SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SANTA CLARA

Transcription

1 0 GREEN & HALL, A Professional Corporation SAMUEL M. DANSKIN, State Bar No. 0 sdanskin@greenhall.com MICHAEL A. ERLINGER, State Bar No. merlinger@greenhall.com East First Street, 0 th Floor Santa Ana, California 0-0 Telephone: () -000 Facsimile: () - LORBER, GREENFIELD & POLITO, LLP Joyia Z. Greenfield, Esq. [SBN: ] Sean D. Allen, Esq. [SBN: ] Zachariah R. Tomlin, Esq. [SBN: ] Stowe Drive Poway, California 0 TEL: () -00 / FAX: () -00 jgreenfield@lorberlaw.com; sallen@lorberlaw.com; ztomlin@lorberlaw.com Attorneys for WESTERN NATIONAL CONSTRUCTION E-FILED Apr, 0 : PM David H. Yamasaki Chief Executive Officer/Clerk Superior Court of CA, County of Santa Clara Case #--CV- Filing #G- By R. Walker, Deputy SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SANTA CLARA 0 CILKER APARTMENTS, LLC, vs. Plaintiff, WESTERN NATIONAL CONSTRUCTION, et al., Defendants. AND RELATED CROSS-ACTIONS CASE NO. CV WESTERN NATIONAL CONSTRUCTION S OPPOSITION TO JELD-WEN, INC. S MOTION FOR SUMMARY Filed Concurrently with Objection to Evidence; [Proposed] Order; Declaration of S. Danskin; Request for Judicial Notice, and Response to Separate Statement of Undisputed Material Facts DATE: May, 0 TIME: :00 a.m. DEPT.: JUDGE: Hon. Peter H. Kirwan DEPT.: ACTION FILED: December, 0 TRIAL DATE: June, 0

2 E-FILED: Apr, 0 : PM, Superior Court of CA, County of Santa Clara, Case #--CV- Filing #G- 0 TABLE OF CONTENTS I. INTRODUCTION... II. JELD-WEN HAS NO RIGHT TO ASSERT THE DEFENSE OF RELEASE AS IT IS NOT PLEADED WITHIN ITS ANSWER TO THE CROSS-COMPLAINT... III. FACTUAL BACKGROUND... IV. NO EVIDENCE SUPPORTS JELD-WEN S INTERPRETATION OF THE SETTLEMENT AGREEMENT AND SUMMARY IS NOT PROPER... V. THE SETTLEMENT AGREEMENT DOES NOT BAR WNC S CROSS- COMPLAINT AGAINST JELD-WEN... A. The Settlement Agreement Concerns Plaintiff's Claims Against WNC And Does Not Address WNC's Claims Against Jeld-Wen... B. WNC Has Released No Claims As To Jeld-Wen... C. Jeld-Wen Is Not Protected by the Settlement Agreement... D. Jeld-Wen Is Not A Third Party Beneficiary Of The Settlement Agreement... VI. JELD-WEN'S SELF-INSURED STATUS IS IRRELEVANT AND TRIABLE ISSUES EXIST... VII. CONCLUSION i

3 E-FILED: Apr, 0 : PM, Superior Court of CA, County of Santa Clara, Case #--CV- Filing #G- 0 TABLE OF AUTHORITIES Cases Baker v. Ferrel () Cal.App.d,... Canaan Taiwanese Christian Church v. All World Mission Ministries (0) Cal.App.th,... Cohen v. Five Brooks Stable (00) Cal.App.th,..., Coles v Soulsby () Cal, 0... Green v. Rancho Santa Margarita Mortgage Co. () Cal.App.th,... Miller v. Dept. of Corrections (00) Cal.th, 0... Neverkocek v Fredericks () Cal.App. th,... Souza v. Wetlands Water District (00) Cal.App.th,... Spinks, supra Cal.App.th 0... Woolridge v. J.F.L. Electric, Inc. (00) Cal.App.th Supp.,... Statutes Civil Code... Civil Code... Code Civ. Proc. c(c)... 0 ii

