GREEN & HALL, A Professional Corporation ROBERT L. GREEN, State Bar No. 122063 211 MICHAEL J. PEPEK, State Bar No. 178238 MEGAN J. RECHBERG lh State Bar No. 287563 3 II 1851 East First Street, 10 Floor Santa Ana, California 92705-4052 411 Telephone: (714 918-7000 Facsimile: (714 918-6996 5 Attorneys for Defendant and Cross-Complainant 611 WESTERN NATIONAL CONSTRUCTION - I Apr 30, 2014 5:00 PM David H. Yamasaki Chief Executive Officer/Clerk Superior Court of CA, County of Santa Clara Case #1-13-CV-258281 Filing #G-62687 By C. Pinacate, Deputy 7 8 9 10 SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SANTA CLARA ~~I cot! ~ 8 ~ I!.l ~ Z~S ~S~ ~ < (! 11 CILKER APARTMENTS, LLC, CASE NO. 113CV258281 12 Plaintiff, DEFENDANT WESTERN NATIONAL 13 CONSTRUCTION'S CROSs.. vs. COMPLAINT FOR: 14 WESTERN NATIONAL CONSTRUCTION, (I BREACH OF CONTRACT; 15 et ai., (2 EXPRESS INDElVINITY; (3 IMPLIED INDEMNITY; 16 Defendants. (4 EQUITABLE INDEMNITY; (5 COMPARATIVE NEGLIGENCE 1711 AND CONTRIBUTION; (6 BREACH OF IMPLIED 1811 WARRANTIES; (7 BREACH OF EXPRESS 1911 WARRANTIES; WESTERN NATIONAL CONSTRUCTION, (8 NEGLIGENCE; 20 II (9 DECLARATORY RELIEF; Cross-Complainant, and 2111 (10 DECLARATORY RELIEF RE: VB. DUTY TO DEFEND 2211 ROES 1.. 500, inclusive, JUDGE: Hon. James P. Kleinberg 2311 DEPT.: 1 Cross-Defendants. ACTION FILED: December 26, 2013 2411 TRlALDATE: None Set 25 26 \I COMES NOW Defendant/Cross-Complainant WESTERN NATIONAL 2711 CONSTRUCTION ~"Cross-Complainant"' who, for a Cross-Complaint herein, alleges as 28 follows: DEFENDANT WESTERN NATIONAL CONSTRUCTION'S CROSS-COMPLAINT P:\OOCS\Westem NatCilket\PleadingS\XC.docx
E-FllED: Apr 30, 2014 5:00 PM, Superior Court of CA, County of Santa Clara, Case #1 13-CV 258281 Filing #G-62687 1 GENERAL ALLEGATIONS 2 " 1. Cross-Complainant is, and was during all times herein mentioned, a business entity 3 II authorized to conduct business in the County of Santa Clara, State of California. 4 2. Cross-Complainant is informed and believes and, based thereon, alleges that ROES 5 111 through 500, inclusive, are individuals or business entities of unknown form who have 6 II conducted and/or now conduct business within the Co~ty of Santa Clara, State of California. 7 3. The true names and capacities, whether individual, corporate, associate or 8 II otherwise, of Cross-Defendants herein designated by the fictitious names Roes 1 through 250, 911 inclusive are unknown to Cross-Complainant, who therefore sue Cross-Defendants by such 10 II fictitious n~es. When the true names and capacities of Cross-Defendants have been ascertained, 11 II Cross-Complainant will amend this pleading accordingly. Cross.. Complainant is informed and...:1 ~.~ m o(; I ~!I ~ ~ t? 12 II believes and, based thereon, alleges that each of the Cross-Defendants are in some mapner 13 II responsible for the acts, omissions and/or occurrences hereinafter alleged and actually and 14 /I proximately caused and/or contributed to the various injuries and damages set forth in the 15 II Plaintiff's First Amended Complaint (iff AC". 