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Cynthia Coulter Mulvihill, Esq. SBN 171909
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SHERMAN OAKS SENIOR CITIZEN HOUSING CORPORATION, et al.,
Plaintiffs,
v.
THE WALTON ASSOCIATED COMPANIES, et al.,
Defendants. _________________________________
THE WALTON ASSOCIATED COMPANIES,
Cross-Complainant,
v.
A.M. DRYWALL, INC.; BREEZEWAY THRIFTY GLASS; BUILDING MATERIALS CORPORATION OF AMERICA [GAF MATERIALS CORPORATION]; C & R PLUMBING CO., INC.; CALCON STEEL CONSTRUCTION; CHRISTIANSON ROOFING CO., INC.; CHRISTIANSON ROOFING COMPANY; CONSOLIDATED WATERPROOFING; ECL SHEET METAL; EMERY-KANARIK A.I.A AND ASSOCIATES; FRONTIER PACIFIC INSURANCE COMPANY, a surety; GAYTON PAINTING; GILLETTE ASSOCIATES; INDEMNITY COMPANY OF CALIFORNIA, a surety; INSUL-CRETE, INC.; IRVINE WEST HEATING AND AIR CONDITIONING; JO-JO ENTERPRISES, INC.; LOEWENBERG FITCH ARCHITECTURE/PLANNING; M.E NUNEZ ENTERPRISES AND M.E. NUNEZ; MILGARD WINDOWS; PACIFIC STRUCTURAL CONCRETE; PIONEER MASONRY, INC.; RICHARD DUBIN dba SAN GABRIEL INSULATION, a sole proprietorship; RUSS PERSHING CONSTRUCTION; STAR INSURANCE COMPANY, a surety; WEST COAST DOOR; YU-CAL DEVELOPMENT, INC.; and ROES 40-150, inclusive; Cross-Defendants
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CASE NO.: BC 228212
FOURTH AMENDED CROSS-COMPLAINT OF THE WALTON COMPANY FOR:
(1) BREACH OF CONTRACT (AGAINST SUBCONTRACTOR CROSS-DEFENDANTS);
(2) BREACH OF CONTRACT, THIRD PARTY BENEFICIARY (AGAINST ARCHITECTURAL CROSS-DEFENDANTS); (3) BREACH OF EXPRESS WARRANTY (AGAINST SUBCONTRACTOR CROSS-DEFENDANTS) (4) IMPLIED INDEMNITY (AGAINST ALL CROSS-DEFENDANTS) (5) EQUITABLE INDEMNITY (AGAINST ALL CROSS-DEFENDANTS) (6) COMPARATIVE EQUITABLE INDEMNITY (AGAINST ALL CROSS-DEFENDANTS) (7) TOTAL EQUITABLE INDEMNITY (AGAINST ALL CROSS-DEFENDANTS) (8) APPORTIONMENT OF FAULT (AGAINST ALL CROSS-DEFENDANTS) (9) CONTRIBUTION (AGAINST ALL CROSS-DEFENDANTS) (10) NEGLIGENCE (AGAINST ARCHITECTURAL CROSS-DEFENDANTS) (11) RECOVERY ON PERFORMANCE BOND (AGAINST SURETY CROSS-DEFENDANTS) (12) DECLARATORY RELIEF (AGAINST ALL CROSS-DEFENDANTS) (13) EQUITABLE CONTRIBUTION (AGAINST ROES 101 to 150)
[CERTIFICATE OF MERIT FILED CONCURRENTLY HEREWITH]
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COMES NOW Cross-Complainant THE WALTON ASSOCIATED COMPANIES DBA THE WALTON COMPANY and alleges against the Cross-Defendants, and each of them, as follows:
1. At all material times herein mentioned, THE WALTON ASSOCIATED COMPANIES DBA THE WALTON COMPANY was authorized to do business in California.
2. THE WALTON ASSOCIATED COMPANIES DBA THE WALTON COMPANY is informed and believes those Cross-Defendants, and each of them, are indebted to THE WALTON ASSOCIATED COMPANIES DBA THE WALTON COMPANY on the obligation sued on herein.
3. At all times herein mentioned, each of the Cross-Defendants was the agent and employee of each of their Co-Cross-Defendants, and in doing the things herein mentioned, were acting in the scope of their authority as such agents and employees, and with the permission and consent of their Co-Cross-Defendants.
4. The true names or capacities whether individual, corporate, associate or otherwise, of Cross-Defendants named herein as ROES 40 through 150, inclusive, are unknown to THE WALTON ASSOCIATED COMPANIES DBA THE WALTON COMPANY, who sues said Cross-Defendants by such fictitious names. THE WALTON ASSOCIATED COMPANIES DBA THE WALTON COMPANY will amend this Cross-Complaint to show the true names and capacities when the same has been ascertained. THE WALTON ASSOCIATED COMPANIES DBA THE WALTON COMPANY is informed and believes and thereon alleges that the fictitiously named Cross-Defendants named herein, and each of them, are in some way indebted to THE WALTON ASSOCIATED COMPANIES DBA THE WALTON COMPANY for the acts and obligations alleged herein.
