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E-FILED Attorneys at Law Sep 19, 2014 5:00 PM 3 100 Howe Avenue, Suite 220N David H

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E-FILED Attorneys at Law Sep 19, 2014 5:00 PM 3 100 Howe Avenue, Suite 220N David H 1 RICHARD N. SIEVING, ESQ. (SB #133634) LANCE M. MARTIN, ESQ . (SB #294457) 2 THE SIEVING LAW FIRM, A.P.C. E-FILED Attorneys at Law Sep 19, 2014 5:00 PM 3 100 Howe Avenue, Suite 220N David H. Yamasaki Chief Executive Officer/Clerk Sacramento, California 95825 Superior Court of CA, County of Santa Clara 4 Telephone: (916) 444-3366 Case #1-13-CV-258281 Filing #G-66331 Facsimile: (916) 444-1223 By G. Duarte, Deputy 5 Attorneys for Defendant/Cross-Defendant JELD-WEN, inc. , 6 an Oregon Corporation dba SUMMIT WINDOW & PATIO DOOR (erroneously sued herein as "SUMMIT WINDOW & PATIO DOOR") 7 8 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 IN AND FOR THE COUNTY OF SANTA CLARA 10 11 CILKER APARTMENTS, LLC, Case No.: 1-13-CV-258281 12 Plaintiff, REPLY TO OPPOSITION TO JELD­ 13 v. WEN, INC. DBA SUMMIT WINDOW & PATIO DOOR'S DEMURRER TO 14 WESTERN NATIONAL CROSS-COMPLAINT OF WESTERN CONSTRUCTION, et al. NATIONAL CONSTRUCTION 15 Defendants. Date: September 26, 2014 16 --------------------------~, Time: 9:00 a.m. Dept.: 1 17 WESTERN NATIONAL Judge: Hon. Peter H. Kirwan CONSTRUCTION, 18 Cross-Complainant, 19 v. 20 ADM CONSTRUCTION CO ., INC ., et al. 21 Cross-Defendants. 22 ---------------------------, 23 Defendant/Cross-Defendant JELD-WEN, inc., an Oregon Corporation dba 24 SUMMIT WINDOW & PATIO DOOR (erroneously sued herein as "SUMMIT WINDOW 25 & PATIO DOOR") (hereinafter "JELD-WEN") hereby replies to Defendant/Cross­ 26 Complainant WESTERN NATIONAL CONSTRUCTION's (hereinafter "WESTERN") 27 Opposition to JELD-WEN's Demurrer to WESTERN's Cross-Complaint. 28 /II 1 [Rep ly 10 Opp 10 JWs Demurrer 10 WSi rn XCM 9 18 14.wpd (Imm: IIO] REPLY TO OPPOSITION TO JELD-WEN, INC. DBA SUMMIT WINDOW & PATIO DOOR'S DEMURRER TO CROSS-COMPLAINT OF WESTERN NATIONAL CONSTRUCTION E-FILED: Sep 19, 2014 5:00 PM, Superior Court of CA, County of Santa Clara, Case #1-13-CV-258281 Filing #G-66331 1 I. 2 WITHDRAWAL OF DEMURRER AS TO CERTAIN CLAIMS 3 After reviewing WESTERN's Opposition and attempting to meet and confer with 4 opposing counsel, JELD-WEN withdraws its Demurrer as to the First, Second, Sixth and 5 Seventh Causes of Action. 6 II. 7 ARGUMENT 8 A. 9 WESTERN's Equitable and Negligence Claims Are Duplicative of Its Contract Claims 10 11 WESTERN's duplicative claims are properly subject to demurrer. Careau & Co. v. 12 Security Pacific Business Credit, Inc. (1990) 222 Cal,App.3d 1371,1395. Courts routinely 13 sustain demurrers to multiple causes of action when they are simply re-asserting the 14 same claims. Holcomb v. Wells Fargo Bank, N.A. (2007) 155 Cal,AppAth 490,501 (court 15 properly sustained demurrer to duplicative negligent misrepresentation cause of action); 16 Award Metals v. Superior Court (Hernandez) (1991) 228 Cal,App.3d 1128, 1135 (court 17 properly sustained demurrer to same allegations plead in a breach of contract and 18 negligence cause of action as duplicative pleading); Careau & Co. v. Security Pacific 19 Business Credit, Inc. (1990) 222 Cal,App.3d 1371, 1395 (court properly sustained 20 demurrer without leave to amend following its ruling that breach of implied covenant 21 cause of action duplicated the contract cause of action); Rodriguez v. Campbell Industries 22 (1978) 87 Cal,App.3d 494, 501 (court properly. sustained demurrer as "fifth cause of 23 action contains, by necessary implication, all of the allegations of each of the preceding 24 four alleged causes and thus adds nothing to the complaint ... "); Curtis v. 20th Century­ 25 Fox Film Corp. (1956) 140 Cal,App.2d 461,464-465 (where counts for unfair competition 26 and unauthorized use of book title are based on the same allegations and a second count 27 adds nothing to the first, plaintiff was not prejudiced by ruling sustaining Demurrer to 28 1// 2 [Rep ly to O pp to jWs Demurrer to Wstrn XCM 918 14.wpd (lmm:ItO] REPLY TO OPPOSITION TO JELD-WEN, INC. DBA SUMMIT WINDOW & PATIO DOOR'S DEMURRER TO CROSS-COMPLAINT OF WESTERN NATIONAL CONSTRUCTION E-FILED: Sep 19, 2014 5:00 PM, Superior Court of CA, County of Santa Clara, Case #1-13-CV-258281 Filing #G-66331 1 second count). Thus, where, as here, the same claim for breach of contract is disguised 2 as an equitable or negligence claim, it is subject to demurrer and dismissal. 