1 2 3 4 5 6 7 RICHARD N. SIEVING, ESQ. (SB #133634) LUKE G. PEARS-DICKSON, ESQ. (SB #296581) THE SIEVING LAW FIRM, A.P.C. 100 Howe Avenue, Suite 220N Sacramento, California 95825 Telephone: Facsimile: (916) 444-1223 Attorneys for Defendant/Cross-Defendant/Cross-Complainant JELD-WEN, Inc. dba SUMMIT WINDOW & PATIO DOOR (erroneously sued herein as separate entities "Summit Window & Patio Door" and "Jeld-Wen, Inc. dba Summit Window & Patio Door") E-FILED Jun 28, 2016 2:29 PM David H. Yamasaki Chief Executive Officer/Clerk Superior Court of CA, County of Santa Clara Case #1-13-CV-258281 Filing #G-85069 By R. Walker, Deputy 8 9 10 11 12 13 14 15 16 17 18 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA CILKER APARTMENTS, LLC, v. WESTERN NATIONAL CONSTRUCTION, et al. IN AND FOR THE COUNTY OF SANTA CLARA Plaintiff, Defendants. ~I AND ALL RELATED CROSS-ACTIONS. ------------------------~I Case No. 1-13-CV-258281 JELD-WEN, INC.'S MANDATORY SETTLEMENT CONFERENCE STATEMENT Date: Time: Dept.: Judge: Trial Date: July 6, 2016 9:00 a.m. One (1) Hon. Peter H. Kirwan July 25,2016 19 Defendant/Cross-Defendant/Cross-Complainant JELD-WEN, Inc. dba SUMMIT 20 WINDOW & PATIO DOOR (hereinafter "JELD-WEN") hereby submits the following 21 Mandatory Settlement Conference Statement related to the above-captioned matter. 22 I. STATEMENT OF FACTS AND PROCEDURAL HISTORY 23 This is a construction defect action involving a residential apartment complex known as 24 One Pearl Place, located in San Jose, California (hereinafter "Subject Property"). 25 A. Complaint and Cross-Complaint 26 On December 26, 2013, Plaintiff CILKER APARTMENTS, LLC (hereinafter 27 "Plaintiff') initiated this action against, among others, WESTERN NATIONAL 28 CONSTRUCTION (hereinafter "WESTERN") and SUMMIT WINDOW & PATIO DOOR as THE SIEVING LAW FIRM, A.P.e. Sacramento, CA 9582S -1- [Cilker - JW MSC SUn! (6-28-16) (ms:lti)]
THE SIEVING LAW FIRM, A.P.e. 100 Howe Ave., Suite non 1 DOE No. 18, alleging: (1) Breach of Contract; (2) Breach of Implied Warranty; (3) Breach of 2 Express Warranty; and (4) Negligence. On March 20, 2014, Plaintiff amended its Complaint 3 and alleged three additional causes of action: (5) Strict Liability; (6) Express Contractual 4 Indemnity; and (7) Breach of Third Party Beneficiary Contract. 5 On April 30, 2014, WESTERN filed a Cross-Complaint against, among others, JELD- 6 WEN as ROE No. 25 alleging: (1) Breach of Contact; (2) Express Indemnity; (3) Implied 7 Indemnity; (4) Equitable Indemnity; (5) Comparative Negligence; (6) Breach of Implied 8 Warranties; (7) Breach of Express Warranties; (8) Negligence; (9) Declaratory Relief; and (10) 9 Declaratory Relief Regarding Cross-Defendants' Duty to Defend. 10 B. JELD-WEN's Scope of Work 11 JELD-WEN manufactured and supplied vinyl windows and sliding glass patio doors to 12 the Subject Property. JELD-WEN's windows and sliding glass patio doors were installed by 13 others. 14 II. OVERVIEW OF JELD-WEN'S EXPOSURE 15 As it pertains to JELD-WEN, Plaintiff and WESTERN's claims are legally deficient. 16 Product testing onsite has shown JELD-WEN's products have performed as designed. Plaintiff 17 and WESTERN's proposed repairs include the retention and reinstallation of the JELD-WEN 18 products. The sole contention of any "defect" related to JELD-WEN is that the products 19 supplied did not contain certain design features. This claim is factually unsupported, as it has 20 been admitted such a feature was not called for in the project design or in the window and door 21 orders. Regardless, the products supplied--even absent these unrequested and optional 22 features-met the standard of care, were completely suitable for the project, and were 23 ultimately accepted and approved by Plaintiff and WESTERN. Simply stated, JELD-WEN 24 should never have been named in this action. 25 III. CONTENTIONS REGARDING LIABILITY AND DAMAGES 26 A. Certain Contract-Based Claims by Plaintiff and WESTERN 27 In order for a party to be in breach of contract, a valid contract must exist between the 28 parties. Here, no contract between Plaintiff and JELD-WEN exists. Further, no evidence -2- [Cilker - JW MSC Stmt (6-28-16) (ms:itt)]
