Complaint,Petition: NIKI Properties, LLC VS S.D. Deacon Corp. of California

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                                       Daniel L. Rottinghaus, California Bar No. 131949
                                       Jacob A. Moss, California Bar No. 264820
                                       BERDING & WEIL LLP
                                                                                                                            F I
                                                                                                                         ALAMEDA COUNTY
                                       2175 N. California Blvd, Suite 500
                                       Walnut Creek, California 94596                                                             AUG 1-4 2017
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                                       Telephone:    925/838-2090
                                       Facsimile:    925/820-5592                                                   CLERK OF JHE SUPERIOR COURT
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                                       dlr@berding-weil.com                                                                            =‘                  :

                                       imoss(@berding-weil.com                                                      By       Co              7)        DEPUTY
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                                       Attorneys for Plaintiff
                                       NIK] PROPERTIES, LLC

                                                              SUPERIOR COURT OF THE STATE OF CALIFORNIA

                                                                    IN AND FOR THE COUNTY OF                   Af            DA
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                                                                                                                                       Boy
                                                                                                                    ATE                71279
                                       NIKI PROPERTIES, LLC, a California                         No.
                                       limited liability company,
                                                                                                  NIK] PROPERTIES, LLC’S
                                                      Plaintiff,                                  COMPLAINT FOR DAMAGES

                                               VS.

                                       S.D. DEACON CORP. OF CALIFORNIA, a
                                       California corporation; DEACON         CORP., a
                                       California corporation; HIGH END
                                       DEVELOPMENT, INC., a California
                                       corporation; LOWNEY ARCHITECTS, INC.,                      JURY TRIAL REQUESTED
                                       a California corporation; 30TH AND
                                       BROADWAY,       LLC, a California limited
                                       liability company; and DOES | to 100,
                                       inclusive,

                                                      Defendant.



                                               Plaintiff NIKI PROPERTIES, LLC complains and alleges as follows:

                                                                                        THE PARTIES

                                                ].    At all times herein-stated,        Plaintiff, NIK]   PROPERTIES,               LLC       (“PLAINTIFF”)

                                       was, and now is, a limited liability company organized and existing by virtue of the laws of the

                                       State of California,      with   its principal    place   of business        located       in La      Jolla,   California;

                                       PLAINTIFF is the owner of a retail grocery store and shops with approximately 36,800 square

                                       feet of leasable area and roof top parking located at 3001                        Broadway, Oakland,           California,

                                       commonly referred to as the “Shops on Broadway” (the “Property”.

BERDING & WEIL LLP
VTS Cobfosras Ba dude VE
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                                       COMPLAINT FOR DAMAGES
                                                     2.           Defendant         S.D.    DEACON               CORP.       OF    CALIFORNIA,                  a California corporation,

                                          | was qualified to do business and actually did business at all relevant times in the State of,
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                                          California, including the County of Alameda.

                                                     3,           Defendant         DEACON                   CORP.,     a    California           corporation,     was     qualified         to     do

                                          business and actually did business at all relevant times in the State of California, including the

                                          County of Alameda.                  S.D. DEACON                     CORP.         OF CALIFORNIA                 and DEACON                 CORP.        will

                                          collectively be referred to herein as “DEACON.”                                         DEACON            was the general contractor who

                                          constructed the Property.

                                                     4,           Defendant HIGH                 END          DEVELOPMENT,                   INC.     (“HIGH        END”),          a Califomia

                                          corporation, was qualified to do business and actually did business at all relevant times in the

                                          State      of California,          including           the         County    of Alameda).                 HIGH        END      was         DEACON’s

                                          waterproofing subcontractor for the construction of the Property.                                                                     )

                                                     5.           PLAINTIFF             is informed             and believes, and upon                   such information             and belief

                                          alleges, DOES             1 through 25, inclusive, were contractors or subcontractors, being individuals,

                                          associations,           partnerships          and/or     corporations,             and     all    their     employees          and agents,              who

                                          performed services as general or subcontractors and/or provided equipment, materials and/or

                                          supplies for the work performed at the Property that is at issue herein.                                              DEACON, HIGH END,

                                          and     DOES           1 through        25,    inclusive,           will    sometimes        be collectively            referred          to herein       as

                                          CONTRACTOR DEFENDANTS.                                                                              |
                                                     6.           Defendant             LOWNEY                ARCHITECTS,                  INC.       (“LOWNEY”),               a      California

                                          corporation, was qualified to do business and actually did business at all relevant times in the

                                          State of California, including the County of Alameda.                                    LOWNEY was the architect who designed

                                          the Property.