16 4. Further, Roes 251 through 500 are individuals (the "Individual Cross-Defendants" 1711 who were or are owners, principals, directors and/or officers of their respective Cross-Defendants 1811 (collectively, the "Sham Entities". The Individual Cross-Defendants were and are alter egos of 19 1/ their respective Sham Entities and, for au relevant times alleged herein, there existed such a unity 20 II of interest between the Individual Cross-Defendants and their respective Sham Entities that any 21 II separateness has ~ased to exist between them for the following reasons: 22 (a The Individual Cross-Defendants exercised complete dominance and 23 II control over their respective Sham Entities such that the Sham Entities are mere shells and 2411 instrumentalities for the conduct of the respective Individual Cross-Defendants' own business. 25 (b The Individual Cross-Defendants carried on the activities and business of 2611 their respective Sham Entities without conducting necessary directors' and shareholders' meetings 2711 and otherwise failed to adhere to requisite corporate formalities. 28 (c The Individual Cross-Defendants inadequately capitalized their respective 2 DEFENDANT WESTERN NA TIONALCONSTRUCTION'S CROSS-COMPLAINT P:\DOCS\Westem NatCilkel\Pleadings\XC.docx
E-FILltO: Apr 30,20145:00 PM, Superior Court of CA, County of Santa Clara, Case #1-13-CV-258281 Filing #G-62687 1 II Sham Entities relative to the business it conducted and the risk of loss attendant thereon. 2 (d Adherence to the fiction of a separate existence between the Individual 3 /I Cross-Defendants and their respective Sham Entities would sanction fraud and permit an abuse of 4 II the corporate privilege. 5 5. Therefore, justice and equity can only be accomplished, and fraud and unfairness 6 II defeated, by a disregard of any distinction between the Sham Entities and the respective Individual 7 II Cross-Defendants. 8 6. At all times relevant hereto, each of the Cross-Defendants was acting as the agent, 9 II partner, co-developer, joint venturer, servant andlor subcontractor ofeac~ of the remaining Cross- 10 II Defendants, and was acting within the course and scope of said agency and employment. 11 7. ROES 1 through 500, inclusive, are sometimes collectively referred to herein as ~>~ :il~~ oqs I ~II (! 12 II "Cross-Defendants." 13 8.. On or about December 26, 2013, Pla.!-ntiff, Cilker Apartments, LLC (''Plaintiff', 1411 filed its Complaint in the instant action. Thereafter, on March 20, 2014, Plaintiff filed its First 15 II Amended Complaint (flfac If in which it alleges damages as a result of alleged construction 16 II defects and consequential damage at the One Pearl Place Apartments, containing 182 residential 1711 dwelling units,.located at 5230 Temer Way, San Jose, California (the "Project". Although Cross- 18 II Complainant denies any liability upon the FA C, Cross-Complainant incorporates that pleading 19 II herein by reference. 20 9. Cross-Complainant alleges that each of the Cross-Defendants are in some manner 21 Illegally liable for the events and happenings referred to in Plaintiff's FAC and are liable to Cross- 22 II Complainant as alleged hereinafter. 23 FmST CAUSE OF ACTION 24 25 10. (For Breach of Contract Against All Cross-Defendants Cross-Complainant incorporates, by reference, each and every paragraph of this 26 II Cross-Complaint as though fully set forth herein. 27 1"1. CrossMDefendants entered into separate written agreements with Cross- 28 II Complainant andlor its predecessors wherein Cross-Defendants agreed to perform work and/or 3 DEFENDANT WESTERN NATIONAL CONSTRUCTION'S CROSS-COMPLAINT P:\[(CS\Westem NatCilker\Pleadings\XC.docx:.