5. THE WALTON ASSOCIATED COMPANIES DBA THE WALTON COMPANY is informed and believes and thereon alleges that all the acts and omissions alleged herein occurred within the jurisdiction of this court. THE WALTON ASSOCIATED COMPANIES DBA THE WALTON COMPANY is informed and believes and thereon alleges that at all times herein mentioned, Cross-Defendants, and each of them, were residents of or conducted business in the County of Los Angeles.
6. THE WALTON ASSOCIATED COMPANIES DBA THE WALTON COMPANY is ignorant of the true names and the capacities of Cross-Defendants sued herein as ROES 40 through 150, inclusive, and therefore sue these Cross-Defendants by such fictitious names. THE WALTON ASSOCIATED COMPANIES DBA THE WALTON COMPANY will seek to amend this Cross-Complaint to allege the true names and capacities when so ascertained.
7. On April 13, 2000, SHERMAN OAKS SENIOR CITIZEN HOUSING CORPORATION, a California non-profit public benefit corporation, filed the underlying Complaint attached hereto as EXHIBIT “A”.
8. The Complaint of SHERMAN OAKS SENIOR CITIZEN HOUSING CORPORATION makes allegations of construction defects arising out the construction of affordable senior housing at 14567 Dickens Street, Los Angeles, California. This address is also sometimes referred to as 14559 Dickens Street, Los Angeles, California. Construction on 14567 Dickens Street was completed on April 22, 1996, as shown on the Notice of Completion attached hereto as EXHIBIT “B”.
9. THE WALTON ASSOCIATED COMPANIES DBA THE WALTON COMPANY entered into Contracts with the Cross-Defendants described in this paragraph:
(a) A.M DRYWALL, INC., a suspended California Corporation, California Contractor’s license number 563843;
(b) BREEZ WAY THRIFTY GLASS, a suspended California Corporation, California Contractor’s license number 694232;
(c) BUILDING MATERIALS CORPORATION OF AMERICA [GAF MATERIALS CORPORATION], a Delaware Corporation, California Contractor’s license number 738775;
(d) CHRISTIANSON ROOFING COMPANY, a California Corporation, California Contractor’s license number 599505;
(e) CHRISTIANSON ROOFING CO., INC., a California Corporation, California Contractor’s license number 276196;
(f) C & R PLUMBING CO., INC., a California Corporation, California Contractor’s license number 322006;
(g) CALCON STEEL CONSTRUCTION, INC., a California Corporation, California Contractor’s license number 570008 and 718846;
(h) CONSOLIDATED WATERPROOFING, INC. a suspended California Corporation, California Contractor’s license number 349419;
(i) ECL GENERAL SHEET METAL HEATING & VENTILATING, INC., a California Corporation;
(j) INSUL-CRETE, INC., a California Corporation, California Contractor’s license number 342531;
(k) IRVINE WEST HEATING AND AIR CONDITIONING, a dissolved California corporation, California Contractor’s license number 345284 and 468609;
(l) JO-JO ENTERPRISES, INC., a suspended California corporation, California Contractor’s license number 694232;
(m) M.E NUNEZ ENTERPRISES AND M.E. NUNEZ, a dissolved California corporation;
(n) MILGARD MANUFACTURING INCORPORATED, a Washington corporation, California Contractor’s license number 462968;
(o) PACIFIC STRUCTURAL CONCRETE, a suspended California corporation, California Contractor’s license number 310707;
(p) PIONEER MASONRY, INC., a California corporation, California Contractor’s license number 203144, 491993, and 469934;
(q) RUSS PERSHING CONSTRUCTION, a business form unknown, California Contractor’s license number 393163;
(r) RICHARD DUBIN dba SAN GABRIEL INSULATION, a sole proprietorship, California Contractor’s license number 281385;
(s) WEST COAST DOOR, INC., a California corporation, California Contractor’s license number 530805;
(t) YU-CAL DEVELOPMENT, INC., a California corporation, California Contractor’s license number 690170;
(u) ROES 40-80, inclusive, business forms unknown.
These subcontractors are hereinafter referred to as SUBCONTRACTOR CROSS-DEFENDANTS.
A true and correct copy of an exemplar of the terms of the contract is attached hereto as EXHIBIT “C” (“SUBCONTRACTOR CONTRACTS”). Paragraphs 1 and 2 are different for each SUBCONTRACTOR CROSS-DEFENDANT, as they describe the scope of work and payment amount for each
13. Paragraph 19 of the contracts entered into between THE WALTON ASSOCIATED COMPANIES DBA THE WALTON COMPANY required that the SUBCONTRACTOR CROSS-DEFENDANTS obtain a performance bond to guarantee the faithful performance of the subcontract agreement. THE WALTON ASSOCIATED COMPANIES DBA THE WALTON COMPANY is informed and believes that the following surety companies issued those performance bonds:
(a) FRONTIER PACIFIC INSURANCE COMPANY for A & M PLASTERING, INC., a California Corporation, California Contractor’s license number 331546; CALCON STEEL CONSTRUCTION, INC., a California Corporation, California Contractor’s license number 570008 and 718846; CHRISTIANSON ROOFING CO., INC., a California Corporation, California Contractor’s license number 276196; MILGARD MANUFACTURING, INCORPORATED, a Washington corporation, California Contractor’s license number 462968; PIONEER MASONRY, INC., a California corporation, California Contractor’s license number 203144, 491993, 469934; RUSS PERSHING CONSTRUCTION, a business form unknown, California Contractor’s license number 393163;
(b) INDEMNITY COMPANY OF CALIFORNIA for PACIFIC STRUCTURAL CONCRETE, a suspended California corporation, California Contractor’s license number 310707;
(c) STAR INSURANCE COMPANY for YU-CAL DEVELOPMENT, INC., a California corporation, California Contractor’s license number 690170;
(d) And ROES 81 to 100, inclusive
These CROSS-DEFENDANTS are hereinafter referred to as SURETY CROSS-DEFENDANTS.