THE SIEVING LAW FIRM, AP.C. 1 shows JELD-WEN breached any obligations under its contract with WESTERN. Indeed, 2 WESTERN's Responses to JELD-WEN's Requests for Admission Nos. 3 and 4 have 3 essentially admitted JELD-WEN's window products conformed to the project architect's plan 4 designs. Thus, Plaintiff and WESTERN cannot prevail on their breach of contract claims. 5 Further, California Civil Code 2772 defines express indemnity as "a contract by 6 which one agrees to save another from a legal consequence of the conduct of one of the parties, 7 or of some other person." As no such contract exists between Plaintiff and JELD-WEN, 8 Plaintiff s express indemnity claim against JELD-WEN fails. 9 Finally, as JELD-WEN's products are not defective, it did not breach any contract, and 10 thus Plaintiff cannot prevail on a third party beneficiary claim. 11 B. Breach of Implied Warranty Claims by Plaintiff and WESTERN 12 Implied warranty in a sales contract is based upon actual and presumed knowledge of 13 the seller, reliance on the seller's skill or judgment, and the ordinary expectations of the parties. 14 Windham at Carmel Mountain Ranch Assn. v. Superior Court (2003) 109 Cal.App.4th 1162, 15 1168-69. Here, Plaintiff did not have any interactions with JELD-WEN relating to the selection 16 of its products. As such, Plaintiff cannot prevail on a Breach of Implied Warranty claim. 17 Moreover, there is no evidence that JELD-WEN's products are defective. Accordingly, JELD- 18 WEN has not breached any implied warranty with WESTERN. 19 C. Breach of Warranty Claims by Plaintiff and WESTERN 20 In order to recover under this claim, "[t]he buyer must, within a reasonable time after 21 he or she discovers or should have discovered any breach, notify the seller of any breach or be 22 barred from any remedy." Commercial Code 2607(3)(A). Plaintiff and WESTERN failed to 23 provide such notice to JELD-WEN. Cardinal Health 301, Inc. v. Tyco Elec. Corp. (2008) 169 24 Cal.App.4th 116, 135-136 (reversing judgment against seller "because there was insufficient 25 evidence showing [buyer] gave reasonable notice of the breach as required by section 2607, 26 subdivision (3)(A)"). Further, Plaintiff and WESTERN's Responses to JELD-WEN's Requests 27 for Admissions have acknowledged JELD-WEN returned to the Subject Property to perform 28 warranty work on its products. Plaintiff and WESTERN have admitted JELD-WEN has -3- [Cilker ~ JW MSC Stmt (6-28-16) (ms:ltf)]
THE SIEVING LAW FIRM, A.P.c. 1 honored its products' warranties and returned to the site to adequately address any issues when 2 requested. 3 D. Negligence Claims by Plaintiff and WESTERN 4 An essential element to a negligence claim is causation. Prosser & Keeton, Torts (5th 5 ed. 1984) section 30, pp. 164-165. Causation requires a causal link between the defendant's act 6 or omission and the plaintiffs injuries. Id. Here, no such causal link exists as JELD-WEN's 7 products are not defective. Instead, any issues have been attributed to the products' installation, 8 flashing, and waterproofing, in which JELD-WEN did not participate. Therefore, this claim too 9 fails. 10 E. Plaintiff's Strict Liability Claim 11 Strict products liability may only be imposed if, inter alia, there was a defect in the 12 design of the product. Brown v. Superior Court (1988) 44 Cal.3d 1049, 1057. Here, JELD- 13 WEN's products are not defective. Again, Plaintiff has claimed the lack of a "stucco key" 14 feature is tantamount to a design flaw, yet has not offered a window expert to opine on this 15 Issue. Thus, this cause of action against JELD-WEN necessarily fails. 