complaint - Berkeleyside
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PETER V. DESSAU, ESQ., SBN NO. 135361
1 FRANK J. PERRETTA, ESQ., SBN NO. 126947
GRANT H. BAKER, ESQ., SBN NO. 237276
2 MILLER, MORT2N, CAILLAT & NEVIS, LLP
25 Metro Drive, 7 Floor
3 San Jose, CA 95110-1339 Telephone: (408) 292-1765 4 FacsImile: (408) 436-8272
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David H. Yamasak i
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By: ssancayco DTSCl!10
5 Attorneys for Plaintiff THE IRVINE COMPANY LLC, 6 a Delaware limited liability company
R#2D1000iJi 1292
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10-CV-16291
8
SUPERIOR COURT OF THE STATE OF
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FOR THE COUNTY OF SANTA
10
11
THE IRVINE COMPANY LLC, a Delaware 12 limited liability company,
) Case No. ) ) COMPLAINT FOR DAMAGES, BREACH 13
) OF CONTRACT, BREACH OF EXPRESS Plaintiff, ) WARRANTY, NEGLIGENCE; BREACH 14
vs. OF WRITTEN CONTRACT BY TIDRD PARTY BENEFICIARY; AND BREACH OF 15 SEGUE CONSTRUCTION, INC., a California EXPRESS INDEMNITY corporation; and DOES 1 through 100, ) 16
Defendants. Unlimited Civil Case (over $25,000) 17
)
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PRELIMINARY ALLEGATIONS
19
20
21
1.
Notwithstanding the allegations identified herein, Plaintiff THE IRVINE COMPANY
LLC (hereinafter "IRVINE" or "Plaintiff') does not waive its right to have this matter submitted to
22 binding arbitration, in accordance with the terms of its Prime Contract with SEGUE ~
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23 CONSTRUCTION, INC. (hereinafter "SEGUE"), or, in the alternative, judicial reference pursuant 24 to California Code of Civil Procedures sections 638, et seq.
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26 business in California and is the owner of the real property commonly known as THE PINES AT
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27 NORTH PARK APARTMENTS located in San Jose, California ("PINES").
2.
Plaintiff IRVINE is a Delaware limited liability company authorized to do, and doing
The PINES is
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28 comprised of two parcels, Parcel Bland B2. The allegations and claims identified herein pertain to
1
COMPLAINT FOR DAMAGES, BREACH OF CONTRACT, BREACH OF EXPRESS WARRANTY,
NEGLIGENCE, AND BREACH OF WRITTEN CONTRACT BY THIRD PARTY BENEFICIARY
•
Parcel B2 only. The PINES, Parcel B2, is legally described in Exhibit "A" which is attached hereto 2
(the "Property").
3
3.
4 5
4.
Plaintiff is ignorant of the true names and capacities of Defendants sued herein as
DOES 1 through 100, inclusive, and therefore sues these Defendants by such fictitious names.
7
Plaintiff prays leave. to amend this Complaint to allege their true names and capacities when the
8
same have been ascertained. 5.
Plaintiff is informed and believes, and thereon alleges that DOES 1 through 20, are
10
design professionals who were hired by Plaintiff or SEGUE to perform work at the Property
11
including, but not limited to, architectural and other design and/or consulting services.
12
6.
Plaintiff is informed and believes, and thereon alleges that DOES 21 through 50, are
13
subcontractors who were hired directly by SEGUE to perform work at the Property including, but
14
not limited to, work at breezeways, private balconies and stairwells.
15
7.
Plaintiff is informed and believes, and thereon alleges that DOES 51 through 75, are
16
third party or lower-tier subcontractors, hired by subcontractors who were hired directly by SEGUE,
17
to perform work at the Property including, but not limited to, work at breezeways, private balconies
18
and stairwells.
19
.;
in the State of California.
6
9
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Defendant SEGUE is a California corporation authorized to do, and is doing business
8.
Plaintiff is informed and believes, and thereon alleges that DOES 76 through 100, are
20
third party or lower-tier subcontractors or design professionals, hired by design professionals who
21
were hired by Plaintiff or SEGUE to perform work at the Property including, but not limited to,
22
architectural, structural, civil and other design and/or consulting services.
23
9.
Plaintiff is informed and believes, and thereon alleges that each of the Defendants sued
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herein is responsible in some manner for the occurrences herein alleged, and that Plaintiff's
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damages, as herein alleged, were legally caused by such Defendants.
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mentioned each of the Defendants sued herein was the agent and employee of each of the remaining
28
Defendants, and was, at all times, acting within the scope of such agency and employment.
10.
