In said written subcontract agreement, said subcontractor agreed to, for due

consideration, to defend, indemnify and save Plaintiff harmless to the fullest extent possible under

the law from and against any and all loss, damages, liability, claims, demands, costs, and expenses

of any kind, including attorneys' fees and expert fees, arising out of or in any manner directly or



24 herein mentioned, Defendant ANDERSON TRUSS (hereinafter "ANDERSON") whose true

25 business form and entity is unknown, was doing business in the County of Santa Clara, California.

26 WNC entered into a written subcontract agreement with ANDERSON pertaining to the

27 construction of the PROJECT on behalf of Plaintiff. In said written subcontract agreement, said

28 subcontractor agreed to, for due consideration, to defend, indemnify and save Plaintiff harmless to



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1 the fullest extent possible under the law from and against any and all loss, damages, liability,




5 herein mentioned, Defendant CALIFORNIA CLASSIC PAVERS (hereinafter "CALIFORNIA

6 CLASSIC") whose true business form and entity is unknown, was doing business in the County of

7 Santa Clara, California. WNC entered into a written subcontract agreement with CALIFORNIA

8 CLASSIC pertaining to the construction of the PROJECT on behalf of Plaintiff. In said written

9 subcontract agreement, said subcontractor agreed to, for due consideration, to defend, indemnify

10 and save Plaintiff harmless to the fullest extent possible under the law from and against any and all



13 PROJECT.


15 herein mentioned, Defendant CASEY-FOGIL CONCRETE CONTRACTORS (hereinafter

16 "CASEY-FOGLI") whose true business form and entity is unknown, was doing business in the

17 County of Santa Clara, California. WNC entered into a written subcontract agreement with

18 CASEY-FOGLI pertaining to the construction of the PROJECT on behalf of Plaintiff. In said

19 written subcontract agreement, said subcontractor agreed to, for due consideration, to defend,




23 with the PROJECT.


25 herein mentioned, Defendant CENTRAL COAST STAIRS whose true business form and entity is

26 unknown, was doing business in the County of Santa Clara, California. WNC entered into a

27 written subcontract agreement with CENTRAL COAST STAIRS pertaining to the construction of

28 the PROJECT on behalf of Plaintiff. In said written subcontract agreement, said subcontractor



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agreed to, for due consideration, to defend, indemnify and save Plaintiff harmless to the fullest

extent possible under the law from and against any and all loss, damages, liability, claims,

demands, costs, and expenses of any kind, including attorneys' fees and expert fees, arising out of

or in any maImer directly or indirectly connected with the PROJECT.


herein mentioned, Defendant COMMERCIAL ROOF MANAGEMENT (hereinafter "CRM")


California. WNC entered into a written subcontract agreement with CRM pertaining to the







herein mentioned, Defendant DAVEY ROOFING, INC. (hereinafter "DAVEY") whose true

business form and entity is unknown, was doing business in the County of Santa Clara, California.

WNC entered into a written subcontract agreement with DAVEY pertaining to the construction of

the PROJECT on behalf of Plaintiff. In said written subcontract agreement, said subcontractor




or in any manner directly or indirectly connected with the PROJECT.


herein mentioned, Defendant DIMETRIUS PAINTING, II (hereinafter "DIMETRIUS") whose

true business form and entity is unknown, was doing business in the County of Santa Clara,

California. WNC entered into a written subcontract agreement with DIMETRIUS pertaining to

the construction of the PROJECT on behalf of Plaintiff. In said written subcontract agreement,

said subcontractor agreed to, for due consideration, to defend, indemnify and save Plaintiff



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harmless to the fullest extent possible under the law from and against any and all loss, damages,

liability, claims, demands, costs, and expenses of any kind, including attorneys' fees and expert

fees, arising out of or in any manner directly or indirectly connected with the PROJECT.


herein mentioned, Defendant DOORWAY, MFG. (hereinafter "DOORWA yII) whose true


WNC entered into a written subcontract agreement with DOORWAY pertaining to the







herein mentioned, Defendant LANDSCAPE PROS (hereinafter "LANDSCAPE") whose true


WNC entered into a written subcontract agreement with LANDSCAPE pertaining to the







herein mentioned, Defendant MULTI BUILDING STRUCTURES (hereinafter "MBS") whose

true business form and entity is unknown, was doing business in the County of Santa Clara,

California. WNC entered into a written subcontract agreement with MBS pertaining to the






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4 herein mentioned, Defendant PARK WEST whose true business form and entity is unknown, was

5 doing business in the County of Santa Clara, California. WNC entered into a written subcontract

6 agreement with PARK WEST pertaining to the construction of the PROJECT on behalf of

7 Plaintiff. In said written subcontract agreement, said subcontractor agreed to, for due





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herein mentioned, Defendant PYRAMID BUILDERS (hereinafter "PYRAMID") whose true