16 F. WESTERN's Indemnity Claims 17 An indemnitor only owes contractual indemnity to a party based on the indemnitor's 18 own negligence. UDC-Universal Development, L.P. v. CH2M Hill (2010) 181 Cal.App.4th 10, 19 19. Here, JELD-WEN adequately fulfilled its contract with WESTERN, and thus, this claim for 20 express contractual indemnity will fail. Moreover, "'there can be no [implied] indemnity 21 without liability. ", Prince v. Pacific Gas & Electric (2009) 45 Cal.4th 1151, 1165 (quoting 22 Children's Hospital v. Sedgwick (1996) 45 Cal.App.4th 1780, 1787). Further still, "a party's 23 liability for equitable indemnity is based on its proportional share of responsibility for the 24 damages to the injured party." Id. No evidence of defects exists. WESTERN cannot prevail on 25 its implied contractual indemnity or equitable indemnity claims. 26 G. WESTERN's Claims For Declaratory Relief 27 WESTERN's causes of action for declaratory relief are neither necessary nor proper at 28 this time and fails to establish liability. See Cal. Ins. Guarantee Assn. v. Super. Ct. (1991) 231-4- [Cilker JW MSC Sunl (6-28-16) (rns:ltf)]
1 Cal.App.3d 1617, 1624. These claims are also duplicative of the other insufficient claims and 2 thus fail. Hood v. Super. Ct. (1995) 33 Cal.AppAth 319,324. 3 H. The Claims Are Time-Barred As The "Defects" Were Patent In Nature 4 Finally, Plaintiff and WESTERN's claims as to the purported "defects" of JELD- 5 WEN's products are terminally belated. Code of Civil Procedure 337.1(a)(1) provides a four- 6 year statute of limitations, accruing as of the date of substantial completion of construction, for 7 "[a]ny patent deficiency in the * * * construction of an improvement to * * * real property." A 24 25 26 27 28 CHARDN. SIE Attorney for Defen~~~ross-Defendantl Cross-Complainant JELD-WEN, Inc. dba SUMMIT WINDOW & PATIO DOOR (erroneously sued herein as separate entities "Summit Window & Patio Door" and "Jeld Wen, Inc. dba Summit Window & Patio Door") THE SIEVING LAW FIRM, A.P.c. 8 patent deficiency is "a deficiency which is apparent by reasonable inspection." Code of Civil 9 Procedure 337.1(e). Here, the sole claim against JELD-WEN is that the windows provided 10 resulted in a perimeter gap between the window and stucco. Plaintiffs own lead expert witness, 11 Richard Avelar, admitted in his deposition that this would have been visually apparent upon 12 inspection. As such, this action is fatally tardy and must be dismissed. 13 V. GOOD FAITH SETTLEMENT OFFER 14 Again, the current proposed repairs for the Subject Property call for the reuse and re- 15 installation of the JELD-WEN products. This fact alone illustrates the JELD-WEN products are 16 not defective and any issues are attributed solely to others' work. Thus, JELD-WEN has little 17 or no liability exposure in this litigation. 18 VI. CONCLUSION 19 Based upon the foregoing, JELD-WEN believes that it has little or no liability to any 20 party in this case. That said, JELD-WEN will attend the Mandatory Settlement Conference and 21 participate in a good faith attempt to resolve the claims asserted against it. 22 DATED: June 28, 2016 23-5- JELD-WEN, INC. 'S MANDATORY SETTLEMENT CONFERENCE STATEMENT [Cilker - JW MSC ShOt (6-28-16) (rns:1tf)]
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 I, the undersigned, declare: PROOF OF SERVICE [C.C.P. 1013A and 2015.5] 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: JELD-WEN, INC.'S MANDATORY SETTLEMENT CONFERENCE STATEMENT on interested parties in this 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 "SC Superior Court E-Filing Receipt" page will be maintained with the original document(s) in our office. I declare under penalty of perjury that the foregoing is true and correct. Executed on June 28,2016 at Sacramento, California. ~Tb-- ~A RA L. BARRON 16 17 18 19 20 21 22 23 24 25 26 27 28 THE SIEVING LAW FIRM, A.P.c. -6- (Cilkcr - IW MSC _(6-28-16) (rns:11i)1 IELD-WEN, INC. 'S MANDATORY SETTLEMENT CONFERENCE STATEMENT