Plaintiff is informed and believes, and thereon alleges that at all times herein
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2 COMPLAINT FOR DAMAGES, BREACH OF CONTRACT, BREACH OF EXPRESS WARRANTY, NEGLIGENCE, AND BREACH OF WRITTEN CONTRACT BY THIRD PARTY BENEFICIARY
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11.
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On or around August 15, 2000, IRVINE entered into an agreement with SEGUE (the
2
"Prime Contract") whereby SEGUE agreed to construct on the Property a certain set of
3
improvements more particularly described in the Prime Contract; specifically a multi-story
4
apartment building (the "Project"). A true and correct copy of the Prime Contract is attached hereto
5
as Exhibit "B".
6
12.
After SEGUE and The Irvine Company entered into the Prime Contract, The Irvine
7
Company transferred and assigned its rights under the Prime Contract to Irvine Commercial
8
Development Company ("ICDC"), which later changed its name to Irvine Commercial Property
9
Company and merged with and into IRVINE. By these assignments and mergers, IRVINE is the
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true legal entity having rights to enforce the Prime Contract. 13.
Within the last three (3) years from the date of this Complaint, Plaintiff discovered that
12
there were certain conditions at the Project resulting in water penetration causing tangible property
13
damage at the Project. Specifically, Plaintiff is informed and believes, and based thereon alleges,
14
that there are defects in the breezeways, private balconies and stairwells at the Project.
15
FIRST CAUSE OF ACTION
16
[Breach of Contract against Defendant SEGUE]
17 18 19
14.
Plaintiff hereby re-alleges and incorporates by this reference each and every allegation
contained in Paragraphs 1 through 13 of its Complaint, as though fully set forth herein. 15.
Pursuant to Paragraph 5.1, of the Prime Contract, SEGUE agreed that it would be
20
solely responsible for construction means, methods, techniques, sequences and procedures
21
employed in connection with the work. SEGUE further agreed to be responsible for any failure by
22
it or its subcontractors to carry out the work, including, without limitation, the construction of the
23
breezeways, private balconies and stairwells at the Project, in accordance with the contract
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24
documents and all applicable laws, rules and regulations.
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PETER V. DESSAU, ESQ., SBN NO. 135361
1 FRANK J. PERRETTA, ESQ., SBN NO. 126947
GRANT H. BAKER, ESQ., SBN NO. 237276
2 MILLER, MORT2N, CAILLAT & NEVIS, LLP
25 Metro Drive, 7 Floor
3 San Jose, CA 95110-1339 Telephone: (408) 292-1765 4 FacsImile: (408) 436-8272
I ED
rr I'-
n,.'lo.a- r~ 1d.(~ - '-:l
f" ;Jd,
'"\!nljil0 nJi..i ...!.... i
..... ' .j. "t'tP III
I
.J t: '"
David H. Yamasak i
Chie f Executi \Ie Off c
By: ssancayco DTSCl!10
5 Attorneys for Plaintiff THE IRVINE COMPANY LLC, 6 a Delaware limited liability company
R#2D1000iJi 1292
CK
TL
7
r
:
.
$905. 0 $905. 10
10-CV-16291
8
SUPERIOR COURT OF THE STATE OF
v;.r1L,~
9
FOR THE COUNTY OF SANTA
10
11
THE IRVINE COMPANY LLC, a Delaware 12 limited liability company,
) Case No. ) ) COMPLAINT FOR DAMAGES, BREACH 13
) OF CONTRACT, BREACH OF EXPRESS Plaintiff, ) WARRANTY, NEGLIGENCE; BREACH 14
vs. OF WRITTEN CONTRACT BY TIDRD PARTY BENEFICIARY; AND BREACH OF 15 SEGUE CONSTRUCTION, INC., a California EXPRESS INDEMNITY corporation; and DOES 1 through 100, ) 16
Defendants. Unlimited Civil Case (over $25,000) 17
)
l ~
18
PRELIMINARY ALLEGATIONS
19
20
21
1.
Notwithstanding the allegations identified herein, Plaintiff THE IRVINE COMPANY
LLC (hereinafter "IRVINE" or "Plaintiff') does not waive its right to have this matter submitted to
22 binding arbitration, in accordance with the terms of its Prime Contract with SEGUE ~
t1i
!Ia '"t,. ~
23 CONSTRUCTION, INC. (hereinafter "SEGUE"), or, in the alternative, judicial reference pursuant 24 to California Code of Civil Procedures sections 638, et seq.
~.~·s<S
25
~U
~~!
26 business in California and is the owner of the real property commonly known as THE PINES AT
'~"
27 NORTH PARK APARTMENTS located in San Jose, California ("PINES").
2.