4 E-FILED: Apr, 0 : PM, Superior Court of CA, County of Santa Clara, Case #--CV- Filing #G- 0 0 Defendant and Cross-Complainant Western National Construction hereby opposes the Motion for Summary Judgment of Defendant, Cross-Defendant, and Cross-Complainant Jeld-Wen, Inc. dba Summit Window & Patio Door. I. INTRODUCTION MEMORANDUM OF POINTS AND AUTHORITIES By this ill-conceived motion, Jeld-Wen, Inc. ( Jeld-Wen ) seeks to shirk its express contractual and equitable duties to defend and indemnify Western National Construction ( WNC ) against all claims filed by the Plaintiff Cilker Apartments LLC ( Plaintiff ) related to the construction of the -unit apartment complex in San Jose, commonly referred to as the One Pearl Place Apartments (the Project. ) However, Jeld-Wen s only evidence in support of this contention is reference to a settlement agreement and release exclusively between Plaintiff and WNC which plainly has no application to WNC s Cross-Complaint. On a fundamental level, Jeld-Wen s motion paints the settlement agreement at issue with too broad a brush; ignoring the fact that Jeld-Wen has presented no evidence that WNC has ever intended to release any claims it holds against Jeld-Wen. In short, there is nothing in the Settlement Agreement that restricts WNC s rights to pursue claims against Jeld-Wen in this action. For this, and many other reasons, Jeld-Wen has failed to meet its burden of proof and this motion must be denied. II. JELD-WEN HAS NO RIGHT TO ASSERT THE DEFENSE OF RELEASE AS IT IS NOT PLEADED WITHIN ITS ANSWER TO THE CROSS-COMPLAINT Jeld-Wen s motion is founded exclusively upon the single affirmative defense of Release. However, an examination of Jeld-Wen s answer to WNC s Cross-Complaint reveals that the alleged defense of Release is pleaded nowhere within the answer, and is thus unavailable to Jeld-Wen. (See Request for Judicial Notice, Exhibit A.) Precedent dating back to the California Supreme Court s ruling in Coles v Soulsby () Cal, 0 confirms that affirmative defenses alleging avoidance of the allegations within the complaint (or cross-complaint) must be specifically alleged within the answering pleading: It is that matter which defendant must affirmatively establish. Such as release, and accord and satisfaction. Defenses of this character must be distinctly set up in the answer, or evidence to establish them will be inadmissible.

5 E-FILED: Apr, 0 : PM, Superior Court of CA, County of Santa Clara, Case #--CV- Filing #G- (See id.; see also release Baker v. Ferrel () Cal.App.d,.) If Jeld-Wen wished to raise this defense, it should have promptly sought leave to amend its answer. It did not, and thus may not rely upon this affirmative matter as a basis for summary judgment. Given the procedural status of this action with trial less than 0 days away, and no diligent action by Jeld-Wen to amend its answer, no leniency in the pleadings should be shown to Jeld-Wen on this motion. (See Green v. Rancho Santa Margarita Mortgage Co. () Cal.App.th,.) For this reason alone, this motion should be denied. III. FACTUAL BACKGROUND WNC was hired by Plaintiff to be the general contractor for the Project. WNC in turn 0 subcontracted with various subcontractors to complete work and/or supply materials. WNC 0 subcontracted with Jeld-Wen for the supply of vinyl windows and sliding glass doors. (See Exhibit B at p., para (a), submitted pursuant to Evidence Code.) That express agreement exclusively between WNC and Jeld-Wen contains a comprehensive indemnity agreement which requires, in relevant part that Jeld-Wen shall: (See id.)...to the fullest extent permitted by law with respect to all such Work that is covered by or incidental to the Contract documents, defend all claims through legal counsel reasonably acceptable to Contractor and the additional insureds, and indemnify and hold harmless Contractor [WNC]...from and against any losses, liabilities, damages, injuries, claims, expenses (including actual attorneys fees) and costs (collectively Claims ) whether incurred by or made against any indemnitee, arising from or related to (I) performance of any or all work which is covered by or incidental to the Subcontract documents, including without limitation, (A) any defect in construction, grading, or other work performed by or on behalf of Subcontractor... Unrelated to the contractual and common law duties of indemnity owed by Jeld-Wen to WNC, disagreements arose between Plaintiff and WNC regarding the construction of the Project. In 00, Plaintiff, WNC and two of WNC s related parties (specifically, Michael K. Hayde and the Non- Exempt QTIP Marital Trust of the Glass Family Trust Dated February, ) entered into the Settlement Agreement resolving those limited disputes. (Hereinafter Settlement Agreement, see Jeld-Wen Exhibit.) Jeld-Wen was not a party to, nor an intended beneficiary of the settlement. The Settlement Agreement Jeld-Wen now exclusively relies upon in support of its Motion for Summary

