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E-Filed Stephen B 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. 16 17 18 19 20 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 1 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.
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