(a) EMERY-KANARIK A.I.A AND ASSOCIATES, a dissolved California corporation.
(b) GILLETTE ASSOCIATES ARCHITECS/PLANNERS, a California corporation. The principals of GILLETTE ASSOCIATES ARCHITECTS/PLANNERS are Roger Gillette, AIA, License No. 06229 and Laurel Gillette, AIA, License No. 23656.
(c) LOEWENBERG FITCH ARCHITECTURE/PLANNING, a business form unknown. THE WALTON COMPANY is informed and believes, and based on information and belief, alleges that LOWENBERG FITCH ARCHITECTURE/PLANNING is a predecessor in interest to GILLETTE ASSOCIATES ARCHITECTS/PLANNERS.
(d) And ROES 81 to 100, business forms unknown.
These architectural defendants are hereinafter referred to as ARCHITCTURAL CROSS-DEFENDANTS.
15. A true and correct copy of the STANDARD FORM OF AGREEMENT BETWEEN OWNER AND ARCHITECT FOR HOUSING SERVICES entered into between LOWENBERG-FITCH, INC. and PLAINTIFF is attached hereto as Exhibit “D” (“ARCHITECTURAL CONTRACT”).
16. In accordance with California Code of Civil Procedure §411.35, counsel for THE WALTON ASSOCIATED COMPANIES DBA THE WALTON COMPANY obtained a Certificate of Merit, which was filed concurrently with the THIRD AMENDED CROSS-COMPLAINT, and filed again with the FOURTH AMENDED CROSS-COMPLAINT.
FIRST CAUSE OF ACTION
[BREACH
OF CONTRACT AGAINST
SUBCONTRACTOR CROSS-DEFENDANTS]
17. THE WALTON ASSOCIATED COMPANIES DBA THE WALTON COMPANY refers to and incorporates herein by reference the allegations of Paragraphs 1 through 16.
18. THE WALTON ASSOCIATED COMPANIES DBA THE WALTON COMPANY entered into an Agreement with the SUBCONTRACTOR CROSS-DEFENDANTS named herein (EXHIBIT “C”). The terms of the contract for each of the SUBCONTRACTOR CROSS-DEFENDANTS varies in the first and second paragraphs, which contain the Scope of Work and the payment amount.
19. THE WALTON ASSOCIATED COMPANIES DBA THE WALTON COMPANY denies each and every allegation contained in the Plaintiff’s Complaint. However, should the Plaintiff prove the allegations of its Complaint, THE WALTON ASSOCIATED COMPANIES DBA THE WALTON COMPANY is informed and believes that the SUBCONTRACTOR CROSS-DEFENDANTS, and each of them, caused the damages alleged in PLAINTIFF’S complaint by breaching their Contract with THE WALTON ASSOCIATED COMPANIES DBA THE WALTON COMPANY in the following ways:
(a) SUBCONTRACTOR CROSS-DEFENDANTS did not comply with Paragraph 4, the Scope of Obligation, causing THE WALTON ASSOCIATED COMPANIES DBA THE WALTON COMPANY to incur fees and costs in trying to fix the problems resulting from the SUBCONTRACTOR CROSS-DEFENDANTS work prior to litigation. THE WALTON ASSOCIATED COMPANIES DBA THE WALTON COMPANY will incur additional fees and costs in this litigation.
(b) SUBCONTRACTOR CROSS-DEFENDANTS did not comply with Paragraph 7 of the Contract, Standard of Performance causing THE WALTON ASSOCIATED COMPANIES DBA THE WALTON COMPANY to incur fees and costs in trying to fix the problems resulting from the SUBCONTRACTOR CROSS-DEFENDANTS work prior to litigation. THE WALTON ASSOCIATED COMPANIES DBA THE WALTON COMPANY will incur additional fees and costs in this litigation.
(c) SUBCONTRACTOR CROSS-DEFENDANTS did not comply with Paragraph 12, Repairs and Guarantees, causing THE WALTON ASSOCIATED COMPANIES DBA THE WALTON COMPANY to incur fees and costs in trying to fix the problems resulting from the SUBCONTRACTOR CROSS-DEFENDANTS work prior to litigation. THE WALTON ASSOCIATED COMPANIES DBA THE WALTON COMPANY will incur additional fees and costs in this litigation.