6 E-FILED: Apr, 0 : PM, Superior Court of CA, County of Santa Clara, Case #--CV- Filing #G- 0 0 Judgment is discussed in more detail below. However, the basic provisions of that Settlement Agreement are simple. Plaintiff released all claims against the settling Defendants, except for claims against WNC that arise out of the design and construction of the Project. However, as to those excepted claims, Plaintiff may only pursue WNC to the extent of insurance under WNC's own policies or policies issued to WNC's subcontractors. Important here is that WNC, through the Settlement Agreement, never manifested any intention, express or implied, to release any claims, rights to indemnity, or damage owed by Jeld-Wen to WNC. Jeld-Wen s Motion asserts that the Settlement Agreement somehow limits WNC s claims against subcontractors insurance proceeds. As discussed below, the Settlement Agreement does not remotely support Jeld-Wen s argument. IV. NO EVIDENCE SUPPORTS JELD-WEN S INTERPRETATION OF THE SETTLEMENT AGREEMENT AND SUMMARY IS NOT PROPER A motion for summary judgment may be granted only "if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." (Code Civ. Proc. c(c); see also Miller v. Dept. of Corrections (00) Cal.th, 0.) The purpose of summary judgment is to determine whether triable issues of fact exist, not to resolve any factual disputes. (See Woolridge v. J.F.L. Electric, Inc. (00) Cal.App.th Supp.,.) The initial burden is always on the moving party to demonstrate that there is no triable issue of material fact. (See Code Civ. Proc. c(c).) Here, Jeld-Wen's Motion fails because the primary evidence it cites the Settlement Agreement itself absolutely refutes Jeld-Wen s arguments. The plain language of the Settlement Agreement, contrary to the tortured reading offered by Jeld-Wen, defeats Jeld-Wen s motion as nothing contained therein manifests WNC s intent to release any claims as to Jeld-Wen. Alternatively, if the Court ultimately disagrees with WNC's interpretation of the Settlement Agreement, the existence of two reasonable interpretations of the same agreement necessarily means that the agreement is ambiguous and can only be resolved through the admission of extrinsic evidence requiring the denial of this motion. Furthermore, all doubts, ambiguities, and inferences must be

7 E-FILED: Apr, 0 : PM, Superior Court of CA, County of Santa Clara, Case #--CV- Filing #G- 0 0 resolved in favor of WNC as the party opposing this motion. (See Cohen v. Five Brooks Stable (00) Cal.App.th,.) Under either scenario, Jeld-Wen's Motion should be denied. V. THE SETTLEMENT AGREEMENT DOES NOT BAR WNC S CROSS- COMPLAINT AGAINST JELD-WEN The undisputed facts here make clear that Jeld-Wen was not a party to the Settlement Agreement between Plaintiff, WNC and their related parties. As such, the Settlement Agreement s release provision (and by extension, the exception to the release) clearly does not apply to Jeld-Wen. Furthermore, the evidence does not support Jeld-Wen s erroneous claim that it was an intended thirdparty beneficiary of the Settlement Agreement. A. The Settlement Agreement Concerns Plaintiff's Claims Against WNC And Does Not Address WNC's Claims Against Jeld-Wen As discussed above, Plaintiff and WNC and certain of their related individuals and entities entered into the Settlement Agreement to resolve disputes relating to the construction of the Project. Jeld-Wen is not a party to the Settlement Agreement. Jeld-Wen s Motion essentially admits this, relying instead on a third-party beneficiary theory. However, Jeld-Wen s theory neglects to appropriately evaluate the actual express intent of the parties apparent from the face of the Settlement Agreement. The Settlement Agreement, properly construed as a whole, reveals that WNC has not released any separate claims for indemnity it possesses against Jeld-Wen. The separate contractual obligations of the subcontractors on the Project including Jeld-Wen owed to WNC are never discussed, mentioned, or contemplated by the parties to the Settlement Agreement and thus do not fall within the ambit of the same. Thus, even if Jeld-Wen were to claim third party beneficiary status under the Settlement Agreement no benefit conferred by WNC under the Settlement Agreement could possibly affect WNC s right to proceed on its Cross-Complaint. The release language contained in the Settlement Agreement is fairly straightforward, as are the exceptions to same. Jeld-Wen attempts to isolate a few words from the agreement, taking them completely out of context, in order to argue that the exceptions apply to it and other subcontractors. Jeld-Wen s proffered reading finds no toehold in reality. The relevant language for purposes of dispensing with Jeld-Wen s Motion appears in the following two paragraphs: / / /

