1 SAMUEL J. MUIR (SBN 89883) E-FILED STEPHEN B. LITCHFIELD (SBN 284951) 2 Jun 18, 2015 5:00 PM COLLINS COLLINS MUIR + STEWART LLP David H. Yamasaki 1999 Harrison Street, Suite 1700 Chief Executive Officer/Clerk 3 Superior Court of CA, County of Santa Clara Oakland, CA 94612 Case #1-13-CV-258281 Filing #G-73804 4 (510) 844-5100 – FAX (510) 844-5101 By C. Pinacate, Deputy

5 Attorneys for Defendants McLARAND VASQUEZ & PARTNERS, INC., McLARAND VASQUEZ EMSIEK & PARTNERS, INC., MVE & PARTNERS INC., MVE + PARTNERS, 6 INC. 7

8 SUPERIOR COURT OF THE STATE OF CALIFORNIA

9 COUNTY OF SANTA CLARA —DOWNTOWN DISTRICT

10 CILKER APARTMENTS, LLC, ) CASE NO. 1-13-CV-258281 Complex ) [Assigned to Hon. Peter H. Kirwan; Dept. 1] 11 Plaintiffs, ) ) NOTICE OF DEMURRER AND DEMURRER 12 vs. ) TO FIRST AMENDED COMPLAINT OF 13 ) PLAINTIFF CILKER APARTMENTS, LLC WESTERN NATIONAL CONSTRUCTION, ) 14 MCLARLAND, VARQUEZ & PARTNERS, ) Date: September 11, 2015 INC., GROUP M ENGINEERS, GENTRY ) Time: 9:00 a.m. 15 ASSOCIATES CONSTRUCTION ) Dept: 1 CONSULTANTS, LARCO INDUSTRIES, ) 16 FITCH PLASTERING, COURTNEY ) 17 WATERPROOFING, CELL CRETE, LOS ) NIETOS CONSTRUCTION, MADERA ) Complaint Filed: 12/26/13 18 FRAMING, KELLY DOOR, TARA ) FAC Filed: 03/20/14 COATNGS, LDI, ADM PAINTING, ) Trial Date: 02/01/16 19 ALLIANCE BUILDING PRODUCT, JOS. J. ) ALBANESE, ANDERSON TRUSS, ) 20 CALIFORNIA CLASSIC PAVERS, CASEY-) 21 FOGIL CONCRETE CONTRACTORS, ) CENTRAL COAST STAIRS, ) 22 COMMERCIAL ROOF MANAGEMENT, ) DAVEY ROOFING, INC., DEMETRIS ) 23 PAINTING II, INC., DOORWAY MFG., ) LANDSCAPE PROS, MULTI-BUILDING ) 24 STRUCTURES, PARK WEST, PYRAMID ) 25 BUILDERS, ROBECKS WELDING & ) FABRICATION, RYLOCK COMPANY, ) 26 SUMMIT WINDOW & PATIO DOOR, ) VANGUARD and DOES 1-100, inclusive, ) 27 ) Defendants. ) 28 ______) Collins Collins 19010 – DEMURRER TO FAC OF MVE ENTITIES (06-18-15) Muir + Stewart LLP 1999 Harrison Street Suite 1700 1 Oakland, CA 94612 Phone (510) 844-5100 MVE’S DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT Fax (510) 844-5101 E-FILED: Jun 18, 2015 5:00 PM, Superior Court of CA, County of Santa Clara, Case #1-13-CV-258281 Filing #G-73804

1 WESTERN NATIONAL CONSTRUCTION, ) ) 2 Cross-Complainant, ) 3 ) vs. ) 4 ) ROES 1 – 500, inclusive, ) 5 ) Cross-Defendants. ) 6 ) 7

8 TO ALL PARTIES AND TO THEIR ATTORNEYS OF RECORD HEREIN:

9 PLEASE TAKE NOTICE that on September 11, 2015, at 9:00 a.m., or as soon thereafter

10 as this matter may be heard in Department “1” of the above-entitled court, located at 191 North

11 First Street, San Jose, California 95113, McLARAND VASQUEZ EMSIEK & PARTNERS, INC.,

12 MVE & PARTNERS INC., and MVE + PARTNERS, INC., (“MVE” or “MVE entities”) will and

13 hereby do demur to the First Amended Complaint of Plaintiff CILKER APARTMENTS, LLC