(d) SUBCONTRACTOR CROSS-DEFENDANTS did not comply with Paragraph 13, Protection and Acceptance of Other’s work, causing THE WALTON ASSOCIATED COMPANIES DBA THE WALTON COMPANY to incur fees and costs in trying to fix the problems resulting from the SUBCONTRACTOR CROSS-DEFENDANTS work prior to litigation. THE WALTON ASSOCIATED COMPANIES DBA THE WALTON COMPANY will incur additional fees and costs in this litigation.
(e) SUBCONTRACTOR CROSS-DEFENDANTS did not comply with Paragraph 14, which required Cross-Defendants to obtain insurance naming THE WALTON ASSOCIATED COMPANIES DBA THE WALTON COMPANY as additional insureds. THE WALTON ASSOCIATED COMPANIES DBA THE WALTON COMPANY was damaged in that the insurance that should have been procured would have provided coverage for damages alleged by PLAINTIFF.
(f) SUBCONTRACTOR CROSS-DEFENDANTS have failed to defend and indemnify THE WALTON ASSOCIATED COMPANIES DBA THE WALTON COMPANY in accordance with the indemnification provisions of the contract contained in Paragraph 15. THE WALTON ASSOCIATED COMPANIES DBA THE WALTON COMPANY has incurred and will continue to incur costs in defending itself in this action.
(g) SUBCONTRACTOR CROSS-DEFENDANTS failed to obtain performance bonds, in accordance with Paragraph 19, with damages according to proof at trial.
(h) SUBCONTRACTOR CROSS-DEFENDANTS have failed to pay THE WALTON ASSOCIATED COMPANIES DBA THE WALTON COMPANYS' attorneys fees in defending this matter, as required by Paragraph 26, with damages according to proof at trial.
(i) SUBCONTRACTOR CROSS-DEFENDANTS failed to perform to other terms of the Agreement, which will be proven at the time of trial, with damages to be proven at the time of trial.
SECOND CAUSE OF ACTION
[BREACH
OF CONTRACT (THIRD PARTY BENEFICIARY) AGAINST
ARCHITECTURAL CROSS-DEFENDANTS]
20. THE WALTON ASSOCIATED COMPANIES DBA THE WALTON COMPANY refers to and incorporates herein by reference the allegations of Paragraphs 1 through 19.
21. THE WALTON ASSOCIATED COMPANIES DBA THE WALTON COMPANY is informed and believes, and based upon such information and belief alleges that ARCHITECTURAL CROSS-DEFENDANTS, and each of them, entered into written contracts with PLAINTIFF to provide architectural services during the planning, design, and construction of the project. One of those contracts is the ARCHITECTURAL CONTRACT attached as Exhibit “D”.
22. THE WALTON ASSOCIATED COMPANIES DBA THE WALTON COMPANY is informed and believes, and based upon such information and belief, alleges that it was an express third-party beneficiary of all contracts entered into between the ARCHITECTURAL CROSS-DEFENDANTS and PLAINTIFF.
23. THE WALTON ASSOCIATED COMPANIES DBA THE WALTON COMPANY is the CONTRACTOR, as defined in the ARCHITECTURAL CONTRACT. Therefore, it is an express third-party beneficiary of that contract.
24. THE WALTON ASSOCIATED COMPANIES DBA THE WALTON COMPANY is informed and believes, and based upon such information and belief alleges that the ARCHITECTURAL CROSS-DEFENDANTS breached their design, planning and construction contracts with the PLAINTIFF by failing to provide design, planning and construction contracts in accordance with the terms of the contract.
25. THE WALTON ASSOCIATED COMPANIES DBA THE WALTON COMPANY is informed and believes, and based upon such information and belief alleges that the ARCHITECTURAL CONTRACT in Exhibit “D” was breached, by ARCHITECTURAL CROSS-DEFENDANTS failure to follow the provisions of their agreements, including, but not limited to, the following provisions:
(a) “Article 1, Architect’s Services and Responsibilities, The Architect’s Basic Services are described under the four Phases identified below and in Article 10, and unless otherwise provided in Article 10, include normal structural, mechanical and electrical engineering services.”
(b) “1.2.1 Based on the approved Design Documents, the Architect shall prepare, for approval by the Owner, Construction Documents consisting of Drawings and Specifications setting forth in detail the requirements for the construction of the Project.”
(c) “1.4.3 Unless otherwise provided in this Agreement and incorporated in the Contract Documents, the Architect shall provide administration of the Contract for Construction as set forth below and in the edition of AIA Document A201, General Conditions of the Contract for Construction, current as of the date of this Agreement.”
(d) “1.4.9 The Architect shall be the interpreter of the requirements of the Contract Documents and the judge of the performance thereunder by both the Owner and Contractor, and shall render written decisions on all claims, disputes and other matters in question between the Owner and the Contractor. In the capacity of interpreter and judge, the Architect shall endeavor to secure faithful performance by both the Owner and the Contractor. .”