WNC entered into a written subcontract agreement with PYRAMID pertaining to the construction

of the PROJECT on behalf of Plaintiff. In said written subcontract agreement, said subcontractor






herein mentioned, Defendant ROBECKS WELDING & F ABRICA nON (hereinafter

"ROBECKS") whose true business form and entity is unknown, was doing business in the County

of Santa Clara, California. WNC entered into a written subcontract agreement with ROBECKS

pertaining to the construction of the PROJECT on behalf of Plaintiff. In said written subcontract

agreement, said subcontractor agreed to, for due consideration, to defend, indemnify and save

Plaintiff harmless to the fullest extent possible under the law from and against any and all loss,



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damages, liability, claims, demands, costs, and expenses of any kind, including attorneys' fees and

expert fees, arising out of or in any manner directly or indirectly connected with the PROJECT.


herein mentioned, Defendant RYLOCK COMPANY (hereinafter "RYLOCK") whose true


WNC entered into a written subcontract agreement with RYLOCK pertaining to the construction

of the PROJECT on behalf of Plaintiff. In said written subcontract agreement, said subcontractor






herein mentioned, Defendant SUMMIT WINDOW & PATIO DOOR (hereinafter "SUMMIT")


California. WNC entered into a written subcontract agreement with SUMMIT pertaining to the






32. On or about May 9,2014, Plaintiff caused to be filed in the Santa Clara Superior

Court "Plaintiff Cilker Apartments, LLC's First Doe Amendment To Complaint For Damages"

identifying an additional defendant, then designated as DOE 1 as follows:

24 Fictitious Name True Name

25 Doe 1 AMP AM Parks Mechanical

26 33. On or about August 27, 2014, Plaintiff caused to be filed in the Santa Clara

27 Superior Court "Plaintiff Cilker Apartments, LLC's Second Doe Amendment To Complaint For

28 Damages" identifying additional defendants, then designated as DOE's 2-3 as follows:

11 SECOND AMENDED COMPLAlNT FOR DAMAGES


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1 Fictitious Name

2 Doe2

3 Doe 3

True Name

California Classic Pavers Design, Inc.

Jeld-Wen, Inc. dba Summit Window & Patio Door

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5 34. On or about April 9, 2015, Plaintiff caused to be filed in the Santa Clara Superior

6 Court "Plaintiff Cilker Apartments, LLC's Third Doe Amendment To Complaint For Damages"

7 identifying additional defendants, then designated as DOE's 4-5 as follows:

8 Fictitious Name

9 Doe4

10 Doe 5

True Name

McLarand Vasquez Emsiek & Partners, Inc.

Capital Drywall, Inc.

11 35. On or about May 11, 2015, Plaintiff caused to be filed in the Santa Clara Superior


13 identifying additional defendants, then designated as DOE's 6-9 as follows:

14 Fictitious Name

15 Doe 6

16 Doe 7

17 Doe 8

18 Doe 9

True Name

MVE & Partners Inc.

MVE + Partners, Inc.

AMPAM LDI Mechanical Inc.

Eastern Landscape Company, Inc.

19 36. On or about July 22, 2015, Plaintiff caused to be filed in the Santa Clara Superior


21 identifying an additional defendant, then designated as DOE 10 as follows:

22 Fictitious Name

23 Doe 10

True Name

Pacific Coast Building Products dba Anderson Truss

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25 37. Defendants, AMP AM PARKS MECHANICAL (Doe 1), CALIFORNIA CLASSIC

26 PAVERS DESIGN, INC. (Doe 2), JELD-WEN, INC. DBA SUMMIT WINDOW & PATIO

27 DOOR (Doe 3), CAPITAL DRYWALL, INC. (Doe 5), AMPAM LDI MECHANICAL INC. (Doe

28 8), EASTERN LANDSCAPE COMPANY, INC. (Doe 9), AND PACIFIC COAST BUILDING



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1 PRODUCTS DBA ANDERSON TRUSS (Doe 10), are named as Defendants herein in the caption

2 of this Second Amended Complaint. Each named defendant was involved in the construction of

3 the PROJECT, and provided design, labor and/or materials to the PROJECT for this purpose.

4 Each of these Defendants entered into a written subcontract agreement with WNC on behalf of

5 Plaintiff pertaining to the PROJECT. In said written subcontract agreement and for due

6 consideration, said subcontractors agreed to (among other commitments) defend, indemnify and

, 7 save Plaintiff harmless to the fullest extent possible under the law from and against any and all



10 PROJECT.

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38. Defendants MCLARAND VASQUEZ EMSIEK & PARTNERS, INC. (Doe 4),

MVE & PARTNERS, INC. (Doe 6), and MVE + PARTNERS, INC. (Doe 7) (hereinafter

collectively "MVE"), are named as Defendants herein in the caption of this Second Amended

Complaint. At all relevant times, MVE shared a unity of interest with Defendant MV&P, such

that any individuality and separateness between MVE and MV &P have ceased, and MVE is the

alter-ego of MV&P. The work performed by MVE and MV&P with respect to the PROJECT was

undertaken as a united company, and each entity performed the services required under the written

contractual agreement entered into between MV &P and Plaintiff.

