E-FILED...v. WESTERN NATIONAL CONSTRUCTION, et. al., Defendants. Case No. 1-13-CV-258281 Judge: Hon. Peter Kirwan Dept: 1 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION

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LORBER, GREENFIELD & POLITO, LLP Joyia Z. Greenfield, Esq. [SBN: 112571] Zachariah R. Tomlin, Esq. [SBN: 263563] Dilan Hosseinpour, Esq. [SBN: 297622] 13985 Stowe Drive Poway, CA 92064 TEL: (858) 513-1020 / FAX: (858) 513-1002 [email protected]; [email protected]; [email protected] Samuel M. Danskin, Esq. [SBN: 136044] GREEN & HALL, APC 1851 East First Street, 10th Floor Santa Ana, CA 92705 TEL: (714) 918-7000 / FAX: (714) 918-6996 [email protected] Attorneys for Defendant/Cross-Complainant WESTERN NATIONAL CONSTRUCTION

SUPERIOR COURT OF CALIFORNIA

COUNTY OF SANTA CLARA

CILKER APARTMENTS, LLC, Plaintiff, v. WESTERN NATIONAL CONSTRUCTION, et. al., Defendants.

Case No. 1-13-CV-258281 Judge: Hon. Peter Kirwan Dept: 1 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION OF DEFENDANT WESTERN NATIONAL CONSTRUCTION FOR TRIALS ON ITS AFFIRMATIVE DEFENSES OF (1) SETTLEMENT AND RELEASE; AND (2) LIMITATION OF ACTIONS [BRISBANE/C.C.P. § 337.1], IN ADVANCE OF PLAINTIFF’S CASE IN CHIEF [C.C.P. § 597] Hearing Date: July 1, 2016 Time: 9:00 a.m. Dept.: 1

AND ALL RELATED CROSS-ACTIONS.

Filed: 12/26/13 Trial: 07/11/16

/ / / / / /

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR TRIALS ON ITS AFFIRMATIVE DEFENSES OF (1) SETTLEMENT AND

RELEASE; AND (2) LIMITATION OF ACTIONS [C.C.P. § 337.1/BRISBANE], IN ADVANCE OF PLAINTIFF’S CASE IN CHIEF [C.C.P. § 597]

l:\jzg\cilker\motions\wnc - bifurcate\p&a.doc

E-FILEDJun 9, 2016 5:00 PM

David H. YamasakiChief Executive Officer/Clerk

Superior Court of CA, County of Santa ClaraCase #1-13-CV-258281 Filing #G-84368

By C. Pinacate, Deputy

mailto:[email protected]


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TABLE OF CONTENTS

I. INTRODUCTION ...................................................................................................................... 1 II. THE COURT HAS DISCRETION TO TRY WNC’S AFFIRMATIVE DEFENSES IN ADVANCE OF PLAINTIFF’S CLAIMS PURSUANT TO CODE OF CIVIL PROCEDURE SECTION 597 ................................................................ 2 III. COMPARISON OF TRIAL LENGTH AND ASSOCIATED EXPENSE ................................ 2 IV. RELEVANT FACTS AND PROCEDURAL MATTERS ......................................................... 3

A. Plaintiff and WNC Execute the Prime Contract Incorporating AIA A201 General Conditions ....................................................................................... 4

B. Plaintiff Maintained a Constant Presence On-Site Through Skilled Representatives, Inspectors and Superintendents ........................................................... 4

C. Plaintiff, WNC, and Madera Construction Execute a Mutual Settlement Agreement and Release Concerning the Construction on the Project .................................................................................................................. 6

D. Plaintiff Filed the Complaint on December 26, 2013 ..................................................... 7

E. May 24, 2016 Summary Judgment in Favor of Madera Due to Settlement Agreement ..................................................................................................... 7

V. LEGAL ARGUMENTS SUPPORTING VALIDITY OF AFFIRMATIVE DEFENSES ................................................................................................................................. 7

A. The Mutual Settlement Agreement and Release Will Dispose of All of Plaintiff’s Claims as a Matter of Law ................................................................... 7 B. WNC’s Statute of Limitations Defenses Will Dispose of All of Plaintiff’s Claims for Damages ....................................................................................... 8

1. The Statute of Limitations as to All of Plaintiff’s Claims Accrued Not Later Than May 4, 2004 Barring This Action [Brisbane] ........................................................................................................... 9

2. Substantially All Construction Defects Alleged in this Action are Patent Defects Barred by the Four Year Statute of Limitations [C.C.P. § 337.1] ................................................................................................ 10

VI. CONCLUSION ......................................................................................................................... 14

i MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR TRIALS ON ITS AFFIRMATIVE DEFENSES OF (1) SETTLEMENT AND

RELEASE, AND (2) LIMITATION OF ACTIONS [C.C.P. § 337.1/BRISBANE] IN ADVANCE OF PLAINTIFF’S CASE IN CHIEF [C.C.P. § 597]


E-FILED: Jun 9, 2016 5:00 PM, Superior Court of CA, County of Santa Clara, Case #1-13-CV-258281 Filing #G-84368