8 E-FILED: Apr, 0 : PM, Superior Court of CA, County of Santa Clara, Case #--CV- Filing #G- 0 0 A. Except as set forth in subparagraph.b below, each party for themselves and all Related Parties does hereby forever release, waive and discharge each other party and their respective Related Parties, from any and all claims, demands, obligations, actions, causes of action, damages, losses, costs or expenses, of any nature whatsoever, known or unknown, past or present, ascertained or unascertained, suspected or unsuspected, existing or claimed to exist, which they, their Related Parties, or any of them have had, now have, or may hereafter have against each other, which arise out of or are in any way connected with: () any act, cause, matter or thing claimed in the Dispute; () the Contract; () and the Guarantees, or which may be based upon, related to, or connected with any of the matters related to the Dispute, Contract or Guarantee. This includes, but is not limited to, any claim which could ever be asserted by the Cilkers against any Defendant herein with the exception of claims against the insurance policies of WNC alone, as more particularly set forth in subparagraph.b. B. Excepted from this Settlement and Release are any and all claims that exist or may arise out of the defects in the design or construction of the Premises against WNC only ("Excepted Claims"), which claims shall not be and are herby not released or waived. Such Excepted Claims are expressly released and waived as against all Defendants and their respective Released Parties other than WNC. However, any damages based on such Excepted Claims shall be strictly limited to insurance proceeds paid under any insurance policies issued to WNC and/or its subcontractors (collectively WNC Policies"). Any amount of damages in excess of or excepted from coverage under the WNC Policies is hereby released and waived. The Cilkers hereby expressly agree and warrant that they will never attempt to pursue any of the Defendants or their Related Entities (other than WNC alone) for any such Excepted Claims, and with respect to WNC, hereby expressly warrant and agree that they will never pursue any claim against WNC directly which is not covered by WNC Policies. This includes an express warranty and agreement that if the Cilkers pursue any such matter to judgment, they will never attempt to levy upon any assets of WNC. [Emphasis added.] B. WNC Has Released No Claims As To Jeld-Wen A settlement agreement, like all other contracts, must be construed based upon the manifested intent of the parties appearing from the face of the agreement. (See Canaan Taiwanese Christian Church v. All World Mission Ministries (0) Cal.App.th,.) Each clause of the contract must be read to assist in the interpretation of the other in context. (See Civil Code.) Here, Jeld-Wen s argument in favor of its third party beneficiary status is founded solely in paragraph.b of the Settlement Agreement. However, section.b merely expresses exceptions to the release articulated in section.a. Thus, the scope of section.a necessarily provides the outer limits for the reach of section.b. Indeed, Exception is defined by Webster s Dictionary as: someone or