14 (“Plaintiff”). The MVE entities demur separately and severally on the following grounds:

15 FIRST CAUSE OF ACTION – BREACH OF CONTRACT

16 1. Plaintiff’s first cause of action for breach of contract fails to state facts sufficient to

17 constitute a cause of action pursuant to Code of Civil Procedure section 430.10(e)

18 because Plaintiff has not set out the terms of such contract, nor has any contract been

19 attached that demonstrates a contractual relationship between Plaintiff and any of the

20 MVE entities.

21 SECOND CAUSE OF ACTION – BREACH OF IMPLIED WARRANTY

22 2. Plaintiff’s second cause of action for breach of implied warranty fails to state facts

23 sufficient to constitute a cause of action pursuant to Code of Civil Procedure section

24 430.10(e) because the MVE entities are design professionals and, under well-settled

25 California law, a design professional’s work, absent some agreement to the contrary,

26 does not contain any warranty whatsoever. (Allied Properties v. John A. Blume &

27 Assoc. (1972) 25 Cal.App.3d 848.)

28 Collins Collins 19010 – DEMURRER TO FAC OF MVE ENTITIES (06-18-15) Muir + Stewart LLP 1999 Harrison Street Suite 1700 2 Oakland, CA 94612 Phone (510) 844-5100 MVE’S DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT Fax (510) 844-5101 E-FILED: Jun 18, 2015 5:00 PM, Superior Court of CA, County of Santa Clara, Case #1-13-CV-258281 Filing #G-73804

1 THIRD CAUSE OF ACTION – BREACH OF EXPRESS WARRANTY 2 3. Plaintiff’s third cause of action for breach of express warranty fails to state facts

3 sufficient to constitute a cause of action pursuant to Code of Civil Procedure section

4 430.10(e) because Plaintiff fails to adequately allege a contract between Plaintiff and the

5 MVE entities. Absent the pleading of such a contract, no express warranty is possible,

6 as a matter of law.

7 FOURTH CAUSE OF ACTION – NEGLIGENCE 8 4. Plaintiff’s fourth cause of action for negligence fails to state facts sufficient to constitute

9 a cause of action pursuant to Code of Civil Procedure section 430.10(e) because

10 Plaintiff failed to file a valid Certificate of Merit pursuant to Code of Civil Procedure

11 section 411.35. Failure to file a Certificate of Merit is challengeable on Demurrer

12 pursuant to Code of Civil Procedure section 411.35(g).

13 FIFTH CAUSE OF ACTION – STRICT LIABILITY 14 5. Plaintiff’s fifth cause of action for strict liability fails to state facts sufficient to

15 constitute a cause of action pursuant to Code of Civil Procedure section 430.10(e)

16 because the MVE entities are design professionals, and under well-settled California

17 law, a design professional’s work, absent some agreement to the contrary, are not

18 strictly liable for design services provided. (Allied Properties v. John A. Blume &

19 Assoc. (1972) 25 Cal.App.3d 848.)

20 SIXTH CAUSE OF ACTION – EXPRESS CONTRACTUAL INDEMNITY 21 6. Plaintiff’s sixth cause of action for express contractual indemnity fails to state facts

22 sufficient to constitute a cause of action pursuant to Code of Civil Procedure section

23 430.10(e) because Plaintiff fails to adequately allege a contract between Plaintiff and the

24 MVE entities. Absent the pleading of such a contract, no express contractual indemnity

25 is possible, as a matter of law.

26 SEVENTH CAUSE OF ACTION – BREACH OF TPB CONTRACT 27 7. Plaintiff’s seventh cause of action for breach of third party beneficiary contract fails to

28 state facts sufficient to constitute a cause of action pursuant to Code of Civil Procedure Collins Collins 19010 – DEMURRER TO FAC OF MVE ENTITIES (06-18-15) Muir + Stewart LLP 1999 Harrison Street Suite 1700 3 Oakland, CA 94612 Phone (510) 844-5100 MVE’S DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT Fax (510) 844-5101 E-FILED: Jun 18, 2015 5:00 PM, Superior Court of CA, County of Santa Clara, Case #1-13-CV-258281 Filing #G-73804

1 section 430.10(e) because Plaintiff fails to adequately allege a contract between Plaintiff

2 and the MVE entities, or any other contract that could be the basis of liability for the

3 MVE entities. Absent the pleading of such a contract, no breach of third party

4 beneficiary contract is possible, as a matter of law.

