|
|
|
|
************* WOLF,
RIFKIN & SHAPIRO, LLP
Attorneys for Plaintiff
SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES
PLAINTIFF, SHERMAN OAKS SENIOR CITIZEN HOUSING CORPORATION, a California non-profit public benefit corporation, alleges and complains as follows:
ALLEGATIONS COMMON TO
ALL CAUSES OF ACTION 1. Plaintiff, Sherman Oaks Senior Citizen Housing Corporation (“Senior Citizen Housing”) is, and at all times mentioned herein was, a non-profit public benefit corporation organized and existing under the laws of the State of California. At all times material hereto, Senior Citizen Housing has dedicated its resources in an effort to create affordable housing for low income senior citizens residing in the County of Los Angeles. 2. Plaintiff is informed and believes and thereon alleges that Defendants, The Walton Associated Companies dba The Walton Company (“Walton”) is, and at all times material hereto was, a corporation organized and existing under the laws of the State of California, maintained its principal place of business in Los Angeles County, and was a general contractor, license number 362328. 3. Plaintiff is informed and believes and thereon alleges that the Defendants identified herein as Walton and DOES 1 through 25, inclusive (hereinafter collectively referred to as “Contractor Defendants”) and each of them, participated as the general contractor in the construction of the project which is the subject matter of this action as more fully alleged hereinbelow. Plaintiff is unaware of the precise and exact nature of the relationship between the Contractor Defendants and the part each played in the construction of the project. When the true and precise nature of their participation and relationship becomes known, this pleading will be amended to reflect the same or it will be established at the time of trial, according to proof. 4. Plaintiff is informed and believes and thereon alleges that the Defendants identified herein as DOES 26 through 75, inclusive, are, and at all times relevant herein were, subcontractors of the Contractor Defendants (hereinafter the “Subcontractor Defendants”). The Subcontractor Defendants, and each of them, defectively constructed, designed, engineered, repaired and manufactured various parts of the project which is the subject matter of this action. 5. Plaintiff is informed and believes and thereon alleges that the Defendants identified herein as DOES 76 through 100, inclusive, are, and at all times relevant herein were, surety companies who issued insurance guarantees to the Contractor Defendants in the form of Performance Bonds and/or State Contractor License Bonds (hereinafter the “Surety Defendants”). Plaintiff is further informed and believes and thereon alleges that, at all times material hereto, the Surety Defendants were corporations organized and existing under the laws of the State of California and were authorized to do, and did business, in the County of Los Angeles, State of California. 6. The true names and capacities, whether individual, corporate, associate, governmental or otherwise, of Defendants sued herein as DOES 1 through 100, inclusive, are unknown to Plaintiff at the present time and Plaintiff sues said Defendants by such fictitious names. Plaintiff will seek leave of Court, if necessary, to amend this complaint so as to identify the true names and capacities of each DOE Defendant when the same has been ascertained. JURISDICTION 7. The project which is the subject matter of this action (“Project”) is located in the County of Los Angeles, State of California with a common street address of 14567 Dickens Street, Sherman Oaks. As more fully alleged hereinbelow, the contract between Plaintiff and Contractor Defendants was entered into in the County of Los Angeles, State of California. THE WRITTEN CONTRACT 8. On or about April 28, 1995, Senior Citizen Housing and Walton entered into a written construction contract pursuant to which Walton was to furnish all of the materials and perform all of the work shown on and in accordance with certain drawings and specifications for the construction of senior citizen housing located at 14567 Dickens Street, Sherman Oaks, California (also known as the Dickens Senior Housing Project.) The Project was undertaken under the auspices of the United States Department of Housing and Urban Development (“HUD”). The construction contract incorporated by reference the provisions of AIA document A201 “General Conditions of the Contract for Construction” with the exception of all paragraphs concerning arbitration and Form HUD 2554, “Supplementary Conditions of the Contract for Construction.” A true and correct copy of the contract between the parties as alleged herein (hereinafter “Contract”) is attached hereto as Exhibit “A” and by this reference made a part hereof as though fully set forth. 