Preview
Steven M. Cvitanovic (Bar No. 168031)
scvitanovic@hbblaw.com
2 James B. De Los Reyes(Bar No. 280350)
ELECTRONICALLY
jreyes hbblaw.com
3 HAIGH BROWN & BONESTEEL LLP F I L E D
Three Embarcadero Center, Suite 200 Superior Court of California,
County of San Francisco
4 San Francisco, California 94111
Telephone: 415.546.7500 09/20/2019
5 Facsimile: 415.546.7505 Clerk of the Court
BY: ERNALYN BURA
Deputy Clerk
6 Attorneys for Cross-Defendant
WEBCOR/OBAYASHI JOINT VENTURE
7
8
9
SUPERIOR COURT OF THE STATE OF CALIFORNIA
lU
COUNTY OF SAN FRANCISCO
I1
12
BRATTON MASONRY,INC., a Case No. CGG19-575545
13 California corporation,
WEBCOR/OBAYASHI JOINT
14 Plaintiff, VENTURE'S CROSS-COMPLAINT
AGAINST SKANSKA USA BUILDING,
15 v. INC.,FOR:
16 SKANSKA USA BUILDING INC., a 1. Breach of Contract;
Delaware corporation; 2. Express Indemnity; and
17 WEBCORIOBAYASHI JOINT 3. Declaratory Relief
VENTURE,a California Joint Venture;
18 WEBCOR BUILDERS,INC., a California
corporation, individually and as Joint
19 Venturer of WEBCOR/OBAYASHI
JOINT VENTURE; OBAYASHI
20 CORPORATION,a Japanese corporation,
individually and as Joint Venturer of
21 WEBCOR/OBAYASHI JOINT
VENTURE;THE INSURANCE
22 COMPANY OF THE STATE OF
PENNSYLVANIA,a Pennsylvania
23 corporation; AMERICAN HOME
ASSURANCE COMPANY,a New Yorl~
24 corporation; TRANSBAY JOINT
POWERS AUTHORITY,a Public Entity
25 and Joint Powers Authority; and DOES 1
through 100, inclusive,
26
Defendants.
27
28
W016-0000003
13130039.1 WOJV'S OROSS-COMPLAINT
1 SKANSKA USA BUILDING INC., a
Delaware corporation,
2
Cross-Complainant,
3
v.
4
WEBCOR/OBAYASHI JOINT
5 VENTURE,a California Joint Venture;.
and ROES 1 through 30, inclusive,
6
Cross-Defendants.
7
8 WEBCOR/OBAYASHI JOINT
VENTURE,a California Joint Venture;
9
Cross-Complainant,
10
â–º~
11
SKANSKA USA BUILDING INC., a
12 Delaware corporation, and ZOES 1
through 100, inclusive,
13
14
15 Defendant, Cross-Complainant, and Cross-Defendant WEBCOR/OBAYASHI JOINT
16 VENTURE ("WOJV") files this Cross-Complaint against SKANSKA USA BUILDING, INC.
17 ("Skanska Building"), and ZOES 1 through 100, (collectively, "Cross-Defendants") as
18 follows:
19 THE PARTIES
20 1. WOJV is, and at all times herein mentioned was, a joint venture formed by
21 Webcor Construction L.P. and Obayashi Corporation doing business in the State of California
22 and engaged in the business of construction, and has continuously met all regulatory and
23 licensing requirements necessary to perform the work described or at issue in this Cross-
24 Complaint.
25 2. Upon information and belief, TRANSBAY JOINT POWERS AUTHORITY
26 ("TJPA") is a joint powers authority created under public section 6500, et seq., of the
27 California Government Code. TJPA is empowered to develop, design, construct, renovate,
28 rehabilitate, improve, operate, manage, and maintain a new regional transit terminal known as
W016-0000003
13130039.1 WOJV'S CROSS-COMPLAINT
1 ~ the Salesforce Transit Center located in San Francisco, California(the "Transbay Terminal").
2 3. WOJV is informed and believes, and based thereon alleges, that Skanska
3 Building is, and at all times herein mentioned was, a California corporation authorized to
4 transact, and doing business in the State of California.
5 4. WOJV is informed and believes, and based thereon alleges, that BRATTON
6 MASONRY,INC.("Bratton Masonry" or "Plaintiff') is, and at all times herein mentioned,
7 was a California corporation authorized to transact, and doing business in the State of
8 California.
9 5. Cross-Defendants ZOES 1 through 100, inclusive, are sued under fictitious
10 ~ names. WOJV is ignorant ofthe true names or capacities ofthe cross-defendants sued under
11 ~ the fictitious names ZOES 1 through 100,inclusive. When their true names and capacities are
12 ascertained, WOJV will amend this Cross-Complaint by inserting their true names and
13 capacities.
14 6. WOJV is informed and believes, and thereon alleges, that the ZOE Cross-
15 ~ Defendants each were, and are, in some manner responsible to WOJV under the obligations
16 stated herein, that each such ZOE Cross-Defendant was and is the duly authorized agent
17 and/or representative of the remaining Cross-Defendants, and that each Cross-Defendant in
18 doing the things alleged herein, acted and continues to act with the knowledge and consent of
19 the remaining Cross-Defendant.
20 7. WOJV is informed and believes,and thereon alleges,that each Cross-Defendant
21 'i ~ was the agent, partner, alter ego,employee, and/or servant ofthe other Cross-Defendants, and
22 acted within the scope of such agency, partnership, alter ego, and/or employment with the
23 permission and consent of all Cross-Defendants, and each is in some manner legally
24 responsible for, and proximately caused, injuries and damages to WOJV herein.
25 VENUE
26 8. Venue is proper for this action in San Francisco County because the real
27 property that is the subject ofthis action is located in San Francisco County.(Code Civ.Proc.
28 § 392.) Moreover, the contracts at issue were made, performed, and/or breached, and the
W016-0000003 2
13130039.1 WOJV'S OROSS-COMPLAINT
1 relevant obligations and liability arose, in whole or in part, in San Francisco County.
GENERAL ALLEGATIONS
3 9. The present matter arose from the demolition ofthe former Transbay Terminal
4 and the design and construction of the Transbay Transit Center Project in its place (the
5 "Project")
6 A. Project Overview
7 10. On information and belief, TJPA has undertaken a $6 billion infrastructure
8 project to: (i) replace the former Transbay Terminal with a modern transportation hub
9 servicing 11 transit systems including AC Transit, BART, Caltrain, Golden Gate Transit,
10 Greyhound, Muni, SamTrans, WestCAT Lynx, Amtrak, Paratransit and future High Speed
11 Rail; (ii) extend Caltrain service underground to a new below-ground terminal within the
12 replacement Transbay Terminal; and (iii) create a new neighborhood with homes, offices,
13 parks, and shops surrounding the replacement Transbay Terminal.