5 This demurrer is made and based upon this Notice, the attached Memorandum of Points and

6 Authorities, the documents and pleadings on file with this Court, as well as any other matters that

7 may be received by the Court at the hearing on this matter.

8

9 DATED: June 18, 2015 COLLINS COLLINS MUIR + STEWART LLP

10 11 By: ______12 SAMUEL J. MUIR 13 Attorneys for McLARAND VASQUEZ & PARTNERS, INC., MCLARAND VASQUEZ 14 EMSIEK & PARTNERS, INC., MVE & 15 PARTNERS INC., MVE + PARTNERS, INC.

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21 22 23 24 25 26 27 28 Collins Collins 19010 – DEMURRER TO FAC OF MVE ENTITIES (06-18-15) Muir + Stewart LLP 1999 Harrison Street Suite 1700 4 Oakland, CA 94612 Phone (510) 844-5100 MVE’S DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT Fax (510) 844-5101 E-FILED: Jun 18, 2015 5:00 PM, Superior Court of CA, County of Santa Clara, Case #1-13-CV-258281 Filing #G-73804

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2 MEMORANDUM OF POINTS & AUTHORITIES 3 I. 4 INTRODUCTION 5 This Demurrer is necessary due in large part to the lack of a precise method for naming Doe 6 defendants. However, it is also necessary to demonstrate Plaintiff’s lack of ability to plead facts

7 demonstrating the existence of a contractual relationship—or any relationship—between Plaintiff

8 and the MVE entities. Plaintiff’s attempt at a scattershot of allegations against every conceivable

9 MVE entity cannot withstand the pleading standards upheld by well-settled law. Plaintiff must

10 plead the existence of a contract—which it cannot, in good faith, do—or it must attach the contract

11 supposedly in existence between Plaintiff and the MVE entities. As to the causes of action for

12 warranty, strict liability, and third party beneficiary, the MVE entities expect that Plaintiff will

13 dismiss those causes of action without argument, however, in order to preserve its rights, and out of

14 an abundance of caution, the MVE entities have filed this Demurrer as to all causes of action.

15 II.

16 AUTHORITY FOR DEMURRER

17 The function of a demurrer is to present to the court an issue of law regarding the

18 sufficiency of the plaintiff’s allegations. (James v. Superior Court of San Francisco (1968) 261

19 Cal.App.2d 415, 416.) To this end, Code of Civil Procedure section 430.10 states in pertinent part:

20 “The party against whom a complaint or cross-complaint has been filed may object by demurrer or answer as provided in § 430.30 to the 21 pleading on any one or more of the following grounds […]: 22 (e) the pleading does not state facts sufficient to constitute a cause of action […].” 23 In considering the sufficiency of the allegations, courts consider the demurrer as admitting 24 all properly pleaded material facts, “[…] but not contentions, deductions or conclusions of fact or 25 law.” (Align Technology, Inc. v. Tran. (2009) 179 Cal.App. 4th 949, 958.) A trial court does not 26 abuse its discretion by sustaining a general demurrer without leave to amend if it appears from the 27 complaint that under applicable substantive law there is no reasonable possibility that an 28 Collins Collins 19010 – DEMURRER TO FAC OF MVE ENTITIES (06-18-15) Muir + Stewart LLP 1999 Harrison Street Suite 1700 5 Oakland, CA 94612 Phone (510) 844-5100 MVE’S DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT Fax (510) 844-5101 E-FILED: Jun 18, 2015 5:00 PM, Superior Court of CA, County of Santa Clara, Case #1-13-CV-258281 Filing #G-73804

1 amendment could cure the complaint’s defect.” (Heckendorn v. City of San Marino (1986) 42

2 Cal.3d 481, 486.)

3 Additionally, if the complaint is successfully challenged on demurrer the burden is shifted 4 to the plaintiffs to demonstrate how the complaint might be amended to cure it of the defect. 5 (Assoc. of Community Organizations for Reform Now v. Dept. of Indust’l Relations (1995) 41 6 Cal.App.4th 298, 302.) Where the plaintiff fails to demonstrate possible amendments to a defective 7 complaint, the court should sustain the demurrer without leave to amend. (Campbell v. Regents of 8 University of California (2005) 35 Cal.4th 311, 320.)

