RICHARD N. SIEVING, ESQ. (SB #33634) JENNIFER L. SNODGRASS, ESQ. (SB #78) 2 THE SIEVING LAW FIRM, A.P.C. Attorneys at Law 3 0 Howe Avenue, Suite 2N Sacramento, California 982 4 Telephone: (96) 444-3366 Facsimile: (96) 444- Attorneys for Defendant JELD-WEN, inc., an Oregon 6 Corporation dba SUMMIT WINDOW & PATIO DOOR 7 (erroneously sued herein as "SUMMIT WINDOW & PATIO DOOR") E-FILED May 6, 4 3: PM David H. Yamasaki Chief Executive Officer/Clerk Superior Court of CA, County of Santa Clara Case #-3-CV- Filing #G-63096 By G. Duarte, Deputy 8 9 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SANTA CLARA CILKER APARTMENTS, LLC, Case No.: -3-CV- 3 v. Plaintiff, 4 WESTERN NATIONAL CONSTRUCTION, et al. Defendants. 6 ~I AND ALL RELATED CROSS-ACTIONS. --------------------------_ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF JELD-WEN, INC. DBA SUMMIT WINDOW & PATIO DOOR'S DEMURRER TO PLAiNTIFF'S FIRST AMENDED COMPLAINT Date: Time: Dept.: Judge: September,4 9:00 a.m. Hon. Peter H. Kirwan 9 2 2 Defendant JELD-WEN, inc_, an Oregon Corporation dba SUMMIT WINDOW & PATIO DOOR (erroneously sued herein as "SUMMIT WINDOW & PATIO DOOR") (hereinafter "JELD-WEN") hereby submits the following Memorandum of Points and Authorities in support of its Demurrer to the First Amended Complaint (hereinafter "FAC") filed by Plaintiff CILKER APARTMENTS, LLC. I. FACTUAL AND PROCEDURAL BACKGROUND This case arises from alleged construction defects at the apartment complex known as One Pearl Place Apartments, a 2 residential unit apartment building located in San Jose, California (hereinafter "Subject Property"). Plaintiff owns the Subject HE SIEVING law FIRM, A.P.c. 0 Howe Ave., Suite 2N Sacramento, CA 982 (96) 444-3366 [..4.Cilker.Demurrer-MPA.wpd(jls:mlw)]
E-FILED: May 6, 4 3: PM, Superior Court of CA, County of Santa Clara, Case #-3-CV- Filing #G-63096 2 3 4 6 7 8 9 3 4 6 9 2 2 Property. (FAC at f, attached as Exhibit "A" to Declaration of Jennifer L. Snodgrass, filed and served concurrently herewith ("Ded. of Snodgrass"). Plaintiff alleges that it entered into contracts with Defendants WESTERN NATIONAL CONSTRUCTION ("WESTERN"), MCLARLAND, VARQUEZ & PARTNERS, INC. and GROUP M ENGINEERS for the construction and/or design of the Subject Property. (FAC at ff- ). WESTERN, in turn, allegedly subcontracted with the remaining Defendants, including JELD-WEN. (FAC at f6). Plaintiff does not describe each subcontracting Defendant's individual role with respect to completing the Subject Property. Rather, Plaintiff lumps all subcontracting Defendants together and broadly alleges they were "involved in the construction of the project[ ] and provided design, labor and/or materials to the project for this purpose." (FAC at f6). Plaintiff discovered defects in various places and components of the Subject Property. (FAC at f2). Plaintiff omits specificity with respect to whether and how each of the alleged defects caused physical damage to the Subject Property. Plaintiff only makes a single reference to "consequential property damage," and does not tie the alleged damage to any Defendant or defect in particular. (FAC at f36). Based on these scarce allegations, Plaintiff asserts seven causes of action against all Defendants: Breach of Contract; Breach of Implied Warranty; Breach of Express Warranty; Negligence; Strict Liability; Express Contractual Indemnity; and Breach of Third Party Beneficiary Contract. JELD-WEN demurs to each. Plaintiff's allegations in support of its causes of action are exclusively unsupported recitations of the elements thereof. As such, each fail for want of facts and are subject to demurrer under Code of Civil Procedure 430. O(e). II. STATUTORY AUTHORITY Code of Civil Procedure 430. 0 provides the following in pertinent part: "The party against whom a complaint or cross-complaint has been filed may object, by demurrer or answer as provided in Section 430.30, to the pleading on anyone or more of the HE SIEVING LAW FIRM, A.P.C. 0 Howe Ave., Suite 2N Sacramento, CA 982 (96) 444-3366 2 [..4.Cilker.Demurrer MPA.wpd(jls:mlw)]