                                                     7.           PLAINTIFF             is informed            and    believes,      and      upon       such    information          and    belief

                                          alleges,        that    DOES       26     through            50,     inclusive,     were         architects,      engineers,         designers          and

                                          consultants, who provided design services in connection with the planning, design, specification,

                                          inspection, supervision, development and construction of the work performed at the Property that

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                                          COMPLAINT FOR DAMAGES
                                           is at issue herein.      LOWNEY and DOES 26 through 50, inclusive, will sometimes be collectively

                                           referred to herein as DESIGN DEFENDANTS.
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                                                     8.       Defendant 30™ AND BROADWAY, LLC (“SELLER”), a California limited
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                                            liability company, was qualified to do business and actually did business at all relevant times in
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                                           the   State     of California, including       the    County     of Alameda.          Seller     sold the Property              to
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                                           PLAINTIFF shortly after construction was completed.                                                                         .
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                                                     9.       PLAINTIFF       is informed       and believes, and upon           such information and belief
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                                           alleges, that DOES 51 through 75, inclusive, were the agents, employees, principals, successors,
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                                           partners and/or joint ventures of the SELLER.                   At all times relevant to this action, DOES                      51
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                                  10       through 75 acted within the course and scope of such representation, agency, employment,

                                  1]       partnership and/or venture in planning, designing, developing, building, marketing, selling and/or

                                  12       lending money for the Property.          SELLER and DOES 76 through 100, inclusive, will sometimes
                                       *
                                  13       be collectively referred to herein as the SELLER DEFENDANTS.

                                  14                 10.      PLAINTIFF       is informed and believes, and upon such information and belief
                                  15       alleges, that DOES        76 through 100, inclusive, were individuals and/or entities, who supplied,

                                  16       manufactured and/or distributed materials, products and goods used in or for the work performed

                                  17       at the Property that is at issue herein.

                                  18                 11.      The    true   names   and    capacities,      whether      individual,      corporate,       associate       or

                                  19       otherwise,      of Defendant     DOES    | through         100, inclusive,    are unknown         to PLAINTIFF,             who

                                  20       therefore sues said Defendants by such fictitious names.                     PLAINTIFF will move to amend this

                                  21       Complaint to allege their true names and capacities when the same have been ascertained.

                                  22                 12.      PLAINTIFF       is informed       and believes, and upon           such information and belief

                                  23       alleges, that each of said DOE Defendants are responsible in some manner for the events and

                                  24       happenings       herein referred to and proximately             caused the damages           alleged by PLAINTIFF

                                  25       herein.                                                                                                         ok
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                                  26                 13.      PLAINTIFF       is informed       and    believes, and      upon   such     information and belief
                                  27       alleges that at all times herein mentioned, each of the Defendants was the agent, servant and/or

                                  28       /1/
BERDING & WEIL LLP
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Welaul Creek, Coliforms 94596
                                           COMPLAINT FOR DAMAGES
                                       employee of the remaining Defendants, and at all times herein mentioned was acting within the

                                       course and scope of said agency and/or employment.

                                                  14.     PLAINTIFF is unaware of the basis of liability as to some or all such fictitious

                                       DOE       Defendants, but believes that their liability arises out of the same general facts as set forth

                                       herein.     PLAINTIFF     will seek leave to amend this Complaint to assert the theories of liability of

                                       said fictitiously named Defendants when the same have been ascertained.
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                                                  15.     Defendants DEACON,               HIGH END, LOWNEY,             SELLER, and DOES | through

                                       100 shall collectively be referred to herein as “Defendants.”
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                                                                                    GENERAL ALLEGATIONS

                                                  16.     On or about September 24, 2014, SELLER and DEACON                       entered into a contract

                                       whereby DEACON           agreed to serve as the general contractor to build the Property.                  A true and

                                       correct copy of the contract between SELLER and DEACON                       is attached hereto as Exhibit “A”

                                       and incorporated herein (the “Construction Contract.”)