9 III.

10 PLAINTIFF DOES NOT PLEAD THE EXISTENCE OF A

11 CONTRACT BETWEEN ITSELF AND THE MVE ENTITIES

12 In order to properly plead a cause of action for breach of contract, Plaintiff must allege the

13 existence of a valid contract, or attach the contract in question to its pleading. (Harris v. Rudin,

14 Richman & Appel (1999) 74 Cal.App.4th 299, 307). Plaintiff’s First Amended Complaint discusses

15 its contract with McLarand Vasquez & Partners, Inc. (“MVP”)—the Architect of Record for the

16 One Pearl Place apartment complex at issue in this litigation. However, Plaintiff does not

17 demonstrate or plead any facts supporting the existence of a contract between the MVE entities

18 named as Does to the First Amended Complaint.

19 A written contract may be pleaded either by its terms—set out verbatim in the complaint or

20 a copy of the contract attached to the complaint and incorporated therein by reference—or by its legal effect. (Id.) In order to plead a contract by its legal effect, plaintiff must “allege the substance 21 of its relevant terms. This is more difficult, for it requires a careful analysis of the instrument, 22 comprehensiveness in statement, and avoidance of legal conclusions.” (McKell v. Washington 23 Mutual, Inc. (2006) 142 Cal.App4th 1457, 1489 quoting 4 Witkin Cal. Proc. Pleading § 480 (4th 24 ed., 1997.) 25 Here, Plaintiff does not allege the existence of a contract between itself and the MVE 26 entities. If Plaintiff can plead, in good faith, the existence of such a contract, or demonstrate its 27 existence through attaching such contract to its Complaint, then the MVE entities would have no 28 Collins Collins 19010 – DEMURRER TO FAC OF MVE ENTITIES (06-18-15) Muir + Stewart LLP 1999 Harrison Street Suite 1700 6 Oakland, CA 94612 Phone (510) 844-5100 MVE’S DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT Fax (510) 844-5101 E-FILED: Jun 18, 2015 5:00 PM, Superior Court of CA, County of Santa Clara, Case #1-13-CV-258281 Filing #G-73804

1 recourse but to accept the Plaintiff’s assertion. However, Plaintiff and the MVE entities alike know 2 that no such contractual relationship exists. As a result, the cause of action for breach of contract 3 should be dismissed without leave to amend. 4 IV. 5 PLAINTIFF FAILED TO FILE A CERTIFICATE OF MERIT AGAINST THE MVE 6 ENTITIES AS REQUIRED BY CODE OF CIVIL PROCEDURE SECTION 411.35

7 Plaintiff’s failure to file a Certificate of Merit against the MVE entities is challengeable on

8 Demurrer. (Code Civ. Proc. § 411.35(g).) The relevant portion of the statute provides as follows:

9 (a) In every action, including a cross-complaint for damages or indemnity, arising out of the professional negligence of a person 10 holding a valid architect's certificate … the attorney for the plaintiff 11 or cross-complainant shall file and serve the certificate specified by subdivision (b). 12 (Code Civ. Proc. § 411.35(a).) 13

14 The MVE entities, as evidenced by Plaintiff’s admissions in paragraphs 3 and

15 25 of the First Amended Complaint regarding MVP, are design professional entities

16 within the meaning of the statute. (Plaintiff’s FAC at ¶¶3, 25.) Absent a valid

17 Certificate of Merit against the MVE entities, Plaintiff cannot maintain its cause of

18 action for negligence, and the MVE entities’ Demurrer as to the fourth cause of

19 action should be sustained.

20 V.

21 PLAINTIFF’S CAUSES OF ACTION FOR WARRANTY

22 AND STRICT LIABILITY ARE INAPPROPRIATE AS ALLEGED

23 AGAINST THE DESIGN PROFESSIONAL MVE ENTITIES

24 “The well settled rule in California is that where the primary objective of a transaction is to

25 obtain services, the doctrines of implied warranty and strict liability do not apply.” (Applied