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TABLE OF AUTHORITIES

Cases Baker v. Walker & Walker, Inc. (1982) 133 Cal.App.3d 746 ...................................................................................................... 11 Bedolla v. Logan & Frazer (1975) 52 Cal.App.3d 118 .......................................................................................................... 2 Beeson v. Schloss (1920) 183 Cal. 618 .................................................................................................................... 9 Brisbane Lodging, L.P. v. Webcor Builders, Inc. (2013) 216 Cal.App.4th 1249 ..................................................................................... 1, 9, 10, 11 Cohn v. Bugas (1974) 42 Cal.App.3d 381 .......................................................................................................... 2 County of Marin v. Assessment Appeals Bd. (1976) 64 Cal.App.3d 319 .......................................................................................................... 8 Delon Hampton & Associates, Chartered v. Superior Court (2014) 227 Cal.App.4th 250 ..................................................................................................... 11 Geertz v. Ausonio (1992) 4 Cal.App.4th 1353 ....................................................................................................... 11 Moreno v. Sanchez (2003) 106 Cal.App.4th 1415 ..................................................................................................... 9 Neiman v. Leo A. Daly Co. (2012) 210 Cal.App.4th 962 ..................................................................................................... 11 Renown, Inc. v. Hensel Phelps Constr. Co. (1984) 154 Cal.App.3d 413 ................................................................................................ 11, 12 Tomko Woll Group Architects v. Superior Court (1996) 46 Cal.App.4th 1326 ..................................................................................................... 11 Zalkind v. Ceradyne, Inc. (2011) 194 Cal.App.4th 1010 ..................................................................................................... 9

ii MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR TRIALS ON ITS AFFIRMATIVE DEFENSES OF (1) SETTLEMENT AND




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Statutes Civil Code § 1542...................................................................................................................................... 6, 7 § 1638.......................................................................................................................................... 8 Code of Civil Procedure § 337............................................................................................................................................ 9 § 337.1............................................................................................................... 1, 8, 9, 10, 11, 13 § 338............................................................................................................................................ 9 § 597........................................................................................................................................ 1, 2

iii MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR TRIALS ON ITS AFFIRMATIVE DEFENSES OF (1) SETTLEMENT AND




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Defendant WESTERN NATIONAL CONSTRUCTION (hereinafter referred to as “WNC”)

respectfully submits the following Memorandum of Points and Authorities in support of its Motion for

an Order “Trifurcating” the trial into three phases: (1) WNC’s affirmative defense of settlement and

release; (2) WNC’s affirmative defense of limitation of actions [Brisbane/Code Civ. Proc., § 337.1];

and, if necessary (3) Plaintiff’s remaining case in chief.

I. INTRODUCTION

Plaintiff CILKER APARTMENTS, LLC’s (“Plaintiff”) claims in this action are barred by two of

WNC’s affirmative defenses unrelated to the merits of Plaintiff’s claims: 1) Settlement and Release; and

2) Statute of Limitations [Brisbane//Code Civ. Proc., § 337.1]. In light of the validity of these

dispositive affirmative defenses, WNC should not be put to the expense and time that a full trial on the

merits of Plaintiff’s claims would entail. Pursuant to Code of Civil Procedure section 597, the Court is

provided discretion to try WNC’s affirmative defenses unrelated to the merits of the Plaintiff’s claims in

order to foster efficiency and avoid unnecessary expense. WNC hereby requests that the Court exercise

this discretion and order that the trial in this matter proceed in the following phases:

Phase One: A bench trial to determine whether all of Plaintiff’s claims against WNC

were previously released in accordance with a “Mutual Release and Settlement

Agreement” executed by Plaintiff and WNC;

Phase Two:

A. A bench trial to determine whether all of Plaintiff’s claims are barred by the

statute of limitations pursuant to the parties’ written agreement in accordance

with the holding of Brisbane Lodging, L.P. v. Webcor Builders, Inc. (2013)

216 Cal.App.4th 1249;

B. A mini jury trial to determine whether Plaintiff’s claims are barred by the

statute of limitations embodied in Code of Civil Procedure section 337.1 as

apparent upon reasonable inspection during construction.

In the event the foregoing proceedings do not dispose of all of Plaintiff’s claims against WNC,

Plaintiff would proceed with its case in chief against all defendants on its remaining claims in the third

phase of this action.

1 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR TRIALS ON ITS AFFIRMATIVE DEFENSES OF (1) SETTLEMENT AND




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The early resolution of the foregoing issues will best serve the interests of judicial efficiency and

economy by limiting the time and costs associated with a protracted complex trial, and will likewise

promote settlement and resolution.

II. THE COURT HAS DISCRETION TO TRY WNC’S AFFIRMATIVE DEFENSES IN

ADVANCE OF PLAINTIFF’S CLAIMS PURSUANT TO CODE OF CIVIL

PROCEDURE SECTION 597

“It has long been held that special defenses which abate or bar the claim of the plaintiff may be

tried before other issues, for a decision in the defendant’s favor may render unnecessary the effort and

expense of a complete trial.” (Cohn v. Bugas (1974) 42 Cal.App.3d 381, 389 [internal citations

omitted].) Code of Civil Procedure section 597 sets the framework for the statutory authority for the

phasing of the trial sought by WNC. Specifically, Section 597 provides, in pertinent part:

When the answer pleads that the action is barred by the statute of limitations, or by a prior judgment, or that another action is pending upon the same cause of action, or sets up any other defense not involving the merits of the plaintiff’s cause of action but constituting a bar or ground of abatement to the prosecution thereof, the court may, either upon its own motion or upon the motion of any party, proceed to the trial of the special defense or defenses before the trial of any other issue in the case. “[T]he objective of the bifurcation of the issues is avoidance of waste of time and money caused

by the trial of issues which may be rendered moot.” (Bedolla v. Logan & Frazer (1975)

52 Cal.App.3d 118, 135.) By way of this motion, and pursuant to the foregoing statutory authority,

WNC seeks to “trifurcate” the trial of this matter such that its release and statute of limitations defenses

may be expediently adjudicated to avoid or materially limit a lengthy and complex trial on the merits of

Plaintiff’s released and belated claims. As set forth herein, there is ample evidence to support WNC’s

affirmative defenses. Plaintiff should not be permitted to exhaust precious and scarce party and judicial

resources until WNC’s defenses are adjudicated.