39. At all relevant times, MVE acted as an agent, successor, assignee, alter-ego and/or

joint-venturer of MV &P, and in doing the things alleged herein, acted within the course and scope

of such agency, succession, assignment, alter-ego and furtherance of the joint venture. These

actions include, but are not limited to, assuming, performing, executing, completing, and carrying

out, the contractual obligations, duties, responsibilities, requirements and liabilities contained in

the written contractual agreement, and associated change orders, addenda, RFls, and written

requests, entered into between MV &P and Plaintiff with respect to the PROJECT.

40. Specifically, at all times relevant hereto, a unity of interests between MVE and

MV &P is demonstrated by certain facts, including, but not limited to: (1) both MV &P and MVE

were located in the same offices located at 1900 Main Street, Irvine, California 92614 and 350



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Frank H. Ogawa Plaza, Suite 100, Oakland, California 94612; (2) Both MV &P and MVE

provided its employees, resources, advice and professional services to Plaintiffs and WNC, Group

M and others concerning the PROJECT including but not limited to architects Ernesto Vasquez,

Gary Penman and Loren Gachen, and MVE responded to inquiries and questions concerning

professional services at the PROJECT without identifying themselves or itself as a separate entity

from MV &P, (3) MVE corresponded to Plaintiff in the name of MVE and provided its

professional approval of modifications to the construction documents, site observation and other

services under that corporate form MVE, (4) MVE utilized the physical and intellectual property

of MV&P in the providing of services to the PROJECT, (5) The agent for service of process of

both MV&P and MVE is Carl McLarand; and (3) The president of both MV&P and MVE is Carl

McLarand. Discovery into the interworking of MV &P and MVE is ongoing and Plaintiff will

seek leave of the Court to alleged additional facts as they are discovered in this litigation.

41. At all relevant times, MVE was the alter-ego of MV &P, and there was such a unity

of interest and ownership that the individuality or separateness of MV &P and MVE has ceased

during the pendency of the PROJECT, and the facts are such that an adherence to the fiction ofthe

separate existence of these entities would under the particular circumstances, sanction a fraud and

17 promote injustice.

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42. On July 1,2015, counsel for Plaintiff filed a Certificate of Merit pursuant to Code

of Civil Procedure §411.35 with respect to the MVE Defendants. Attached hereto as Exhibit "A"

is a true and correct copy of this Certificate and the accompanying proof of service.

43. Plaintiff is ignorant of the true names and capacities of Defendants sued herein as

Does 1-100, and therefore sues said Defendants by these fictitious names. Plaintiff will amend

this complaint to allege their true names and capacities when ascertained. Plaintiff is informed

and believes and thereon alleges that each of the fictitiously named Defendants is in some manner

responsible for the injury and damage to Plaintiff alleged herein.

44. Plaintiff is informed and believes and thereon alleges that at all times herein

mentioned Defendants were the agents, servants and employees of their co-defendants and in



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1 doing the things hereinafter mentioned, were acting in the course and scope of their authority as

2 agents, servants, and employees with the permission and consent of their co-defendants.

3 45. In or about July 1, 2000, Plaintiff entered into a written contract with WNC to

4 construct the subject apartment PROJECT. The PROJECT began sometime after execution of the

5 written contract and continued until all work was completed in or about 2004.

6 46. Plaintiff is informed and believes, and based upon thereon alleges that Defendants

7 identified in paragraphs 2 through 40 above were subcontractors or others who performed

8 construction or design work on the PROJECT.

9 47. Within the one year prior to the filing of this complaint Plaintiff discovered

10 construction defects at the PROJECT in areas where each of the defendants set forth herein

11 performed work, labor, design or architectural services. The areas impacted by defects include,

12 but are not limited to:

13 a. Exterior decks;

14 b. Exterior walkways;

15 c. Breezeways;

16 d. Elevated Courtyards and pathways;

17 e. Podium level planters

18 f. Structural Components

19 g. Doors, doorways and door thresholds;

20 h. Concrete;

21 I. Stucco and exterior building elevations;

22 J. Wood framing;

23 k. Waterproofing;

24 1. Windows;

25 m. Railings;

26 n. Roofing;

27 o. Plumbing/storm drainage;

28 p. Sheet metal flashings



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q. Mechanical/flashing; and,

r. Miscellaneous steel and structural steel.

The nature of the defects are such that they were not reasonably apparent or

4 discoverable by Plaintiff until within the statutory period. Investigation of the full nature and

5 extent of the defects is continuing.

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8 49.

FIRST CAUSE OF ACTION

[Breach of Contract Against All Defendants and DOES 1-100)

Plaintiff refers to the allegations in the preceding paragraphs and incorporates

9 them herein by reference as though set forth in full.

10 50. The Contract utilized by Plaintiff and Defendant WNC contained an express

11 agreement to complete the PROJECT in a good and workmanlike manner and in legal compliance.

12 The same was true for all subcontracts between WNC and each of its subcontractors each of which

13 identifies Plaintiff as an intended third party beneficiary. The subcontracts for each of the

14 remaining subcontract defendants incorporated these agreements and provisions and/or expressly

15 set forth said agreements and provisions.