9. The Contract provided for payment terms based upon a cost of construction plus a fee of $345,472.00 but, in no event, was the cost of construction and fee to Defendant Contractor to exceed $4,802,310.00. 10. Plaintiff is informed and believes and thereon alleges that, pursuant to the terms and conditions of the Contract incorporating the AIA General Conditions paragraph 3.5, Contractor Defendants warranted to Plaintiff that the materials and equipment furnished under the Contract would be of good quality and that the work would be performed free from defects. Plaintiff is further informed and believes and thereon alleges that pursuant to the terms of the Contract, Contractor Defendants were to provide an FHA Form 2452-EH Performance Bond in the penal sum of $4,802,310.00 identifying both Senior Citizen Housing and HUD as obligees on the said Bond. Plaintiff is further informed and believes and thereon alleges that, at all times material hereto, Contractor Defendants also maintained a surety bond with the State Contractor's License Board. THE DEFECTS 11. Plaintiff is informed and believes and thereon alleges that a variety of latent defects and deficiencies have been discovered by Plaintiff including, but not limited to, the following: 1. Improper design, construction and/or installation of the framing system 2. Improper design, construction and/or installation of interior and exterior walls; 3. Improper design, construction and/or installation of flooring; 4. Improper design, construction and/or installation of the roofing system; 5. Improper design, construction and/or installation of the stucco system; 6. Improper design, construction and/or installation of windows; 7. Improper design, construction and/or installation of mechanical systems; 8. Improper design, construction and/or installation of the garage area; and 9. Improper design, construction and/or installation of decks. 12. As a result of the latent defects and deficiencies as alleged hereinabove, the Project has and continues to experience resulting property damage including, but not limited to, severe water intrusion which has, and continues to cause, mold and mildew to grow and spread in the framing system. 13. Plaintiff is informed and believes and thereon alleges that latent defects and deficiencies in the architectural, engineering, structural design and/or construction of the Project are continuing to be discovered. Plaintiff is still engaged in investigating defects and all defects have not yet been discovered. The damage caused by the aforementioned causes and defects is latent, progressive, and continuing. Plaintiff will seek leave of court to amend this complaint as further defects are discovered.
FIRST CAUSE OF ACTION 14. Plaintiff refers to and incorporates by reference paragraphs 1 through 13, inclusive, of the complaint as though fully set forth herein. 15. Contractor Defendants have materially breached the Contract by constructing the Project with a variety of latent defects and deficiencies as more fully alleged hereinabove. Plaintiff has made these defects known to Contractor Defendants who have failed and refused to remedy these defects. 16. Plaintiff has preformed all of the covenants and conditions of the Contract to be performed on its part, except to the extent that such performance has been prevented, excused, hindered or waived. 17. Plaintiff is informed and believes and thereon alleges that, as a direct and proximate result of the material breach of the Contract by Contractor Defendants, Plaintiff has sustained general, special, consequential and incidental damages in an amount presently unknown, but in excess of the minimal jurisdictional limit of this Court in that Plaintiff will be required to perform works of repair, restoration, and construction to portions of the Project to prevent further property damage and to restore portions thereof to their proper condition. Plaintiff will establish the precise amount of damages at trial, according to proof. 18. Plaintiff is informed and believes and thereon alleges that, as a further direct and proximate result of the material breach of the Contract by Contractor Defendants, the interest of Plaintiff in the Project and the value thereof has been reduced and diminished in an amount presently unknown but will be established at the time of trial, according to proof. 19. Plaintiff is informed and believes and thereon alleges that, as a further direct and proximate result of the material breach of the Contract by Contractor Defendants, the residents of the Project have sustained damage to the interior portions of their dwelling units and sustained loss of use and enjoyment of their dwelling units in an amount presently unknown but will be established at the time of trial, according to proof.