                                                  17.     PLAINTIFF          is informed      and believes, and upon such information and belief

                                       alleges, that SELLER also contracted with LOWNEY whereby LOWNEY agreed to serve as the

                                       architect and designer of record for construction of the Property.

                                                  18.     Thereafter, DEACON              entered into a series of subcontracts with subcontractors to

                                       construct the Property, including a subcontract with HIGH END, whereby HIGH END agreed to

                                       serve as the waterproofing subcontractor for construction of the Property.

                                                  19.     On or about May 26, 2016, PLAINTIFF purchased the Property from SELLER

                                       through a Purchase and Sale Agreement, a copy of which is attached hereto as Exhibit “B” and_

                                       incorporated herein (the “Purchase Agreement”).                   The Purchase Agreement contains a clause

                                       wherein SELLER agreed to and did assign the benefits of Construction Contract to PLAINTIFF.

                                                  20.     By   entering      into   the    aforementioned   contracts,     Defendants    agreed     to plan,

                                       develop,     improve,   and   construct the Property         in a good   and workmanlike         manner    free   from

                                       defects in accord with all applicable building codes, and approved plans, and fit for the purpose

                                       of ordinary commercial         use.      The products and work were to have been selected, designed,

                                       manufactured, installed and performed free from defects, and fit for the purpose of ordinary

BERDING & WEN. LLP
TOTS WCalifeente Elva Sune $00                                                                                                                              -4-
Walnut Creek, Valifiiiaa 94596
                                       COMPLAINT FOR DAMAGES
                                 ‘commercial use, but were not; instead they are defective, have resulted in consequential damage

                                 to other building components, and have caused specific property damage to personal property and

                                 other property.             The   defects include, but are not limited to, inadequate waterproofing                    and

                                 premature deterioration of the roof deck coating and roof structure; lack of or reverse slope of the

                                 roof; damage to roof from improper, and illegal saw cut; lack of gaps or ventilation at wood

                                 panels;     lack of drainage           at wall bases;    efflorescence on roof deck       at CMU     wall; metal      door

                                 frames causing rust on urethane coating at parking deck; improper waterproofing and flashing of

                                 the CMU          block wall; improper assembly and waterproofing of the planter boxes on the roof;

                                 improper and inadequate waterproofing of the stairwells; lack of flexible connection at gas line;

                                 deteriorated sealant at windows; open joints in precast concrete; pipe penetrations at rooftop due

                                 to poorly fabricated covers; fading or missing parking striping; and failed sealing of ADA mats

                                 (collectively, the “Project Defects”).

                                            21.        PLAINTIFF          is informed     and believes, and upon        such information and belief

                                 alleges, that from time-to-time during the approximate period from the period of construction of

                                 the Property to the date of filing of this Complaint, Defendants performed inspections and

                                 reported         on   the    Project     Defects   and    made     recommendations       as   to   the   conditions     to

                                 co-Defendants.

                                            22.        PLAINTIFF          is informed     and believes, and upon        such information and belief

                                 alleges, that Defendants or those who the Defendants hired to make inspections did not reveal,

                                 disclose or inform PLAINTIFF of the conditions of the Property observed during inspections

                                 conducted         by said parties, and         PLAINTIFF         reasonably   relied   on the implied     and   express

                                 representations that the Property was free from the Project Defects.

                                            23.        PLAINTIFF is presently unaware of when all of the defective conditions alleged

                                 herein first occurred or manifested themselves or caused’ physical injury to or destruction of

                                 tangible property, or the loss of use of such property, but asserts that the conditions at issue

                                 herein have developed and occurred over a period of time since substantial completion of the

                                 work, said deficiencies and resulting physical injurics being continuous and progressive.