III. COMPARISON OF TRIAL LENGTH AND ASSOCIATED EXPENSE

The efficiencies achieved by the phasing of trial sought by WNC rest primarily in the potential

to shorten and simplify what is currently scheduled to be a lengthy and complex trial on Plaintiff’s

claims and multiple parties’ affirmative defenses. The estimated economy gained by WNC’s proposed

trial schedule is summarized in the following chart:





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The foregoing phasing of trial will not only foster efficiency, but will provide further

opportunity for the primary parties to evaluate the relative strength of their cases and engage in further

settlement efforts through the progression of the phases. Given the Court’s prior rulings on summary

judgment motions filed in this action on the basis of release and the statute of limitations, the extreme

amount of time that lapsed from the conclusion of construction to the filing of this action, and the facts

discussed below, there is a strong probability that the phasing proposed by WNC will result in a

substantially shorter trial, saving the expense of hundreds of thousands of dollars in attorneys’ fees,

expert witness fees, and the Court’s scarce trial time. Of paramount importance, the proposed phasing

will also substantially shorten the time needed with a jury, and the potential inconvenience to those

jurors graciously performing their civic duty.

IV. RELEVANT FACTS AND PROCEDURAL MATTERS

The following summary of the facts and arguments supporting WNC’s affirmative defenses is

provided to illuminate the validity of WNC’s defenses and the efficiencies to be gained by the trial

phasing sought herein.

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Total Estimated Trial Length in Court Days

01020304050607080

WNC ProposedPhasing

Unphased Trial

Days

Combined Jury Trial (70 days)

Jury Trial: Plaintiff'sRemaining Claims (35 days)

Mini Jury Trial: C.C.P. 337.1(12 days)

Bench Trial: Brisbane (2 days)

Bench Trial: Release (2 days)

70 days

51 days





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A. Plaintiff and WNC Execute the Prime Contract Incorporating AIA A201 General

Conditions.

On or about July 1, 2000, WNC was hired by Plaintiff to act as general contractor to construct

the subject property in this action, commonly referred to as One Pearl Place (hereinafter referred to as

the “Project”). The terms of WNC’s engagement for the Project were memorialized in a detailed written

agreement prepared by Plaintiff (hereinafter the “Prime Contract”). (See Prime Contract attached as

Exhibit A, to Decl. of Zachariah Tomlin1.) The Prime Contract incorporated by reference all “Contract

Documents,” which include the Project Plans and Specifications. (See Exhibit A at p. 10.) Those

Project Specifications (also referred as the “Project Manual”) at section 0700 incorporate the general

conditions set forth in AIA A201. (See Project Manual excerpts attached as Exhibit B; and AIA A201

attached as Exhibit C.) These general conditions include Article 13.7.1.1, which provides in relevant

part:

As to acts or failures to act occurring prior to the relevant date of Substantial Completion, any applicable statute of limitations shall commence to run and any alleged cause of action shall be deemed to have accrued in any and all events not later than such date of Substantial Completion.

(See Exhibit C at p. 23.) The Notice of Completion on the Project was executed May 4, 2004, and recorded with the Santa

Clara County Recorder’s office on May 12, 2004. (See Notice of Completion attached as Exhibit D.)

B. Plaintiff Maintained a Constant Presence On-Site Through Skilled Representatives,

Inspectors and Superintendents.

Several provisions of the Prime Contract guarantee Plaintiff the right to maintain a constant

presence on the site, including the inspection and approval of each stage of construction. Those

provisions incorporate important rights for the Plaintiff, including the right to inspect all construction

prior to acceptance of the same (see Exhibit A at Article XIII.1) and the right to charge the contractor

back for any work not repaired to the owner’s satisfaction (see Exhibit A at Article XIII.3.1). To

accomplish the regular inspection of the Project, Plaintiff retained multiple experienced construction

professionals to oversee the Project and to verify the work of WNC with specific emphasis on the

1 All further references to exhibits reference the exhibits attached to the Declaration of Zachariah R. Tomlin. 4

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR TRIALS ON ITS AFFIRMATIVE DEFENSES OF (1) SETTLEMENT AND RELEASE, AND (2) LIMITATION OF ACTIONS [C.C.P. § 337.1/BRISBANE] IN ADVANCE OF PLAINTIFF’S CASE IN CHIEF [C.C.P. § 597]



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primary areas of defective construction alleged by the Plaintiff, including, but not limited to, rough

framing, waterproofing, and drainage issues. The duties of those construction professionals included

reviewing inspection reports,2 reviewing the plans and specifications,3 overseeing the general contractor,

ensuring the general contractor was building the Project in accordance with the plans and

specifications,4 ensuring the Project was built on schedule and within budget,5 conducting site visits on

at least a weekly basis, attending regular construction meetings6, and reporting all information and

updates to Plaintiff. Some of the retained construction professionals Plaintiff hired to inspect and

oversee construction on the Project have been identified as follows:

1) Don L. Beck Associates (Don L. Beck) – General Contractor7 2) White Residential, Inc. (Donald White and Gary Love) – General Contractor8 3) Gentry Associates (Steve Gentry) – General Contractor/Waterproofing Consultant9 4) McClarand Vasquez & Partners (Project Architect) 5) Group M Engineers (Project Structural Engineer) The foregoing owner’s representatives were the agents of the Plaintiff and were Plaintiff’s

experienced eyes and ears at the Project, each tasked with monitoring and inspecting those major areas

of construction, including framing, waterproofing, concrete application, and the like. Important here,

Steve Gentry testified that he was on site at least once a week and would inspect all waterproofing

applications while on site, reporting his findings directly to the Plaintiff and General Contractor. (See

excerpts from the transcript of Steven Gentry’s September 21, 2015 deposition, Volume 1, attached as

Exhibit E at p. 62:18-21.) Among those findings was the recommendation to hire a waterproofing

consultant to be on the site at all times to monitor and test the installation of same, which Plaintiff

refused to do. (See Exhibit E at pp. 60:19-62:17.) White Residential, Inc. likewise had a pervasive

presence on site. Indeed, in correspondence to Plaintiff, White Residential, Inc. claimed it “had to take

over all of the duties of the general contractor with the exception of writing checks to the subcontractors

and suppliers.” (See Correspondence dated June 8, 2004 attached as Exhibit G.)