E FllED: Apr 30, 2014 5:00 PM, Superior Court of CA, County of Santa Clara, Case #1-13-CV-258281 Filing #G-62687 1 II supply materials for the construction of Plaintiff's apartment units at the Project (the 2 1/ "Subcontracts". Pursuant to the Subcontracts, Cross Defendants agreed to perform their work on 3 1/ Project in a workmanlike and quality manner, and they agreed to furnish and render their best 4 /I skill, judgment, time and supervision in the performance of the Subcontracts. Cross-Defendants 5 II also agreed in the Subcontracts to defend and indemnify Cross-Complainant to the fullest extent of 611 the law for all claims, damages and expenses arising out of Cross-Defendants' work in the Project. 7 12. Plaintiff's FAC on file herein alleges numerous damages resulting from alleged 8 II construction defects as well as conseq~ential damages to the Project. Although Cross- 911 Complainant denies and refutes the allegations in Plaintiffs FAC, Cross-Complainant is infonned 10 II and believes and, based thereon, alleges that any such construction defects and/or consequential 11 II damages are the direct and proximate result of the breach of the Subcontracts by Cross- ~H ~~ i mu ~ ~ o 12 II Defendants, and each of them. 13 13. Further, the Subcontracts required Cross-Defendants to obtain and maintain in 14 II force, for the period of Cross-Defendants' work in the Project plus an additional ten years, general 15 II liability insurance with coverage for bodily injury, property damage, completed operations and 16 II product liability coverage. In such insurance.policy(ies, Cross.. Defendants were also required to 17 II name Cross-Complainant as an additional insured, and to provide Cross-Complainant with thirty- 18 II day advance written notice of any cancellation of such insurance. 19 14. Cross-Complainant is informed and believes and, based thereon, alleges that Cross- 20 II Defendants failed to obtain and maintain the general liability insurance required by the 21 II Subcontracts, failed to name Cross-Complainant as an additional insure~ failed to provide Cross- 22 II Complainant with thirty-day advance written notice of any cancellation of such insurance, and/or 23 II now fail and refuse to fully defend and indemnify. Cross-Complainant in connection with 2411 Plaintiff's FAC. 25 15. As a result of each of Cross-Defendants' breaches of the Subcontracts, Cross- 26 II Complainant has incurred and will incur substanti3l damages in an amount presently unknown. 2711 Further, the Subcontracts provide that in the event of Iitigation, the prevailing party therein shall 28 II recover its reasonable attorneys' fees and costs, and Cross-Co~plainant is therefore entitled to an 4 DEFENDANT WESlERN NATIONAL CONSTRUCTION'S CROSS-COMPLAINT P:\DOCS\ Western NatCil.k:<::i\Pleadings\XC.docx
E~FIIJED: ~pr 30.2014 5:00 p~, Superior Court of CA, County of Santa Clara, Case #1-13-CV-258281 Filing #G-62687 award of its attorneys' fees and costs incurred in the defense of Plaintiffs FAC and the 2 II prosecution of this Cross-Complaint. 3 SECOND CAUSE OF ACTION 4 (For Express Indemnity and Defense Against AU Cross-Defendants 5 /I 16. Cross.. Complainant incorporates, by reference, each and every paragraph of this 6 II Cross-Complaint as though fully set forth herein. 7lJ 17. Prior to the incidents alleged in the FAC, Cross-Defendants entered into the 8" Subcontracts with Cross-Complainant and/or Cross-Complainant's agen~ wherein each Cross- 9 II Defendant agreed to defend, indemnify and hold Cross-Complainant harmless to the fullest extent 10 II under the law for all claims, damages, expenses, etc. arising out of or related to Cross Defendants' 1111 work on the Project. ~~ i o(i ~ ~!I ~'! ~ 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 18. Cross.. Complainant has tendered this claim to Cross-Defendants, and each of them. By service of this Cross-Complaint, Cross-Complainant hereby demands that Cross-Defendants immediately defend and indemnify Cross-Complainant for any and all fees and expenses incurred by and! or any liability that may be imposed upon them. Cross :Complainant is informed and believes and, based thereon, alleges that Cross-Defendants refuse such demands. 