Plaintiff IRVINE is a Delaware limited liability company authorized to do, and doing
The PINES is
:I
28 comprised of two parcels, Parcel Bland B2. The allegations and claims identified herein pertain to
1
COMPLAINT FOR DAMAGES, BREACH OF CONTRACT, BREACH OF EXPRESS WARRANTY,
NEGLIGENCE, AND BREACH OF WRITTEN CONTRACT BY THIRD PARTY BENEFICIARY
•
Parcel B2 only. The PINES, Parcel B2, is legally described in Exhibit "A" which is attached hereto 2
(the "Property").
3
3.
4 5
4.
Plaintiff is ignorant of the true names and capacities of Defendants sued herein as
DOES 1 through 100, inclusive, and therefore sues these Defendants by such fictitious names.
7
Plaintiff prays leave. to amend this Complaint to allege their true names and capacities when the
8
same have been ascertained. 5.
Plaintiff is informed and believes, and thereon alleges that DOES 1 through 20, are
10
design professionals who were hired by Plaintiff or SEGUE to perform work at the Property
11
including, but not limited to, architectural and other design and/or consulting services.
12
6.
Plaintiff is informed and believes, and thereon alleges that DOES 21 through 50, are
13
subcontractors who were hired directly by SEGUE to perform work at the Property including, but
14
not limited to, work at breezeways, private balconies and stairwells.
15
7.
Plaintiff is informed and believes, and thereon alleges that DOES 51 through 75, are
16
third party or lower-tier subcontractors, hired by subcontractors who were hired directly by SEGUE,
17
to perform work at the Property including, but not limited to, work at breezeways, private balconies
18
and stairwells.
19
.;
in the State of California.
6
9
~
Defendant SEGUE is a California corporation authorized to do, and is doing business
8.
Plaintiff is informed and believes, and thereon alleges that DOES 76 through 100, are
20
third party or lower-tier subcontractors or design professionals, hired by design professionals who
21
were hired by Plaintiff or SEGUE to perform work at the Property including, but not limited to,
22
architectural, structural, civil and other design and/or consulting services.
23
9.
Plaintiff is informed and believes, and thereon alleges that each of the Defendants sued
~!a ;!u..&
24
herein is responsible in some manner for the occurrences herein alleged, and that Plaintiff's
~'- ;:
~tll . <S ~U
25
damages, as herein alleged, were legally caused by such Defendants.
~I!l~ ri
26
~
27
mentioned each of the Defendants sued herein was the agent and employee of each of the remaining
28
Defendants, and was, at all times, acting within the scope of such agency and employment.
10.
Plaintiff is informed and believes, and thereon alleges that at all times herein
~
2 COMPLAINT FOR DAMAGES, BREACH OF CONTRACT, BREACH OF EXPRESS WARRANTY, NEGLIGENCE, AND BREACH OF WRITTEN CONTRACT BY THIRD PARTY BENEFICIARY
t
1
11.
t
J
On or around August 15, 2000, IRVINE entered into an agreement with SEGUE (the
2
"Prime Contract") whereby SEGUE agreed to construct on the Property a certain set of
3
improvements more particularly described in the Prime Contract; specifically a multi-story
4
apartment building (the "Project"). A true and correct copy of the Prime Contract is attached hereto
5
as Exhibit "B".
6
12.
After SEGUE and The Irvine Company entered into the Prime Contract, The Irvine
7
Company transferred and assigned its rights under the Prime Contract to Irvine Commercial
8
Development Company ("ICDC"), which later changed its name to Irvine Commercial Property
9
Company and merged with and into IRVINE. By these assignments and mergers, IRVINE is the
lO
11
true legal entity having rights to enforce the Prime Contract. 13.
Within the last three (3) years from the date of this Complaint, Plaintiff discovered that
12
there were certain conditions at the Project resulting in water penetration causing tangible property
13
damage at the Project. Specifically, Plaintiff is informed and believes, and based thereon alleges,
14
that there are defects in the breezeways, private balconies and stairwells at the Project.
15
FIRST CAUSE OF ACTION
16
[Breach of Contract against Defendant SEGUE]
17 18 19
14.
Plaintiff hereby re-alleges and incorporates by this reference each and every allegation
contained in Paragraphs 1 through 13 of its Complaint, as though fully set forth herein. 15.
Pursuant to Paragraph 5.1, of the Prime Contract, SEGUE agreed that it would be
20
solely responsible for construction means, methods, techniques, sequences and procedures
21
employed in connection with the work. SEGUE further agreed to be responsible for any failure by
22
it or its subcontractors to carry out the work, including, without limitation, the construction of the
23
breezeways, private balconies and stairwells at the Project, in accordance with the contract
!la >-" S!
24
documents and all applicable laws, rules and regulations.
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25
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26
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