2 See excerpts from the transcripts of Don White’s December 7, 2015 deposition, Vol. 1, and April 6, 2016 deposition, Vol. 2, collectively attached as Exhibit F, at pp. 127:6-16; 138:19-139:13. 3 Exhibit F at pp. 328:25-329:7; Exhibit E at pp. 65:24-66:3; 80:17-20; 102:15-25; 146:7-16. 4 Exhibit F at p. 137:2-22; Exhibit E at pp. 66:11-68:8; 212:6-18; 272:23-273:10; Exhibit G. 5 Exhibit F at p. 137:2-22; p. 446:4-18. 6 Exhibit F at pp. 144:15-145:11. 7 See Exhibit H, Standard Consulting Agreement. 8 See Exhibit I, Professional Services Consulting Agreement; also Exhibit G. 9 See Exhibit E at pp. 36:14-37:21.





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The testimony in this action has been consistent with the conclusion that Plaintiff is a

sophisticated owner – cognizant of the need to retain multiple representatives to verify construction

means and methods on a project of this scope. Indeed, Plaintiff’s sophistication as an owner is nowhere

more apparent than throughout the language of the Prime Contract describing the necessary and

reasonable scope of inspections during construction and prior to Plaintiff’s final acceptance.

C. Plaintiff, WNC, and Madera Construction Execute a Mutual Settlement

Agreement and Release Concerning the Construction on the Project.

On July 7, 2004, Plaintiff, WNC, and the framing subcontractors Madera Framing and Madera

Construction (hereinafter collectively, “Madera”) negotiated a resolution of a dispute over Madera’s

construction on the Project and claims for payment in the form of a written Mutual Release and

Settlement Agreement (hereinafter referred to as the “Settlement Agreement”). (Settlement Agreement

attached as Exhibit J.)

Section D, paragraphs 2 through 4 of the Settlement Agreement set forth the mutual release

terms, including express waivers of the protections afforded by Civil Code section 1542. The relevant

portions of that agreement, for purposes of this motion, are as follows:

2. The Settling Parties on behalf of themselves, their heirs, executors, administrators and assigns, hereby release and forever discharge each other ... from any and all claims, demands, arbitrations, actions, or causes of action, that arise out of or relate to the claims alleged in the Action, or which could have been alleged in the Action, whether known or unknown, and agree that no further litigation will occur with respect to these disputes except as may be provided in paragraph 3 herein. Also, this release does not apply to any claims Cilker and WNC have against each other regarding which party is ultimately responsible for this settlement payment. 3. Notwithstanding the mutual release set forth above, the Settling Parties agree to expressly except from this Agreement, and shall continue to retain any and all claims, rights and defenses concerning, responsibility for future claims by third parties for personal injury, construction defects and/or resultant property damage occurring at the Project or arising out of the work related to the Project, but only to the extent such claims arise out of conditions that were unknown to WNC or Cilker and not apparent by reasonable inspection as of the date this Agreement became fully executed. Each of the settling parties represent that they are currently unaware of any such claim(s) or contention(s).

(Exhibit J [emphasis added].) In Section D. 5, of the Settlement Agreement, Plaintiff, WNC, and Madera acknowledged and

agreed that they “have been advised or have had the opportunity to be advised by their legal counsel





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with respect to the terms of this Agreement and understand and acknowledge the significance and

consequences of it.” (See Exhibit J.)

D. Plaintiff Filed the Complaint on December 26, 2013.

On December 26, 2013, Plaintiff filed the instant action for alleged construction defects at the

Project – nine years and seven months after the Notice of Completion was recorded. WNC’s operative

answer sets forth multiple affirmative defenses, including the thirty-seventh affirmative defense of

“Settlement” and fourth affirmative defense of “Statute of Limitations.”

E. May 24, 2016 Summary Judgment in Favor of Madera Due to Settlement

Agreement.

On May 24, 2016, Madera was granted summary judgment as to all construction defect claims

alleged within both Plaintiff’s Complaint and WNC’s Cross-Complaint based upon the mutual release

contained in the Settlement Agreement. Following the hearing on Madera’s Motions for Summary

Judgment, this Court issued an order, dated May 24, 2016, granting Madera’s motions, and ruling that

all of Plaintiff’s and WNC’s “claims arising from construction defects are barred by the release

agreement.” (Orders After Hearing attached as Exhibit K.) In so ruling, this Court highlighted the fact

that “the release agreement specifically encompasses claims that ‘could have been alleged’ in the

action,” and also extended to WNC and Plaintiff’s claims that Madera performed work in an “untimely,

deficient and defective manner.” (Id.) In sum, this Court ruled that “the unambiguous language of the

release agreement bars [Plaintiff’s] claims.” (Id.) The releases contained within this three-party

agreement were mutual and extended to each party thereto.

V. LEGAL ARGUMENTS SUPPORTING VALIDITY OF AFFIRMATIVE DEFENSES

A. The Mutual Settlement Agreement and Release Will Dispose of All of Plaintiff’s

Claims as a Matter of Law.

As the Court is aware, on May 24, 2016, it provided a final written ruling on Madera’s respective

Motions for Summary Judgment. Within that ruling, the Court announced that the Settlement

Agreement was not ambiguous on its face, and could be interpreted as a matter of law. The Court then

went on to provide its interpretation of the release language within the Settlement Agreement –

including a waiver of the protections of Civil Code section 1542 – as encompassing claims for





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construction defects possessed by the Plaintiff herein. Specifically, the Court’s ruling in relevant part

interpreted the release language in the Settlement Agreement as follows:

A plain reading of the provision leads to the conclusion that the ‘third parties’ language applies to the entire sentence and therefore includes claims for construction defects, which are the claims at issue in this litigation. Given the clear and unambiguous language, claims arising from construction are barred by the release agreement.

(See Exhibit K at pp. 6-7.)