16 51. The Contract utilized by Plaintiff and Defendant MV &P contained an express

17 agreement to design and manage the PROJECT in a good and workmanlike manner and in legal

18 compliance. As alleged in paragraphs 38-41 above, MVE was the agent, successor, assignee,

19 alter-ego and/or joint-venturer of of MV &P, and as a result, assumed, performed, executed,

20 completed, and carried out, the contractual obligations, duties, responsibilities, requirements and

21 liabilities contained in the written contractual agreement, and associated change orders, addenda,

22 RFIs, and written requests, entered into between MV &P and Plaintiff with respect to the

23 PROJECT.

24 52. The Contract utilized by or on behalf of Plaintiff and Defendant GROUP M

25 contained an express agreement to design and manage the PROJECT in a good and workmanlike

26 manner and in legal compliance.

27 / / /

28 / / /

SECOND AMENDED COMPLAINT FOR DAMAGES 16


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1 53. The Contracts were breached by Defendants by virtue of the existence of and

2 various latent construction deficiencies as described inter alia in Code of Civil Procedure sections

3 337.15.

4 54. Plaintiff has performed all acts, conditions and covenants required by the Contracts,

5 except as excused by the acts or omissions of Defendants, and each of them.

6 55. As a direct and proximate result of the breach by Defendants, Plaintiff has suffered

7 damages, which includes but is not limited to: Being required to seek the employ of design

8 professionals and contractors to perform repairlremediation work on the PROJECT; denial of the

9 use and rent of the PROJECT; being required to seek the employ of a forensic construction

10 consultant to investigate the construction defects on the PROJECT in order to establish the

11 defective construction practices in the construction of the PROJECT and the incurrence of

12 attorney's fees and costs, which are ongoing.

13 56. The Contracts between Plaintiff and Defendants, and each of them, contained a

14 provision allowing the prevailing party in any proceeding arising out of the agreement to recover

15 their reasonable attorneys fees and costs.

16 57. As a proximate result of Defendants' breach of contract as set forth above, Plaintiff

17 has suffered damages in an amount exceeding the minimal jurisdictional amount of this Court to

18 be shown according to proof at trial but including, and not limited to, the cost of repairing and

19 replacing the defective materials and workmanship, testing and investigation of such defective

20 materials and workmanship, lost rents and income, diminution of fair market value, and legal and

21 professional costs, as well as other incidental and consequential damages.

22 WHEREFORE, Plaintiff prays for judgment against Defendants, and each of them, as

23 hereinafter set forth.

24 SECOND CAUSE OF ACTION

25 [Breach of Implied Warranty Against All Defendants and DOES 1-100, Not including

26 MV&P, MVE, and GROUP M Defendants]

27 58. Plaintiff refers to the allegations in the preceding paragraphs and incorporates them

28 herein by reference as though set forth in full.



1028302

1 59. Defendants, and each of them, impliedly warranted that the PROJECT would be

2 constructed in a skillful manner so as to be reasonably fit for its intended purpose as an apartment

3 complex.

4 60. Plaintiff relied on this implied warranty and believed in good faith that the

5 PROJECT was of merchantable quality.

6 61. In or about December 2013, Plaintiff first learned that the PROJECT was not

7 properly constructed when notified by a forensic construction consultant of its analysis of the

8 PROJECT.

9 62. Defendants beached the implied warranty in that the PROJECT was constructed

10 with construction defects including, but not limited to, those defects as set forth in Paragraph 47

11 above. The discovered defects have resulted in consequential property damage which needs to be

12 repaired.

13 63. As a proximate result of Defendants' breach of warranty as set forth above, Plaintiff

14 has suffered damages in an amount exceeding the minimal jurisdictional amount of this Court to

15 be shown according to proof at trial but including, and not limited to, the cost of repairing and




19 64. Plaintiff has given notice to Defendants of the defects in construction as determined

20 to date by Plaintiffs forensic construction consultant.



23 THIRD CAUSE OF ACTION

24 [Breach of Express Warranty Against All Defendants and DOES 1-100, Not including

25 MV&P, MVE and GROUP M, Defendants]



28 III



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1028302

1 66. Defendants expressly warranted that the PROJECT they constructed would be free

2 from defects.

3 67. Plaintiff relied on this express warranty and believed in good faith that the

4 PROJECT would be free from defects.

5 68. In or about December 2013, when Plaintiff was notified of the forensic consultant's

6 initial analysis of the work done on the PROJECT, Plaintiff learned that the PROJECT had not

7 been properly constructed.

8 69. Defendants breached the express warranty as the PROJECT was constructed with

9 construction defects including, but not limited to, those defects as set forth in Paragraph 47 above.

10 The discovered defects have resulted in consequential property damage which needs to be

11 repaired.

12

13

14

15

16

17

18

19

70. As a proximate result of Defendants' breach of warranty as set forth above, Plaintiff

has suffered damages in an amount exceeding the minimal jurisdictional amount of this Court to

be shown according to proof at trial but including, and not limited to, the cost of repairing and

replacing the defective materials and workmanship, testing and investigation of such defective

materials and workmanship, lost rents and income, diminution of fair market value, and legal and

professional costs, as well as other incidental and consequential damages.