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HERDING & WEIL LLP
IUISN Cottons Bicd Sure $06
Walout Crcck, Calstoinas 93596
                                 COMPLAINT FOR DAMAGES
                                                 24.         As a direct and proximate         result of Defendants’     conduct and each of them,

                                        PLAINTIFF has been damaged in an amount to be shown according to proof at trial. Damages in

                                        this regard include, but are not limited to, cost of repair, interest expense, increased maintenance

                                        costs, relocation costs, loss of use, investigation costs, other litigation costs, attorney’s fees, as
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                                        well as other consequential damage to real and personal property.
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                                                 25.      | This Court has jurisdiction under section 410.10 of the Code of Civil Procedure.
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                                        PLAINTIFF seeks damages under California statutory and common law.
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                                                 26.        Venue is proper under sections 392, 395, and 395.5 of the Code of Civil Procedure
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                                  10    because, (1) the described injuries to property occurred in this county; (b) some of the acts

                                  1]    described herein occurred within this county; (c) Defendants are registered to do business in the

                                        State of California and are doing business within this county; and (d) because Defendants did do

                                        business in this county by developing, constructing, repairing, managing, selling and lending

                                        money to develop the Property.

                                                  RELIEF         FROM THE ARBITRATION PROVISION IN THE CONTRACT

                                                27.         Section 4.6 of the Construction Contract contains an agreement to submit disputes

                                        to arbitration.     The other Defendants, however, did not agree to submit any of the issues set forth

                                        herein to arbitration.

                                                28.        Accordingly,    no   parties    subject   to this dispute   other   than   PLAINTIFF      and

                                        DEACON         are subjected to the arbitration provision contained in the Construction Contract.

                                        Furthermore, the principals of the Defendants who are, or who may be lable under Michaelis v.

                                        Benavides (1998)         61   Cal.App.4th   681,    are not subject to the arbitration provision          in the

                                        Agreement. If the causes of action and claims proceed to a resolution in different forums, there is

                                        a possibility of conflicting rulings on a common issue of law or fact.

                                                29.        Accordingly, pursuant to Code of Civil Procedure § 1281.2(c), and for judicial

                                        economy, the Court should refuse to enforce the arbitration provision in the Agreement or stay

                                        any arbitration pending the outcome of the court action.

                                        /T/

BERDING & WEIL LLP
2N7d 4 Cobituenia Bind Sete 200
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                                        COMPLAINT FOR DAMAGES
                                                                              FIRST CAUSE OF ACTION
                                                                         (Breach of Contract Against DEACON)

                                            30.      | PLAINTIFF incorporates and realleges, though fully set forth herein, paragraphs 1

                                 through 29, inclusive.                                                                   .                    |

                                            31.        On    or about    September   24,    2014,     DEACON        and       SELLER        entered    into    the

                                 Construction Contract, wherein DEACON agreed to, among other things, construct the Property.

                                 DEACON             agreed and warranted      that its work would be performed                  in accordance          with the

                                 Contract Documents and any and all applicable building code requirements; that all materials and

                                 equipment furnished in connection with the Work would be of good quality and new unless

                                 otherwise required or permitted by the contract documents, and that all work, labor, services,

                                 materials and equipment would be performed in a good and workmanlike                                       manner, of good

                                 quality, and free from any faults and defects.

                                            32.     | The Contract also includes an agreement that the prevailing party in any dispute

                                 shall be entitled to recovery of attorney’s fees and costs.

                                            33.        On'or about May      26, 2016, SELLER           assigned all interests in the Construction

                                 Contract to PLAINTIFF.             As a result, PLAINTIFF has stepped into the shoes of SELLER                               as a

                                 party to the Construction Contract and has legal standing to sue DEACON for its breaches of the

                                 same.

                                            34.        SELLER      and    PLAINTIFF        performed      all   conditions,        terms,     and     covenants

                                 required of them under the Construction Contract, except for those that may have been waived,

                                 excused or prevented by the actions, inactions or conduct of DEACON.

                                            35.     | DEACON breached the Construction Contract by failing to complete and/or repair

                                 the work         required    in a good and workmanlike             manner,     failing to ensure that the Property

                                 performed in accordance with the reasonable expectations of the PLAINTIFF and as a typical

                                 commercial property, and constructing the Property in a way that resulted in the manifestation of

                                 the Project Defects.