26. THE WALTON ASSOCIATED COMPANIES DBA THE WALTON COMPANY was damaged by the ARCHITCTURAL CROSS-DEFENDANT’S breach of contract, in that THE WALTON ASSOCIATED COMPANIES DBA THE WALTON COMPANY followed the express plans and instructions of the ARCHITECTURAL CROSS-DEFENDANTS, both written and oral, during the planning, design and construction phases of the project.
27. THE WALTON ASSOCIATED COMPANIES DBA THE WALTON COMPANY denies the allegations in the PLAINTIFF’S complaint, but if such allegations are proven, THE WALTON ASSOCIATED COMPANIES DBA THE WALTON COMPANY is informed and believes that the ARCHTECTURAL CROSS-DEFENDANTS breach of contract contributed in part or in whole to the PLAINTIFF’S damages.
THIRD CAUSE OF ACTION
[BREACH OF EXPRESS WARRANTY
AGAINST SUBCONTRACTOR CROSS-DEFENDANTS]
28. THE WALTON ASSOCIATED COMPANIES DBA THE WALTON COMPANY refers to and incorporates herein by reference the allegations of Paragraphs 1 through 27.
29. THE WALTON ASSOCIATED COMPANIES DBA THE WALTON COMPANY entered into a Contract with the SUBCONTRACTOR CROSS-DEFENDANTS named herein (EXHIBIT “C”). In Paragraph 12, the SUBCONTRACTOR CROSS-DEFENDANTS guaranteed their work and agreed to repair or replace, at THE WALTON ASSOCIATED COMPANIES DBA THE WALTON COMPANYS’ option, any and all defective workmanship or materials furnished by each SUBCONTRACTOR CROSS-DEFENDANT. The guaranty extended to repair or replacement of related, adjacent or dependent work and materials that were damaged by the SUBCONTRACTOR CROSS-DEFENDANT.
30. Beginning within one year of filing of the Notice of Completion, THE WALTON ASSOCIATED COMPANIES DBA THE WALTON COMPANY requested that the SUBCONTRACTOR CROSS-DEFENDANTS make repairs to their work at the project in accordance with the guaranty provision in Paragraph 12. However, the SUBCONTRACTORS failed to repair their work and make repairs to work damaged by their work.
31. THE WALTON ASSOCIATED COMPANIES DBA THE WALTON COMPANY has been damaged in that it has paid for testing and repairs to the SUBCONTRACTOR CROSS-DEFENDANTS work, which were undertaken before inception of the litigation, and in other ways to be proven at the time of trial.
FOURTH CAUSE OF ACTION
[BREACH OF IMPLIED INDEMNITY AGAINST ALL CROSS-DEFENDANTS]
32. THE WALTON ASSOCIATED COMPANIES DBA THE WALTON COMPANY refers to and incorporates herein by reference the allegations of Paragraphs 1 through 31.
33. THE WALTON ASSOCIATED COMPANIES DBA THE WALTON COMPANY is informed and believes and thereon alleges that each of the Cross-Defendants is negligently or otherwise responsible in some or all manner for the occurrences herein alleged, and that Plaintiff’s damages herein alleged were proximately caused by the above-mentioned negligence or other tortuous conduct.
34. THE WALTON ASSOCIATED COMPANIES DBA THE WALTON COMPANY is informed and believes and thereon alleges that at all times herein mentioned each Cross-Defendant was an agent, servant and/or employee of each and every other Cross-Defendant and was acting within the course and scope of said agency, representation and/or employment, and that all their several acts and deeds herein alleged were approved and ratified by each and all of the other Cross-Defendants herein.
35. The ARCHITECTURAL CONTRACT attached hereto as EXHIBIT “D” does not contain an express indemnity provision, nor does it disclaim indemnity by the ARCHITECTURAL CROSS-DEFENDANTS. Therefore, THE WALTON ASSOCIATED COMPANIES DBA THE WALTON COMPANY, as an express third party beneficiary of the ARCHITECTURAL CONTRACT, is entitled to implied indemnity from the ARCHITECTURAL CROSS-DEFENDANTS.
36. The principal action alleges among other things conduct potentially entitling Plaintiff to compensatory damages against this Cross-Complainant, who denies that it is liable in any way for any of the events, occurrences or claimed damages as described or stated in Plaintiff’s complaint.
37. If THE WALTON ASSOCIATED COMPANIES DBA THE WALTON COMPANY is found in some manner responsible to PLAINTIFF or to anyone else as a result of said events, incidents and occurrences described in PLAINTIFF’S Complaint, which is incorporated herein, in its entirety, for the sole and exclusive purpose of stating the causes of action alleged in this Cross-Complaint, said liability would be based solely upon a derivative form of liability not resulting from the conduct of THE WALTON ASSOCIATED COMPANIES DBA THE WALTON COMPANY, but only from a potential obligation imposed by law and therefore, THE WALTON ASSOCIATED COMPANIES DBA THE WALTON COMPANY would be entitled to complete indemnity from each Cross-Defendant(s) as hereinafter alleged.
FIFTH CAUSE OF ACTION
[EQUITABLE INDEMNITY AGAINST ALL CROSS-DEFENDANTS]
38. THE WALTON ASSOCIATED COMPANIES DBA THE WALTON COMPANY refers to and incorporates herein by reference the allegations of Paragraphs 1 through 37.
