SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SANTA CLARA

Transcription

1 Jack Anderson, Esq. SBN 0 JACK ANDERSON, ESQ., APLC Balboa Avenue, Suite E San Diego, California Tel.: ( - Fax: ( 0- jackandersonaplc@yahoo.com Attorney for Defendant and Cross-Complainant Starline Windows, Inc., a Washington Corporation E-FILED Oct, :00 AM David H. Yamasaki Chief Executive Officer/Clerk Superior Court of CA, County of Santa Clara Case #-0-CV-0 Filing #G- By D. Kontorovsky, Deputy SUPERIOR COURT OF THE STATE OF CALIFORNIA THE SONORA HOMEOWNERS ASSOCIATION, Plaintiff, vs. REGENCY SKYPORT LLC, BLACKROCK REALTY ADVISORS, INC., AND DOES THROUGH 0 Defendants Starline Windows, Inc., a Washington Corporation, Cross-Complainant, v. Douglas Ross Construction, Inc., a California corporation; Pinnacle Installations, Inc., a California corporation; and ROES through 0, COUNTY OF SANTA CLARA Cross-Defendants CASE NO. CV0 DEFENDANT AND CROSS-COMPLAINANT STARLINE WINDOWS, INC. S CROSS-COMPLAINT FOR IMPLIED CONTRACTUAL INDEMNITY, CONTRIBUTION AND EQUITABLE INDEMNITY Dept.: Trial Date: June, - - Sonora Owners Association v.regency Skyport LLC,et al; Santa Clara SC Case No. Case No. CV0

2 E-FILED: Oct, :00 AM, Superior Court of CA, County of Santa Clara, Case #-0-CV-0 Filing #G- Defendant and Cross-Complainant Starline Windows, Inc., a Washington Corporation, files its Cross-Complaint in this matter. PARTIES. Cross-Complainant Starline Windows, Inc. ( Starline is a corporation duly formed and in good standing in the State of Washington which is qualified to do business in, and is in good standing in the State of California. At all relevant times Starline legally and properly conducted business in the State of California, including but not limited to the County of Santa Clara.. Starline is informed and believes that, at all relevant times, Defendant and Cross- Defendant Douglas Ross Construction, Inc. ( DRC was and is a corporation duly formed and in good standing in the State of California, which conducted business within the jurisdictional boundaries of the Santa Clara Superior Court.. Starline is informed and believes that, at all relevant times, Defendant and Cross- Defendant Pinnacle Installations, Inc. ( Pinnacle was and is a corporation duly formed and in good standing in the State of California, which conducted business within the jurisdictional boundaries of the Santa Clara Superior Court.. Starline is currently ignorant of the true names of the Cross-Defendants who are sued herein as Roes -0, and when such true name or names are discovered, Starline will seek leave to amend this pleading to insert the true name or names.. On information and belief, Starline alleges that each and every act or event that was done, caused, suffered, allowed, or committed by the Cross-Defendants, or by any of them, including Roes -0, was done, caused, suffered, allowed, and permitted by each and every other Cross-Defendant within the scope and course of his, her or its duties as the agent, principal, employer, partner, lessor, employee, co-conspirator, and/ or the representatives of each and every other Cross-Defendant. - - Sonora Owners Association v.regency Skyport LLC,et al; Santa Clara SC Case No. Case No. CV0

3 E-FILED: Oct, :00 AM, Superior Court of CA, County of Santa Clara, Case #-0-CV-0 Filing #G- JURISDICTION. Jurisdiction over Amount. The jurisdiction of the Santa Clara Superior Court is proper because more than $,000 is in dispute as the principal amount of damages in this lawsuit; and this matter concerns real property located in Santa Clara County, California. FACTUAL ALLEGATIONS. The Sonora condominium project (originally named The Avignon Apartments ( Project, which is the subject of this lawsuit, was built in San Jose, California in or about 0.. On information and belief Starline alleges that the developers of the Project hired DRC as the General Contractor for the Project.. On information and belief Starline alleges that DRC hired Pinnacle to install the windows into the Project.. On information and belief Starline alleges that DRC, Pinnacle, and/or Roes - entered into a supply contract to purchase windows for the project from Starline.. On information and belief Starline alleges that DRC, Pinnacle, and/or Roes - purchased windows from Starline only for installation into the common building or buildings of the Project, and not for installation into the residential towers.. Starline did not install windows at or in the Project.. On information and belief Starline alleges that DRC itself, Pinnacle, and/or another of DRC s and/or Pinnacle s subcontractors, and/or Roes -, installed the windows that had been purchased from Starline for the Project.. On information and belief Starline alleges that prior to filing this litigation,plaintiff The Sonora Homeowners Association ( Sonora HOA served a claim under Cal. Civil Code - - Sonora Owners Association v.regency Skyport LLC,et al; Santa Clara SC Case No. Case No. CV0