The Settlement Agreement contains a mutual general release by and between all settling parties.

The parties to the Settlement Agreement were Plaintiff, WNC and Madera. Thus, carrying the Court’s

express interpretation of the release language to its logical end requires that the Court apply this

interpretation to all parties to the Settlement Agreement. Indeed, “[t]he court shall avoid an

interpretation which will make a contract extraordinary, harsh, unjust, inequitable or which would result

in absurdity.” (County of Marin v. Assessment Appeals Bd. (1976) 64 Cal.App.3d 319, 325 [citing Civ.

Code, § 1638.]) To apply the release language in any other fashion – i.e. as applying to Plaintiff’s

claims against Madera, but not Plaintiff’s claims against WNC – would result in inequity and absurdity

as the Court would be required to interpret the same contractual language in two contradictory ways –

resulting in inconsistent rulings. As between WNC and Plaintiff, the only claims reserved on the face of

the Settlement Agreement as between those parties are those related to the ultimate payment of the

settlement sum promised under the Settlement Agreement.

In light of the Court’s prior ruling, and finding that the interpretation of the Settlement

Agreement does not require or warrant the submission of parol evidence, a bench trial of this issue

amounts to little more than the presentation of foundational facts (already received on summary

judgment) and legal argument as to the effect of the Court’s prior ruling. This process would likely take

less than a day and is potentially dispositive of the entire action against WNC. Thus, good cause exists

to provide for an advance trial on WNC’s settlement and release affirmative defense.

B. WNC’s Statute of Limitations Defenses Will Dispose of All of Plaintiff’s Claims for

Damages

The statute of limitations defense to be presented by WNC in this action is two-fold, involving

the resolution of the following limited issues: 1) Whether the Prime Contract incorporates the provisions





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of AIA form A201 general conditions by reference such that all statutes of limitations accrued at the

time of substantial completion, barring all claims – a matter of contractual interpretation to be

determined by the Court; and, if necessary, 2) Whether the defective conditions alleged by Plaintiff were

apparent by reasonable inspection during construction (patent deficiencies) such that the four-year

statute of limitations set forth in Code of Civil Procedure section 337.1 has run on those claims. Given

the strong evidence supporting WNC’s defenses, the patent nature of the defects here, and the nearly ten

years between substantial completion of the Project and the filing of this action, a “mini trial” on this

affirmative defense will result in the most efficient adjudication of the claims and defenses in this action.

1. The Statute of Limitations as to All of Plaintiff’s Claims Accrued Not Later

Than May 4, 2004 Barring This Action [Brisbane]

Agreements to shorten the statute of limitations are enforceable, if reasonable. Zalkind v.

Ceradyne, Inc. (2011) 194 Cal.App.4th 1010, 1030; Beeson v. Schloss (1920) 183 Cal. 618, 622-23. “It

is a well-settled proposition of law that the parties to a contract may stipulate therein for a period of

limitation, shorter than that fixed by the statute of limitations, and that such stipulation violates no

principle of public policy, provided the period fixed be not so unreasonable as to show imposition or

undue advantage in some way.” (Moreno v. Sanchez (2003) 106 Cal.App.4th 1415, 1430, quoting

Beeson, supra, 183 Cal. at 622.)

The provisions of the Prime Contract set forth above explicitly set the commencement of the

statutory limitation period, for a period shorter than the period established by law. Section 13.7.1.1

expressly provides that commencement of the statutory limitation period for such acts or failures to act

“shall commence to run and any alleged cause of action shall be deemed to have accrued in any and all

events no later than such date of Substantial Completion.” Pursuant to the specific terms of

Section 13.7.1.1, Plaintiff and WNC contracted to abrogate the “delayed discovery rule” and establish

their own timing for the running of the statutes of limitation governing Plaintiff’s claims. As noted

above, substantial completion occurred not later than May 4, 2004. All causes of action available to

Plaintiff had three and four year statutes of limitation pursuant to Code of Civil Procedure sections 337,

337.1 and 338. As such, the latest of Plaintiff’s claims expired on May 4, 2008. This action, and all

claims stated herein, came more than five years too late.





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The contractual language, and incorporation of AIA A201, Article 13.7.1.1, within the Prime

Contract is appropriate under California law as recognized in Brisbane Lodging, L.P. v. Webcor

Builders, Inc. (2013) 216 Cal.App.4th 1249. In Brisbane, the Court of Appeal upheld summary

judgment in favor of the general contractor based upon the statute of limitations. The construction

contract executed by the parties in Brisbane, included AIA Article 13.7.1.1 in identical form to the

clause at issue herein. The Court of Appeal held that Article 13.7.1.1 “clearly and unambiguously

abrogated the so-called delayed discovery rule, which would otherwise delay accrual of a cause of action

for latent construction defects until the defects were, or could have been, discovered.” (Id at p. 1253.)

In other words, the Brisbane court found that by contractual agreement of the parties, the same statute of

limitations period would apply to claims for latent or patent defects.

Here, the incorporation of AIA A201 into the Prime Contract by way of the Project

Specifications prepared by Plaintiff’s own project architect, establishes that all statutes of limitations

accrue no later than substantial completion. That agreement must control the relevant statutes of

limitations as to Plaintiffs claims herein, and as a result, all are untimely. This is merely the result the

parties negotiated for in the original contract, and works no unfair prejudice on any party. As

summarized by the Court in Brisbane, supra, 216 Cal.App.4th at 1261:

By tying the running of the applicable statute of limitations to a date certain, the parties here negotiated to avoid the uncertainty surrounding the discovery rule for the security of knowing the date beyond which they would no longer be exposed to potential liability. Like the out-of-state courts that have considered this provision, we conclude that sophisticated parties should be allowed to strike their own bargains and knowingly and voluntarily contract in a manner in which certain risks are eliminated and, concomitantly, rights are relinquished.