71. Plaintiff has given notice to Defendants of the defects in construction as determined

to date by Plaintiffs forensic construction consultant.



22

23

24 72.

FOURTH CAUSE OF ACTION

[Negligence Against All Defendants and DOES 1-100J

Plaintiff refers to the allegations in the preceding paragraphs and incorporates them


26 73. Defendants had a duty to exercise reasonable care in the design, management

27 and/or construction of the PROJECT. Attached hereto as Exhibit "B" is a true and correct copy

28



1 of the Certificate of Merit filed by Plaintiffs prior counsel of record as provided by Code of Civil

2 Procedure.

3 74. Defendants breached their duty of care in failing to assure the PROJECT was

4 designed, managed and/or built correctly, and according to specifications and industry standards.

5 75. Defendants breached their duties to exercise reasonable care in the design,

6 management and/or construction of the PROJECT as the work on the PROJECT is defectively

7 constructed, as set forth above.

8 76. As a proximate result of Defendants' negligence as set forth above, Plaintiff has

9 suffered damages in an amount exceeding the minimal jurisdictional amount of this Court to be

10 shown according to proof at trial but including, and not limited to, the cost of repairing and






16 FIFTH CAUSE OF ACTION

17 [Strict Liability Against All Defendants and DOES 1-100, Not including MV &P, MVE and

18 GROUP M Defendants



21 78. Plaintiff is informed and believes, and thereon alleges, that at all times relevant

22 hereto Defendants, and each of them, were in the business of designing, manufacturing,

23 distributing, constructing, assembling, fabricating, selling, providing, testing, supplying and

24 producing multi-family apartment structures, buildings, building products, components, parts, and

25 appurtenant structures for sale to, and use by, members of the general public, including, but not

26 limited to, those products and materials used in the construction of the PROJECT.

27 79. Defendants, and each of them, designed, manufactured, distributed, constructed,

28 assembled, fabricated, sold, provided, tested, distributed, supplied and produced multi-family

1028302 20 SECOND AMENDED COMPLAINT FOR DAMAGES


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1 apartment structures, buildings, building products, components, parts, and appurtenant structures

2 for the PROJECT. Said Defendants knew, or had reason to know, that Plaintiff and others would

3 rely on the skill, expertise and judgment of Defendants for the design, manufacture, distribution,

4 construction, assembly, fabrication and production of the PROJECT and that said products would

5 be used without inspection by Plaintiff for defects and/or that defects would not be apparent with

6 reasonable inspection.

7

8

9

10

11

12

13

14

15

16

17

80. Said products were unfit and unsafe for their intended use, and could and have

caused physical damage to the Plaintiffs PROJECT as a result of said unfitness.

81. Plaintiff have used said products in a reasonably foreseeable manner without

knowing of the unsafe and defective nature of said product. Said defects were latent but existed in

said products at the time they were delivered to and constructed within the PROJECT.

82. As a proximate result of Defendants' breach as set forth above, Plaintiff has

suffered damages in an amount exceeding the minimal jurisdictional amount of this Court to be

shown according to proof at trial but including, and not limited to, the cost of repairing and

replacing the defective materials and workmanship, testing and investigation of such defective

materials and workmanship, lost rents and income, diminution of fair market value, and legal and

professional costs, as well as other incidental and consequential damages.



20

21

22

23 83.

SIXTH CAUSE OF ACTION

[Express Contractual Indemnity against ALL Defendants

and DOES 1 through 100, inclusive]

Plaintiff refers to the allegations in the preceding paragraphs and incorporates them


25 84. Plaintiff entered into written contracts with Defendants, and each of them, either

26 directly or as a third party beneficiary through the express agents of the Plaintiff, whereby each

27 Defendant agreed, for due consideration, to defend, indemnify and save Plaintiff harmless to the

28 fullest extent possible under the law from and against any and all loss, damages, liability, claims,



1028302

1 demands, costs, and expenses of any kind, including attorneys' fees and expert fees, arising out of

2 or in any manner directly or indirectly connected with the PROJECT, any default by Defendants,

3 any act or omission of Defendants or Defendants' agents or employees and regardless of any active

4 or passive fault or action on the part of Plaintiff and its agents and representatives, excepting any

5 such matters solely and exclusively caused by the sole negligence or willful misconduct of

6 Plaintiff.

7 85 . Defendants further agreed to defend, indemnify and save WNC harmless to the

8 fullest extent possible under the law as to any and all claims, liability, loss, damage, costs,

9 including reasonable attorneys' fees, awards, fines or judgments arising by reason of any

10 obligation or Indemnity which WNC has to Plaintiff and Plaintiffs agents and representatives.

11 86. Defendants', and each of their, indemnification and hold harmless agreements

12 included the immediate duty to defend Plaintiff, WNC, and their agents and representatives as to

13 claims and demands made against them.

14 87. Plaintiff has fully performed all the conditions and obligations on its part required

15 under each ofthe said agreements.