                                            36.       As     a direct and proximate        result of DEACON’s             breach     of the Construction

                                 Contract         as herein alleged, PLAINTIFF        has been damaged             in an amount             that exceeds      the

BERDING S& WEIL LLP
TITS N Calittens Mee Sunte $06                                                                                                                                  -7-
Welnun Creck, Calilomis 459
                                 COMPLAINT FOR DAMAGES
                                       minimum jurisdictional amount of the Court, the exact amount to be shown according to proof at

                                       trial, representing the reasonable cost of construction, interest expense, restoration, repair and
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                                       related consequential     damages       arising from or related to the Project Defects, together with
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                                       attorney’s fees, investigation costs, and other litigation costs.            PLAINTIFF will seek leave of the
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                                       Court to allege the exact amount of said damages when the same have been. ascertained.
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                                                WHEREFORE, PLAINTIFF prays for judgment as against each Defendant as hereinafter
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                                       set forth.

                                                                             SECOND      CAUSE OF ACTION
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                                            (Breach of Express Warranty Against All Parties Except SELLER DEFENDANTS)
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                                                37.      PLAINTIFF      incorporates | and      realleges,     as     through     fully   set    forth    herein,
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                                       paragraphs 1 through 36, inclusive. °                                                                      .

                                                38.      Defendants    (other than    SELLER),       and each       of them,      inclusive,    issued    written

                                       warranties for the benefit of PLAINTIFF, as stated in the Contract, and as provided with supplies,

                                       materials, goods and products, including a warranty that all materials and equipment furnished

                                       and all work performed would be of good workmanship and qiiality, and be free of defects, and

                                       that the work      performed    would     conform   with     the requirements            of all applicable        contract

                                       documents.

                                                39.      PLAINTIFF relied on these warranties, and believed in good faith that the roofs at

                                       the Property were of merchantable quality and were constructed in a good and workmanlike |

                                       manner, including being free of the Project Defects.

                                                40.      Defendants,   and   each    of them,     inclusive,   have     breached      these     warranties    by,

                                       among other things, failing to properly manufacture and fabricate materials, goods, and products

                                       as warranted, and failing to construct the Property and related improvements in a workmanlike

                                       manner       and in a manner    consistent with the plans and specifications and/or the applicable

                                       contract documents, all resulting in the Project Defects as herein alleged.

                                                4],      PLAINTIFF has provided notice to Defendants, and each of them, inclusive, that

                                       they breached the warranties by communicating to them that their materials, goods, products

                                       and/or work is defective.

BERDING & WEIL LLP
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Wateia Crok, Cahferrue 94 in
                                       COMPLAINT FOR DAMAGES
                                     42.           As a direct and proximate result of Defendants’                  breach of warranty as herein

                          alleged, PLAINTIFF has been damaged in an amount that exceeds the minimum jurisdictional

                          amount of the Court, the exact amount to be shown according to proof at trial, but not limited to,

                          the cost of repairing            and    replacing       the defective     materials     and    workmanship,       testing and

                          investigation of such defective materials and workmanship,                            relocation costs, attorney’s fees,

                          investigation costs and other litigation costs, as well as other incidental and consequential
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                          damages.          PLAINTIFF will seek leave of the Court to allege the exact amount of said damages
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                          when the same have been ascertained.
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                                     WHEREFORE, PLAINTIFF prays for judgment as against each Defendant as hereinafter
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                          set forth.
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                                                                    - THIRD CAUSE OF ACTION
                               (Breach of Implied Warranty Against All Parties Except SELLER DEFENDANTS)

                                     43.     | PLAINTIFF          incorporates       and   realleges,     as    though      fully   set   forth    herein,

                          paragraphs |] through 42, inclusive.

                                   44.         Defendants        (other    than    SELLER)        impliedly     warranted     that the roofs       at the -

                          Property         would     be free from     defects and fit for the purpose               of ordinary commercial            use.

                          PLAINTIFF relied on the skill and judgment of said Defendants to. select and provide products,

                          materials, and goods, and to perform or have performed work suitable to design, construct, and

                          install all building components                 in a good and workmanlike              manner,     and in accord with all

                          applicable building codes as said Defendants were in a better position than PLAINTIFF                                   to know

                          about defects in the work or materials chosen to construct the roofs at the Property.

