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-DefendantiCross-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 Mar 25, 2016 12:41 PM David H. Yamasaki Chief Executive Officer/Clerk Superior Court of CA, County of Santa Clara Case #1-13-CV-258281 Filing #G-82232 By R. Walker, Deputy 8 9 10 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SANTA CLARA 11 12 13 14 15 16 CILKER APARTMENTS, LLC, v. WESTERN NATIONAL CONSTRUCTION, et al. Plaintiff, Defendants. 1 Case No. 1-13-CV -258281 JELD-WEN, INC.'S SETTLEMENT CONFERENCE STATEMENT Date: Time: Dept.: Judge: Trial Date: March 28 and 29, 2016 9:00 a.m. One (1) Hon. Peter H. Kirwan June 13,2016 17 18 19 20 21 AND ALL RELATED CROSS-ACTIONS. ---------------------------1 Defendant/Cross-DefendantiCross-Complainant JELD-WEN, inc. dba SUMMIT WINDOW & PATIO DOOR (hereinafter "JELD-WEN") hereby submits the following 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 95825-1- (Cilkcr - JW Settlement ConfStmt ()~25-1(j) (Ipci:slb)!
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. S On April 30, 2014, WESTERN filed a Cross-Complaint against, among others, JELD- THE SIEVING LAW FIRM, A.P.c. 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 door 12 products to the Subject Property, which were installed by others. 13 n. OVERVIEW OF JELD-WEN'S EXPOSURE 14 Plaintiff and WESTERN's claims are legally deficient. Moreover, product testing has 15 shown JELD-WEN's products performed as intended. Plaintiff and WESTERN's proposed 16 repairs include the retention and reinstallation of the JELD-WEN products. The sole contention 17 of any "defect" related to JELD-WEN is that the products supplied did not contain certain 18 features. This claim is factually unsupported, as it has been admitted such a feature was not 19 called for in the project's designs. Regardless, the products supplied-even absent these 20 unrequested and optional features-met the standard of care, were completely suitable for the 21 project, and were ultimately accepted and approved by Plaintiff and WESTERN. Simply stated, 22 JELD-WEN should never have been a party to this action. 23 Finally, on February 23, 2016, JELD-WEN filed a Motion for Summary Judgment 24 (hereinafter "MSJ") as to the aforementioned Complaint and Cross-Complaint relating to a 25 2006 Settlement Agreement. In this 2006 Settlement Agreement, Plaintiff explicitly limits any 26 liability owed by WESTERN and WESTERN's subcontractors to "insurance proceeds paid 27 under insurance policies" and that "[a]ny amount of damages in excess of or excepted from 28 coverage under (such insurance policies] is hereby released and waived." JELD-WEN is a self- -2- leld-wen, INC'S SETTLEMENT CONFERENCE STATEMENT ICilkcr JW SelHcmcnt Coni SimI (3-25-16) (Ipd:slb)]
1 insured entity with no coverage for any liability in this lawsuit. Thus, under the plain terms of 2 the Settlement Agreement, JELD-WEN cannot be held liable to any extent whatsoever, as 3 Plaintiff has forever released and waived all claims not covered by insurance. A hearing on 4 JELD-WEN's MSJ is currently scheduled for May 13,2016. 5 III. CONTENTIONS REGARDING LIABILITY AND DAMAGES 6 A. Certain Contract-Based Claims by Plaintiff and WESTERN 7 In order for a party to be in breach of contract, a valid contract must exist between the 8 parties. Here, no contract between Plaintiff and JELD-WEN exists. Further, no evidence shows 9 JELD-WEN breached any obligations under its contract with WESTERN. Indeed, WESTERN's 10 Responses to JELD-WEN's Requests for Admission Nos. 3 and 4 have essentially admitted 11 JELD-WEN's window products conformed to the project architect's plan designs. Thus, 12 Plaintiff and WESTERN cannot prevail on their breach of contract claims. 13 Further, California Civil Code 2772 defines express indemnity as "a contract by which 14 one agrees to save another from a legal consequence of the conduct of one of the parties, or of 15 some other person." As no such contract exists between Plaintiff and JELD-WEN, Plaintiff's 16 express indemnity claim against JELD-WEN fails. 17 Finally, as JELD-WEN's products are not defective, it could not have breached any 18 third party beneficiary contract, and thus Plaintiff cannot prevail on such a claim. 19 B. Breach of Implied Warranty Claims by Plaintiff and WESTERN 20 Implied warranty in a sales contract is based upon actual and presumed knowledge of 21 the seller, reliance on the seller's skill or judgment, and the ordinary expectations of the parties. 22 Windham at Carmel Mountain Ranch Assn. v. Superior Court (2003) 109 Cal.AppAth 1162, 23 1168-69. Here, Plaintiff did not have any interactions with JELD-WEN relating to the selection 24 of its products. As such, Plaintiff cannot prevail. Moreover, there is no evidence that JELD- 25 WEN's products are defective. Accordingly, JELD-WEN has not breached any implied 26 warranty with WESTERN. 27 C. Breach of Warranty Claims by Plaintiff and WESTERN 28 In order to recover under this claim, "[t]he buyer must, within a reasonable time after THE SIEVING LAW FIRM, A.P.C. -3- [Cilker- JW Settlemen. ConfStm. (3-Z5-16)(lpd:slb)]