16 88. Defendants, and each of them, are required to hold harmless, defend and indemnify

17 Plaintiff with regard to the losses, damages and claims arising out of or related to their work, the

18 PROJECT and all matters related thereto. And, as a result of the negligence, breach of contract,

19 fault, or legal responsibility of Defendants, and each of them, as hereinabove alleged, Plaintiffs

20 have been required and have expended, or may be required to and will expend, substantial

21 amounts in repairing, mitigating, investigating and responding to and defending against the

22 complaints of Plaintiffs tenants and residents at the PROJECT and in other matters according to

23 proof.

24 89. Plaintiff is entitled to be fully reimbursed, to be defended and to be indemnified

25 and hold safe and harmless by Defendants, and each of them, for all otherwise recoverable fees,

26 expenses, costs, consultant fees, expert fees, and attorneys' fees, incurred in connection with this

27 suit, as well as all damages resulting from Defendants' breach of their contractual responsibilities.

28



1028302

1 90. By this Complaint, and although not legally required to do so, Plaintiffs hereby

2 tender its defense and indemnification to Defendants, and each of them, and demands that

3 Defendants immediately defend, indemnify, and hold Plaintiffs harmless as to all claims and

4 damages as fully required by the written agreements between them and as alleged herein.

5 SEVENTH CAUSE OF ACTION

6 [Breach of Third Party Beneficiary Contract against ALL Defendants and DOES 1 through

7 100, inclusive, Not including Defendants WNC, MV&P and MVE]



10 92. Plaintiff is informed and believes, and thereon alleges that Subcontractor

11 Defendants, and each of them, entered into written contracts with WNC pursuant to which the

12 Subcontractor Defendants agreed to perform work of improvement at the PROJECT. These

13 contracts were made for the benefit of Plaintiff.

14 93. Plaintiff is informed and believes, and thereon alleges that Subcontractor

15 Defendants breached said contracts with WNC in that they failed to perform their scopes of work

16 in a workmanlike manner and in accordance with the plans and specifications and applicable

17 building codes.

18 94. Plaintiff is informed and believes, and thereon alleges that Defendant GROUP M

19 entered into written contracts with MV &P pursuant to which the GROUP M Defendants agreed to

20 perform professional structural and other civil engineering work for the PROJECT. This contract

21 was made for the benefit of Plaintiff.

22

23

24

25'

26

27

28

95. Plaintiff is informed and believes, and thereon alleges that, as a direct and

proximate result of the foregoing breach of the third party beneficiary contracts, and the actions

and/or omissions of the said Defendants, and each of them, Plaintiff has suffered damages in an

amount exceeding the minimal jurisdictional amount of this Court to be shown according to proof

at trial but including, and not limited to, the cost of repairing and replacing the defective materials

and workmanship, testing and investigation of such defective materials and workmanship, lost



1028302

1 rents and income, diminution of fair market value, and legal and professional costs, as well as

2 other incidental and consequential damages.

3 96. Plaintiff is informed and believes, and thereon alleges that, as a further direct and

4 proximate result of the breach of third party beneficiary contracts by the said Defendants, and each

5 of them, the interest of Plaintiff in the PROJECT and the value thereof has been reduced and

6 diminished in an amount presently unknown but will be established at the time of trial, according

7 to proof.

8 97. Plaintiff is informed and believes and thereon alleges that, as a further direct and

9 proximate result of the breach of third party beneficiary contracts by the said Defendants, and each

10 of them, the residents of the PROJECT have sustained damage to the interior portions of their

11 dwelling units and sustained loss of use and enjoyment of their dwelling units in an amount

12 presently unknown but will be established at the time of trial, according to proof.

13 PRAYER


15 follows:

16 1. For general, special and compensatory damages and for consequential damages

17 according to proof;

18 2. For all investigative and testing costs including expert and consultant fees and

19 expenses;

20

21

22

23

24

25

26

27

28

3. For past and future costs of repair;

4. For indemnity/compensatory damages according to proof;

5. For an order of the court determining the rights of Plaintiffs to express contractual

indemnity from the Defendants contained in the Sixth Cause of Action;

6. For declaratory judgment that Defendants, and each of them, must defend,

indemnify and hold harmless Plaintiff from all damages, judgments, settlements and for costs,

expenses, attorneys' fees, and other damages incurred in defending the damage claims at the

PROJECT and in prosecuting this complaint and other claims and damages at the PROJECT;



U ~ ~ ~ ~ < O..J o f-

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1 7. For attorneys' fees and costs of suit as allowable by law and the contracts between

2 the parties;

3

4

5

6

7

8

9

10

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12

13

14

15

16

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8.

9.

For pre-judgment and post-judgment interest at the legal rate of interest;

For such other and further relief as the Court may deem just and proper.

Dated: September 25,2015 ROBINSON & WOOD, INC.