39. THE WALTON ASSOCIATED COMPANIES DBA THE WALTON COMPANY is informed and believes and thereon alleges that each of the Cross-Defendants are negligently or otherwise responsible in some or all manner for the occurrences herein alleged, and that PLAINTIFF’S damages herein alleged were proximately caused by the above-mentioned negligence or other tortious conduct.
40. THE WALTON ASSOCIATED COMPANIES DBA THE WALTON COMPANY is informed and believes and thereon alleges that at all times herein mentioned each Cross-Defendant was an agent, servant and/or employee of each and every other Cross-Defendant and was acting within the course and scope of said agency, representation and/or employment, and that all their several acts and deeds herein alleged were approved and ratified by each and all of the other Cross-Defendants herein.
41. The principal action alleges among other things conduct potentially entitling PLAINTIFF to compensatory damages against this Cross-Complainant, who denies that it is liable in any way for any of the events, occurrences or claimed damages as described or stated in PLAINTIFF’S complaint.
42. If THE WALTON ASSOCIATED COMPANIES DBA THE WALTON COMPANY is found in some manner responsible to PLAINTIFF or to anyone else as a result of said events, incidents and occurrences described in PLAINTIFF’S complaint, which is incorporated herein, in its entirety, for the sole and exclusive purpose of stating the causes of action alleged in this Cross-Complaint, said liability would be based solely upon a derivative form of liability not resulting from THE WALTON ASSOCIATED COMPANIES DBA THE WALTON COMPANYS’ conduct, but only from a potential obligation imposed by law and therefore, THE WALTON ASSOCIATED COMPANIES DBA THE WALTON COMPANY would be entitled to equitable indemnity from each Cross-Defendant(s) as hereinafter alleged.
SIXTH CAUSE OF ACTION
[COMPARATIVE EQUITABLE INDEMNITY AGAINST ALL CROSS-DEFENDANTS]
43. THE WALTON ASSOCIATED COMPANIES DBA THE WALTON COMPANY refers to and incorporates herein by reference the allegations of Paragraphs 1 through 42.
44. THE WALTON ASSOCIATED COMPANIES DBA THE WALTON COMPANY is informed and believes and thereon alleges that each of the Cross-Defendants are negligently or otherwise responsible in some or all manner for the occurrences herein alleged, and that PLAINTIFF’S damages herein alleged were proximately caused by the above-mentioned negligence or other tortious conduct.
45. THE WALTON ASSOCIATED COMPANIES DBA THE WALTON COMPANY is informed and believes and thereon alleges that at all times herein mentioned each Cross-Defendant was an agent, servant and/or employee of each and every other Cross-Defendant and was acting within the course and scope of said agency, representation and/or employment, and that all their several acts and deeds herein alleged were approved and ratified by each and all of the other Cross-Defendants herein.
46. The principal action alleges among other things conduct potentially entitling PLAINTIFF to compensatory damages against this Cross-Complainant, who denies that it is liable in any way for any of the events, occurrences or claimed damages as described or stated in PLAINTIFF’S complaint.
47. If THE WALTON ASSOCIATED COMPANIES DBA THE WALTON COMPANY is found in some manner responsible to PLAINTIFF or to anyone else as a result of said events, incidents and occurrences described in PLAINTIFF’S complaint, which is incorporated herein, in its entirety, for the sole and exclusive purpose of stating the causes of action alleged in this Cross-Complaint, said liability would be based solely upon a derivative form of liability not resulting from THE WALTON ASSOCIATED COMPANIES DBA THE WALTON COMPANY’S conduct, but only from a potential obligation imposed by law and therefore, THE WALTON ASSOCIATED COMPANIES DBA THE WALTON COMPANY would be entitled to comparative equitable indemnity from each Cross-Defendant(s) as hereinafter alleged.
SEVENTH CAUSE OF ACTION
[TOTAL EQUITABLE INDEMNITY AGAINST ALL CROSS-DEFENDANTS]
48. THE WALTON ASSOCIATED COMPANIES DBA THE WALTON COMPANY refers to and incorporates herein by reference the allegations of Paragraphs 1 through 47.
49. THE WALTON ASSOCIATED COMPANIES DBA THE WALTON COMPANY is informed and believes and thereon alleges that each of the Cross-Defendants is negligently or otherwise responsible in some or all manner for the occurrences herein alleged, and that PLAINTIFF’S damages herein alleged were proximately caused by the above-mentioned negligence or other tortious conduct.
50. THE WALTON ASSOCIATED COMPANIES DBA THE WALTON COMPANY is informed and believes and thereon alleges that at all times herein mentioned each Cross-Defendant was an agent, servant and/or employee of each and every other Cross-Defendant and was acting within the course and scope of said agency, representation and/or employment, and that all their several acts and deeds herein alleged were approved and ratified by each and all of the other Cross-Defendants herein.
51. The principal action alleges among other things conduct potentially entitling PLAINTIFF to compensatory damages against this THE WALTON ASSOCIATED COMPANIES DBA THE WALTON COMPANY, who denies that it is liable in any way for any of the events, occurrences or claimed damages as described or stated in PLAINTIFF’S complaint.
