E-FILED...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

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

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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.

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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]


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

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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



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 .

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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


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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


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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



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


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-


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-


Documents

E-FILED...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