By:

Attorneys for Plaintiff, CILKER APARTMENTS, LLC



Exhibit A


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1 JON B. ZIMMERMAN [SBN. 112281] STEVEN M. WHEELER [SBN. 233117]

2 GREGORY B. COHEN [SBN. 225510] ROBINSON & WOOD, INC.

3 227 N 1 st Street San Jose, California 95113

4 Telephone: (408) 298-7120 Facsimile: (408) 298-0477

5 Attorneys for Plaintiff, CILKER

6 APARTMENTS, LLC

7

E-FILED Ju11, 20152:10 PM

David H. Yamasaki Chief Executive Officer/Clerk

Superior Court of CA. County of Santa Clara Case #1-13-CV-258281 Filing #G-74237

By G. Duarte. Deputy

8

9

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF SANTA CLARA

10

11 CILKER APARTMENTS, LLC, Case No. 113CV258281

12 Plaintiff, PLAINTIFF CILKER APARTMENTS, LLC'S CERTIFICATE OF M ERIT

13 vs . REGARDING ARCHITECTURAL DESIGN ISSUES PURSUANT TO CCP

14 WESTERN NATIONAL CONSTRUCTION, §411.35 MCLARLAND, VARQUEZ & PARTNERS,

15 GROUP M ENGINEERS, GENTRY ASSOCIATES CONSTRUCTION

16 CONSUL T ANTS, LARCO INDUSTRIES, FITCH PLASTERING, COURTNEY

17 WATERPROOFING, CELL CRETE, LOS NIETOS CONSTRUCTION, MADERA

18 FRAMING, KELLY DOOR, TARA COATINGS, LDI, and DOES 1-100,

19 inclusive,

20 Defendant.

21 AND RELATED CROSS-ACTIONS

22

23

24 I, Jon B. Zimmerman, declare as follows :

25 1. I am an attorney duly admitted to practice before this Court. I am a shareholder of

26 Robinson & Wood, Inc., attorneys of record for Plaintiff, CILKER APARTMENTS, LLC

27 (hereinafter "Cilker"). I have personal knowledge of the facts set forth herein, except as to those

28 1012114 I

PLAINTIFF CILKER APARTMENTS, LLC'S CERTIFICATE OF MERIT REGARDING ARCHITECTURAL DESIGN ISSUES PURSUANT TO CCP §411 .35


1012114

E-FILE : Ju11, 2015 2:10 PM, Superior Court of CA, County of Santa Clara, Case #1-13-CV-258281 Filing #G-74237

1 stated on information and belief and, as to those, I am informed and believe them to be true, If

2 called as a witness, I could and would competently testify to the matters stated herein,

3 2. I have reviewed the facts of this case and have consulted with and received an

4 opinion from an architectural expert with a license to practice, and who practices in the State of

5 California, regarding the work of MCLARAND VASQUESZ EMSIEK & PARTNERS, INC., and

6 its successor entities MVE & PARTNERS, INC., and MVE + PARTNERS, INC. (collectively the

7 "MVEP entities"), the architectural firm that provided design services for the residential property

8 and improvements thereon owned by CILKER, and which is located at One Pear Place in San

9 Jose, California, and which consists of 182 residential units and other improvements.

10 3. The architectural expert with whom I have consulted practices in the same

11 discipline as the MVEP entities; and I reasonably believe this architectural expert is

12 knowledgeable in the relevant issues involved in this action, and has reviewed plans and other

13 documents as they relate to this litigation.

14 4. I have concluded on the basis of my review and consultation with the aforesaid

15 architectural expert that there is reasonable and meritorious cause for the filing and service of this

16 action as against these MVEP entities.

17 5. The architectural expert who was consulted by me is not a party to this action; and

18 has rendered an opinion that the MVEP entities were negligent in the performance of the

19 applicable professional services and may have contributed to the damages incurred by CILKER in

20 this action.

21

22

23

24

25

26

27

28

I declare under penalty of perj ury under the laws of the State of California that the

foregoing is true and correct.

Executed June 22< 2015, at San Jose, Calit'or

Jon

2 PLAINTIFF CILKER APARTMENTS, LLC'S CERTIFICATE OF MERIT REGARDING ARCHITECTURAL DESIGN ISSUES PURSUANT TO CCP §411.35


THE SUPERIOR COURT OF CALIFORNIA, COUNTY OF SANTA CLARA ELECTRONIC FILING - WWW.SCEFILlNG.ORG clo Glotrans 2915 McClure Street Oakland, CA94609

E-FILE Ju11, 2015 2:10 PM

2 TEL: (510) 208-4775 David H. Yamasaki

3

4

5

6

7

8

9

10

11

12

13

FAX: (510) 465-7348 EMAIL: [email protected]

Chief Executive Officer/Clerk Superior Court of CA, County of Santa Clar

Case #1-13-CV-258281 Filing #G-74237 By G. Duarte, Deputy

THE SUPERIOR COURT OF THE STATE OF CALIFORNIA

IN AND FOR THE COUNTY OF SANTA CLARA

CILKER APARTMENTS, LLC, Plaintiff,

Plaintiff, vs.