14 B. The Prime Contract
15 1 1. On or about March 17,2009,TJPA and WOJV entered into Contract No.08-04-
16 CMGC-000(the "Prime Contract")whereby WOJV agreed to provide certain pre-construction
17 services (the "Pre-Construction Services"), to serve as the construction manager/general
18 contractor, and to manage/administer subcontracts with Trade Subcontractors who would
19 construct Phase 1 ofthe Project in accordance with the Contract Documents(collectively the
20 "Construction Work") for anot-to-exceed price of $600,000,000 (the "Contract Price")
21 WOJV did not self-perform any work on the Project A true and correct copy of the Prime
22 Contract, including the Contract Agreement and the last amended version of its General
23 Conditions, is attached hereto as E~ibit 1 and incorporated by reference as though set forth in
24 full, except that the e~ibits, change orders, and other referenced documents have not been
ZS attached here in order to conserve filing capacity.
26 ///
27 ///
28 ///
W016-0000003
13130039.1 WOJV'S CROSS-COMPLAINT
12. Article 9.01 ofthe Prime Contract, and Article 3.21 of its General Conditions,
2 ~ contain defense and indemnity provisions, providing, in part, as follows:
3 . CM/GC [Construction Manager/General Contractor] will assume the
defense of, indemnify and hold harmless the TJPA ..from all claims, suits,
damages, actions, losses and liabilities of every kind, nature and description,
including but not limited to attorney's fees, directly or indirectly arising out of,
5 connected with or resulting from the performance or nonperformance of the
Work.
6
(Ex. 1 (Prime Contract) at Art. 9.01 and Gen. Cond. Art. 3.21(A).)
7
13. Article 3.21 ofthe Prime Contract's General Conditions further clarifies
8
that this defense obligation arises immediately:
9
On request, CM/GC shall defend any action, claim or suit asserting a claim
10 covered by this indemnity. CM/GC shall pay all costs that maybe incurred by
the TJPA and all indemnified parties specified in subparagraph 3.21.A,
11 including reasonable attorney's fees.
12 ~ (Icy. at Gen. Cond. Art. 3.21(D).)
13 C. Skanska Building's Trade Subcontract
14 14. On or about July 20, 2015, Skanska Building, as subcontractor, and WOJV,as
15 contractor, entered into a construction subcontract, the Long Form Subcontract — Transbay
16 Transit Center Project, Subcontract No. 301000600, Job Number 30100, effective July 10,
17 2015, (the "Subcontract"), with Skanska Building whereby Skanska Building agreed to
18 perform work described as the TG16.0 Interiors/Finishes Trade Package for the Project, per
19 the Contract Documents (the "Interiors Trade Package"). The Interiors Trade Package
20 included, among other things, work to install masonry,walls, ceilings, doors frames hardware,
21 coatings, flooring, architectural woodwork, millwork, cladding,ceramic the specialties, final
22 cleaning, roof park level restaurant building, and temperature protection at for the Project. A
23 true and correct copy ofthe Subcontract is attached hereto, and incorporated herein, as E~ibit
24 2.
25 15. Skanska Building's obligations under the Subcontract included, but were not
26 limited to the following:
27 a. Comply with, and assume liabilities, obligations, and duties to WOJV,
28 under the Contract Documents, including, among others, the terms and
W016-0000003 4
13130039.1 WOJV'S CROSS-COMPLAINT
1 conditions of the Prime Contract;
2 b. Defend and indemnify WOJV under applicable provisions ofthe Prime
3 Contract;
4 c. Furnish all labor, materials, equipment, and other facilities required to
5 complete the work under the Subcontract in accordance with the
6 Contract Documents;
7 d. Comply with any applicable federal requirements in the Contract
8 Documents, including, among others, any federal Buy America
9 requirements;
10 e. Properly plan and sequence the work under the Subcontract;
11 f. Prosecute the work under the Subcontract in a prompt and diligent
12 manner without delaying or hindering the work ofthe Skanska Building
13 or others;
14 g. Coordinate the work under the Subcontracts with the work of all other
15 trades, contractors, subcontractors, and WOJV, in a manner that
16 facilitated the efficient completion ofthe entire Project;
17 h. Compensate WOJV for any losses, costs, expenses, liabilities, or
18 damages, including any liquidated damages assessed by TJPA against
19 WOJV,for any default in performance ofthe Subcontract work, breach
20 ofthe Subcontract, or any act ofSkanska Building that delayed WOJV's
21 work;
22 i. Ensure that all materials and equipment were new and that all work
23 under the Subcontract was ofgood quality, free from faults and defects,
24 and in conformance with the Contract Documents; and
25 j. Submit requests for information and other submittals in a timely fashion
26 and in accordance with the Contract Documents.
27 ///
28 ///
WO 16-0000003 5
13130039.1 WOJV'S OROSS-COMPLAINT
1 16. Moreover, as additional independent defense and indemnity obligations of
2 ~ Skanska Building, Section 15 of the Subcontract provides, in part, as follows:
3 ...Subcontractor shall indemnify, defend and save harmless the OWNER and
Contractor,...from any and all claims, demands, causes ofaction, damages,
4 costs,expenses,actual attorney's fees,losses or liability, in law or inequity,of
every kind and nature whatsoever("Claims") arising out of or in connection
5 with Subcontractor's operations to be performed under this Agreement[.]
6 ~ (Ex. 2[Subcontract] at § 15.1.1.)
7 17. Section 15 ofthe Subcontract further clarifies that Skanska Buildings' defense
8 obligations are distinct from Skanska Buildings' duties to indemnify and hold harmless
9 WOJV:
10 At Subcontractor's own cost,expense and risk,...Subcontractor shall defend
all Claims that may be brought or instituted by third persons . . .against
11 Contractor or the OWNER or their agents or employees or any of them.
Subcontractor's duty to defend the OWNER and Contractor is independent
12 and distinct from Subcontractor's duties to indemnify and hold harmless
specified herein[.]
13
(Id. at § 15.1.2(a).)