19. As a result of the foregoing, Cross-Complainant has been forced to defend itself against Plaintiff's F AC and is entitled to complete express contractual defense and indemnity from Cross-Defendants, and an award of all attorneys' fees and Court costs incurred by Cross Complainant in the defense of this action and the prosecution ofthls Cross-Complaint. Further, if Cross-Complainant is held liable to Plaintiff or any other party in this lawsuit by way of adjudication, settlement, or otherwise, Cross-Complainant is entitled to complete express contractual indemnity from' Cross-Defendants and for reasonable attorneys' fees and Court costs incurred in the defense of this action and the prosecution of this Cross-Complaint. TmRD CAUSE OF ACTION (For Implied Indemnity Against AU Cross-Defendants 20. Cross-Complainant incorporates, by reference, each and every paragraph of this Cross-Complaint as though fully set forth herein. 5 DEFENDANT WESTERN NATIONAL CONSTRUCTIONS CROSS-COMPLAINT P:\DOCS\Westem N8lCilker\Pleadings\XC.doox
E-FIUED: ~pr 30,2014 5:00 PM, Superior Court of CA, County of Santa Clara, Case #1-13-CV-258281 Filing 00432687 21. In the event that Cross-Complainant is found in some manner legally liable to any 211 Plaintiffts and/or any other cross-complainant(s or anyone else as a result of the events and 311 occurrences described in Plaintiff's FAC and/or any cross-complaints which may be filed herein, 411 any liability ofcross.. Complainant, if any there be, would be solely based upon a derivative, 511 vicarious or imputed form of liability, n<?t resulting from their own conduct, but instead based 6 upon an obligation imposed upon them by law. Therefore, in the event that Cross-Complainant is 7 II found in any manner legally liable, such liability was proximately caused by the acts and/or 8 II omissions of Cross-Defendants, and Cross-Complainant is entitled to recover indemnity, whether 911 total or partial, equitable, implied and/or express~ including attorneys' fees, from said Cross- 10 II Defendants. 11 FOURTH CAUSE OF ACTION ~ ~~i ~~ I Z~I ~~< d 12 13 22. (For Equitable Indemnity Against AU Cross-Defendants Cross-Complainant incorporates, by reference, each and every paragraph of this 14 II Cross-Complaint as though fully set forth herein. 15 23. In equity and good conscience, if any Plaintiff or any other party to this action 1611 recovers against Cross-Complainant, then Cross-Complainant is entitled to equitable indemnity, 17 II apportionment of liability and contribution among and from Cross-Defendants, and each of them, t 8 II according to their respective liability or fault, for the injuries and damages allegedly sustained by 19 II any Plaintiff or any other party to this action, if any, by way of any and all sums paid through 20 II settlement or, alternatively, judgment rendered against Cross-Complainant in the underlying 21 II action. 2211 FIFTH CAUSE OF ACTION 2311 (For Comparative Negligence and Contribution Against All Cross-Defendants 24 24. Cross-Complainant incorporates, by reference, each and every paragraph of this 25 1/ Cross-Complaint as though fully set forth herem. 26 25. In the event any Plaintiff or any other party to this action should establish liability 27 lion the part of Cross-Complainant, which liability is expressly denied, Cross-Complainant is 2811 informed and believes and, based thereon, alleges that they may be obligated to extinguish such 6 DEFENDANT WESTERN NATIONAL CONSTRUCTIONS CROSS-COMPLAINT P:\DOCS\ Western NatCiUcer\Pleadings\xC.doex
E-FII!.ED:,Apr 30,20145:00 PM, Superior Court of CA, County of Santa Clara, Case #1-13-CV-258281 Filing 00-62687 1!I liability by payment of sums in excess of their proportionate fault and in doing so will them~elves 2 II be damaged to the extent of such excess sums. Therefore, Cross-Complainant requests an 31l adjudic,ation and determination of the respective degrees or proportion of liability or fault, if any, 411 on their part and on the part oftlle Cross-Defendants, and each of them. If Cross-Complainant is 511 found liable to any Plaintiff or any other party to this action, an adjudication and determination 6 requiring a proportionate contribution from all Cross-Defendants, and each of them, is requested. 7 8 slxm CAUSE OF ACTION (For Breach of Implied Warranties Against AU Cross-Defendants 9 26. Cross-Complainant incorporates, by reference, each and every paragraph of this 10 Cross-Complaint as though fully set forth herein. 11 27. Cross-Complainant is informed and believes and, based thereon, alleges that Cross- ~~ I o(~ ~ ~~I ~~< (! 1211 Defendants, and each of them, held themselves out to be competent design professionals, 13 II subcontractors and material suppliers and impliedly warranted to Cross-Complainant that the units 14 II located in the ~roject were ofmerchantable quality, designed ~d constructed. in a reasonably 15 II workmanlike manner, and fit for their intended purpose. 