4 E-FILED: Oct, :00 AM, Superior Court of CA, County of Santa Clara, Case #-0-CV-0 Filing #G- and for alleged construction defects on the Sonora condominium project in San Jose, California.. On information and belief Starline alleges that on or about January,, Sonora HOA filed a Second Amended Complaint for Damages ( Complaint against the developers of the Project, Regency Skyport LLC and Blackrock Realty Advisors and Does through 0. The Complaint alleges causes of action for Violation of Building Standards for Original Construction, Breach of Implied Warranty, Strict Liability, Negligence, Breach of Subcontracts, Breach of Fiduciary Duty and Conspiracy to Breach Fiduciary Duty, Breach of Express Warranty, Misrepresentation, and Negligent Misrepresentation.. Subsequently Sonora HOA filed its First Amendment to the Complaint to name and include DRC as Doe Defendant No. to the Complaint, and to name and include Pinnacle as Doe Defendant No. to the Complaint. DRC and Pinnacle thus became defendants to certain claims made in the Complaint, inter alia the claims as to alleged construction defects and alleged consequential damages resulting therefrom.. On or about August,, Sonora HOA filed a Third Amendment to the Complaint, which added Starline as Doe Defendant No. 0 to the Complaint.. Starline only supplied certain windows for the project. Starline did not install any windows in the Project. On information and belief, Starline alleges that the windows that it supplied were installed only in the common building or buildings in the Project, and that no windows manufactured by Starline were installed in the residential towers.. Starline never entered into a construction contract or subcontract involving the Project with DRC, the developers of the Project, Pinnacle, or with any other party to this lawsuit. - - Sonora Owners Association v.regency Skyport LLC,et al; Santa Clara SC Case No. Case No. CV0

5 E-FILED: Oct, :00 AM, Superior Court of CA, County of Santa Clara, Case #-0-CV-0 Filing #G-. On information and belief Starline contends that any and all allegations of water intrusion associated with windows manufactured by Starline and installed at the Project, if they exist, are the result of : DRC s, Pinnacle s, Roes - or their subcontractors or agents negligence or other fault in installing the windows; DRC s, Pinnacle s, Roes - or their subcontractors or agents failure to follow the manufacturer s directives and instructions for window installation, and/or DRC s, Pinnacle s, DRC s and/or Pinnacle s subcontractors, Roes - and/or other third parties mishandling of the windows after shipment by Starline to DRC, Pinnacle, and/or DRC s and/or Pinnacle s subcontractors, and/or to Roes -.. Based on the allegations made above, Starline contends that that the HOA s prosecution of its Complaint against Starline is frivolous because all issues alleged as to window failure are the result of negligent and/or improper installation of the windows, and because DRC itself, Pinnacle, and/or their subcontractors installed the windows at the Project, including those purchased from Starline. FIRST CAUSE OF ACTION IMPLIED CONTRACTUAL INDEMNITY (Against Cross-Defendants DRC, Pinnacle and Roes -. Starline realleges and incorporates by reference all preceding and subsequent allegations as if set forth fully herein.. On information and belief, Starline alleges that DRC, Pinnacle, Roes - and/or their intermediary ( Purchaser entered into a written and/or oral contract with Starline, whereunder Starline agreed to sell, and Purchaser agreed to purchase, certain windows and - - Sonora Owners Association v.regency Skyport LLC,et al; Santa Clara SC Case No. Case No. CV0

6 E-FILED: Oct, :00 AM, Superior Court of CA, County of Santa Clara, Case #-0-CV-0 Filing #G- associated hardware for the Project, so that DRC, Pinnacle and/or Roes - could install the windows purchased from Starline into the Project.. On information and belief, Starline alleges that if plaintiff HOA was indeed damaged as alleged in its Complaint, then any and all claims, liabilities, obligations or causes of action as set forth in or arising from the Complaint were directly and proximately caused and contributed to by the sole and/or joint fault, negligence, strict liability, or other conduct of DRC, Pinnacle and/or Roes -, and of each of them.. On information and belief, Starline alleges that any and all claims, liabilities, obligations, or causes of action set forth in and arising out of the Complaint are within the scope of the implied provisions described above.. Starline now tenders the defense of the action by Plaintiff HOA against Starline to DRC, to Pinnacle and/or to Roes -, and to each of them.. Starline has been compelled to hire attorneys and to incur attorney s fees, and as well to incur investigative, court and other costs to defend its interests in this current lawsuit and has thus been damaged as the result of the negligence and malfeasance of DRC, Pinnacle and/or Roes -, and as the result of their breach of their respective statutory and equitable obligations, in an amount presently unascertained but consisting of attorney s fees, investigative costs and expenses, and other costs and expenses incurred and to be incurred and any claims, liabilities or obligations which Starline may be compelled to render or respond to as a result of this lawsuit.. Starline has incurred damages or will incur damages in amounts to be proven at trial, as alleged above, which damages will be subject to indemnification by DRC, Pinnacle and/or Roes -. / / / - - Sonora Owners Association v.regency Skyport LLC,et al; Santa Clara SC Case No. Case No. CV0