14
15 D. Allegations of Bratton Masonry and Skanska Building
16 18. WOJV is informed and believes, and based thereon alleges, that on or about
17 ~ September 14, 2015, Skanska Building entered into a construction subcontract, Subcontract
18 No.005,Project Number 4315010,effective as ofJuly 22,2015,(the"Sub-Subcontract")with
19 Bratton Masonry whereby Bratton Masonry agreed to perform the Masonry scope ofwork for
20 ~ the Project, in accord with the Prime Contract, Subcontract, and Sub-Subcontract documents,
21 and in relation to the TG16.0 Interiors/Finishes scope of work that Skanska was responsible
22 for under its Subcontract with WOJV.
23 19. WOJV is informed and believes, and based thereon alleges, that WOJV
24 performed all ofthe conditions and obligations to be performed by it under the Contract and
25 Subcontract, including the payment of all amounts due and owing to Skanska Building.
26 However, Skanska Building has failed to perform all of the conditions and obligations to be
27 performed by it under the Subcontract and Sub-Subcontract, namely by failing to pay its
28 subcontractor,Bratton Masonry,for the amounts due and owing,thus giving rise to the present
W016-0000003 6
13130039.1 WOJV'S CROSS-COMPLAINT
1 ~ dispute..
2 20. On or about Apri126,2019,Bratton Masonry filed a Complaint in the Superior
3 ~ Court of the State of California, City and County of San Francisco, as Case No. CGC-19-
4 ~ 575545 against WOJV,among others, for collection and/or recovery on stop payment notice
5 ~ release bond and enforcement of payment bond. WOJV incorporates by reference, without
6 ~ admitting the truth of, the allegations in Bratton Masonry's Complaint, and any subsequent
7 amendments, for the sole purpose of explaining Bratton Masonry's allegations. WOJV has
8 ~ answered and denied all material allegations of Bratton Masonry's claims, and has asserted
9 affirmative defenses, based on information and belief. WOJV thus incorporates its answer by
10 reference. While WOJV denies Bratton Masonry's allegations and any liability to Bratton
11 Masonry,ifit is determined that Bratton Masonry is entitled to any recovery against WOJV in
12 this action, it will be due, in whole or in part, to the acts or omissions of Skanska Building.
13 21. On or about July 18, 2019, Skanska Building filed across-Complaint in this
14 ~ action alleging, among others, claims against WOJV for breach of contract, breach of the
15 implied covenant of good faith and fair dealing, implied contractual indemnity, equitable
16 indemnity and declaratory relief. WOJV incorporates by reference, without admitting the
17 truth of, the allegations in Skanska Building's Cross-Complaint, and any subsequent
18 amendments, for the sole purpose of explaining Skanska Building's allegations. WOJV has
19 answered and denied all material allegations of Skanska Building's claims, and has asserted
20 affirmative defenses, based on information and belief. WOJV thus incorporates its answer by
21 reference.
22 E. TJPA's Pending Claims(s) against WOJV in Related Actions
23 22. TJPA has filed operative cross-complaints against WOJV in connection with the
24 ~ Project in several related actions, including:(i) Webcor/Obayashi Joint Venture v. Transbay
25 JointPowers Authority, et al. CGC-18-570621, Superior Court of California, County of San
26 Francisco (the "Lead Action"); and (ii) Skanska USA Civil West California District, Inc. v.
27 Webcor Builders/Obayashi Corp., a Joint Venture„ et al.,Case No.CGC-18-564431,Superior
28 Court of California, County of San Francisco (the "Skanska Action", consolidated with the
W016-0000003 7
13130039.1 WOJV'S CROSS-COMPLAINT
1 '. ~ Lead Action, collectively, the "Related Actions"). WOJV anticipates that TJPA will assert
2 ~ additional claims against WOJV in related litigation arising from the Project, and reserves the
3 ~ right to seek appropriate reliefin this action in connection with any such later-asserted claims.
4 23. TJPA's operative cross-complaints against WOJV in the Related Actions allege
5 ~ deficiencies in connection with certain Project work, services, materials, or equipment,
6 ~ including, among others, various Trade Subcontractor work.
7 24. WOJV incorporates by reference, without admitting the truth of,the allegations
8 ~ in TJPA's operative cross-complaints in the Related Actions, and any subsequent
9 amendments,for the sole purpose ofexplaining TJPA's allegations. WOJV has answered and
10 denied all material allegations of TJPA's claims in the Related Actions, and has asserted
11 affirmative defenses, based on information and belief. WOJV thus incorporates its answers to
12 TJPA's operative cross-complaints in the Related Actions by reference.
13 25. WOJV is informed and believes, and based thereon alleges, that Skanska
14 ~ Building failed to discharge certain contractual and other duties to WOJV in connection with
15 the Project. While WOJV denies TJPA's allegations and any liability to TJPA, if it is
16 determined that TJPA is entitled to any recovery against WOJV in this action,it will be due,in
17 whole or in part, to the acts or omissions of Skanska Building.
18 26. WOJV has fully complied with all contractual prerequisites and fulfilled all
19 ~ conditions precedent to filing suit against Skanska Building.
20 FIRST CAUSE OF ACTION
21 ~ (Breach of Contract —Against Cross Defendants Skanska Building and ZOES 1-100)
22 27. WOJV incorporates each and every paragraph alleged above,as iffully set forth
23 herein.
24 28. The Subcontract is a valid written contract between WOJV and Skanska
25 ~ Building.
26 29. While WOJV denies the allegations in the Bratton Masonry's Complaint and
27 TJPA's operative TJPA's operative cross-complaints in the Related Actions, to the extent
28 those allegations are proven to be true, WOJV contends that any liability that it incurs to
W016-0000003
13130039.1 WOJV'S CROSS-COMPLAINT
1 Bratton Masonry or TJPA would be caused, in whole or in part, by the alleged failures of
2 ~ Skanska Building to perform, or properly perform, its obligations under its Subcontract.
3 30. Pursuant to the Subcontract, Skanska Building agreed to defend,indemnify,and
4 ~ hold WOJV harmless from all claims, suits, actions, losses and liability of every kind arising
5 out of the performance of the work at the Project.
6 31. Specifically, Section 15.1.1 of the Subcontract, in pertinent part, provides:
7 Subcontractor shall Indemnify, defend, and save harmless the
OWNER and Contractor, including their officers, agents,
8 employees, affiliates, parents and subsidiaries, and each of
them, of and from any and all claims, demands, causes of
9 action, damages, costs, expenses, actual attorney's fees, losses
or liability, in law or in equity, of every kind and nature
10 whatsoever ("Claims") arising out of or m connection with
Subcontractor's operations to be erformed under this
11 Agreement.....[This indemnification shall extend to Claims
occurring after this Agreement is terminated as well as while it
12 is in force. Such indemnity provisions apply regardless of any
active and/or passive negligent act or omission ofthe OWNER
13 or Contractor or their agents or employees.