52. If THE WALTON ASSOCIATED COMPANIES DBA THE WALTON COMPANY is found in some manner responsible to PLAINTIFF or to anyone else as a result of said events, incidents and occurrences described in PLAINTIFF’S complaint, which is incorporated herein, in its entirety, for the sole and exclusive purpose of stating the causes of action alleged in this Cross-Complaint, said liability would be based solely upon a derivative form of liability not resulting from the conduct of THE WALTON ASSOCIATED COMPANIES DBA THE WALTON COMPANY , but only from a potential obligation imposed by law and therefore, THE WALTON ASSOCIATED COMPANIES DBA THE WALTON COMPANY would be entitled to total equitable indemnity from each Cross-Defendant(s) as hereinafter alleged.
EIGHTH CAUSE OF ACTION
[APPORTIONMENT OF FAULT AGAINST ALL CROSS-DEFENDANTS]
53. THE WALTON ASSOCIATED COMPANIES DBA THE WALTON COMPANY refers to and incorporates herein by reference the allegations of Paragraphs 1 through 52.
54. THE WALTON ASSOCIATED COMPANIES DBA THE WALTON COMPANY is informed and believes that each Cross-Defendant was responsible, in whole or in part, for the injuries, if any, suffered by Plaintiffs. If judgment is taken against THE WALTON ASSOCIATED COMPANIES DBA THE WALTON COMPANY, each Cross-Defendant should be required:
(a) To pay a share of PLAINTIFF’S judgment which is in proportion to the comparative negligence or other tortious conduct of that Cross-Defendant in causing PLAINTIFF’S damages; and
(b) To reimburse THE WALTON ASSOCIATED COMPANIES DBA THE WALTON COMPANY for any payments made to PLAINTIFF in excess of the proportional share of THE WALTON ASSOCIATED COMPANIES DBA THE WALTON COMPANY for all Cross-Defendants' negligence or other tortious conduct.
[CONTRIBUTION AGAINST ALL CROSS-DEFENDANTS]
55. THE WALTON ASSOCIATED COMPANIES DBA THE WALTON COMPANY refers to and incorporates herein by reference the allegations of Paragraphs 1 through 54.
56. By reason of the allegations of the Plaintiffs, Defendants and Cross-Complainants’ allegations, THE WALTON ASSOCIATED COMPANIES DBA THE WALTON COMPANY will be damaged to the extent that they must pay any sum, or any sum in excess of a proportionate amount of their liability, if any, assessed by the trier of fact.
57. Accordingly, if THE WALTON ASSOCIATED COMPANIES DBA THE WALTON COMPANY is held liable for any part of the claims asserted against them, THE WALTON ASSOCIATED COMPANIES DBA THE WALTON COMPANY is entitled to equitable contribution by Cross-Defendants, and each of them, proportionate to each Cross-Defendant's share of liability, so that THE WALTON ASSOCIATED COMPANIES DBA THE WALTON COMPANY may avoid payment of any sum to Plaintiffs, or any other party, in excess of the proportionate share of liability of THE WALTON ASSOCIATED COMPANIES DBA THE WALTON COMPANY, if any, in this action.
[NEGLIGENCE AGAINST ARCHITECTURAL CROSS-DEFENDANTS]
58. THE WALTON ASSOCIATED COMPANIES DBA THE WALTON COMPANY refers to and incorporates herein by reference the allegations of Paragraphs 1 through 52.
59. The ARCHITECTURAL CROSS-DEFENDANTS were retained by Plaintiff SHERMAN OAKS SENIOR CITIZEN HOUSING CORPORATION to provide architectural services during the planning, design and construction phases of the construction of the project.
60. The ARCHITECTURAL CROSS-DEFENDANTS had a duty to THE WALTON ASSOCIATED COMPANIES DBA THE WALTON COMPANY and to the SUBCONTRACTOR CROSS-DEFENDANTS to perform architectural services that met with the applicable standards of care during the planning, design and construction of the project.
61. The ARCHITECTURAL CROSS-DEFENDANTS failed to do so by, among other things, preparing plans with designs for windows that contained architectural details that caused window leaks at the project. THE WALTON ASSOCIATED COMPANIES DBA THE WALTON COMPANY informed the ARCHITECTURAL CROSS-DEFENDANTS, who monitored construction and participated in changes and additions to the design and plans, of the problem during construction. However, the ARCHITECTURAL CROSS-DEFENDANTS refused to provide THE WALTON ASSOCIATED COMPANIES DBA THE WALTON COMPANY with a window installation design that did not leak.
62. As a result, after construction, THE WALTON ASSOCIATED COMPANIES DBA THE WALTON COMPANY was forced to test areas of leaks and incurred costs doing so. It incurred additional costs in fixing leaks caused by the negligent architectural design of the ARCHITECTURAL CROSS-DEFENDANTS.
63. THE WALTON ASSOCIATED COMPANIES DBA THE WALTON COMPANY will incur additional fees and costs as a result of being named in this litigation, all in an amount to be proven at the time of trial.
