A DORNEY OR PARTY WITHOUT ATTORNEY state bar number, … · 2016. 7. 11. · PLD-PI-002 A DORNEY OR...

PLD-PI-002 A DORNEY OR PARTY WITHOUT ATTORNEY (Name, state bar number, and address):

Jennifer L Snodgrass, Esq, rCA S8#227823] f- THE SIEVING LAW FIRM, AP.C.

100 Howe Ave. , Suite 220N Sacramento, CA 95825

TELEPHONE NO: 916/444-3366 FAX NO. (Optional) 916/444-1223 E-MAIL ADDRESS(OPtional)[email protected]

ATTORNEY FOR (Name) (DIX-DIX-C) JELD-WEN, inc. dba SUMMIT WINDOW & PATIO DOOR

NAME OF COURT SANTA CLARA COUNTY SUPERIOR COURT STREET ADDRESS 191 N. First Street MAILING ADDRESS 191 N. First Street

CITY AND ZIP CODE San Jose, CA95113 BRANCH NAME:

SHORT TITLE: CILKERAPARMENTS, LLC v. WESTERN NATIONAL CONSTRUCTION

CROSS-COMPLAINANT: JELD-WEN, inc., an Oregon Corporation dba SUMMIT WINDOW & PATIO DOOR

CROSS-DEFENDANT: MOES 1-100, inclusive.

DOES 1 TO

CROSS-COMPLAINT -Personal Injury, Property Damage, Wrongful Death D AMENDED (Number):

Causes of Action (check al/ that apply): DO Apportionment of Fault Qg Declaratory Relief

[X] Indemnification 00 O~her ~pe.cify): .Thir.d .Pj3rty T9rt .Qf Anoth.er;

FOR COURT USE ONL Y

Jurisdiction (check all that apply):5reacrrOT1.-\JrnraC1-;-Tmpm;mcomracmaTTnaemnrry I CASE NUMBER D ACTION IS A LIMITED CIVil CASE ($25,000 or less) [X] ACTION IS AN UNLIMITED CIVil CASE (exceeds $25,000) 1-13-CV-258281

It D is [K] is not reclassified as unlimited by this cross-complaint

1. CROSS-COMPLAINANT (name): JELD-WEN, inc., an Oregon Corporation dba SUMMIT WINDOW & PATIO DOOR (hereinafter" J ELD-WEN ") alleges causes of action against CROSS-DEFENDANT (name): MOES 1-100, inclusive.

2. This pleading, including exhibits and attachments, consists of the following number of pages: 9

3. Each cross-complainant named above is a competent adult a. [X] except cross-complainant (name): JELO-WEN

(1) [XJ a corporation qualified to do business in California (2) 0 an unincorporated entity (describe):

(3) 0 a public entity (desciribe):

(4) 0 a minor D an adult (a) D for whom a guardian or conservator of the estate or a guardian ad litem has been appointed (b) D other (specify):

(5) 0 other (specify):

D Information about additional cross-complainants who are not competent adults is contained in Cross-Complaint-Attachment 3.

Page 1 of 3

Form Approved for Optional Use Judicial Council of California

PLD-PI-002 [Rev. January 1, 2007] CROSS-COMPLAINT -Personal Injury,

Property Damage, Wrongful Death CfB Code of Civil Procedure, § 425.12

E-FILEDOct 10, 2014 3:54 PM

David H. YamasakiChief Executive Officer/Clerk

Superior Court of CA, County of Santa ClaraCase #1-13-CV-258281 Filing #G-66887

By M. Rawson, Deputy

PLD-PI-002 SHORT TITLE: I CASE NUMBER:

I- CILKERAPARMENTS, LLC v. WESTERN NATIONAL CONSTRUCTION 1-13-CV-258281

4. Each cross-defendant named above is a natural person a. D except cross-defendant (name): b. D except cross-defendant (name):

(1) a business organization, form unknown (2) a corporation

(1) D a business organization, form unknown (2) D a corporation

(3) D an unincorporated entity (describe): (3) D an unincorporated entity (describe):