14 32. Further, Section 15.1.2 ofthe Subcontract provides that Skanska Building "shall
15 ~ defend all Claims that may be brought or instituted by third persons.... Subcontractor's duty
16 to defend the OWNER and Contractor is independent and distinct from Subcontractor's duties
17 to indemnify and hold harmless...."
18 33. The Subcontract additionally obligates Skanska Building to, inter alia, perform
19 ~ its work in accordance with the Prime Contract; furnish all labor, materials, equipment and
20 other facilities required to complete the work for the Project; and hold any and all funds
21 payable to Skanska Building in trust to be applied first to the payment of claims of its
22 subcontractors.
23 34. WOJV has fully performed all ofits covenants,conditions and obligations under
24 ~ the Subcontract, except those whose performance have been waived or legally excused.
25 35. Skanska Building breached the terms, covenants, promises, obligations,
26 requirements, provisions, and warranties of the Subcontract by various acts and omissions
27 including, without limitation, withholding and failing to make payment due to Bratton
28 Masonry and failing to indemnify and defend WOJV in connection with the present suit and
W016-0000003 9
13130039.1 WOJV'S OROSS-COMPLAINT
TJPA's claims in the Consolidated Action, as required by the Subcontract.
2 36. Although WOJV denies the allegations of the Complaint and TJPA's cross-
3 complaints in the Related Actions, by this Cross-Complaint, WOJV is giving Skanska
4 ~ Building notice ofthe Complaint against WOJV and TJPA's cross-complaints in the Related
5 Actions and requesting defense and indemnification, both express and implied,from Skanska
6 ~ Building against the claims against WOJV,including without limitation, Plaintiff's claims
7 against WOJV in the Complaint,TJPA's claims against WOJV in the Related Action,and any
8 ~ other complaint or cross-complaint that has been filed, or hereinafter may be filed, against
9 WOJV in connection with the Project.
10 37. Pursuant to the requirements of California Civ. Code, § 2782.05(e), WOJV
11 hereby allocates to Skanska Building the entirety offees and costs incurred in connection with
12 the Complaint and any other complaint or cross-complaint that has been filed, or hereinafter
13 maybe filed, against WOJV in connection with the Project. WOJV performed all conditions
14 and obligations to be performed by it under the Subcontract, and the present action arises
15 solely out of Skanska Building's conduct, thus justifying WOJV's apportionment of all
16 liability for any damages,costs,fees or other expenses in this lawsuit, whether by virtue ofthe
17~ Complaint or any other complaint or cross-complaint that has been filed, or hereinafter maybe
18 filed, solely against Skanska Building.
19 38. In defending against claims ofPlaintiff and others in this litigation, WOJV has
20 ~ necessarily and reasonably incurred and paid attorney's fees and other legal costs. WOJV has
21 incurred,and continues to incur, necessary and reasonable attorney's fees and other legal costs
22 in responding to the claims ofPlaintiffand others and prosecuting this action against Skanska
23 Building. WOJV does not know the full amount thereof at this time and will move to amend
24 this Cross-Complaint to state the amount when it becomes known, or on proofthereof.
25 39. By virtue of Skanska Building's breaches and repudiation, and as a direct and
26 ~ proximate result thereof, WOJV has been damaged in an amount to conform to proof at trial,
27 but in excess of the jurisdictional amount of the court, and inclusive of attorneys' fees and
28 interest as allowed by law.
WOl6-0000003
13130039.1 WOJV'S OROSS-COMPLAINT
1 40. WHEREFORE, WOJV prays for relief as set forth below.
SECOND CAUSE OF ACTION
3 (Express Indemnity Against Cross Defendants Skanska Building and ZOES 1
4 through 100)
5 4L WOJV incorporates each and every paragraph alleged above,as iffully set forth
6 herein.
7 42. Skanska Building is contractually obligated to defend, indemnify, and hold
8 harmless WOJV for any claims, losses, or damages arising from its respective Project work,
9 under Section 15 of the Subcontract.
10 43. Accordingly, Skanska Building is obligated to defend, indemnify, and hold
11 ~ harmless WOJV from and against any liability that WOJV may incur in connection with the
12 allegations in Bratton Masonry's Complaint and TJPA's operative cross-complaints in the
13 Related Actions.
14 44. WOJV has incurred and continues to incur necessary and reasonable expenses,
1~ ~ including attorneys' fees and costs, in defending itself against the allegations in Bratton
16 Masonry's Complaint and TJPA's operative cross-complaints in the Related Actions.
17 Moreover, while WOJV denies the allegations in Bratton Masonry's Complaint and TJPA's
18 operative cross-complaints in the Related Actions,to the extent those allegations are proven to
19 be true, WOJV will incur damages and losses arising from Skanska Building's allegedly-
20 deficientperformance ofwork under the Subcontract. This incursion of expenses, damages,
21 and losses by WOJV entitles and would entitle WOJV to a defense and .indemnity under the
22 Prime Contract and the Subcontract from Skanska Building, such that WOJV may recoup
23 from Skanska Building all incurred expenses, damages,and losses, including attorneys' fees,
24 consultants' fees, costs, and interest, in an amount according to proof.
25 45. WOJV has previously demanded in writing—and by this Cross-Complaint,
26 again demands—that Skanska Building defend, indemnify, hold harmless, and otherwise
27 reimburse WOJV for the expenses, losses, and damages that it has suffered and will suffer,
28 but, to date, Skanska Building has refused to honor their contractual defense and indemnity
W016-0000003 11
13130039.] WOJV'S CROSS-COMPLAINT
1 ~ obligations.
2 46. By virtue ofthe Prime Contract and Subcontract, WOJV is entitled to a defense
3 and contractual indemnification by Skanska Building, in an amount according to proof.
4 47. WHEREFORE, WOJV prays for relief as set forth below.
J THIRD CAUSE OF ACTION
6 (Declaratory Relief Against Cross-Defendants Skanska Building and ZOES 1
7 through 100)
8 48. WOJV incorporates each and every paragraph alleged above,as iffully set forth
9 herein.