ELEVENTH CAUSE OF ACTION
[RECOVERY ON PERFORMANCE BOND AGAINST SURETY CROSS-DEFENDANTS]
64. THE WALTON ASSOCIATED COMPANIES DBA THE WALTON COMPANY refers to and incorporates herein by reference the allegations of Paragraphs 1 through 58.
65. The SUBCONTRACTOR CROSS-DEFENDANTS were required to purchase performance bonds that guaranteed the faithful performance of the subcontract agreement. THE WALTON ASSOCIATED COMPANIES DBA THE WALTON COMPANY is informed and believes that SUBCONTRACTOR CROSS-DEFENDANTS purchased those performance bonds from the SURETY CROSS-DEFENDANTS.
66. The SUBCONTRACTOR CROSS-DEFENDANTS have failed to faithfully perform their obligations under the contract. Therefore requiring the SURETY CROSS-DEFENDANTS to pay
TWELFTH CAUSE OF ACTION
[DECLARATORY RELIEF AGAINST ALL CROSS-DEFENDANTS]
67. THE WALTON ASSOCIATED COMPANIES DBA THE WALTON COMPANY refers to and incorporates herein by reference the allegations of Paragraphs 1 through 66.
68. There presently exists a dispute and controversy over the rights, liabilities and duties of the various parties herein. THE WALTON ASSOCIATED COMPANIES DBA THE WALTON COMPANY seeks a determination of the rights, liabilities and duties of the parties herein.
THIRTEENTH CAUSE OF ACTION
[EQUITABLE CONTRIBUTION AGAINST ROES 101 to 150]
69. THE WALTON ASSOCIATED COMPANIES DBA THE WALTON COMPANY refers to and incorporates herein by reference the allegations of Paragraphs 1 through 68.
70. THE WALTON ASSOCIATED COMPANIES DBA THE WALTON COMPANY is informed and believes that insurance carriers, named herein as ROES 101 to 150, other than its own, provided insurance coverage that was primary with respect to this action.
71. THE WALTON ASSOCIATED COMPANIES DBA THE WALTON COMPANY is therefore entitled to equitable contribution from those insurance carriers and the parties that they insure.
WHEREFORE, THE WALTON ASSOCIATED COMPANIES DBA THE WALTON COMPANY prays that the court make its declaration and orders and enters its judgment against Cross-Defendants, and each of them as follows:
(1) For total and complete indemnity for any judgments rendered against THE WALTON ASSOCIATED COMPANIES DBA THE WALTON COMPANY;
(2) For judgment in a proportionate share from each Cross-Defendant;
(3) For a judicial determination that Cross-Defendants were the legal cause of any injuries and damages sustained by PLAINTIFF and that Cross-Defendants indemnify Cross-Complainant, either completely or partially, for any sums of money which may be recovered against THE WALTON ASSOCIATED COMPANIES DBA THE WALTON COMPANY by Plaintiffs;
(4) For costs of suit incurred herein, including, but not limited to; experts’ fees;
(4) For attorneys’ fees as allowed by contract or law;
(5) For recovery on the performance bonds; and
(6) For such other and further relief as is fair, just and equitable.
DATED: January 27, 2002 LAW OFFICES OF CYNTHIA COULTER MULVIHILL
____________________________________
Cynthia Coulter Mulvihill
Attorney for DEFENDANT and CROSS-COMPLAINANT THE WALTON ASSOCIATED COMPANIES DBA THE WALTON COMPANY
PROOF OF SERVICE BY MAIL (1013A, 2015.5 C.C.P.)
STATE OF CALIFORNIA )
)ss.
COUNTY OF LOS ANGELES )
I am employed in the aforesaid county, State of California; I am over the age of eighteen years and not a party to the within action; my business address is: 150 South Los Robles, Sixth Floor, Pasadena, CA 91101.
On January 27, 2002, I served the foregoing document described as: FOURTH AMENDED CROSS-COMPLAINT OF THE WALTON COMPANY on the interested parties in this action by placing a true copy thereof, enclosed in a sealed envelope with postage thereon fully prepaid, in the United States mail at Pasadena, California, addressed as follows:
*** SEE SERVICE LIST ***
[XX] BY MAIL: I am "readily familiar" with the firm's practice of collection and processing correspondence for mailing, that the mail would be deposited with the United States postal service on that same day with postage thereon fully prepaid at Pasadena, California in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit.
[ ] BY FACSIMILE: The facsimile machine I used complied with Rule 2003(3), and the machine reported no error. Transmission was sent from Fax No. (626) 584-3663 to all of the Fax Nos. of the parties on the attached Mailing List. Pursuant to Rule 2005(i), I caused the machine to print a record of each of the parties, which includes the date and time transmitted.
I certify (or declare), under penalty of perjury under the laws of the State of California, that the foregoing is true and correct. Executed on January 27, 2002, at Pasadena, California.
_________________________________
SHERAL A. HYDE
EXHIBIT “A”
EXHIBIT “B”
EXHIBIT “C”
EXHIBIT “D”
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Copyright 2000-2002, The Law Offices of Cynthia Coulter Mulvihill, APC
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