26 Properties v. John A. Blume & Assoc., Engineers (1972) 25 Cal.App.3d 848, 855.) It cannot be seriously disputed that design professionals, and in particular architects, provide services. (See, 27 e.g., Pancoast v. Russell (1957) 148 Cal.App.2d 909, 912; Civ. Code § 2782.8(c)(2).) 28 Collins Collins 19010 – DEMURRER TO FAC OF MVE ENTITIES (06-18-15) Muir + Stewart LLP 1999 Harrison Street Suite 1700 7 Oakland, CA 94612 Phone (510) 844-5100 MVE’S DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT Fax (510) 844-5101 E-FILED: Jun 18, 2015 5:00 PM, Superior Court of CA, County of Santa Clara, Case #1-13-CV-258281 Filing #G-73804

1 In Applied Properties, the court was addressing whether the following jury instruction was

2 proper under California law: 3 “When the defendant agreed to determine the feasibility of the pier and landing floats, and then agreed to design the pier and landing 4 floats, there was an implied warranty that the pier and landing floats 5 would be reasonably suitable for the purpose for which such pier or landing floats are ordinarily used.” 6

7 Id. (FN16) (emphasis added).

8 As discussed above, the court held that “[t]he well settled rule in California is that where the

9 primary objective of a transaction is to obtain services, the doctrines of implied warranty and strict

10 liability do not apply.” The court then quoted Gagne v. Bertran (1954) 43 Cal.2d 481, 489-90 to

11 drive home its point:

12 “The services of experts are sought because of their special skill. They have a duty to exercise the ordinary skill and competence of 13 members of their profession, and a failure to discharge that duty will 14 subject them to liability for negligence. Those who hire such persons are not justified in expecting infallibility, but can expect only 15 reasonable care and competence. They purchase service, not 16 insurance.”

17 Here, it cannot be reasonably disputed that the MVE entities are design professionals who,

18 if alleged appropriately by Plaintiff, would have provided architectural design services for the One

19 Pearl Place project. Whether such services were actually provided by the MVE entities remains in

20 dispute, but that does not change the fact that Plaintiff’s second, third, and fourth causes of action

21 are all barred, as a matter of law.

22 VI.

23 CONCLUSION

24 The MVE entities had no role in the planning, design, construction, or maintenance of the

25 One Pearl Place complex at issue in this litigation. Plaintiff’s attempt to cast an overly broad net by

26 naming multiple entities with no relationship to the project is clearly improper, and as discussed

27 above, is appropriate for Demurrer. The MVE entities request that the Court sustain this Demurrer

28 Collins Collins 19010 – DEMURRER TO FAC OF MVE ENTITIES (06-18-15) Muir + Stewart LLP 1999 Harrison Street Suite 1700 8 Oakland, CA 94612 Phone (510) 844-5100 MVE’S DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT Fax (510) 844-5101 E-FILED: Jun 18, 2015 5:00 PM, Superior Court of CA, County of Santa Clara, Case #1-13-CV-258281 Filing #G-73804

1 and require Plaintiff to allege the facts forming the basis for the contractual and actual relationships 2 between Plaintiff and the MVE entities. 3

4 DATED: June 18, 2015 COLLINS COLLINS MUIR + STEWART LLP

5

6 By: ______7 SAMUEL J. MUIR 8 Attorneys for McLARAND VASQUEZ & PARTNERS, INC., McLARAND VASQUEZ 9 EMSIEK & PARTNERS, INC., MVE & PARTNERS INC., MVE + PARTNERS, INC. 10

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28 Collins Collins 19010 – DEMURRER TO FAC OF MVE ENTITIES (06-18-15) Muir + Stewart LLP 1999 Harrison Street Suite 1700 9 Oakland, CA 94612 Phone (510) 844-5100 MVE’S DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT Fax (510) 844-5101 E-FILED: Jun 18, 2015 5:00 PM, Superior Court of CA, County of Santa Clara, Case #1-13-CV-258281 Filing #G-73804

1 PROOF OF SERVICE

2 (CCP §§ 1013(a) and 2015.5; FRCP 5)

3 State of California, ) ) ss. County of Alameda ) 4 I am employed in the County of Alameda. I am over the age of 18 and not a party to the within action. My business address is 1999 Harri 5 Street, Suite 1700, Oakland, California 94612.