(4) D a public entity (describe): (4) D a public entity (describe):

(5) D other (specify): (5) D other (specify):

D Information about additional cross-defendants who are not natural persons is contained in Cross-ComplaintAttachment 4. MOES

5. The true names and capacities of cross-defendants sued as ~are unknown to cross-complainant.

6. Cross-complainant is required to comply with a claims statute, and

a. D has complied with applicable claims statutes, or b. D is excused from complying because (specify):

7. [XJ First Cause of Action-indemnification (NUMBER)

a. Cross-defendants were the agents, employees, co-venturers, partners, or in some manner agents or principals, or both, for each other and were acting within the course and scope of their agency or employment.

b. The principal action alleges, among other things, conduct entitling plaintiff to compensatory damages against me. I contend that I am not liable for events and occurrences described in plaintiffs complaint.

c. If I am found in some manner responsible to plaintiff or to anyone else as a result of the incidents and occurrences

described in plaintiffs complaint, my liability would be based solely upon a derivative form of liability not resulting from my conduct, but only from an obligation imposed upon me by law; therefore, I would be entitled to complete indemnity from each cross-defendant.

8. [X] Second Cause of Action-Apportionment of Fault (NUMBER)

a. Each cross-defendant was responsible, in whole or in part, for the injuries, if any, suffered by plaintiff.

b. If I am judged liable to plaintiff, each cross-defendant should be required: (1) to pay a share of plaintiffs judgment which is in proportion to the comparative negligence of that cross-defendant in causing plaintiffs damages; and (2) to reimburse me for any payments I make to plaintiff in excess of my proportional share of all cross-defendants' negligence.

PLD-PI-002 [Rev. January 1. 2007] CROSS-COMPLAINT -Personal Injury, Property Damage, Wrongful Death

CfB Page 2 of 3

E-FILED: Oct 10, 2014 3:54 PM, Superior Court of CA, County of Santa Clara, Case #1-13-CV-258281 Filing #G-66887

PLD-PI-002 SHORT TITLE: I CASE NUMBER:

f- CILKERAPARMENTS, LLC v. WESTERN NATIONAL CONSTRUCTION I 1-13-CV-258281

9. [XJ Third Cause of Action-Declaratory Relief (NUMBER)

An actual controversy exists between the parties concerning their respective rights and duties because cross-complainant

contends and cross-defendant disputes [X] as specified in Cross-Complaint-Attachment 9

D as follows:

10. [X] Fourth Cause of Action-(specify): Third Party Tort of Another (NUMBER)

See Cross-Complaint -- Attachment 10

11. rn The following additional causes of action are attached and the statements below apply to each (in each of the attachments, "plaintiff'means "cross-complainant" and "defendant" means "cross-defendant''):

a·D

b·D c·D

d·D

e·D f. [XJ

Motor Vehicle

General Negligence Intentional Tort

Products Liability

Premises Liability

Other (specify): Fifth Cause of Action -- Breach of Contract; Sixth Cause of Action -- Implied Contractual Indemnity

12. CROSS-COMPLAINANT PRAYS for judgment for costs of suit; for such relief as is fair, just, and equitable; and for

a. m total and complete indemnity for any judgments rendered against me.

b. m judgment in a proportionate share from each cross-defendant.

c. [X] a judicial determination that cross-defendants were the legal cause of any injuries and damages sustained by plaintiff and that cross-defendants indemnify me, either completely or partially, for any sums of money which may be recovered against me by plaintiff.

d. IJ[] compensatory damages (1) rn (unlimited civil cases) according to proof.

(2) 0 (limited civil cases) in the amount of: $

e. [J.[] other (specify): For such other and further relief as the Court deems just and proper.