10 49. A dispute and actual controversy has arisen and now exists between WOJV,on
11 the one hand, and Skanska Building and ZOES 1-100, on the other, as to the obligations of
12 Skanska Building and ZOES 1-100 to defend WOJV and indemnify it from the expenses,
13 ~ losses, and damages that WOJV has suffered and will continue to suffer as a result of these
14 Cross-Defendants' potential breaches of their respective contractual obligations to WOJV,as
15 alleged more specifically in TJPA's cross-complaints in the Related Actions. These potential
16 breaches include, without limitation, Skanska Building's allegedly failing to:(i)comply with,
17 and assume liabilities, obligations, and duties to WOJV, under the Contract Documents,
18 including, among others, the terms and conditions of the Prime Contract; (ii) defend and
19 indemnify WON under applicable provisions ofthe Contract and Subcontract;(iii)furnish all
20 labor, materials, equipment, and other facilities required to complete the work under the
21 Subcontract in accordance with. the Contract Documents;(iv) comply with any applicable
22 federal requirements in the Contract Documents, including, among others, any federal Buy
23 America requirements;(v) properly plan and sequence the work under the Subcontract;(vi)
24 prosecute the work under the Subcontracts in a prompt and diligent manner without delaying
25 or hindering the work ofthe Trade Subcontractors or others;(vii) coordinate the work under
26 the Subcontract with the work ofall other trades, contractors,subcontractors, and WOJV,in a
27 manner that facilitated the efficient completion ofthe entire Project;(viii)compensate WOJV
28 for any losses, costs, expenses, liabilities, or damages, including any liquidated damages
woi6-0000003 12
13130039.1 WOJV'S CROSS-COMPLAINT
1 assessed by TJPA against WOJV,for any default in performance of the Subcontract work,
2 breach of the Subcontract, or any act of'Skanska Building that delayed WOJV's work;(ix)
3 ensure that all materials and equipment was new and that all work under the Subcontract was
4 of good quality, free from faults and defects, and in conformance with the Contract
5 Documents;(x)submit requests for information and other submittals in a timely fashion and in
6 accordance with the Contract Documents; and (xi) otherwise comply with the terms of the
7 ~ applicable Contract Documents.
8 50. WOJV has tendered to Skanska Building the claims and damages that it has
9 suffered, and would suffer, as a result ofthe allegations in TJPA's operative Cross-Complaints
10 in the Related Actions ,and hereby reiterates that tender and demands that Skanska Building
11 fulfill its obligations to WOJV pursuant to the applicable Contract Documents.
12 51. WOJV is informed and believes, and thereon alleges,that Skanska Building and
13 ~'ZOES 1-100, and each ofthem, have failed and will continue to fail and refuse to meet their
14' obligations to defend and indemnify WOJV from and against any claims,losses, and damages
15 suffered by WOJV,in an amount according to proof.
16 52. WHEREFORE, WOJV prays for relief as set forth below.
17 PRAYER FOR RELIEF
18 WHEREFORE, WOJV prays for judgment as follows:
19 First Cause of Action:
20 1. For compensatory damages arising from Skanska Building's potential breaches
21 of its.respective contractual obligations, according to proof;
22 2. For costs and expenses of suit incurred herein; and
23 3. For prejudgment and postjudgment interest in the maacimum amount allowed
24 by law, according to proof; and
25 4. For any such other and further relief as the Court deems just and proper.
26 Second Cause of Action:
27 1. For compensatory damages arising from Skanska Building's failure to defend
28 and indemnify WOJV pursuant to the terms of the Prime Contract and the Subcontract,
W016-0000003 13
13130039.1 WOJV'S CROSS-COMPLAINT
1 according to proof;
2 2. For attorneys' fees;
3 3. For costs and expenses of suit incurred herein;
4 4. For prejudgment and postjudgment interest in the maximum amount allowed
5 by law, according to proof; and
6 5. For any such other and further relief as the Court deems just and proper.
7
g 1. A declaration ofthe respective rights and duties ofthe parties as set forth herein
9 and according to proof at trial;
10 2. For costs and expenses of suit incurred herein; and
11 3. For any such other and further relief as the Court deems just and proper.
12
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Dated: September 20, 2019 HAIGHT BROWN & BONESTEEL LLP
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16 By:
Steven M. Cvitanovic
17
James B. De Los Reyes
18 Attorneys for Cross-Defendant
WEBCOR/OBAYASHI JOINT VENTURE
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W016-0000003 14
13130039.1 WOJV'S OROSS-COMPLAINT
PROOF OF SERVICE
2 STATE OF CALIFORNIA,COUNTY OF SAN FRANCISCO
3 Bratton Masonry Inc. v. Skanska USA Building, Inc.
Case No. CGC-19-575545
4
At the time of service, I was over 18 years of age and not a party to this action. I
5 am employed in the County of San Francisco, State of California. My business address is
Three Embarcadero Center, Suite 200, San Francisco, CA 94111.