SECOND CAUSE OF ACTION 20. Plaintiff refers to and incorporates by reference paragraphs 1 through 13, inclusive, of the complaint as though fully set forth herein. 21. Plaintiff is informed and believes and thereon alleges that Contractor Defendants and Subcontractor Defendants, and each of them, whether contractors, subcontractors, materialmen, suppliers, architects, inspectors, engineers and/or builders, performed work, labor and/or services at the Project and each knew, or should have known, that if the Project was not properly or adequately designed, supervised and/or constructed, that Plaintiff and users thereof would be substantially damaged thereby and that the Project would be defective and not of merchantable quality. 22. Defendants, and each of them, were under a duty to exercise ordinary and reasonable care as contractors, subcontractors, materialmen, suppliers, architects, inspectors, engineers and/or builders, or otherwise to avoid reasonably foreseeable injury to Plaintiff and users of the Project and knew or should have known, with reasonable certainty, that Plaintiff and/or users of the Project would suffer the monetary damages set forth herein if said Defendants failed to perform their duty to cause the Project to be completed in a proper and workmanlike manner and fashion and without defects. 23. Defendants, and each of them, failed and neglected to perform the work, labor and/or services properly or adequately in that each of said Defendants negligently, carelessly and in an unworkmanlike manner performed the aforesaid work, labor and/or services such that the Project, as described herein, was constructed improperly, negligently, carelessly, and in an unworkmanlike manner. 24. Plaintiff is informed and believes and thereon alleges that, as a direct and proximate result of the foregoing negligence, carelessness, unworkmanlike conduct, and the actions and/or omissions of Defendants, and each of them, Plaintiff has sustained general, special, consequential and incidental damages in an amount presently unknown, but in excess of the minimal jurisdictional limit of this Court in that Plaintiff will be required to perform works of repair, restoration, and construction to portions of the Project to prevent further property damage and to restore portions thereof to their proper condition. Plaintiff will establish the precise amount of damages at trial, according to proof. 25. Plaintiff is informed and believes and thereon alleges that, as a further direct and proximate result of the foregoing negligence of Defendants, and each of them, the interest of Plaintiff in the Project and the value thereof has been reduced and diminished in an amount presently unknown but will be established at the time of trial, according to proof. 26. Plaintiff is informed and believes and thereon alleges that, as a further direct and proximate result of the foregoing negligence of Defendants, and each of them, the residents of the Project have sustained damage to the interior portions of their dwelling units and sustained loss of use and enjoyment of their dwelling units in an amount presently unknown but will be established at the time of trial, according to proof.
THIRD CAUSE OF ACTION 27. Plaintiff refers to and incorporates by reference paragraphs 1 through 13, and 15 through 19, inclusive, as though fully set forth herein. 28. Pursuant to Paragraph 3.5.1 of the AIA Document A201 incorporated by reference into the Contract, Contractor Defendants warranted that the materials and equipment furnished under the contract would be of good quality and new and that the work would be free from defects and would conform with the requirements of all contract documents. 29. Plaintiff is informed and believes and thereon alleges that the Project was inadequately constructed, manufactured, developed, designed, supervised or otherwise improved, as more fully alleged hereinabove, so that the above-described defective conditions exist and the Project is not of merchantable quality or erected in a reasonably workmanlike manner. 30. Plaintiff is informed and believes and thereon alleges that the Project may be additionally defective in ways and to extents not precisely known, but which will be asserted herein by way of amendment or will be established at the time of trial, according to proof. 31. Plaintiff has performed everything on its part to be performed pursuant to the express warranties and have timely notified Contractor Defendants, and each of them, that the Project or portions thereof was not of merchantable quality or erected in a reasonably workmanlike manner and from time to time, gave further notice of the particulars of such defective conditions. Notwithstanding such notices, the Contractor Defendants, and each of them, have declined and failed to acknowledge responsibility for these defects or otherwise cause the appropriate restoration and/or repairs to be made to the Project at their expense or to otherwise contribute to the costs of these repairs. 32. Plaintiff is informed and believes and thereon alleges that the defects described herein arose out of, or were attributable to and were directly and proximately caused by the above-described latent deficiencies in the design, specifications, planning, supervision, observation of construction, selection of building materials, construction, development and/or improvement of the Project and that prior to the time when it was discovered by Plaintiff, could not have been discovered by the exercise of reasonable diligence. 33. Plaintiff is informed and believes and thereon alleges that, as a direct and proximate result of the foregoing breach of express warranty and the actions and/or omissions of Defendants, and each of them, Plaintiff has sustained general, special, consequential and incidental damages in an amount presently unknown, but in excess of the minimal jurisdictional limit of this Court in that Plaintiff will be required to perform works of repair, restoration, and construction to portions of the Project to prevent further property damage and to restore portions thereof to their proper condition. Plaintiff will establish the precise amount of damages at trial, according to proof. 34. Plaintiff is informed and believes and thereon alleges that, as a further direct and proximate result of the foregoing breach of express warranty of Defendants, and each of them, the interest of Plaintiff in the Project and the value thereof has been reduced and diminished in an amount presently unknown but will be established at the time of trial, according to proof. 35. Plaintiff is informed and believes and thereon alleges that, as a further direct and proximate result of the foregoing breach of express warranty by Defendants, and each of them, the residents of the Project have sustained damage to the interior portions of their dwelling units and sustained loss of use and enjoyment of their dwelling units in an amount presently unknown but will be established at the time of trial, according to proof.