6 On the below date, I served the foregoing document described as NOTICE OF DEMURRER AND DEMURRER TO FIRST AMENDED COMPLAINT OF PLAINTIFF CILKER APARTMENTS, LLC on the interested parties in this action by placing same in a sea envelope, addressed as follows: 7 8 See Service List Attached Hereto

(BY MAIL) - I caused such envelope(s) with postage thereon fully prepaid to be placed in the United States mail in Oakland, California to be s 9 on the parties as indicated on the attached service list. I am “readily familiar” with the firm’s practice of collection and processing corresponden mailing. Under that practice, it would be deposited with the U.S. Postal Service on that same day with postage thereon fully prepaid at Oa 10 California in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if postal cancellation d postage meter date is more than one day after date of deposit for mailing in affidavit. 11 (BY CERTIFIED MAIL) – I caused such envelope(s) with postage thereon fully prepaid via Certified Mail Return Receipt Requested to be pla 12 the United States Mail in Oakland, California.

13 BY EXPRESS MAIL OR ANOTHER METHOD OF DELIVERY PROVIDING FOR OVERNIGHT DELIVERY

14 (BY ELECTRONIC FILING AND/OR SERVICE) – I filed and served a true copy, with all exhibits, electronically on designated recipients listed on the attached Service List via 06/18/15 (Date) at a.m. (Time) Glotrans, per E-Filing and E-Service Standing 15 Order of 08/28/06, on:

16 FEDERAL EXPRESS - I caused the envelope to be delivered to an authorized courier or driver authorized to receive documents with deliver provided for. 17 (BY FACSIMILE) - I caused the above-described document(s) to be transmitted to the offices of the interested parties at the facsimile num indicated on the attached Service List and the activity report(s) generated by facsimile number (510) 844-5100 indicated all pages were transmitte 18

19 (BY PERSONAL SERVICE) - I caused such envelope(s) to be delivered by hand to the office(s) of the addressee(s).

20 Executed on JUNE 18, 2015 at Oakland, California.

21 (STATE) - I declare under penalty of perjury under the laws of the State of California that the above is true and correct.

22 (FEDERAL) - I declare that I am employed in the office of a member of the bar of this court at whose direction the service was made.

23

24 PAM KASSOFF [email protected] 25

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Collins Collins 19010 – DEMURRER TO FAC OF MVE ENTITIES (06-18-15) Muir + Stewart LLP 1999 Harrison Street Suite 1700 10 Oakland, CA 94612 Phone (510) 844-5100 MVE’S DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT Fax (510) 844-5101 E-FILED: Jun 18, 2015 5:00 PM, Superior Court of CA, County of Santa Clara, Case #1-13-CV-258281 Filing #G-73804

1 SUPERIOR COURT OF THE COUNTY OF SANTA CLARA; CASE NO. 1-13-CV-258281 2 CILKER APARTMENTS v. WESTERN NATIONAL CONSTRUCTION, et al OUR FILE NO. 19010

3 Jon B. Zimmerman Michael J. Pepek 4 Gregory B. Cohen Sam M. Danskin ROBINSON & WOOD Michael A. Erlinger st 5 227 N. 1 Street GREEN & HALL APC San Jose, CA 95113 1851 E. 1ST Street, 10th Floor (408) 298-7120 – FAX (408) 298-0477 Santa Ana, CA 92705 6 [email protected] (714) 918-7000 – FAX (714) 918-6996 [email protected] [email protected] 7 ATTORNEYS FOR PLAINTIFF CILKER [email protected] APARTMENTS, LLC [email protected] 8 Sheila Ellis [email protected] ATTORNEY(S) FOR DEFENDANT/CROSS- 9 COMPLAINANT WESTERN NATIONAL CONSTRUCTION 10

11 David Levy Lori R. Mayfield VAN DE POEL, LEVY & ALLEN, LLP LAW OFFICE OF DAVID A WALLIS 12 1600 South Main Plaza, Suite 325 2251 Harvard, Suite 100 Walnut Creek, CA 94596 Sacramento, CA 95815 (925) 934-6102 – FAX (925) 934-6060 (916) 283-2678 – FAX (916) 921-9040 13 [email protected] [email protected] ATTORNEY(S) FOR DEFENDANT LDI MECHANICAL, ATTORNEY(S) FOR ROBECKS WELDING & 14 INC. (sued herein as LDI) FABRICATION, INC.