6
On Septemb
Preview
Steven M. Cvitanovic (Bar No. 168031) scvitanovic@hbblaw.com 2 James B. De Los Reyes(Bar No. 280350) ELECTRONICALLY jreyes hbblaw.com 3 HAIGH BROWN & BONESTEEL LLP F I L E D Three Embarcadero Center, Suite 200 Superior Court of California, County of San Francisco 4 San Francisco, California 94111 Telephone: 415.546.7500 09/20/2019 5 Facsimile: 415.546.7505 Clerk of the Court BY: ERNALYN BURA Deputy Clerk 6 Attorneys for Cross-Defendant WEBCOR/OBAYASHI JOINT VENTURE 7 8 9 SUPERIOR COURT OF THE STATE OF CALIFORNIA lU COUNTY OF SAN FRANCISCO I1 12 BRATTON MASONRY,INC., a Case No. CGG19-575545 13 California corporation, WEBCOR/OBAYASHI JOINT 14 Plaintiff, VENTURE'S CROSS-COMPLAINT AGAINST SKANSKA USA BUILDING, 15 v. INC.,FOR: 16 SKANSKA USA BUILDING INC., a 1. Breach of Contract; Delaware corporation; 2. Express Indemnity; and 17 WEBCORIOBAYASHI JOINT 3. Declaratory Relief VENTURE,a California Joint Venture; 18 WEBCOR BUILDERS,INC., a California corporation, individually and as Joint 19 Venturer of WEBCOR/OBAYASHI JOINT VENTURE; OBAYASHI 20 CORPORATION,a Japanese corporation, individually and as Joint Venturer of 21 WEBCOR/OBAYASHI JOINT VENTURE;THE INSURANCE 22 COMPANY OF THE STATE OF PENNSYLVANIA,a Pennsylvania 23 corporation; AMERICAN HOME ASSURANCE COMPANY,a New Yorl~ 24 corporation; TRANSBAY JOINT POWERS AUTHORITY,a Public Entity 25 and Joint Powers Authority; and DOES 1 through 100, inclusive, 26 Defendants. 27 28 W016-0000003 13130039.1 WOJV'S OROSS-COMPLAINT 1 SKANSKA USA BUILDING INC., a Delaware corporation, 2 Cross-Complainant, 3 v. 4 WEBCOR/OBAYASHI JOINT 5 VENTURE,a California Joint Venture;. and ROES 1 through 30, inclusive, 6 Cross-Defendants. 7 8 WEBCOR/OBAYASHI JOINT VENTURE,a California Joint Venture; 9 Cross-Complainant, 10 ►~ 11 SKANSKA USA BUILDING INC., a 12 Delaware corporation, and ZOES 1 through 100, inclusive, 13 14 15 Defendant, Cross-Complainant, and Cross-Defendant WEBCOR/OBAYASHI JOINT 16 VENTURE ("WOJV") files this Cross-Complaint against SKANSKA USA BUILDING, INC. 17 ("Skanska Building"), and ZOES 1 through 100, (collectively, "Cross-Defendants") as 18 follows: 19 THE PARTIES 20 1. WOJV is, and at all times herein mentioned was, a joint venture formed by 21 Webcor Construction L.P. and Obayashi Corporation doing business in the State of California 22 and engaged in the business of construction, and has continuously met all regulatory and 23 licensing requirements necessary to perform the work described or at issue in this Cross- 24 Complaint. 25 2. Upon information and belief, TRANSBAY JOINT POWERS AUTHORITY 26 ("TJPA") is a joint powers authority created under public section 6500, et seq., of the 27 California Government Code. TJPA is empowered to develop, design, construct, renovate, 28 rehabilitate, improve, operate, manage, and maintain a new regional transit terminal known as W016-0000003 13130039.1 WOJV'S CROSS-COMPLAINT 1 ~ the Salesforce Transit Center located in San Francisco, California(the "Transbay Terminal"). 2 3. WOJV is informed and believes, and based thereon alleges, that Skanska 3 Building is, and at all times herein mentioned was, a California corporation authorized to 4 transact, and doing business in the State of California. 5 4. WOJV is informed and believes, and based thereon alleges, that BRATTON 6 MASONRY,INC.("Bratton Masonry" or "Plaintiff') is, and at all times herein mentioned, 7 was a California corporation authorized to transact, and doing business in the State of 8 California. 9 5. Cross-Defendants ZOES 1 through 100, inclusive, are sued under fictitious 10 ~ names. WOJV is ignorant ofthe true names or capacities ofthe cross-defendants sued under 11 ~ the fictitious names ZOES 1 through 100,inclusive. When their true names and capacities are 12 ascertained, WOJV will amend this Cross-Complaint by inserting their true names and 13 capacities. 14 6. WOJV is informed and believes, and thereon alleges, that the ZOE Cross- 15 ~ Defendants each were, and are, in some manner responsible to WOJV under the obligations 16 stated herein, that each such ZOE Cross-Defendant was and is the duly authorized agent 17 and/or representative of the remaining Cross-Defendants, and that each Cross-Defendant in 18 doing the things alleged herein, acted and continues to act with the knowledge and consent of 19 the remaining Cross-Defendant. 20 7. WOJV is informed and believes,and thereon alleges,that each Cross-Defendant 21 'i ~ was the agent, partner, alter ego,employee, and/or servant ofthe other Cross-Defendants, and 22 acted within the scope of such agency, partnership, alter ego, and/or employment with the 23 permission and consent of all Cross-Defendants, and each is in some manner legally 24 responsible for, and proximately caused, injuries and damages to WOJV herein. 25 VENUE 26 8. Venue is proper for this action in San Francisco County because the real 27 property that is the subject ofthis action is located in San Francisco County.(Code Civ.Proc. 28 § 392.) Moreover, the contracts at issue were made, performed, and/or breached, and the W016-0000003 2 13130039.1 WOJV'S OROSS-COMPLAINT 1 relevant obligations and liability arose, in whole or in part, in San Francisco County. GENERAL ALLEGATIONS 3 9. The present matter arose from the demolition ofthe former Transbay Terminal 4 and the design and construction of the Transbay Transit Center Project in its place (the 5 "Project") 6 A. Project Overview 7 10. On information and belief, TJPA has undertaken a $6 billion infrastructure 8 project to: (i) replace the former Transbay Terminal with a modern transportation hub 9 servicing 11 transit systems including AC Transit, BART, Caltrain, Golden Gate Transit, 10 Greyhound, Muni, SamTrans, WestCAT Lynx, Amtrak, Paratransit and future High Speed 11 Rail; (ii) extend Caltrain service underground to a new below-ground terminal within the 12 replacement Transbay Terminal; and (iii) create a new neighborhood with homes, offices, 13 parks, and shops surrounding the replacement Transbay Terminal. 14 B. The Prime Contract 15 1 1. On or about March 17,2009,TJPA and WOJV entered into Contract No.08-04- 16 CMGC-000(the "Prime Contract")whereby WOJV agreed to provide certain pre-construction 17 services (the "Pre-Construction Services"), to serve as the construction manager/general 18 contractor, and to manage/administer subcontracts with Trade Subcontractors who would 19 construct Phase 1 ofthe Project in accordance with the Contract Documents(collectively the 20 "Construction Work") for anot-to-exceed price of $600,000,000 (the "Contract Price") 21 WOJV did not self-perform any work on the Project A true and correct copy of the Prime 22 Contract, including the Contract Agreement and the last amended version of its General 23 Conditions, is attached hereto as E~ibit 1 and incorporated by reference as though set forth in 24 full, except that the e~ibits, change orders, and other referenced documents have not been ZS attached here in order to conserve filing capacity. 