E-FILED: May 6, 4 3: PM, Superior Court of CA, County of Santa Clara, Case #-3-CV- Filing #G-63096 2 3 4 6 7 8 9 3 4 6 9 2 2 following grounds:... (e) The pleading does not state facts sufficient to constitute a cause of action." Code of Civil Procedure 430430(a) states the following: "When any ground for objection to a complaint, crosscomplaint, or answer appears on the face thereof, or from any matter of which the court is required to or may take judicial notice, the objection on that ground may be taken by a demurrer to the pleading_" m. ARGUMENT A. Plaintiff Fails to Allege it and JELD-WEN Are Parties to a Contract or the Terms Thereof The common thread through the causes of action for breach of contract, breach of implied warranty, and express contractual indemnity is the existence of a contract between the plaintiff and defendant. Spinks v. Equity Residential Briarwood Apartments (09) Cal.App.4th 04, 3 (pleading a cause of action for breach of contract requires setting forth the contract, plaintiff's performance or excuse therefrom, defendant's breach, and resulting damages); Burr v. Sherwin Williams Co. (94) 42 Cal.2d 682,69 (asserting a cause of action for breach of implied warranty requires privity of contract); Ratcliff Architects v. Vanir Construction Management. Inc. () 88 Cal.App.4th 9, 60-02 (pleading a cause of action for express contractual indemnity requires alleging the plaintiff and defendant are parties to a contract). The complaint must specify whether a contract is written, oral, or implied by conduct. Otworth v. Southern Pac. Transportation Co. (98) 66 Cal.App.3d 42, 49-60 (sustaining demurrer to complaint failing to state whether a purported contract is written or oral and the contract's alleged terms). To the extent a contract is written, the plaintiff needs to either set out its terms verbatim within the complaint or attach the contract to the complaint and incorporate it by reference. Harris v. Rudin, Richman & Appel (999) 74 Cal.App.4th 299, 307. HE SIEVING LAW FIRM, AP.C. 0 Howe Ave., Suite 2N Sacramento, CA 982 (96) 444-3366 3 [..4.CilkerDemurrer-MPAwpd(jls:mlw)]
E-FILED: May 6, 4 3: PM, Superior Court of CA, County of Santa Clara, Case #-3-CV- Filing #G-63096 Here, Plaintiff fails to allege it and JELO-WEN are parties to a contract, or even 2 any direct dealings between the two that would insinuate the existence of a contract. For 3 this reason alone, Plaintiff's causes of action for breach of contract, breach of implied 4 warranty, and express contractual indemnity each fail. It is clear from the face of the FAC, that Plaintiff did not directly contract with JELO-WEN, as Plaintiff alleges it is a third- 6 party beneficiary of the contract between JELO-WEN and WESTERN. 7 Moreover, as a necessary consequence of Plaintiff's failure to allege a contract, 8 Plaintiff also fails to allege any terms of the purported contract, any facts concerning how 9 JELO-WEN purportedly breached same, and what damage Plaintiff particularly sustained as a result. For this additional reason, Plaintiff's causes of action for breach of contract and express contractual indemnity fail. Based on the foregoing, Plaintiff fails to allege sufficient facts to state causes of 3 action for Breach of Contract, Breach of Implied Warranty, and Express Contractual 4 Indemnity. B. 6 Plaintiff Fails to Allege Sufficient Facts to State a Cause of Action for Breach of Third Party Beneficiary Contract 9 2 2 As set forth above, it is clear from the FAC that Plaintiff is not actually alleging a direct contractual relationship between WESTERN and JELO-WEN. Persons not party to a contract can enforce the contract if its terms are for their intended benefit. Spinks, supra, Cal.AppAth at 2-, To plead a cause of action for breach of third party beneficiary contract, a plaintiff must allege the contract is for the plaintiff's express benefit and the terms thereof expressly so indicate. The H,N. Frances C. Berger Foundation v. Perez (3) 2 Cal.AppAth 37, 43. As stated above, where, as here, a purported contract is in writing, the plaintiff must plead the terms verbatim or attach the contract and incorporate it by reference. Harris, supra, 74 CaLAppAth at 307. In this case, Plaintiff contends the purported third party beneficiary contract is in writing (FAC at l66) but fails to attach the contract or plead its terms. Plaintiff's HE SIEVING LAW FIRM, AP.C. 0 Howe Ave., Suite non Sacramento, CA 982 (96) 444-3366 4!..4.Cilker.Demurrer-MPAwpdOls:mlw)]