15 Michael L. Marx Richard N. Sieving, Esq. Denise R. Sutherland Luke G. Pears-Dickson, Esq. 16 GOODMAN NEUMAN HAMILTON LLP THE SIEVING LAW FIRM, APC 417 Montgomery Street, 10th Floor 100 Howe Street, Suite #220N 17 San Francisco, CA 94104 Sacramento, CA 95825 (415) 705-0400 – FAX (415) 705-0411 (916) 444-3366 – FAX (916) 444-1223 18 [email protected] [email protected] [email protected] [email protected] ATTORNEY(S) FOR JOSEPH J. ALBANESE, INC ATTORNEY(S) FOR JELD-WEN, INC. , AN OREGON 19 CORPORATION DBA SUMMIT WINDOW & PATIO DOOR (ERRONEOUSLY SUED HEREIN AS 20 SEPARATE ENTITIES SUMMIT WINDOW & PATIO DOOR AND DOE 3: JELD-WEN, INC. DBA SUMMIT 21 WINDOW & PATIO DOOR

Eileen T. Booth Bruce A. Trevithick 22 JACOBSEN & McELROY PC LAW OFFICES OF MELISSA M. BALLARD 2401 American River Drive, Suite 100 1551 North Tustin Avenue, Suite 830 23 Sacramento, CA 95825 Santa Ana, CA 92705 (916) 971-4100 – FAX (916) 971-4150 (714) 571-0407 – FAX (877) 369-5799 24 [email protected] Direct: (714) 371-2758 ATTORNEY(S) FOR PACIFIC COAST BUILDING Mailing Address: PRODUCTS dba ANDERSON TRUSS (erroneously sued P.O. Box 2282 25 herein as ANDERSON TRUSS; ROE 4; DOE 4) Brea, CA 92822-2282 [email protected] 26 ATTORNEY(S) FOR DEFENDANT/CROSS- DEFENDANT ROBECK’S WELDING & 27 FABRICATION, INC.

28 Michael J. Estep Maria M. Rohaidy Collins Collins 19010 – DEMURRER TO FAC OF MVE ENTITIES (06-18-15) Muir + Stewart LLP 1999 Harrison Street Suite 1700 11 Oakland, CA 94612 Phone (510) 844-5100 MVE’S DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT Fax (510) 844-5101 E-FILED: Jun 18, 2015 5:00 PM, Superior Court of CA, County of Santa Clara, Case #1-13-CV-258281 Filing #G-73804

1 LAW OFFICES OF TIMOTHY R. WAGNER Alison S. Flowers 1655 Grant Street, Suite 800-B TAUBMAN, SIMPSON, YOUNG & SULENTOR APC 2 Concord, CA 94520 One World Trade Center, Suite 400 (925) 681-3600 – FAX (866) 386-1186 Long Beach, CA 90831-0400 [email protected] (562) 436-9201 – FAX (562) 590-9695 3 ATTORNEY(S) FOR PYRAMID BUILDERS, INC. [email protected] [email protected] 4 ATTORNEY(S) FOR AMPAM PARKS MECHANICAL, INC. 5

Jill J. Lifter G. Geoffrey Wood 6 Joseph Ryan Ross C. Dwyer RYAN & LIFTER APC ERICKSEN ARBUTHNOT 7 2010 Crow Canyon Place, Suite 330 155 Grand Avenue, Suite 1050 San Ramon, CA 94583-1344 Oakland, CA 94612 8 (925) 884-2080 – FAX 884-2090 (510) 832-7770 – FAX (510) 832-0102 [email protected] [email protected] [email protected] [email protected] 9 ATTORNEY(S) FOR CELL-CRETE CORPORATION ATTORNEY(S) FOR DIMETRIUS PAINTING II, INC. (ROE 11) 10 Thomas R. Kirvin Daniel A. Serot 11 LAW OFFICES OF SANTANA, TCHENG, VIERRA & VAN DE POEL, LEVY, ALLEN & ARNEAL, LLP SYMONDS 1600 South Main Plaza, Suite 325 71 Stevenson Street, Suite 700 Walnut, Creek, CA 94596 12 San Francisco, CA 94105 (925) 934-6102 – FAX (925) 934-6060 (415) 777-1308 – FAX (415) 896-9063 [email protected] 13 [email protected] ATTORNEY(S) FOR CROSS-DEFENDANT ADM ATTORNEY(S) FOR DEFENDANT CALIFORNIA CONSTRUCTION CO., INC. 14 CLASSIC PAVER DESIGNS, INC., a dissolved California corporation, incorrectly sued as CALIFORNIA CLASSIC PAVERS, and Defendant-in-Intervention, LIBERTY 15 MUTUAL INSURANCE COMPANY