26 /// 27 /// 28 /// W016-0000003 13130039.1 WOJV'S CROSS-COMPLAINT 12. Article 9.01 ofthe Prime Contract, and Article 3.21 of its General Conditions, 2 ~ contain defense and indemnity provisions, providing, in part, as follows: 3 . CM/GC [Construction Manager/General Contractor] will assume the defense of, indemnify and hold harmless the TJPA ..from all claims, suits, damages, actions, losses and liabilities of every kind, nature and description, including but not limited to attorney's fees, directly or indirectly arising out of, 5 connected with or resulting from the performance or nonperformance of the Work. 6 (Ex. 1 (Prime Contract) at Art. 9.01 and Gen. Cond. Art. 3.21(A).) 7 13. Article 3.21 ofthe Prime Contract's General Conditions further clarifies 8 that this defense obligation arises immediately: 9 On request, CM/GC shall defend any action, claim or suit asserting a claim 10 covered by this indemnity. CM/GC shall pay all costs that maybe incurred by the TJPA and all indemnified parties specified in subparagraph 3.21.A, 11 including reasonable attorney's fees. 12 ~ (Icy. at Gen. Cond. Art. 3.21(D).) 13 C. Skanska Building's Trade Subcontract 14 14. On or about July 20, 2015, Skanska Building, as subcontractor, and WOJV,as 15 contractor, entered into a construction subcontract, the Long Form Subcontract — Transbay 16 Transit Center Project, Subcontract No. 301000600, Job Number 30100, effective July 10, 17 2015, (the "Subcontract"), with Skanska Building whereby Skanska Building agreed to 18 perform work described as the TG16.0 Interiors/Finishes Trade Package for the Project, per 19 the Contract Documents (the "Interiors Trade Package"). The Interiors Trade Package 20 included, among other things, work to install masonry,walls, ceilings, doors frames hardware, 21 coatings, flooring, architectural woodwork, millwork, cladding,ceramic the specialties, final 22 cleaning, roof park level restaurant building, and temperature protection at for the Project. A 23 true and correct copy ofthe Subcontract is attached hereto, and incorporated herein, as E~ibit 24 2. 25 15. Skanska Building's obligations under the Subcontract included, but were not 26 limited to the following: 27 a. Comply with, and assume liabilities, obligations, and duties to WOJV, 28 under the Contract Documents, including, among others, the terms and W016-0000003 4 13130039.1 WOJV'S CROSS-COMPLAINT 1 conditions of the Prime Contract; 2 b. Defend and indemnify WOJV under applicable provisions ofthe Prime 3 Contract; 4 c. Furnish all labor, materials, equipment, and other facilities required to 5 complete the work under the Subcontract in accordance with the 6 Contract Documents; 7 d. Comply with any applicable federal requirements in the Contract 8 Documents, including, among others, any federal Buy America 9 requirements; 10 e. Properly plan and sequence the work under the Subcontract; 11 f. Prosecute the work under the Subcontract in a prompt and diligent 12 manner without delaying or hindering the work ofthe Skanska Building 13 or others; 14 g. Coordinate the work under the Subcontracts with the work of all other 15 trades, contractors, subcontractors, and WOJV, in a manner that 16 facilitated the efficient completion ofthe entire Project; 17 h. Compensate WOJV for any losses, costs, expenses, liabilities, or 18 damages, including any liquidated damages assessed by TJPA against 19 WOJV,for any default in performance ofthe Subcontract work, breach 20 ofthe Subcontract, or any act ofSkanska Building that delayed WOJV's 21 work; 22 i. Ensure that all materials and equipment were new and that all work 23 under the Subcontract was ofgood quality, free from faults and defects, 24 and in conformance with the Contract Documents; and 25 j. Submit requests for information and other submittals in a timely fashion 26 and in accordance with the Contract Documents. 27 /// 28 /// WO 16-0000003 5 13130039.1 WOJV'S OROSS-COMPLAINT 1 16. Moreover, as additional independent defense and indemnity obligations of 2 ~ Skanska Building, Section 15 of the Subcontract provides, in part, as follows: 3 ...Subcontractor shall indemnify, defend and save harmless the OWNER and Contractor,...from any and all claims, demands, causes ofaction, damages, 4 costs,expenses,actual attorney's fees,losses or liability, in law or inequity,of every kind and nature whatsoever("Claims") arising out of or in connection 5 with Subcontractor's operations to be performed under this Agreement[.] 6 ~ (Ex. 2[Subcontract] at § 15.1.1.) 7 17. Section 15 ofthe Subcontract further clarifies that Skanska Buildings' defense 8 obligations are distinct from Skanska Buildings' duties to indemnify and hold harmless 9 WOJV: 10 At Subcontractor's own cost,expense and risk,...Subcontractor shall defend all Claims that may be brought or instituted by third persons . . .against 11 Contractor or the OWNER or their agents or employees or any of them. Subcontractor's duty to defend the OWNER and Contractor is independent 12 and distinct from Subcontractor's duties to indemnify and hold harmless specified herein[.] 13 (Id. at § 15.1.2(a).) 14 15 D. Allegations of Bratton Masonry and Skanska Building 16 18. WOJV is informed and believes, and based thereon alleges, that on or about 17 ~ September 14, 2015, Skanska Building entered into a construction subcontract, Subcontract 18 No.005,Project Number 4315010,effective as ofJuly 22,2015,(the"Sub-Subcontract")with 19 Bratton Masonry whereby Bratton Masonry agreed to perform the Masonry scope ofwork for 20 ~ the Project, in accord with the Prime Contract, Subcontract, and Sub-Subcontract documents, 21 and in relation to the TG16.0 Interiors/Finishes scope of work that Skanska was responsible 22 for under its Subcontract with WOJV. 23 19. WOJV is informed and believes, and based thereon alleges, that WOJV 24 performed all ofthe conditions and obligations to be performed by it under the Contract and 25 Subcontract, including the payment of all amounts due and owing to Skanska Building. 26 However, Skanska Building has failed to perform all of the conditions and obligations to be 27 performed by it under the Subcontract and Sub-Subcontract, namely by failing to pay its 28 subcontractor,Bratton Masonry,for the amounts due and owing,thus giving rise to the present W016-0000003 6 13130039.1 WOJV'S CROSS-COMPLAINT 1 ~ dispute.. 2 20. On or about Apri126,2019,Bratton Masonry filed a Complaint in the Superior 3 ~ Court of the State of California, City and County of San Francisco, as Case No. CGC-19- 4 ~ 575545 against WOJV,among others, for collection and/or recovery on stop payment notice 5 ~ release bond and enforcement of payment bond. WOJV incorporates by reference, without 6 ~ admitting the truth of, the allegations in Bratton Masonry's Complaint, and any subsequent 7 amendments, for the sole purpose of explaining Bratton Masonry's allegations. WOJV has 8 ~ answered and denied all material allegations of Bratton Masonry's claims, and has asserted 9 affirmative defenses, based on information and belief. WOJV thus incorporates its answer by 10 reference. While WOJV denies Bratton Masonry's allegations and any liability to Bratton 11 Masonry,ifit is determined that Bratton Masonry is entitled to any recovery against WOJV in 12 this action, it will be due, in whole or in part, to the acts or omissions of Skanska Building. 