This contractual issue can be quickly resolved by the Court by way of a short bench trial and

legal argument regarding the interpretation of the Prime Contract. Again, this short – non-jury

proceeding – has the strong probability to avoid the need to proceed on the merits of Plaintiff’s claims in

their entirety. The efficiency gained by the phasing proposed represents good cause to grant this motion.

2. Substantially All Construction Defects Alleged in this Action are Patent

Defects Barred by the Four Year Statute of Limitations [C.C.P. § 337.1].

Code of Civil Procedure section 337.1 provides a four-year statute of limitations, accruing as of

the date of substantial completion of construction, for “[a]ny patent deficiency in the ... supervision or





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observation of construction or construction of an improvement to, or survey of, real property.” (Code

Civ. Proc., § 337.1 subd (a)(1).) Section 337.1, subdivision (e) defines a patent deficiency as “a

deficiency which is apparent by reasonable inspection.”

The four-year statute of limitations as set forth in Code of Civil Procedure section 337.1 is

“absolute” and establishes the outer limit “within which a plaintiff must bring an action against

defendants to which the statute applies, regardless of when the patent deficiency is discovered or when

the harm occurs.” (Tomko Woll Group Architects v. Superior Court (1996) 46 Cal.App.4th 1326, 1337.)

The intent of the Legislature in enacting Code of Civil Procedure section 337.1 was to limit, as a matter

of public policy, the liability of any party involved in the original construction of a property to four

years from the date of completion of the structure for those deficiencies apparent by reasonable

inspection. (Baker v. Walker & Walker, Inc. (1982) 133 Cal.App.3d 746, 763.) As the Court of Appeal

recognized in Tomko Woll Group Architects v. Superior Court, supra, 46 Cal.App.4th at 1337 even “[i]f

a plaintiff sustains harm from a patent deficiency more than four years after substantial completion (or,

if the plaintiff qualifies under the exception in subdivision (b), more than five years after substantial

completion), section 337.1 bars a cause of action against the enumerated defendants.”

Importantly, the law does not require that the defective conditions actually be discovered in

order to be deemed patent. Indeed, “[t]he test assumes that an inspection takes place.” (Geertz v.

Ausonio (1992) 4 Cal.App.4th 1353, 1370 [emphasis added].) The test requires only that the alleged

defect be susceptible to detection, i.e., that it be discoverable upon reasonable inspection, not that it

actually be discovered. (Ibid.) Thus, the critical determination here is not whether Plaintiff and/or its

agents or employees actually observed any of the alleged defects. (See Neiman v. Leo A. Daly Co.

(2012) 210 Cal.App.4th 962, 971.) Rather, it is an objective standard: that the claimed defects would

have been discovered by a reasonable inspection. (See Renown, Inc. v. Hensel Phelps Constr. Co.

(1984) 154 Cal.App.3d 413, 421; see also Delon Hampton & Associates, Chartered v. Superior Court

(2014) 227 Cal.App.4th 250, 257 [“The existence of Building Code provisions concerning stairwells

only underscores that the defects should have been discovered on a reasonable inspection”]; Geertz,

supra, 4 Cal.App.4th at 1370; Brisbane Lodging, L.P. v. Webcor Builders, Inc. (2013)

216 Cal.App.4th 1249, 1263; Baker v. Walker & Walker, Inc., supra, 133 Cal.App.3d at 763.)





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The California Court of Appeal declared that the objective patent defect “test focuses on the

nature of the defect, the circumstances surrounding it, and the nature and gravity of the harm it

presents.” (Geertz, supra, at 1370 [emphasis added].) Germaine to this motion, and the facts of this

case, is the Court of Appeal’s decision in the case of Renown, Inc. v. Hensel Phelps Constr. Co., supra,

154 Cal.App.3d 413. In Renown, the Court of Appeal determined that “where the inspector (as here)

possesses perception, knowledge, intelligence, or judgment superior to the average consumer the law

will demand of him conduct consistent with such knowledge, judgment, etc.” (Id. at 421 [emphasis

added].)

In Renown, the plaintiff hired a full time quality auditor to monitor and oversee the construction

performed by the general contractor. The Court of Appeal emphasized that the presence of a

sophisticated and experienced general contractor – hired by the plaintiff to monitor and inspect ongoing

construction – elevated the level of scrutiny that was considered “reasonable” under the totality of the

circumstances. Indeed, the Court of Appeal expressly found the presence of sophisticated persons, with

an opportunity to inspect the construction, incredibly important in determining what constitutes a

“reasonable inspection”:

...Graves to have been a contractor himself for many years with substantial experience overseeing the construction of built-up roofing systems and with considerable expertise in proper roofing practices. He was closely familiar with the plans and specifications for the winery’s roof and, when changes or revisions to them were considered, he was a regular participant in such discussions. On a daily basis, he observed and inspected the methods by which the insulation and roofing materials were applied, devoting approximately 50 ‘man days’ to this task. He regularly devoted substantial time to watching the work and examining and testing the resultant product. He frequently made comments or suggestions concerning the procedures and techniques employed. ... From this evidence and the inferences properly drawn therefrom, we are satisfied that substantial evidence exists to sustain the trial court’s finding that such roofing defects as may have existed were apparent to appellants through their employee Graves upon reasonable inspection....

(Id. at 418-419 [emphasis added].) Plainly, one cannot consider the “totality of the circumstances” without considering Plaintiff’s

sophistication and knowledge, its affirmative conduct, its retention of third-party inspectors, and the

Prime Contract, which established the broad scope of “reasonable” inspections which would take place

/ / /





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throughout the entire construction process. Plaintiff contractually guaranteed itself the right – and the

corollary obligation – to inspect all components of the Project at each stage of the construction.