16 " 28. Cross-Complainant is informed and believes and, based thereon, alleges that Cross.. 1711 Defendants, and each of them, knew or bad reason to know that Cross-Complainant would rely 18 II upon their professed skill and judgment in engineering, constructing and supplying materials 1911 relative to the Project, and Cross-Complainant did so rely on said professed skill and judgment. 20 29. Upon the filing of Plaintiff's F AC herein, Cro~s-Complainant became aware that 2111 Plaintiffwas making a claim that the Project was not designed or constructed in a reasonably 2211 workmanlike manner, was not fit for its intended use and purpose, and was not free from defects. 23 30. Cross-Complainanfis informed and believes and, based thereon, alleges that Cross- 24" Defendants, and each of them, breached said implied warranties in that Plaintiff has alleged that 25 II the construction was defective as is more particularly set f<?rth in the F AC. 26 31. This CrosS-Complaint will serve as further notice of such conditions, and Cross- 27 II Complainant is informed and believes and, based thereon, alleges that Cross-Defendants, and each 28/1 ofthe~ have declined or vvill. decline to acknowledge' their responsibility to repair the alleged 7 DEFENDANT WESTERN NATIONAL CONSTRUCTION'S CROSS-COMPLAINT P:\DOCS\ Western NatCitker\Pleadings\xC.docx
E-FILItD: Apr 30,20145:00 PM, Superior Court of CA, County of Santa Clara, Case #1 13-CV 258281 Filing 00-62681 111 defects as referenced above and more particularly in Plaintiff's FAC. 2 32. As a proximate result of the breach of the implied warranties by Cross~Defendants, 311 and each of them, Cross-Complainant is informed and believes and, based thereon, alleges that 4 II they will suffer damages, including but not limited to, any sums paid by way of settlement, Or in 511 the alternative, judgment rendered against Cross-Complainant in the action herein. Cross- 6 Complainant has incurred further damages as a result of the breach of the implied warranties by 711 Cross-Defendants, and each of them, including but not limited to, litigation costs, consultants'. 811 fees, attorneys' fees, and other costs incurred in the defense of this action and prosecution of this 9 Cross-Complaint 10 It SEVENTH CAUSE OF ACTION (For Breach of Express Warranties Against AU Cross-Defendants ~ ~p 'oo~ I z~~ t.q~1 ~ < 0. 12 33. Cross-Complainant incorporates, by reference, each and every paragraph of this 13 II Cross-Complaint as though fully set forth herein. 14 34. Each and every Cross-Defendant entered into a Subcontract with Cross- 1511 Complainant, their predecessor, successor, agent, or related entity relative to work performed or 16 materials supplied to the Project. The Subcontracts were intended for the benefit of the 17 II contracting parties as well as their predecessors, successors, agents, and related entities, including 18 " but not liniited to Cross-Complainant 19 35. As a material part of the Subcontract, Cross-Defendants, and each of them, 20 II expressly warranted. that the materials supplied, work perfonned and services rendered would be 2111 done in a good and workmanlike manner, with due care, and free of material defects. 22 36. Cross-Complainant relied upon said express warranties and believed that the work 23 II was performed in a good and workm.anlike manner and that the Jabor and materials provided were 24 II properly performed by Cross-Defendants, and each of them, and were fit for the intended use and 25 II purpose and free from defects. 26 37. Plaintiff s FAC alleges that the Project was not designed and constructed in a good 2711 and workmanlike manner, with due care, and was not free of material defects, but rather, 2811 contained the defects more specifically described in Plaintiff's FAC. Based upon these 8 DEFENDANT WESTERN NATIONAL CONSTRUCTION'S CROSS-COMPLAINT P:\DOCS\We.stem NatCilker\Pleadings\XC.docx.