E-FILED: May 6, 4 3: PM, Superior Court of CA, County of Santa Clara, Case #-3-CV- Filing #G-63096 allegations entirely fail to set forth () what JELO-WEN was allegedly supposed to do 2 pursuant to an agreement with WESTERN for Plaintiff's express benefit; (2) how JELO- 3 WEN supposedly breached the purported agreement with WESTERN; and (3) how 4 Plaintiff as a third party beneficiary sustained injury as a result. Accordingly, Plaintiff fails to allege facts sufficient to state a cause of action for Breach of Third Party Contract. 6 C. 7 Plaintiff's Causes of Action for Negligence and Strict liability Fail 8 JELO-WEN demurs to Plaintiff's causes of action for Negligence and Strict Liability 9 as they are barred by the economic loss doctrine and devoid of factual support. 3 4 6 9 2 2. The Economic Loss Doctrine Bars the Negligence and Strict liability Causes of Action To plead a compensable injury for negligence or strict liability, plaintiff must allege it suffered physical harm either to its person or property. County of Santa Clara v. Atlantic Richfield Co. (06) 37 Cal.App.4th 292, 3. Mere economic loss, without more, is not a compensable injury under either cause of action..w. Here, Plaintiff alleges that it sustained "consequential property damage which needs to be repaired." (FAC at 36). However, this singular allegation is not sufficient to plead a compensable injury for purposes of negligence or strict liability because it fails to specify whether JELO-WEN in particular (as opposed to voluminous number of other defendants) caused the supposed property damage through its product. Moreover, this allegation is devoid of any details of the nature of the consequential property damage supposedly sustained. As such, neither JELO-WEN nor this Court have any means to ascertain whether JELO-WEN's products caused any damage, let alone damage to property other than to its products. Instead, the bulk of Plaintiff's allegations regarding damages concern its laundry list of purportedly defective construction conditions. (FAC at 2). Accordingly, Plaintiff fails to allege sufficient facts showing JELO-WEN caused it compensable injury. As such, the economic loss doctrine bars Plaintiff's causes of action for Negligence and Strict Liability. HE SIEVING LAW FIRM, A.P.c. 0 Howe Ave., Suite 2N Sacramento, CA 982 (96) 444-3366 [..4.Cilker.Demurrer-MPA.wpd(jls:mlw)]
E-FILED: May 6, 4 3: PM, Superior Court of CA, County of Santa Clara, Case #-3-CV- Filing #G-63096 2. The Negligence and Strict Liability Causes of Action Fail for Want of Facts 2 Sufficiently pleading a cause of action for negligence requires the plaintiff to allege 3 facts support each element thereof peaking: a legal duty of care, breach of that duty, and 4 damages proximately caused by the breach. Zamora v. Shell Oil Co. (997) CaLAppAth 4, 2. And sufficiently pleading a cause of action for strict products 6 liability requires a plaintiff to allege facts showing the defendant placed a defective 7 product into the stream of commerce, knowing same would be used without an inspection 8 for defects, and the defect proximately caused the plaintiff's injury. Scott v. Metabolife 9 International, Inc. (04) CaLApp.4th 404, 4. Here, Plaintiff fails to allege any facts particular to JELD-WEN. Rather, as with Plaintiff's other causes of action, Plaintiff only formulaically recites the elements of Negligence and Strict Liabilitywithout substantive supporting facts. That is, Plaintiff's FAC 3 gives no notice as to JELD-WEN's alleged involvement with Plaintiff and the Subject 4 Property, if any; no notice as to how JELD-WEN's alleged involvement proximately caused Plaintiff's injury; and no notice as to the particular injury proximately caused by 6 JELD-WEN. As such, Plaintiff alleges no facts supporting any element of Negligence and Strict Liability. IV. 9 CONCLUSION For the reasons stated above, JELD-WEN respectfully requests this Court to 2 sustain its Demurrer to all of Plaintiff's causes of action. 2 DATED: May, 4 THE SIEVING LAW FiRM, A.P.C. E SIEVING LAW FIRM, A.P.C. 0 Howe Ave., Suite non Sacramento, CA 982 (96) 444-3366 6..4.Cilker.Demurrer-MPA.wpd(jls:mlw)]