                                   45.         After PLAINTIFF            discovered the Project Defects, and within the time, manner,

                          and form prescribed by law, notice was given to all known defendants orally and in writing of the

                          breach of said implied warranties.                Defendants have failed to address the damages or repair or

                          compensate PLAINTIFF for the Property Defects, forcing PLAINTIFF to pay for such matters

                          from its own account and to file this Jawsuit for reimbursement.                              Defendants have refused to

                          make timely payment, and continue to refuse to reimburse PLAINTIFF for its expenditures and

                          to wholly compensate it for the loss and damage.

BERDING & WEIL LLP
            Sen

                          COMPLAINT FOR DAMAGES
                                                    46.     As a direct and proximate result of Defendants’           breach of warranty as herein

                                         alleged, PLAINTIFF has been damaged in an amount that exceeds the minimum jurisdictional
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                                         amount of the Court, the exact amount to be shown according to proof at trial, representing the
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                                         reasonable cost of construction, interest expense, restoration, repair and related consequential
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                                         damages arising from or related to the Project Defects, attorney’s fees, investigation costs and
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                                         other litigation costs. PLAINTIFF will seek leave of the Court to allege the exact amount of said

                                         damages when the same have been ascertained.

                                                    WHEREFORE,      PLAINTIFF prays for judgment as against each Defendant, jointly and

                                         severally, as hereinafter set forth.

                                  10                                         FOURTH CAUSE OF ACTION

                                  1                        (Negligence Against All Parties Except SELLER DEFENDANTS)
                                  12                47,     PLAINTIFF      incorporates   and   realleges,    as   though     fully   set   forth   herein,

                                  13     paragraphs 1} through 46, inclusive.

                                  14                48.    PLAINTIFF       is informed    and   beheves,     and   based    on   thereon    alleges,   that

                                  15     Defendants performed design, construction, labor, improvement                 and services at the Property

                                  16     and/or supplied      materials and equipment      to the Property.        Each     of them    acted as general

                                  17     contractors, subcontractors, designers, material suppliers, and/or manufacturers of equipment of

                                  18     or for the construction of the Property.

                                                    49,    Said Defendants, and each of them, were thereby under a duty of due care to

                                         design, construct and provide materials or equipment for the Property in a good and workmanlike

                                         manner and in accordance with the applicable building codes, the custom and practice in the

                                         industry at the time, and the plans, specifications and other contract documents.             Said Defendants,

                                         and each of them, were also under a duty of due care in the supervision, administration and

                                         observation of such activities.

                                                    50.    PLAINTIFF rehed on said Defendants, and each of them, to construct and provide

                                         materials or equipment for the Property in such a manner that it would be free from the Project

                                         Defects.     Said Defendants, and each of them, were negligent and breached their respective duties

                                         of due care in that they did not, inter alia, construct and provide design, labor, materials or

BERDING & WEIL LLP
2179S Coldenda Dive Suite $90
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                                                                                                                                                        -10-
                                         COMPLAINT        FOR DAMAGES
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                               equipment for the work at the Property with due care, or in accordance with applicable building

                               codes, or in conformity with prevailing standards of custom and practice in the industry at the

                               time, or in accordance with the plans, specifications and other contract documents prepared for
                               the construction of the roofs at the Property, or in a reasonably workmanlike                    manner.       In

                               addition, said Defendants,        and each of them, negligently         failed to provide due care in the

                               administration, supervision, and observation          of the construction and repair according to the

                               applicable standard of care at the time.

                                          51. Asa      proximate result of the negligence of said Defendants, and each of them, the

                               Property is materially defective and deficient in its design, formation, materials, workmanship

                               and construction and suffers from the Project Defects, as set forth more specifically alleged

                               above, and Plaintiff has suffered damages, including property damages as hereinafter set forth,

                               and continue to suffer damages, as a proximate result as more particularly described above.

                                     | 52.      | PLAINTIFF has brought these claims against said Defendants, and each of them,

                               within the applicable statute of limitations based upon its discovery of the injuries and the causes

                               thereof.