13. D The paragraphs of this cross-complaint alleged on information and belief are as follows (specify paragraph numbers):

Date: October 10, 2014

JENNIFER L. SNODGRASS (TYPE OR PRINT NAME)

PLD-PI-002 [Rev. January 1, 2007) CROSS·COMPLAINT -Personal Injury, Property Damage, Wrongful Death

.+"--........ ~

Page 3 of3


1 II Re: Cilker Apartments. lLC v. Western National Construction Corp. Santa Clara County Superior Court

2 II Case Number 1-13-CV-258281

3

4

5

6 1.

CROSS-COMPLAINT -- ATTACHMENT 9

(THIRD CAUSE OF ACTION - DECLARATORY RELIEF)

Cross-Complainant rea lieges and incorporates herein by reference each and

7 every allegation contained in the First and Second Causes of Action as though set forth

8 at length herein.

9 2. An actual controversy has arisen and now exists between Cross-Complainant

10 II and Cross-Defendants, and each of them, concerning respective rights and duties in that

11 Cross-Complainant maintains that it is entitled to indemnification and/or contribution on a

12 pro rata basis of the relative fault of Cross-Complainant and Cross-Defendants, and each

13 of them, should Plaintiff, Defendants or other Cross-Complainants recover by way of

14 Judgment, settlement or compromise in this action.

15 3. Cross-Complainant further contends that the trier of fact in the instant action

16 should declare, as a part of a Judgment herein, the percentage or ratio of contributing

17 culpability, fault, responsibility and/or negligence between Plaintiff, Defendants, Cross-

18 Complainant and Cross-Defendants, and each of them, so the actual contribution

19 culpability, fault and negligence of each party can be determined and set forth in special

20 interrogatories, jury verdict and Judgment.

21 4. Additionally, Cross-Complainant alleges that Cross-Defendants failed to

22 comply with the provisions of Civil Code §895, et seq., by, inter alia, their: (1) failure to

23 maintain the name and address for an agent for claim notice in the original sales

24 documentation initialed and acknowledged by the purchaser and sales representative in

25 violation of Civil Code §912(e); (2) failure to record on title of each property a notice of the

26 existence of the Civil Code §895, et seq. procedures or include them in the original sales

27 documentation notifying the homeowners that the procedures may impact their legal rights,

28 Page 4 of 9

T~b61~~~['A~~v:'S~,;r:.,M;2'O~.c11 CROSS-COMPLAINT -- ATTACHMENT 9 sacr~'\'l)~4£~32t825 (THIRD CAUSE OF ACTION - DECLARATORY RELIEF)


1 initialed and acknowledged by the purchaser and sales representative in violation of Civil

2 Code §912(f); (3) failure to provide homeowners with the original sales documentation and

3 a written copy of Title 7 initialed and acknowledged by both the purchaser and sales

4 representative in violation of Civil Code §912(g); and (4) failure to provide homeowners

5 with copies of all manufactured products maintenance, preventative maintenance and

6 limited warranty information at the time of the initial sale in violation of Civil Code §912(c).

7 As a consequence, Cross-Defendants are precluded from pursuing any alleged remedies

8 by their own conduct and by application of the doctrines of waiver, estoppel, unclean hands

9 and laches. Cross-Complainant requests a declaration that Cross-Defendants are

10 precluded from obtaining any relief in this action.

11 5. Cross-Complainant has no other existing speedy, accurate or proper remedy

1211 other than that prayed for by which the rights of the parties hereto may be determined.

13

14

15

16

17

18

19

20

21 22

23

24

25

26

27 Page 5 of 9

28

THE SIEVING LAW FIRM, A.P.c. 100 Howe Ave., Suite 220N Sacramento, CA 95825

CROSS-COMPLAINT -- ATTACHMENT 9 (THIRD CAUSE OF ACTION - DECLARATORY RELIEF) (916) 444-3366


1 II Re: Cilker Apartments. LLC v. Western National Construction Corp. Santa Clara County Superior Court


3

4

5

6

CROSS·COMPLAINT -- ATTACHMENT 10

(FOURTH CAUSE OF ACTION - THIRD PARTY TORT OF ANOTHER)