3 1. Duplicative Equitable Indemnity Claims 4 If parties have expressly contracted with respect to the duty to indemnify, the 5 extent of that duty must be determined from the contract and not from the independent 6 doctrine of equitable indemnity. Regional Steel Corp. v. Superior Court (1994) 25 7 Cal.App.4th 525, 529. Here, WESTERN has pled that all of JELD-WEN's purported 8 improper acts arose from its subcontract agreement with WESTERN. As such, 9 WESTERN cannot assert any claim for equitable indemnity based upon acts performed 10 as part of the written subcontract. These claims are duplicative and expressly barred by 11 Regional Steel. 12 2. Duplicative Negligence Claim 13 A party may not recover in tort for the breach of duties that merely restate 14 contractual obligations. Aas v. Superior Court (2000) 24 Cal.4th 627, 643 (citing Erlich v. 15 Menezes (1999) 21 Cal.4th 543, 552) ("Courts will generally enforce the breach of a 16 contractual promise through contract law, except when the actions that constitute the 17 breach violate a social policy that merits the imposition of tort remedies."). Again, JELD­ 18 WEN's purported negligence is essentially the negligent breach of contract. This type of 19 claims is squarely within the realm of contract law and not a proper tort claim. 20 Therefore, JELD-WEN's Demurrer to WESTERN's Third Cause of Action for 21 Implied Indemnity, Fourth Cause of Action for Equitable Indemnity, Fifth Cause of Action 22 for Comparative Negligence and Contribution and Eight Cause of Action for Negligence 23 should be sustained, without leave to amend. 24 B. 25 WESTERN's Negligence Claim Does Not Allege Recoverable Damages 26 WESTERN does not and cannot plead property damage or physical injury because 27 WESTERN does not own the subject building. To sufficiently plead a cause of action for 28 negligence, WESTERN must allege that it has sustained recoverable damages, 3 [Rep ly to Opp to JWs Demurrer to Wstrn XCM 918 14.wpd (lmm:ltOJ REPLY TO OPPOSITION TO JELD-WEN, INC. DBA SUMMIT WINDOW & PATIO DOOR'S DEMURRER TO CROSS-COMPLAINT OF WESTERN NATIONAL CONSTRUCTION E-FILED: Sep 19, 2014 5:00 PM, Superior Court of CA, County of Santa Clara, Case #1-13-CV-258281 Filing #G-66331 1 specifically property damage or physical injury. Rosen v. State Farm General Ins. Co. 2 (2003) 30 Cal.4th 1070, 1079 ("[U]nder the economic loss rule, 'appreciable, 3 nonspeculative, present injury is an essential element of a tort cause of action"'). "No 4 recovery is allowed for economic loss alone." Aas v. Superior Court (2000) 24 Cal.4th 5 627,636 (citing Seely v. White Motor Co . (1965) 63 Cal.2d 9, 18). WESTERN does not 6 plead and cannot plead any noneconomic damages as it does not own the property that 7 is allegedly defectively constructed. Instead, WESTERN's entire cross-complaint is 8 based upon the allegation that if it is liable to Plaintiff (the actual owner of the building) 9 it will pass through liability to JELD-WEN through any settlement or judgment. (Cross- 10 Complaint at 11 43). These are purely economic losses which are unrecoverable by 11 WESTERN against JELD-WEN. 12 Moreover, WESTERN's assertion that by incorporating Plaintiff's First Amended 1 3 Complaint into its Cross-Complaint, it has asserted recoverable damages misses the 14 point. WESTERN's and Plaintiff's negligence claims are two separate and distinct claims. 15 Here, WESTERN's negligence claim is simply a disguised breach of contract claim for 16 indemnity. Since WESTERN cannot allege noneconomic damages, the Court must 17 sustain JELD-WEN's Demurrer without leave to amend . 18 C. 19 A Demurrer is a Proper Vessel to Challenge WESTERN's Declaratory Relief Claims As They Are Derivative and Repetitive of WESTERN's Contract Claims 20 21 In this instance, a demurrer is proper as WESTERN's Declaratory Relief Claims 22 for Duty to Defend and Duty to Indemnify are identical to WESTERN's claims for Breach 23 of Contract and Express Indemnity. General demurrers to declaratory relief actions are 24 proper "where its declaration or determination is not necessary or proper at the time under 25 all the circumstances." Cal. Code. Civ. Proc. §1 061; Ball v. Fleet Boston Financial Corp. 26 (2008) 164 Cal.App.4th 794, 800; cf Moss v. Moss (1942) 20 Cal.2d 640, 643-644. This 27 is particularly true in the present action where the declaratory relief claim is redundant of 28 the other claims alleged by WESTERN. 4 [Rep ly to Opp to JWs Dernurrer to Wstrn XCM 9 18 14.wpd Ihnrn:ltOl REPLY TO OPPOSITION TO JELD-WEN, INC. DBA SUMMIT WINDOW & PATIO DOOR'S DEMURRER TO CROSS-COMPLAINT OF WESTERN NATIONAL CONSTRUCTION E-FILED: Sep 19, 2014 5:00 PM, Superior Court of CA, County of Santa Clara, Case #1-13-CV-258281 Filing #G-66331 1 2 WESTERN seeks defense and indemnity from JELD-WEN under the purported 3 contract between WESTERN and JELD-WEN in its First Cause of Action for Breach of 4 Contract (Cross-Complaint at ~ 11, 14) and Second Cause of Action for Express 5 Indemnity and Defense (Cross-Complaint at ~ 17-19).
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