9 E-FILED: Apr, 0 : PM, Superior Court of CA, County of Santa Clara, Case #--CV- Filing #G- 0 0 something that is not included; a case where a rule does not apply. In essence, you cannot define an exception without an understanding of the rule. The relevant rule here is found in section.a. Within section.a, the only arguable release flowing from WNC is in favor of the Plaintiff. It does not contemplate any release of the contractual obligations of any subcontractor, including Jeld- Wen. There is no reference whatsoever to claims against subcontractors or releases of such claims in the language of Paragraph.A. of the agreement. The word subcontractors appears nowhere within paragraph.a. Rather, the subject matter of the release is very clearly circumscribed by the use of several defined terms to those claims concerning the express relationship and dealings between WNC and the Plaintiffs. There is no language within this paragraph, nor the remainder of the Settlement Agreement which supports Jeld-Wen s conclusion that the releases here could ever limit WNC s right to pursue the separate contractual and common law claims. With section.a establishing the outer limits of the release here, the interpretation of section.b articulating exceptions to same may not expand the reach of the release at issue. C. Jeld-Wen Is Not Protected by the Settlement Agreement Notwithstanding the clear language of the Settlement Agreement, Jeld-Wen blithely states that the agreement unequivocally limits any liability owed by [WNC s] subcontractors to insurance proceeds paid under insurance policies. (Jeld-Wen s Memorandum of Points and Authorities, p., ll. -.) The Settlement Agreement says no such thing. Jeld-Wen s proffered reading of the Settlement Agreement is either willfully ignorant or intentionally misleading. In either event, it is neither controlling nor proper, and this motion must be denied. Paragraph.B. of the agreement merely carves out an exception to Paragraph.A. s broad release, reserving certain claims by the Cilkers against WNC only. These reserved claims against WNC only are defined as Excepted Claims. The sequence of this language is critical to understanding the fallacy of Jeld-Wen s argument. That is because the agreement goes on to limit damages for such Excepted Claims to proceeds paid under insurance policies issued to WNC and/or its subcontractors. Nothing in this language says that Plaintiff and WNC cannot pursue claims against subcontractors, nor does it say that subcontractors can be pursued only to the extent of their insurance, as Jeld-Wen contends. Again, claims against subcontractors are not even discussed in the

10 E-FILED: Apr, 0 : PM, Superior Court of CA, County of Santa Clara, Case #--CV- Filing #G- 0 0 Settlement Agreement. Instead, the language simply restricts Plaintiff s recovery in any Excepted Claims against WNC to insurance proceeds afforded WNC. This limitation only applies to Excepted Claims, i.e., claims the Plaintiff may hold against WNC alone. The same limitation does not apply to WNC s claims against Jeld-Wen or any other subcontractors. D. Jeld-Wen Is Not A Third Party Beneficiary Of The Settlement Agreement Knowing that it cannot plausibly stretch the language of the Settlement Agreement to include it as a party, Jeld-Wen instead argues that it is a third-party beneficiary of the Settlement Agreement. In order for Jeld-Wen to prove that it was a third party beneficiary to the Settlement Agreement, it must demonstrate that it is an intended beneficiary or that it was a member of a class that the parties to the agreement intended to benefit. (See Souza v. Wetlands Water District (00) Cal.App.th,.) Whether Jeld-Wen was an intended beneficiary is evaluated as follows: 'The test for determining whether a contract was made for the benefit of a third person is whether an intent to benefit a third person appears from the terms of the contract. [Citation.] If the terms of the contract necessarily require the promisor to confer a benefit on a third person, then the contract, and hence the parties thereto, contemplate a benefit to the third person. The parties are presumed to intend the consequences of a performance of the contract.' (Spinks, supra Cal.App.th 0. [Internal citations omitted.] This test "presupposes that the defendant made a promise which, if performed, would have benefited the third party." (Souza, supra Cal.App.th at.) "It is not enough that the third party would incidentally benefit from performance." (Id.) In order to discern intent, the contract (to be enforced) must be evaluated in light of the circumstances upon which it was entered into. (See Id.; see also Civil Code.) In addition to the contract terms itself, the court may consider the contracting parties subsequent conduct. (See Spinks, supra Cal.App.th 0.) Furthermore, Jeld- Wen s fanciful reading of the Settlement Agreement may not be indulged on summary judgment as: All doubts as to the propriety of granting the motion i.e., whether there is any triable issue of material fact are to be resolved in favor of the party opposing the motion. (Cohen v. Five Brooks Stable (00) Cal.App.th,.) It is important to note that the reference to Subcontractor s insurance policies refers to those which may provide coverage to WNC under the required additional insured endorsement in favor of WNC and the Plaintiffs as required by paragraph (b) of the written subcontract agreement.