Plaintiff and its agents clearly possess abundant expertise, knowledge, experience, intelligence

and/or judgment, and the law demands that they behave as a reasonable person would under the same or

similar circumstances, consistent with such knowledge and judgment. It is not subject to dispute that

Plaintiff controlled and monitored the design, construction and development of the Project. Moreover,

Plaintiff’s sophistication is nowhere more apparent than in the comprehensive amount of control over

the design and construction Plaintiff reserved for itself within the Prime Contract. Plaintiff specifically

demanded and exercised absolute and exacting rights of inspection throughout the construction process.

Nothing could be “hidden” from Plaintiff and every component was subject to inspection throughout

construction.

Important here, Plaintiff’s lead expert, Richard Avelar, identified not less than 48 of his 67

alleged defective conditions (71%) that would have been observable by a general contractor inspecting

the Project during construction. (See excerpts from the transcript of Richard Avelar’s April 25, 2016

deposition, Volume 10, attached as Exhibit L at pp. 1916:11-1920:19; 1925:17-1933:10; 1937:2-

1938:25.) WNC’s own experts concur with Mr. Avelar as to the observable nature of these conditions,

and have provided additional opinions as to several other conditions which could have been discovered

(and were actually discovered) upon reasonable inspection during construction. WNC’s general

contracting expert witness, Mark Chapman, compiled substantial documentary evidence, including

reports of Plaintiff’s retained consultants, identifying deficient conditions and making recommendations

regarding the same to Plaintiff. WNC’s statute of limitations defense regarding patent defects is

supported by overwhelming documentary and testimonial evidence that will be provided in detail at the

time of trial.

Under these circumstances, a mini jury trial on the issue of whether the vast majority of

Plaintiff’s defect claims are barred by the statute of limitations set forth in Code of Civil Procedure

section 337.1 is not only warranted, but will undoubtedly promote settlement, and will result in a more

efficient, economic, and expeditious trial.

/ / /





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VII. CONCLUSION

The three-phase approach to the trial requested by WNC herein will best serve the ends of

judicial economy and efficiency. For all of the foregoing reasons, WNC respectfully requests that this

Court issue an Order “trifurcating” the trial as requested herein.

Dated: June 8, 2016 LORBER, GREENFIELD & POLITO, LLP By: Joyia Z. Greenfield, Esq. Zachariah R. Tomlin, Esq. Attorneys for Defendant/Cross-Complainant WESTERN NATIONAL CONSTRUCTION

Dated: GREEN & HALL, APC By: Samuel M. Danskin, Esq. Attorneys for Defendant/Cross-Complainant WESTERN NATIONAL CONSTRUCTION




June 9, 2016


sellis_GRHA

SMD

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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF WESTERN NATIONAL CONSTRUCTION’S MOTION FOR TRIALS ON ITS AFFIRMATIVE

DEFENSES

PROOF OF SERVICE

I am employed in the County of Orange, State of California. I am over the age of 18 and not a party to the within action. My business address is 1851 East First Street, 10th Floor, Santa Ana, CA 92705-4052.

On June 9, 2016, I served the within document(s) described as:

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF

WESTERN NATIONAL CONSTRUCTION’S MOTION FOR TRIALS ON

ITS AFFIRMATIVE DEFENSES

on each interested party in this action as stated below:

SEE ATTACHED SERVICE LIST

BY E-SERVICE: I electronically served the document(s) via Santa Clara County Superior Court's Electronic Filing System on the recipients designated on the transaction receipt located on the Santa Clara County Superior Court's Electronic Filing System website. [See Transaction Receipt on SCE Filing Website]

BY MESSENGER SERVICE: I served the documents by providing them to a professional messenger service for service.

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

Executed on June 9, 2016, at Santa Ana, California.

Sheila Ellis


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DEFENSES

SERVICE LIST Cilker Apartments, LLC v. Western National Construction Corp.

Jon B. Zimmerman, Esq. Robinson & Wood, Inc. 227 N. 1

st Street

San Jose, CA 95113 (408) 298-7120; Fax: (408) 298-0477 [email protected] [email protected] Attorneys for Plaintiff

Thomas B. Wait, Esq. Robert A. Hufnagel, Esq. Matthew P. Malczynski, Esq. Wait & Hufnagel 250 West First Street, Suite 222 Claremont, CA 91711 (909) 621-5672; Fax: (909) 399-0645 [email protected] [email protected] [email protected] [email protected] [email protected] Attorneys for Tara Coatings, Inc.

Laura K. Buttrell, Esq. Law Offices of David A. Wallis 2251 Harvard Street, Suite 100 Sacramento, CA 95815 (916) 921-9353; Fax: (916) 921-9040 [email protected] Attorneys for Eastern Landscape Company

Michael L. Marx, Esq. Denise R. Sutherland, Esq. Goodman Neuman Hamilton LLP 417 Montgomery Street, 10

th Floor

San Francisco, CA 94104 (415) 705-0400; Fax: (415) 705-0411 [email protected] [email protected] Attorneys for Joseph J. Albanese, Inc.

Brian H. Gunn, Esq. Rebecca J. Collaco, Esq. Wolfe & Wyman LLP 2175 N. California Blvd., Suite 645 Walnut Creek, CA 94596-3502 (925) 280-0004; Fax: (925) 280-0005 [email protected] [email protected] Attorneys for Alliance Building Products, Inc.

Richard N. Sieving, Esq. Luke G. Pears-Dickson, Esq. The Sieving Law Firm 100 Howe Avenue, Suite 220N Sacramento, CA 95825 (916) 444-3366; Fax: (916) 444-1223 [email protected] [email protected] Attorneys for Jeld-Wen, Inc. dba Summit Window & Patio Door

David M. Levy, Esq. Daniel A. Serot, Esq. Courtney B. McFate, Esq. Van De Poel, Levy & Allen, LLP 1600 South Main Plaza, Suite 325 Walnut Creek, CA 94596 (925) 934-6102; Fax: (925) 934-6060 Courtney Direct: (925) 948-0594 Courtney Cell: (415) 940-9658 [email protected] [email protected] Attorneys for ADM Painting Company; ADM Construction Co., Inc., AMPAM LDI Mechanical, Inc., LDI Mechanical, Inc. and Eastern Landscape Company, Inc.