16 Thomas B. Wait Robert B. Luceck 17 Robert A. Hufnagel Alexander R. Moore Matthew P. Malczynski BOORNAZIAN, JENSEN & GARTHE WAIT & HUFNAGEL A Professional Corporation 18 250 West First Street, Suite 222 555 12th Street, Suite 1800 Claremont, CA 91711 Oakland, CA 94607 19 (909) 621-5672 – FAX (909) 399-0645 [email protected] [email protected] ATTORNEY(S) FOR DEFENDANT MADERA 20 [email protected] FRAMING, INC. (erroneously sued as Madera Framing) [email protected] ATTORNEY(S) FOR DEFENDANT TARA COATINGS, 21 INC. (erroneously sued herein as TARA COATINGS)

22 Leonard T. Fink Rebecca J. Collaco 23 Benjamin J. Angulo Brian H. Gunn SPRINGEL & FINK LLP WOLFE & WYMAN LLP 575 Market Street, Suite 2200 2175 California Blvd., Suite 645 24 San Francisco, CA 94105 Walnut Creek, CA 94596-3502 (415) 541-5363 – FAX (415) 541-5364 (925) 280-0004 – FAX (925) 280-0005 25 [email protected] [email protected] [email protected] [email protected] 26 ATTORNEY(S) FOR CROSS-DEFENDANT COURTNEY, ATTORNEY(S) FOR DEFENDANT ALLIANCE INC., erroneously sued and served as COURTNEY BUILDING PRODUCTS, INC. WATERPROOFING, INC. 27 Todd A. Jones Larry D. Letofsky 28 Gregory K. Federico Robyn S. McClain ARCHER NORRIS APLC LETOFSKY – McCLAIN Collins Collins 19010 – DEMURRER TO FAC OF MVE ENTITIES (06-18-15) Muir + Stewart LLP 1999 Harrison Street Suite 1700 12 Oakland, CA 94612 Phone (510) 844-5100 MVE’S DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT Fax (510) 844-5101 E-FILED: Jun 18, 2015 5:00 PM, Superior Court of CA, County of Santa Clara, Case #1-13-CV-258281 Filing #G-73804

1 301 University Avenue, Suite 110 3655 Nobel Drive, Suite 400 Sacramento, CA 95825-5537 San Diego, CA 92122 2 (916) 646-2480 – FAX (916) 646-5696 (858) 642-1372 – FAX: (858) 642-1379 [email protected] [email protected] [email protected] [email protected] 3 ATTORNEY(S) FOR DEFENDANT/CROSS-DEFENDANT CO-COUNSEL FOR AMPAM PARKS MECHANICAL, ROBECK’S WELDING & FABRICATION, INC. INC. 4

5 SPECIAL MASTER / DISCOVERY REFEREE: DOCUMENT DEPOSITORY: Gerald Kurland, Esq. Aiken & Welch JAMS/ADR 111 N. Market Street 6 1601 Cloverfield Blvd., Suite 370S San Jose, CA 95113 Santa Monica, CA 90404 (877) 451-1580 7 (310) 392-3044 – FAX (310) 396-7576 [email protected] 8 Joseph A. Long, Esq. Thomas Yen, Esq. Marcia A. Pollioni, Esq. LAW OFFICE OF BEVERLY E. NARAYAN 9 LONG BLUMBERG, LLP 525 Market Street, Suite 2850 2950 Buskirk Avenue, Suite 315 San Francisco, CA 94105 10 Walnut Creek, CA 94597 (415) 227-2300 – FAX (415) 227-2360 (925) 941-0090 – FAX (925) 941-0085 [email protected] 11 Pollioni Cell: (415) 730-0072 (Preferred) ATTORNEY(S) FOR DEFENDANT CASEY-FOGLI [email protected] CONCRETE CONTRACTORS; CASEY-FOGLI [email protected] CONTRACTORS, INC. 12 ATTORNEY(S) FOR DEFENDANT/CROSS-DEFENDANT LOS NIETOS CONSTRUCTION 13

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28 Collins Collins 19010 – DEMURRER TO FAC OF MVE ENTITIES (06-18-15) Muir + Stewart LLP 1999 Harrison Street Suite 1700 13 Oakland, CA 94612 Phone (510) 844-5100 MVE’S DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT Fax (510) 844-5101