11 E-FILED: Apr, 0 : PM, Superior Court of CA, County of Santa Clara, Case #--CV- Filing #G- 0 0 As the Court of Appeal articulated in Neverkocek v Fredericks () Cal.App. th, Jeld-Wen bears the exclusive burden of proof to establish that WNC intended to release Jeld-Wen by virtue of the Settlement Agreement. That Court went on to articulate a principle important here: Because the court must consider the circumstances of the contracting parties' negotiations to determine whether a third party not named in the release was an intended beneficiary, it will seldom be sufficient for the third party simply to rely on a literal application of the terms of the release. The fact that... the contract, if carried out to its terms, would inure to the third party's benefit, is insufficient to entitle him or her to demand enforcement. (Neverkovec v. Fredericks () Cal.App.th,.) Jeld-Wen contends that it was a beneficiary of the contract based upon a single passive use of the phrase insurance policies issued to WNC and/or its subcontractors and attempts to contort the otherwise clear language of the agreement to support its claim of third party beneficiary status. As set forth above, the subcontract agreements expressly provide that WNC and Plaintiffs be named as additional insureds under all subcontractor policies of insurance. Thus, reference to the same was clearly only intended to leave open to collection all policies of insurance that might offer coverage for Plaintiff s claims against WNC, and was not intended to otherwise limit damages claims against subcontractors directly by WNC or Plaintiff. Indeed, the use of this language was solely intended to benefit the Plaintiff not to limit the liability of any non-party to the Settlement Agreement. Jeld- Wen has offered no evidence of the circumstances surrounding the execution of the Settlement Agreement, and has unequivocally failed to meet its burden of proof that it was an intended beneficiary, or a part of class of individuals the agreement was intended to benefit. At the very least, there is a triable issue of fact as to whether Jeld-Wen is entitled to protection by virtue of the Settlement Agreement, and the Motion must be denied. VI. JELD-WEN'S SELF-INSURED STATUS IS IRRELEVANT AND TRIABLE ISSUES EXIST The folly nature of Jeld-Wen s cursory claim of third party beneficiary status is only underscored by Jeld-Wen s excessive expenditure of ink arguing that () it can only be pursued to the extent of its insurance, and () as a self-insured entity it has no insurance. However, there is no

12 E-FILED: Apr, 0 : PM, Superior Court of CA, County of Santa Clara, Case #--CV- Filing #G- 0 competent evidence to support its argument and even if there was, the argument is moot because WNC can pursue any and all claims against Jeld-Wen, whether it has insurance or not. Jeld-Wen has presented no admissible evidence that it is a self-insured entity. Its purported evidence in this regard is defective for several reasons. See WNC s Written Evidentiary Objections, Objections -. Furthermore, given the express contractual agreement to maintain insurance in favor of WNC and the claims here, as set forth at paragraph of the subcontract agreement; Jeld-Wen s attempts to claim self-insured status merely establish that it is in breach of its express obligations under the subcontract agreement giving rise to further claims in favor of WNC for this breach of agreement. (See Exhibit B at p., para..) The determination of the issues presented by Jeld-Wen are riddled with triable issues of fact and summary judgment should be denied. Second, Jeld-Wen's argument regarding its insurance status is moot since it cannot avail itself of any of the Settlement Agreement s protections and limitations. As discussed above, that agreement does not in any way limit WNC s claims against Jeld-Wen even if it has no insurance. VII. CONCLUSION Based on the foregoing, WNC respectfully requests that this Court deny Jeld-Wen's motion 0 for summary judgment. DATED: April, 0 DATED: April, 0 GREEN & HALL, A Professional Corporation By: Samuel M. Danskin Attorneys for WESTERN NATIONAL CONSTRUCTION LORBER, GREENFIELD & POLITO, LLP By: Joyia Z. Greenfield, Esq. Sean D. Allen, Esq. Zachariah R. Tomlin, Esq. Attorneys for Defendant/Cross-Complainant WESTERN NATIONAL CONSTRUCTION 0

13 E-FILED: Apr, 0 : PM, Superior Court of CA, County of Santa Clara, Case #--CV- Filing #G- 0 PROOF OF SERVICE I am employed in the County of Orange, State of California. I am over the age of and not a party to the within action. My business address is East First Street, 0th Floor, Santa Ana, CA 0-0. On April, 0 I served the within document(s) described as: WESTERN NATIONAL CONSTRUCTION S OPPOSITION TO JELD-WEN, INC. S MOTION FOR SUMMARY 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] I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on April, 0, at Santa Ana, California. Sheila Ellis 0 iii