E-FILflD:.Apr 30,20145:00 PM, Superior Court of CA, County of Santa Clara. Case #1-13-CV-258281 Filing #0-62687 allegations, Cross-Complainant is informed and believe and, based thereon allege that Cross- 211 Defendants, and each of them, breached said express warranties. 3 38. This Cross-Complaint will serve as ~er notice of such conditions, and Cross- 411 Complainant is informed and believes and based thereon, alleges that Cross-Defendants, and each 511 of them, have declined and will decline to acknowledge their responsibility to repair the_ alleged 6 defects as referenced above and more particularly in Plaintiff's FAC. 711 39. As a direct and proximate result of the br~ch of the express warranties by Cross- 8 II Defendants, and each of them, Cross-Complainant is informed and believes and, based thereon, 911 alleges that they will suffer damages, including but not limited to, any sums paid by way of 10 settlement, or in the alternative, judgment rendered against Cross-Complainant in the action 11 II herein. Cross-Complainant has incurred further damages as a result of the breach of the express ~ ~~I o(~ I ffi~~ gz!<! C 12 warranties by Cross-Defendants, and each of them, including but not limited to, litigation costs, 13 11 consultants' fees, attorneys' fees" and other costs incurred in the defense o,fthis action and 14 prosecution of this Cross-Complaint. 15 EIGHTH CAUSE OF ACTION 16 (For Negligence Against AU Cross-Defendants 1711 40. Cross-Complainant incorporates, by reference, each and every paragraph of this 18 II Cross-Complaint as though fully set forth herem. 1911 41. Cross-Complainant is informed and believes and, based thereon, alleges that Cross- 20 II Defendants, and each of them, had a duty to supply materials and perform their work and services 2111 with respect to the Project in a good and workmanlike manner, within the applicable standard of 22 care and free from defects. 23 /I 42. Cross-Complainant is informed and believes and, based thereon, alleges that to the 2411 extent the conditions asserted by the Plaintiff in the FAC exist, which is expressly denied by 25 II Cross-Complainant, said ~nditions were directly and proximately caused by a breach of the 2611 applicable. standard of care by Cross.. Defendants, and each of them. 27 43. As a result of the negligence 0 f Cross-Defendants, and each of them, Cross- 2811 Complainant is infonned and believes and, based thereon, alleges that it will suffer damages 9 DEFENDANT WESTERN NATIONAL CONSTRUCTIONS CROSS-COMPLAINT P:\oocs\Western NatCilker\Pleadings\xCdocx
E-FllED:.APr 30,20145:00 PM, Superior Court of CA, County of Santa Clara, Case #1-13-CV-258281 Filing #G-62687 1 II including but not limited to, any sums paid by way of settlement, or in the alternative judgment 211 rendered against Cross-Complainant in the action herein. Cross-Complainant has incurred further 3 damages as a result of the negligence of Cross-Defendants, and each of them, including but not 4 II limited to, litigation costs, consultants' fees, attorneys' fees, and other costs incurred in the 5 II defense of this action and the prosecution of the Cross-Complaint. 6 7 NINTH CAUSE OF ACTION (For Declaratory Relief Against All Cross-Defendants 8 II 44. Cross-Complainant incorporates, by reference, each and every paragraph of this 9 II Cross-Complaint as though fully set forth herem. 10 II 45. A dispute has arisen and an actual controversy exists as between Cross-. 11 Complainant and Cross-Defendants in relation to the following: ~ ~~ I" _'""X'< ~~ ~ I!I c!. 12 a. The respective liability to any Plaintiff or any other party to this action, if 1311 any; 14 b. Whether Cross-Defendants must defend Cross-Complainant against the 1511 claims and allegations of Plaintiff andlor any other cross-complainant; 16 c. Whether Cross-Defendants must pay for the attorneys' fees and costs 1711 incurred by Cross-Complainant in the defense of this action, and the prosecution of this Cross- 1811 Complaint; 19 d. Whether Cross-Defendants are obligated to obtain the insurance policy(ies 20 II and name Cross-Complainant as an additional insured under such insurance policies; and 21 e. Whether Cross-Defendants must indemnify Cross-Complainant for any 22 n settlement and/or damages which it may be obligated to pay to Plaintiff and/or any other cross- 23 II complainant. 24 46. A declaration of the respective Ii-ability and rights of the parties is necessary as 25 II Cross-Complainant has no other adequate remedy at law. Such declaration will avoid a 26 II multiplicity of actions that win otherwise be required if Cross-Complainant must defend this 2711 action and then bring a separat~ action against Cross-Defendants. 2811111 10 DEFENDANf WESTERN NATIONAL CONSTRUCTIONS CROSS COMPLAINT P:\DOCS\Wesrem NatQlkmPleadings\XC.doox