FOURTH CAUSE OF ACTION 36. Plaintiff refers to and incorporates herein by reference paragraphs 1 through 13, inclusive, as though fully set forth herein. 37. Plaintiff is informed and believes and thereon alleges that, pursuant to the Contract, Contractor Defendants were required to purchase a Performance Bond insuring the faithful performance of the scope of work set forth in the said Contract. Plaintiff does not have in its possession a copy of the said Performance Bond which is believed to be in the exclusive control of Contractor Defendants. As a result, Plaintiff is unaware of the true name of the Surety Defendant that issued the Performance Bond. When Plaintiff becomes aware of the identity of the Surety Defendant, Plaintiff will amend this complaint to identify the Surety Defendant who issued the performance bond. 38. Contractor Defendants, and each of them, have failed to faithfully perform their obligations under the contract requiring the Surety Defendant to pay the full amount of Plaintiff's damages, the precise amount of which is unknown at this time.
FIFTH CAUSE OF ACTION 39. Plaintiff refers to and incorporates by reference paragraph 1 through 13, as though fully set forth herein. 40. Plaintiff is informed and believes and thereon alleges that Contractor and Subcontractor Defendants executed and delivered to the State of California their bonds and obligations in writing pursuant to California Business and Professions Code Section 7071.5. Pursuant to California Business and Professions Code Section 7071.5, such bonds are for the benefit of any person damaged as a result of a violation of Business and Profession Code Sections 7000-7173. 41. As alleged hereinabove, Contractor and Subcontractor Defendants have wilfully failed to perform work at the Project with reasonable diligence and further failed in material respects to complete construction of the Project in that the Project was built deficiently and defectively. The acts and omissions of Contractor and Subcontractor Defendants constitute violations of Business and Professions Code Sections 7000-7173. 42. Plaintiff is unaware of the true identity of the Surety Defendants who issued license bonds on behalf of Contractor and Subcontractor Defendants and will amend this complaint when the true names of the Surety Defendants have been identified. 43. For the reasons set forth hereinabove, each Surety Defendant issuing a Contractor State License Bond is indebted to Plaintiff in the full amount of the penal sum of the license bonds issued to all Contractor and Subcontractor Defendants as will be established according to proof at the time of trial.
SIXTH CAUSE OF ACTION 44. Plaintiff refers to and incorporates by reference paragraphs 1 through 13, inclusive, as though fully set forth therein. 45. Plaintiff is informed and believes and thereon alleges that Subcontractor Defendants, and each of them, entered into written contracts with Contractor Defendants pursuant to which the Subcontractor Defendants agreed to perform work of improvement at the Project. These contracts were made for the benefit of Plaintiff. 46. Plaintiff is informed and believes and based thereon alleges that Subcontractor Defendants breached said contracts in that they failed to perform their scopes of work in a workmanlike manner and in accordance with the plans and specifications and applicable building codes. 47. Plaintiff is informed and believes and thereon alleges that, as a direct and proximate result of the foregoing breach of the third party beneficiary contracts, and the actions and/or omissions of Defendants, and each of them, Plaintiff has sustained general, special, consequential and incidental damages in an amount presently unknown, but in excess of the minimal jurisdictional limit of this Court in that Plaintiff will be required to perform works of repair, restoration, and construction to portions of the Project to prevent further property damage and to restore portions thereof to their proper condition. Plaintiff will establish the precise amount of damages at trial, according to proof. 48. Plaintiff is informed and believes and thereon alleges that, as a further direct and proximate result of the breach of third party beneficiary contracts by Defendants, and each of them, the interest of Plaintiff in the Project and the value thereof has been reduced and diminished in an amount presently unknown but will be established at the time of trial, according to proof. 49. Plaintiff is informed and believes and thereon alleges that, as a further direct and proximate result of the breach of third party beneficiary contracts by Defendants, and each of them, the residents of the Project have sustained damage to the interior portions of their dwelling units and sustained loss of use and enjoyment of their dwelling units in an amount presently unknown but will be established at the time of trial, according to proof. WHEREFORE, Plaintiff prays for judgment as follows: AS TO EACH CAUSE OF ACTION 1. For general, special, consequential and incidental damages, according to proof; 2. For attorneys' fees incurred by Plaintiff in accordance with California Code of Civil Procedure Section 1021.5 as this action has been brought on behalf of a not-for-profit public benefit corporation and seeks to enforce important rights affecting the public interest; 3. For costs of suit incurred herein; and 4. For such other relief as the Court deems just and proper.
Dated: WOLF, RIFKIN & SHAPIRO, LLP
By: Leslie S. Marks, Attorneys for Sherman Oaks Senior Citizen Housing Corporation
|
|
Copyright 2000-2002, The Law Offices of Cynthia Coulter Mulvihill, APC
|