WESTERN NATIONAL CONSTRUCTION; MCLARAND, VARQUEZ & PARTNERS; GROUP M ENGINEERS; GENTRY ASSOCIATES CONSTRUCTION CONSULTANTS; LARCO INDUSTRIES; FITCH PLASTERING; COURTNEY WATERPROOFING; CELL CRETE; LOS NIETOS CONSTRUCTION; MADERA FRAMING; KELLY DOOR; TARA COATINGS; LDI; and DOES 1-100, inclusive, Defendants.

Defendant.

AND RELATED ACTIONS

) ) ) ) ) ) ) )

) } } } } } ) ) ) )

Cilker Apartments, LLC v. Western National Construction, et al.

Lead Case No.1-13-CV-258281

Hon. Peter Kirwan

PROOF OF SERVICE Electronic Proof of Service

I am employed in the County of Alameda, State of California.

I am over the age of 18 and not a party to the within action; my business address is 2915 McClure

14 Street, Oakland, CA 94609.

The documents described on page 2 of this Electronic Proof of Service were submitted via the 15

worldwide web on Wed. July 1, 2015 at 1 :50 PM PDT and served by electronic mail notification.

16 I have reviewed the Court's Order Concerning Electronic Filing and Service of Pleading Documents and

17

18

19

20

am readily familiar with the contents of said Order. Under the terms of said Order, I certify the above-described

document's electronic service in the following manner:

The document was electronically filed on the Court's website, http://www.scefiling.org, on Wed. July 1,

2015 at 1 :50 PM PDT

Upon approval of the document by the Court, an electronic mail message was transmitted to all parties

on the electronic service list maintained for this case. The message identified the document and provided

instructions for accessing the document on the worldwide web.

21 I declare under penalty of perjury under the laws of the State of California that the foregoing is true and

correct. Executed on July 1, 2015 at Oakland, California. 22

Dated: July 1, 2015 For WWW.SCEFILlNG.ORG

23 Andy Jamieson


E-FILED: Ju11, 20152:10 PM, Superior Court of CA, County of Santa Clara, Case #1-13-CV-256261 Filing #G-74237

THE SUPERIOR COURT OF CALIFORNIA, COUNTY OF SANTA CLARA ELECTRONIC FILING SYSTEM - WWW,SCEFILING.ORG

Electronic Proof of Service 2 Page 2

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Document(s) submitted by Jon Zimmerman of Robinson & Wood, Inc. on Wed. July 1, 2015 at 1 :50 PM PDT

1, Certificate of Merit: Plaintiff Cilker Apartments, LLC's Certificate of Merit Regarding Architectural Design Issues Pursuant to CCP 411,35


Exhibit B


1

2

3

4

5

6

7

8

9

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..

RONALD J. COOK- SBN 121398 WILLOUGHBY, STUART & BENING 50 W. San Fernando Street, Suite 400 San Jose, California 95113 Telephone: (408) 289-1972 Facsimile: (408) 295-6375

Attorneys for Plaintiff CILKER APARTMENTS, LLC \

E~\ID()F-1SED --·ll E---O :-... - --~

,lOll! JAN -1 P 2: 2w

~'nd II. YaIl':Jlc':.Il. C\;;. '~.01 u. ~ ~ ~ Coull CWoly oI5.':ila ll3Ia;i1i~f13

. I C1i(~ • • ftf:_ iW IN THE SUPERIOR COURT OF THE STATE OF CALIFORIA ~

IN AND FOR THE COUNTY OF SANTA CLARA

CILKER APARTMENTS, LLC, Plaintiff

vs.

WESTERN NATIONAL CONSTRUCTION, MCLARLAND, V ARQUEZ & PARTNERS, GROUP M ENGINEERS, GENTRY ASSOCIATES CONSTRUCTION CONSULTANTS, LARCO INDUSTRIES, FITCH PLASTERING,COURTNEY WATERPROOFING, CELL CRETE, LOS NIETOS CONSTRUCTION, MADERA FRAMING, KELLY DOOR, TARA COATINGS, LDI, and DOES 1-100, inclusive,

Defendants.

I, Ronald J. Cook, declare as follows:

CASE NO.: 113CV258281

CERTIFICATE OF MERIT

1. I am an attorney at law duly licensed to practice in all the courts of the State of

California, an.d am a shorter holder in the law fiim of Willoughby, Stuart & Bening, attorneys of

record for plaintiffCILKER APARTMENTS, LLC in the above referenced matter.

2. I have personally reviewed my file in this matter, and am familiar with the

contents thereof.

3. I have consulted with at least one architect, professional engineer or land surveyor

who is licensed to practice, and practices, in this State. I believe that the consultant is

2421.12266S -1-

_ CERTIFICATE OF MERIT


r

1

2

3

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28

'. knowledgeable in the relevant issues involved in this particular action. I have concluded on the

basis of my review and a consultation that there is reasonable. and meritorious cause for filing the

instant action.

4. This Certificate was originally signed on December 23, 2013 and was

inadvertently omitted by my staff when filing the complaint on December 26,2013.

I declare under penalty ofpeljury that the foregoing is true and correct and that if called as

a witness I could competently testify thereto. This declaration was originally executed on

December 23, 2013 at San Jose, California

2421.12266S ·2·

CERTIFICATE OF MERIT