E-FIIltD; Apr 30,20145:00 PM, Superior Court of CA, County of Santa Clara. Case #1-13-CV 258281 Filing 00-62687 1 47. Cross.. Complainant desires a judicial declaration of its rights in accordance with 2 contentions. Due to the fact that Plaintiff has named Cross-Complainant as defendant in this 3 action, a judicial determination is necessary and appropriate at this time so that Cross- 4 Complainant may establish the absence of any liability on their part. 5 TENTH CAUSE OF ACTION 6 /I (For Declaratory Relief Re: Duty to Defend Against AU Cross-Defendants 7 48. Cross-Complainant incorporates, by reference, each and every paragraph of this 811 Cross-Complaint as though fully set forth herein. 9 49. Each and every Cross-Defendant entered into a Subcontract with Cross- 10 II Complainant, their predecessor, agent, or related entity relative to work performed or materials 1111 supplied to the single family homes in the Project. Each Subcontract was intended for the benefit ~H _"":i~! O(J~ i Zlj2 i:i1 0m ~~~ c.!j 1211 of the contracting parties, as wen as their predecessors, successors, agents, and related entities, 13 II including but not limited to Cross-Complainant. 14 50. Th~ operative contracts contain an indemnity provision which provides, in pertinent 1511 part, that the Cross-Defendants are required to defend, indemnify and hold harmless Cross- 16 II Complainant and their related entities from and against any and all cla.ims arising out of the work 1711 performed by Cross-Defendants at the Pr9ject. 18 51. A claim within the meaning of the Subcontracts has arisen by virtue of the fact that 19 \I Plaintiff has filed a F AC against Cross-Complainant claiming damages for construction 20 II deficiencies in the Proj ect. The construction deficiencies claimed in Plaintiff's F AC pertain to the 21.11 scope of work performed and/or materials provided by the Cross-Defendants, and each of them. 22 52. Cross-Defendants, and each of them, have a present duty to defend against any 23 II claims made against Cross-Complainant pursuant to the Subcontracts, California Civil Code 24 II secti on 2778, and as a result of the assertion of a claim or loss arising out of the work of the Cross- 25 II Defen~ants. Cross-Complamant has a present legal right to be provided a defense by the Cross- 2611 Defendants, and each of them. 21 53. By way of this Cross-Complaint, Cross-Complainant hereby tenders the defense of 2811 this action to the Cross-Defendants, and each of them, pursuant to the applicable Subcontracts., 11 DEFENDANT WESTERN NATIONAL CONSTRUCTION'S CROSS-COMPLAINT P:\DOC'S\Westem NatCiI1cer\PJeadings\XC.docx
E-FILW; Apr 30,20145:00 PM, Superior Court of CA, County of Santa Clara, Case #1-13-CV-258281 Filing #G-62687 Cross-Complainant is informed and believes and, based thereon, alleges that the Cross- 2 If Defendants, and each of them, have or will reject, ignore, or fail to properly accept the tender of 311 defense. 4 54. A dispute has arisen and an actual controversy now exists between Cross- 511 Complainant and th~ Cross-Defendants, and each of them, in that Cross Complainant contends 611 that it is entitled to a present defense from the Cross"Defendants, and each' of them, while the 7 II Cross-Defendants are believed to deny such obligation under the Subcontract. 8 55. Cross-Complainant hereby seeks a declaration by the Court as to its respective 9 /I rights and the Cross-Defendants' duties and obligations regarding the present duty to defend in 10 /I conjunction with the matters herein alleged, and a judgment in Cross-Complainant's favor as to 1111 any obligations by said Cross-Defendants, and each of them, to Cross-Complainant ~ ~~B -~~ j 111 ~~< C> 12 13 II WHEREFORE, Cross-Complainant prays for judgment against Cross-Defendants, and 1411 each of them, as follows: ' 15 FIRST, SIXTH, SEVENTH AND EIGHTH CAUSES OF ACTION 16 (AU Ctoss.Defendants 17 1. For compensatory damages for breach of contract and breach of express and 1811 implied warranties from Cross-Defendants, and each of them; and 19 2. For attorneys' fees, expert costs, and other litigation costs incurred herem. 20 SECOND. TIllRD AND FOURTH CAUSES OF ACTION 21 22 3. (All Cross-Defendants That Cross-Complainant is entitled to indemnity, whether total or partial, equitable, 2311 implie<l and/or express, from the named Cross-Defendants, and each of them, in the event a 24 II settlement is entered into or a judgment and/or verdict is rendered in favor of any Plaintiff or any 25 II other party to this action and against the Cross-Complainant; and 26 4. F or attorneys' fees and costs incurred herein. 27 III 28 III 12 DEFENDANT WESTERN NATIONAL CONSTRUCTION'S CROSS-COMPLAINT P:\DOCS\Westem NatCilket\Pleadin~\xC.docx