                                          WHEREFORE,         PLAINTIFF prays for judgment as against each Defendant, jointly and

                               severally, as hereinafter set forth.

                                                                      FIFTH CAUSE OF ACTION

                                                            (Breach of Express Indemnity Against DEACON)

                                          53.   | PLAINTIFF       incorporates   and realleges,   as    though   fully   set   forth    herein,

                               paragraphs | through 52, inclusive.

                                          54.    As a term and condition for the Construction Contract, DEACON             agreed to:

                                                 ‘“Indemnify, defend and hold harmless the Owner, any Lender, the
                                                 Architect, Architect’s consultants, and its and their respective
                                                 members, managers, officers, directors, agents, and employees and
                                                 their   respective  successors   and   assigns   (collectively, the
                                                 “Indemnitees”) and each individually, an “Indemnitee”), from and
                                                 against claims, damages, losses and expenses, including but not
                                                 limited to attorneys’ fees, arising out of or resulting from; (1) the
                                                 Contractor’s performance of the Work, or any part thereof; (2) the
                                                 failure of the Contractor to perform any of its obligations under the
                                                 Contract Documents;      (3) the inaccuracy of any representation or
                                                 warranty     of the Contractor; or (40 any act or omission         of the

BERDING & WEIL LLP
11731 Cabloma Bhs Seite 0                                                                                                                    -l]-
Watt Creck, Califorrus 44590
                               COMPLAINT FOR DAMAGES
                                                                 Contractor,     any     Subcontractor,         anyone      directly      or    indirectly
                                       1                         employed by them, or anyone that they control or exercise control
                                                                 over, (collectively, “Liabilities’) caused by the negligent or
                                       2                         intentional    acts or omissions of the Contractor, a Subcontractor,
                                                                 anyone directly or indirectly employed by them or anyone for
                                       3                         whose acts they may be liable, regardless of whether or not such
                                                                 claim, damage, loss or expense is caused in part by a party
                                                                 indemnified hereunder. Contractor’s indemnity....”
                                                        55.      After entering into the Contract, DEACON began its work at the Property. As a
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                                            result of DEACON’s work, PLAINTIFF                  has sustained damage to the Property, and such damage

                                            has caused losses to the PLAINTIFF which DEACON                              promised to indemnify.                These damages

                                            are directly related to DEACON’s               failure to properly construct the Property, and PLAINTIFF
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                                            now needs to make repairs and replace certain components of the work.                                       These damages and
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                                            losses were contributed to in whole or in part by work negligently performed or omitted to be
                                   So




                                  11 |] performed by DEACON, but in either case arise out of the work DEACON performed.

                                  12                    56.    | PLAINTIFF has demanded DEACON                          indemnify it pursuant to the Contract, but

                                  13 || DEACON has failed to satisfy such indemnity obligations.

                                  14                    57.      By   reason    of the    foregoing,      PLAINTIFF               is entitled    to be         indemnified    by

                                  15 || DEACON                in an amount to be determined.            PLAINTIFF           has incurred, and continues to incur,

                                  16 }} necessary and reasonable attorney’s fees and other legal costs in prosecuting this action.                                       By the

                                  17 || terms of the Construction Contract, PLAINTIFF is entitled to recover those fees and costs from

                                  18 || DEACON.                PLAINTIFF       does not know the full amount thereof at this time and will move for

                                  19 || leave to amend this Complaint to state the amount when it becomes known to it, or on proof

                                  20        thereof,                                                      |

                                  2]                   WHEREFORE,          PLAINTIFF prays judgment against Defendants, and each of them as

                                  22 || hereinafter set forth.                                                                                           |

                                  23                                                   SIXTH CAUSE OF ACTION

                                 (24                                  (Strict Liability in Tort Against DOES 76 through 100)

                                  25                   58.       PLAINTIFF       incorporates     and         realleges,     as     though      fully    set     forth   herein,

                                 26        |} paragraphs 1 through 57, inclusive.          -

                                 27                    59.       DOES 76 through 100 are, and at all times herein mentioned were, engaged in the