1. Cross-Complainant realleges and incorporates herein by reference each

7 II and every allegation contained in the First, Second and Third Causes of Action as

8 II though set forth at length herein.

9 2. The tortious conduct of Cross-Defendants, and each of them, has forced

10 II Cross-Complainant to incur the expense of pursuing this action and defending against

11 II the action filed against it by Plaintiff, Defendants and/or Cross-Defendants.

12 3. Under third party tort of another theory, as discussed and set forth in

13 II Prentice v. North American Title Guarantee (1963) 59 Cal.2d 618, 620, a person who

14 II through the tort of another has been required to act in the protection of his interest by

15 II bringing or defending an action against a third person is entitled to recover

16 II compensation for the reasonable and necessary loss of time, attorneys' fees and other

17 II expenditures thereby suffered or incurred.

18 4. As a direct, proximate and forseeable result of the tortious conduct of

19 II Cross-Defendants, and each of them, as alleged herein, Cross-Complainant has been

20 damaged in that it has incurred attorneys' fees and costs in an amount according to

21 proof at trial.

22

23

24

25

26

27

28 Page 6 of 9

THE SIEVING LAW FIRM, A.P.C 100 Howe Ave., Suite 220N Sacramento, CA 95825

CROSS-COMPLAINT -- ATTACHMENT 10 (916) 444-3366

(FOURTH CAUSE OF ACTION - THIRD PARTY TORT OF ANOTHER)


PLD-C-001 (1) SHORT TITLE: I CASE NUMBER:

GILKERAPARTMENTS, LLC v. WESTERN NATIONAL CONSTRUCTION 1-13-CV-258281

FIFTH CAUSE OF ACTION-Breach of Contract

D ("Plaintiff' means "Cross-Complainant."

Complaint [X] Cross - Complaint "Defendant" means "Cross-Defendants.") (number)

ATTACHMENT TO

(Use a separate cause of action form for each cause of action.)

BC-1. 6tJa:iald, (name): Cross-Complainant JELD-WEN, inc. dba SUMMIT WINDOW & PATIO DOOR ("JELD-WEN")

alleges that on or about (date): Dates of original construction to present

a [X] written [XJ oral D other (specify):

agreement was made between (name parties to agreement): JELD-WEN and MOES 1-100, inclusive.

D A copy of the agreement is attached as Exhibit A, or [X] The essential terms of the agreement D are stated in Attachment BC- 1 [XJ are as follows (specify): Subcontract agreement for installation and/or warranty work related to the window and/or door product manufactured by Cross-Complainant JELD-WEN. Installation and warranty work to be completed in a proper and good workmanlike manner.

BC-2. On or about (dates): Dates of original construction to present defendant breached the agreement by D the acts specified in Attachment BC-2 [X] the following acts (specify):

Failing to install and/or conduct warranty work on products manufactured by Cross-Complainant JELD-WEN at the subject project in a proper and good workmanlike manner. Cross-Complainant JELD-WEN has and/or will suffer damages as a result of Cross-Defendants' breach.

BC-3. Plaintiff has performed all obligations to defendant except those obligations plaintiff was prevented or excused from performing.

BC-4. Plaintiff suffered damages legally (proximately) caused by defendant's breach of the agreement

D as stated in Attachment BC-4 rn as follows (specify): Cross-Complainant JELD-WEN will suffer damages, including attorneys' fees and costs, in defending this action.

BC-5. [XJ Plaintiff is entitled to attorney fees by an agreement or a statute

o of $

[X] according to proof.