William D. Morrow, Esq. Geoffrey Kraemer, Esq. Morrow & White 535 Anton Boulevard, Suite 1150 Costa Mesa, CA 92626 Tel: (714) 979-7999; Fax: (714) 979-7779 [email protected] [email protected] [email protected] [email protected] Attorneys for ADM Construction





















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DEFENSES

Joseph A. Long, Esq. Marcia A. Pollioni, Esq. Long Blumberg, LLP 2950 Buskirk Avenue, Suite 315 Walnut Creek, California 94597 (925) 941-0090; Fax: (925) 941-0085 Cell: (415) 730-0072 [email protected] [email protected] Attorneys for Los Nietos Construction

G. Geoffrey Wood, Esq. Jenn N. Crittondon, Esq. Ericksen, Arbuthnot 2300 Clayton Road, Suite 350 Concord, CA 94520 (510) 832-7770 ext 116; Fax: (510) 832-0102 [email protected] [email protected] Attorneys for Dimetrius Painting II, Inc.

Mark C. Phillips, Esq. Kramer, deBoer & Keane, LLP 21860 Burbank Boulevard, Suite 370 Woodland Hills, CA 91367 Tel: (818) 657-0255; Fax: (818) 657-0256 425 Market Street, Suite 2200 San Francisco, CA 94105 Tel: (415) 933-7855; Fax: (415) 933-7850 Cell: (714) 975-0483 [email protected] Attorneys for Pyramid Builders, Inc.

Todd A. Fischer, Esq. Fischer Kerney LLP 888 Munras Avenue Monterey, CA 93940 (831) 372-9200; Fax: (831) 372-9220 [email protected] Attorneys for Pyramid Builders, Inc. [email protected]

Christian P. Lucia, Esq. Philip T. Bazzano, Esq. Sellar Hazard & Lucia 201 North Civic Drive, Suite # 145 Walnut Creek CA, 94596 (925) 938-1430; Fax: (925) 256-7508 [email protected] [email protected] Attorneys for Rounds & Buroker, Inc. dba Madera Construction

Joseph D. Ryan, Esq. Jill J. Lifter, Esq. Gary A. Berticevich, Esq. Ryan & Lifter, APC 2000 Crow Canyon Place, Suite 400 San Ramon, CA 94583-1367 (925) 884-2080; Fax: (925) 884-2090 [email protected] [email protected] [email protected] Attorneys for Cell-Crete Corporation

Larry D. Letofsky, Esq. Robyn S. McClain, Esq. Letofsky McClain 3655 Nobel Drive, Suite 400 San Diego, CA 92122 (858) 642-1372; Fax: (858) 642-1379 [email protected] [email protected] [email protected] [email protected] Attorneys for AMPAM Parks Mechanical, Inc.

Samuel J. Muir, Esq. Stephen B. Litchfield, Esq. Collins Collins Muir + Stewart LLP 1999 Harrison Street, Suite 1700 Oakland, CA 94612 (510) 844-5100; Fax: (510) 844-5101 [email protected] [email protected] Attorneys for McLarand Vasquez & Partners, Inc., McLarand Vasquez Emsiek & Partners, Inc., MVE & Partners Inc., MVE + Partners, Inc.



















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DEFENSES

Alexander R. Moore, Esq. John A. Castro, Esq. Boornazian, Jensen & Garthe 555 12

th Street, Suite 1800

Oakland, CA 94607 (510) 834-4350; Fax: (510) 839-1897 [email protected] [email protected] [email protected] Attorneys for Madera Framing, Inc.

Elizabeth W. Lawley, Esq. Haight Brown & Bonesteel LLP 2485 Natomas Park Drive, Suite 450 Sacramento, CA 95833 (916) 702-3200; Fax: (916) 702-3220 (415) 281-7655; Fax: (415) 766-6042 [email protected] Attorneys for Madera Framing, Inc.

Thomas Yen, Esq. Law Offices of Michael Pollard 525 Market Street, Suite 2850

San Francisco, CA 94105 (415) 227-2300 Fax: (415) 227-2360 Direct: (415) 227-2353 [email protected] Attorneys for Central Coast Stairs and Casey-Fogli Concrete Contractors, Inc.

Steve Gentry Gentry Associates Construction Consultants 116 Amesport Landing Half Moon Bay, CA 94019-1975 (916) 358-9042 In Pro Per

Leonard T. Fink, Esq. Kathryn L. Kim, Esq. Springel & Fink LLP 575 Market Street, Suite 2200 San Francisco, CA 94105 (415) 541-5363; Fax: (415) 541-5364 [email protected] [email protected] Attorneys for Courtney Waterproofing, Inc.

Thomas R. Kirvin, Esq. Law Offices of Helen Santana 71 Stevenson Street, Suite 700 San Francisco, CA 94105 (415) 777-1308; Fax: (415) 896-9063 [email protected] Attorneys for Intervenor Liberty Mutual Insurance Company on behalf of its insured California Classic Paver Designs, Inc.

Frank J. Perretta, Esq. Miller, Morton, Caillat & Nevis, LLP 50 W. San Fernando Street, Suite 1300 San Jose, California, 95113 (408) 292-1765; Fax: (408) 436-8272 [email protected] [email protected] Attorneys for White Residential, Inc.

J. Stephanie Krmpotic Esq. Low, Ball & Lynch 505 Montgomery Street, 7

th Floor

San Francisco, CA 94111 (415) 981-6630; Fax: (415) 982-1634 [email protected] Attorneys for White Residential, Inc.

Albert P. Blake, Jr. Law Offices of Timothy R. Wagner 1655 Grant Street, Suite 800-B Concord, CA 94520 (925) 681-3600; Fax: (866) 386-1186 Direct: (925) 681-3509 [email protected] Attorneys for Davey Roofing, Inc.