E FIUED: Apr 30, 20145:00 PM, Superior Court of CA, County of Santa Clara, Case #1-13.CV-256261 Filing #8-62687 4 I FIFTH CAUSE OF ACTION 2 3 5. (All Cross Defendants For contribution and compen.satory damages from Cross-Defendants, and each of 4 /I them, pased upon,the respective liability and comparative negligence of said Cross-Defendants, 5 II and each of them; and 6 6. For attorneys' fees, expert costs, and other litigation costs incurred herein. 7 NINTH AND TENTH CAUSES OF ACTION 8 (All Cross.. Defendants 9 7. For a judicial declaration that the Cross-Defendants, and each of them, who entered 10 II into a contract with Cross-Complainant providing for indemnity obligations have a present duty to 11 II defend Cross-Complainant against the allegations in Plaintiff's F AC. ~H _~t: I O(J~.. ta ~ ieg~ ~~~ (j 12 8. For ajudicial declaration that Cross-Complainant is entitled to a present defense 1311 from the Cross-Defendants, and each of them. 14 9. For ajudicial declaration regarding the parties respective rights and Cross- 1511 Defendants' duties and obligations regarding their present duty to defend, and ajudgment in 1611 Cross-Complainant'S favor as to any obligations by said Cross-Defendants, and each of them. 17 18 AS TO ALL CAUSES OF ACTION (AU Cross-Defendants 19 11 1 O. For costs of suit incurred herein; and 20 For such other and further relief as this Court may deem just and proper. 21 2211 ~~, DATED: April;.y, 2014 23 24 25 26 27 GREEN & HALL, A Professional Corporation By: Michael Y.Pepek Megan J. Rechberg Attorneys for Defendant and Cross-Complainant WESTERN NATIONAL CONSTRUCTION 28 13 DEFENPANT WESTERN NATIONAL CONSTRUCTIONS CROSS-COMPLAINT p:\docs\westem NatCilker\Pleadings\XC,docx
---'" " ihe SUPERIOR COURT OF CALIFORNIA, COUNTY OF SANTA CLARA ELECTRONIC FlUNG WWW.SCEFIUNG.ORG c/o Glotrans 2915 McClure Street Oakland, CA94609 2 I TEL: (510 208-4775 FAX: (510 465-7348 EMAIl: Info@Glotrans.com 3 - I David H. Yamasaki Apr 30, 2014 5:00 PM Chief Executive Officer/Clerk Superior Court of CA, County of Santa Clar Case #1-13-CV-258281 Filing #G-62687 By C. Pinacate, Deputy 4 5 THE SUPERIOR COURT OF THE STATE" OF CALIFORNIA IN AND FOR THE COUNTY OF SANTA CLARA 6 7 8 9 10 11 12 13 CllKER APARTMENTS, llc, Plaintiff, vs. Plaintiff, WESTERN NATIONAL CONSTRUCTION; MCLARAND. VARQUEZ & PARTNERS; GROUP M ENGINEERS; GENTRY ASSOCIATES CONSTRUCTION CONSULTANTS; LARCO INDUSTRIES; FITCH PLASTERING; COURTNEY WATERPROOFING; CEll CRETE; los NIETOS CONSTRUCTION; MADERA FRAMING; KEllY DOOR; TARA COATINGS; ldi; and DOES 1-100, inclusive, Defendants. AND RELATED ACTIONS Defendant. I am employed in the County of Alameda, State of California. Cilker Apartments, llc v. Western National Construction, et a!. lead Case No.1-13-CV-258281 Hon. Peter Kirwan PROOF OF SERVICE Electronic Proof of Service I am over the age of 18 and not a party to the within action; my business address is 2915 McClure 14 I Street, Oakland, CA 94609. 15 16 17 18 The documents described on page 2 of this Electronic Proof of Service were submitted via the worldwide web on Wed. April 30, 2014 at 4:02 PM PDT and served by electronic mail notification. I have reviewed the Court's Order Concerning Electronic Filing and Service of Pleading Documents and am readily familiar with the contents of said Order. Under the terms of said Order, I certify the above-described document's electronic service in the following manner: The document was electronically filed on the Court's website, http://www.scefiling.org. on Wed. April 30, 2014 at 4:02 PM PDT 19 I Upon approval of the document by the Court, an electronic mail message was transmitted to all parties 20 on the electronic service list maintained for this case. The message identified the document and provided.instructions for accessing the document on the worldwide web. 21 I I declare under penalty of perjury under the laws of the State of California that the foregoing is true and 22 23 correct. Executed on April 30, 2014 at Oakland, California. Dated: April 30, 2014 For WWW.SCEFILlNG.ORG Andy Jamieson
... - ~FILED: Apr 30,20145:00 PM, Superior Court of CA. County of Santa Clara, Case #1-13-CV-258281 Filing #G-62687 THE SUPERIOR COURT OF CALIFORNIA, COUNTY OF SANTA CLARA ELECTRONIC FILING SYSTEM - WWW.SCEFllING.ORG Electronic Proof of Service 2 I Page 2 3 Document(s submitted by Michael Pepek of Green & Hall. APC on Wed. April 30, 2014 at 4:02 PM PDT 1. Cross-Complaint: DEFENDANT WESTERN NATIONAL CONSTRUCTION'S CROSS COMPLAINT 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23