7 E-FILED: Oct, :00 AM, Superior Court of CA, County of Santa Clara, Case #-0-CV-0 Filing #G- SECOND CAUSE OF ACTION EQUITABLE INDEMNITY (Against Cross-Defendants DRC, Pinnacle and Roes -0. Starline realleges and incorporates by reference all preceding and subsequent allegations as if set forth fully herein. 0. On information and belief, Starline alleges that if Starline is found to be liable for the damages, if any, allegedly sustained by Sonora HOA in this action, then DRC, Pinnacle and Roes -0 and each of them have an equitable duty to indemnify Starline because of the active and primary nature of the conduct of Cross-Defendants, and each of them, as contrasted with the passive and secondary nature of Starline s conduct. Accordingly, Cross-Defendants and each of them are required to hold Starline harmless and to indemnify Starline for the amount of any judgment, award or settlement that Starline might be compelled to pay and for Starline s expenses, costs of suit, attorney s fees, and other damages which Starline may incur as a result of this action. THIRD CAUSE OF ACTION CONTRIBUTION (Against Cross-Defendants DRC, Pinnacle and Roes -0. Starline realleges and incorporates by reference all preceding and subsequent allegations as if set forth fully herein.. On information and belief, Starline alleges that if Starline is found to be liable for the damages, if any, allegedly sustained by Sonora HOA in this action, then DRC, Pinnacle and Roes -0 and each of them have an equitable duty to contribute toward any judgment for such liability in proportion to each of their relative fault, because any such liability will be derived fully or largely from the acts, omissions, and misfeasance of DRC, Pinnacle and Roes -0, and each - - Sonora Owners Association v.regency Skyport LLC,et al; Santa Clara SC Case No. Case No. CV0

8 E-FILED: Oct, :00 AM, Superior Court of CA, County of Santa Clara, Case #-0-CV-0 Filing #G- of them, and not at all, or in only a small degree, from any act or omission of Starline. Accordingly, Cross-Defendants and each of them are required to hold Starline harmless and to indemnify Starline for the amount of any judgment, award or settlement that Starline might be compelled to pay and for Starline s expenses, costs of suit, attorney s fees, and other damages which Starline may incur as a result of this action, each in proportion to the fault of each Cross- Defendant. FOURTH CAUSE OF ACTION DECLARATORY RELIEF (Against Cross-Defendants DRC, Pinnacle and Roes -0. Starline realleges and incorporates by reference all preceding and subsequent allegations as if set forth fully herein.. An actual controversy has arisen and now exists between Starline, on the one hand, and DRC, Pinnacle, and Roes -0, on the other hand. Sonora HOA claims that Starline is liable to Sonora HOA for certain claims and damages alleged by Sonora HOA in its Complaint. Starline claims that, because of the facts and circumstances alleged above, any meritorious claims alleged by Sonora HOA against Starline, if any such claims are meritorious, are the liability of DRC, Pinnacle and/or Roes -0, and that DRC, Pinnacle and/or Roes -0 are thus obligated to indemnify Starline for any liability incurred by Starline as to these claims by Sonora HOA, and/or for any damages suffered by Starline as a result of its having to defend itself against said claims made against Starline by Sonora HOA. Starline denies any liability whatsoever to Sonora for reasons that include, but are not limited to, the fact that DRC and Starline never entered into a subcontract or other written agreement and were never in privity of contract, the fact that DRC, Pinnacle, Roes -0, and/or their agents or subcontractors performed the installation of the - - Sonora Owners Association v.regency Skyport LLC,et al; Santa Clara SC Case No. Case No. CV0

9 E-FILED: Oct, :00 AM, Superior Court of CA, County of Santa Clara, Case #-0-CV-0 Filing #G- windows at the Project, and not Starline; and that DRC, Pinnacle, Roes -0, and/or their agents or subcontractors received and handled the windows for the Project after their shipment by Starline.. Starline requires a judicial determination of the respective rights and duties of Starline, DRC, Pinnacle, and Roes -0 with respect to this controversy. Such declaration is necessary and appropriate at this time in order that the parties may ascertain their legal rights and duties as to the matters that are subject to this litigation. PRAYER FOR RELIEF WHEREFORE, Starline prays for judgment as follows:. Fore monetary damages in an amount to be proven at trial, above the minimum level for this court s jurisdiction, in such amount as may be proven at trial, together with interest according to law.. A declaration of the rights and duties that Starline, DRC, Pinnacle and Roes -0 have to each other as a result of the issues, facts and controversies alleged in plaintiff s Complaint, DRC Cross-Complaint, and this Cross-Complaint;. For costs of suit incurred;. For attorney s fees if and as allowable pursuant to agreement, statute or case law, including but not limited to allowable and recoverable fees under Prentice v. North American Title Guaranty Corporation ( Cal.d ; / / / / / / / / / - - Sonora Owners Association v.regency Skyport LLC,et al; Santa Clara SC Case No. Case No. CV0

10 E-FILED: Oct, :00 AM, Superior Court of CA, County of Santa Clara, Case #-0-CV-0 Filing #G-. For legal interest; and. For such other and further relief as the court may deem just and proper. Date: October, JACK ANDERSON, ESQ., APLC --//ss//-- By: Jack Anderson, Esq. Attorney for Cross-Complainant and Defendant Starline Windows, Inc. - - Sonora Owners Association v.regency Skyport LLC,et al; Santa Clara SC Case No. Case No. CV0