rhe SIEVING LAW FIRM, A.P.C. Sacramento, CA 95625 (916) 444 3366 1 he or she discovers or should have discovered any breach, notify the seller of any breach or be 2 barred from any remedy." Commercial Code 2607(3)(A). Plaintiff and WESTERN failed to 3 provide such notice to JELD-WEN. Cardinal Health 301, Inc. v. Tyco Elec. Corp. (2008) 169 4 Cal.App.4th 116, 135-136 (reversing judgment against seller "because there was insufficient 5 evidence showing [buyer] gave reasonable notice of the breach as required by section 2607, 6 subdivision (3)(A)"). Further, Plaintiff and WESTERN's Responses to JELD-WEN's Requests 7 for Admissions have acknowledged JELD-WEN returned to the Subject Property to perform 8 warranty work on its products. Thus, Plaintiff and WESTERN have admitted JELD-WEN has 9 honored its products' warranties and returned to the site to adequately address any issues when 10 requested. 11 D. Negligence Claims by Plaintiff and WESTERN 12 An essential element to a negligence claim is causation. Prosser & Keeton, Torts (5th 13 ed. 1984) section 30, pp. 164-165. Causation requires a causal link between the defendant's act 14 or omission and the plaintiff s injuries. Id. Here, no such causal link exists as JELD-WEN's 15 products are not defective. Instead, any purported issues have been attributed to the products' 16 installation, flashing and waterproofing, in which JELD-WEN did not participate. To the extent 17 Plaintiff or WESTERN claim the omission of a "stucco key" feature is necessarily a design 18 defect, this is simply untrue and cannot be supported by any competent and respectable window 19 design expert. Therefore, this claim too fails. 20 E. Plaintiff's Strict Liability Claim 21 Strict products liability may only be imposed if, inter alia, there was a defect in the 22 design of the product. Brown v. Superior Court (1988) 44 Ca1.3d 1049, 1057. Here, JELD- 23 WEN's products are not defective. Again, Plaintiff has hinted the lack of a "stucco key" feature 24 is tantamount to a design flaw, yet has not offered any window design expert to opine on this 25 issue. Thus, this cause of action against JELD-WEN necessarily fails. 26 F. WESTERN's Indemnity Claims 27 An indemnitor only owes contractual indemnity to a party based on the indemnitor's 28 own negligence. UDC-Universal Development, L.P. v. CH2M Hill (2010) 181 Cal.App.4th 10, -4- ICilker lw Settlement Conf Slmt (3 25 16) (Ipd:s1b)]
22 DATED: March 25,2016 23 24 25 26 27 28 THE SIEVING LAW FIRM, A.P.C. BY:~ "'tukeg. ~ICKSON Attorney 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") THE SIEVING LAW FIRM, A.P.c. 1 19. Here, JELD-WEN adequately fulfilled its contract with WESTERN, and thus, this claim for 2 express contractual indemnity will fail. Moreover, "'there can be no [implied] indemnity 3 without liability.'" Prince v. Pacific Gas & Electric (2009) 45 Ca1.4th 1151, 1165 (quoting 4 Children's Hospital v. Sedgwick (1996) 45 Cal.App.4th 1780, 1787). Further still, "a party's 5 liability for equitable indemnity is based on its proportional share of responsibility for the 6 damages to the injured party." Id. No evidence of defects exists. WESTERN cannot prevail on 7 its implied contractual indemnity or equitable indemnity claims. 8 G. WESTERN's Claims For Declaratory Relief 9 Finally, WESTERN's causes of action for declaratory relief are neither necessary nor 10 proper at this time and fails to establish liability. See Cal. Ins. Guarantee Assn. v. Super. ct. 11 (1991) 231 Cal.App.3d 1617, 1624. These claims are also duplicative of the other insufficient 12 claims and thus fail. Hood v. Super. Ct. (1995) 33 Cal.App.4th 319, 324. 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 no 17 exposure in this litigation. As such, JELD-WEN demands it be dismissed. 18 VI. CONCLUSION 19 Based upon the foregoing, JELD-WEN believes that it has no liability to any party in 20 this case. Nonetheless, JELD-WEN will attend the Settlement Conference and participate in 21 good faith in an attempt to resolve the claims asserted against it. -5- JELD-WEN, INC. 's SETTLEMENT CONFERENCE STATEMENT ICi!ker - JW Settlement Conf Stint (3-25-16) (lpd:slb»)
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 A venue, Suite 220N, Sacramento, California 95825. On the date executed below, I served the document(s) described as: 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 March 25, 2016 at Sacramento, California. l~ry.~lilt SANDRAL.BARRON ~ I 16 17 18 19 20 21 22 23 24 25 26 27 28 THE SIEVING LAW firm, A.P.C. -6- ICilker - JW Settlement Conf Sbnt (3-25-16) (Ipd:slb)1