BC-5. D Other:

Page 7 of 9

Form Approved for Optional Use Judicial Council of Califom,a

PLD-C-001(1) [Rev. January 1, 2007J

CAUSE OF ACTION- Breach of Contract CfB Page 1 of 1

Code of Civil Procedure, § 425.12 www.courtinfo.ca.gov


1 II Re: Cilker Apartments. LLC v. Western National Construction Corp. Santa Clara County Superior Court


3

CROSS-COMPLAINT -- ATTACHMENT 11 4

5

6

(SIXTH CAUSE OF ACTION - IMPLIED CONTRACTUAL INDEMNITY)

1. Cross-Complainant rea lieges and incorporates herein by reference each

7 and every allegation contained in the First, Second, Third, Fourth and Fifth Causes of

8 Action as though set forth at length herein.

9 2. Cross-Defendants, and each of them, entered into written and/or oral

10 contracts and/or agreements with this Cross-Complainant and implied in each such

11 contract and/or agreement was a promise to Cross-Complainant herein to indemnify and

12 hold Cross-Complainant harmless.

13 3. Cross-Complainant is informed and believes and, upon such information and

14 belief, alleges that the Plaintiff's, Defendants' or Cross-Defendants' damages, if any there

15 are, were directly and proximately caused and contributed to by the sole fault, and/or

16 negligence, and/or strict liability and/or other actionable conduct of these Cross-

17 Defendants, and each of them, in breaching such implied terms and warranties in their

18 respective agreements with this Cross-Complainant.

19 4. Cross-Complainant has performed and satisfied all the conditions precedent

20 to the obligations of said agreements and, implied in law in such agreement, is an implied

21 term and warranty that such design professional, contractor or subcontractor would perform

22 all of its work in a reasonable and workmanlike manner, in accordance with the customs

23 and practices of the profession, or in compliance with all codes, ordinances, laws or

24 regulations.

25 5. Cross-Complainant is informed and believes, and upon such information and

26 belief alleges, that the Plaintiff's, Defendants' or Cross-Defendants' damages, if any there

27 are, were directly and proximately caused and contributed to by the sole fault and/or

28 Page 8 of9

THE SIEVING LAW FIRM, AP.C. 100 Howe Ave., Suite 220N II CROSS-COMPLAINT -- ATTACHMENT 11 sacr(;'i'~~~44~~3lg825 (SIXTH CAUSE OF ACTION - IMPLIED CONTRACTUAL INDEMNITY)


1 negligence and/or strict liability and/or other actionable conduct of said Cross-Defendants,

2 and each of them, in breaching such implied terms in their respective agreements with

3 Cross-Complainant.

4 6. Cross-Complainant is informed and believes, and upon such information and

5 belief, alleges that any and all claims, liability, obligations, or causes of action set forth in

6 and arising out of Plaintiff's Complaint, Defendants' Cross-Complaint and/or Cross-

7 Defendants' Cross-Complaint(s) are within the implied indemnity provisions in each

8 respective agreement entered into by Cross-Defendants and Cross-Complainant.

9 7. Cross-Complainant hereby tenders the defense of Plaintiff's, Defendants'

10 and/or Cross-Defendants' actions against Cross-Complainant to these Cross-Defendants,

11 and each of them.

12 8. Cross-Complainant has been compelled to incur attorney's fees, investigative

13 fees, court, and other costs to protect itself in this litigation, and has, therefore, been

14 damaged as a result of the breaches of each of these Cross-Defendants of their respective

15 duties and obligations under their agreements. The amount of this damage is not known,

16 and there will be further expenditures in order for Cross-Complainant to respond to the

1 7 claims of Plaintiff, Defendants and/or Cross-Defendants.

18 WHEREFORE, Cross-Complainant prays for judgment against Cross-Defendants,

19 and each of them, as set forth above.

20

21

22

23

24

25

26

27

28 Page 9 of 9

THE SIEVING LAW FIRM. AP.C. 100 Howe Ave .• Suite 220N Sacramento, CA 95825 CROSS-COMPLAINT -- ATTACHMENT 11

(SIXTH CAUSE OF ACTION - IMPLIED CONTRACTUAL INDEMNITY) (916) 444·3366


Date post:	19-Aug-2020
Category:	Documents
Upload:	others
View:	1 times
Download:	0 times

A DORNEY OR PARTY WITHOUT ATTORNEY state bar number, … · 2016. 7. 11. · PLD-PI-002 A DORNEY OR...

Documents