13 21. On or about July 18, 2019, Skanska Building filed across-Complaint in this 14 ~ action alleging, among others, claims against WOJV for breach of contract, breach of the 15 implied covenant of good faith and fair dealing, implied contractual indemnity, equitable 16 indemnity and declaratory relief. WOJV incorporates by reference, without admitting the 17 truth of, the allegations in Skanska Building's Cross-Complaint, and any subsequent 18 amendments, for the sole purpose of explaining Skanska Building's allegations. WOJV has 19 answered and denied all material allegations of Skanska Building's claims, and has asserted 20 affirmative defenses, based on information and belief. WOJV thus incorporates its answer by 21 reference. 22 E. TJPA's Pending Claims(s) against WOJV in Related Actions 23 22. TJPA has filed operative cross-complaints against WOJV in connection with the 24 ~ Project in several related actions, including:(i) Webcor/Obayashi Joint Venture v. Transbay 25 JointPowers Authority, et al. CGC-18-570621, Superior Court of California, County of San 26 Francisco (the "Lead Action"); and (ii) Skanska USA Civil West California District, Inc. v. 27 Webcor Builders/Obayashi Corp., a Joint Venture„ et al.,Case No.CGC-18-564431,Superior 28 Court of California, County of San Francisco (the "Skanska Action", consolidated with the W016-0000003 7 13130039.1 WOJV'S CROSS-COMPLAINT 1 '. ~ Lead Action, collectively, the "Related Actions"). WOJV anticipates that TJPA will assert 2 ~ additional claims against WOJV in related litigation arising from the Project, and reserves the 3 ~ right to seek appropriate reliefin this action in connection with any such later-asserted claims. 4 23. TJPA's operative cross-complaints against WOJV in the Related Actions allege 5 ~ deficiencies in connection with certain Project work, services, materials, or equipment, 6 ~ including, among others, various Trade Subcontractor work. 7 24. WOJV incorporates by reference, without admitting the truth of,the allegations 8 ~ in TJPA's operative cross-complaints in the Related Actions, and any subsequent 9 amendments,for the sole purpose ofexplaining TJPA's allegations. WOJV has answered and 10 denied all material allegations of TJPA's claims in the Related Actions, and has asserted 11 affirmative defenses, based on information and belief. WOJV thus incorporates its answers to 12 TJPA's operative cross-complaints in the Related Actions by reference. 13 25. WOJV is informed and believes, and based thereon alleges, that Skanska 14 ~ Building failed to discharge certain contractual and other duties to WOJV in connection with 15 the Project. While WOJV denies TJPA's allegations and any liability to TJPA, if it is 16 determined that TJPA is entitled to any recovery against WOJV in this action,it will be due,in 17 whole or in part, to the acts or omissions of Skanska Building. 18 26. WOJV has fully complied with all contractual prerequisites and fulfilled all 19 ~ conditions precedent to filing suit against Skanska Building. 20 FIRST CAUSE OF ACTION 21 ~ (Breach of Contract —Against Cross Defendants Skanska Building and ZOES 1-100) 22 27. WOJV incorporates each and every paragraph alleged above,as iffully set forth 23 herein. 24 28. The Subcontract is a valid written contract between WOJV and Skanska 25 ~ Building. 26 29. While WOJV denies the allegations in the Bratton Masonry's Complaint and 27 TJPA's operative TJPA's operative cross-complaints in the Related Actions, to the extent 28 those allegations are proven to be true, WOJV contends that any liability that it incurs to W016-0000003 13130039.1 WOJV'S CROSS-COMPLAINT 1 Bratton Masonry or TJPA would be caused, in whole or in part, by the alleged failures of 2 ~ Skanska Building to perform, or properly perform, its obligations under its Subcontract. 3 30. Pursuant to the Subcontract, Skanska Building agreed to defend,indemnify,and 4 ~ hold WOJV harmless from all claims, suits, actions, losses and liability of every kind arising 5 out of the performance of the work at the Project. 6 31. Specifically, Section 15.1.1 of the Subcontract, in pertinent part, provides: 7 Subcontractor shall Indemnify, defend, and save harmless the OWNER and Contractor, including their officers, agents, 8 employees, affiliates, parents and subsidiaries, and each of them, of and from any and all claims, demands, causes of 9 action, damages, costs, expenses, actual attorney's fees, losses or liability, in law or in equity, of every kind and nature 10 whatsoever ("Claims") arising out of or m connection with Subcontractor's operations to be erformed under this 11 Agreement.....[This indemnification shall extend to Claims occurring after this Agreement is terminated as well as while it 12 is in force. Such indemnity provisions apply regardless of any active and/or passive negligent act or omission ofthe OWNER 13 or Contractor or their agents or employees. 14 32. Further, Section 15.1.2 ofthe Subcontract provides that Skanska Building "shall 15 ~ defend all Claims that may be brought or instituted by third persons.... Subcontractor's duty 16 to defend the OWNER and Contractor is independent and distinct from Subcontractor's duties 17 to indemnify and hold harmless...." 18 33. The Subcontract additionally obligates Skanska Building to, inter alia, perform 19 ~ its work in accordance with the Prime Contract; furnish all labor, materials, equipment and 20 other facilities required to complete the work for the Project; and hold any and all funds 21 payable to Skanska Building in trust to be applied first to the payment of claims of its 22 subcontractors. 23 34. WOJV has fully performed all ofits covenants,conditions and obligations under 24 ~ the Subcontract, except those whose performance have been waived or legally excused. 25 35. Skanska Building breached the terms, covenants, promises, obligations, 26 requirements, provisions, and warranties of the Subcontract by various acts and omissions 27 including, without limitation, withholding and failing to make payment due to Bratton 28 Masonry and failing to indemnify and defend WOJV in connection with the present suit and W016-0000003 9 13130039.1 WOJV'S OROSS-COMPLAINT TJPA's claims in the Consolidated Action, as required by the Subcontract. 2 36. Although WOJV denies the allegations of the Complaint and TJPA's cross- 3 complaints in the Related Actions, by this Cross-Complaint, WOJV is giving Skanska 4 ~ Building notice ofthe Complaint against WOJV and TJPA's cross-complaints in the Related 5 Actions and requesting defense and indemnification, both express and implied,from Skanska 6 ~ Building against the claims against WOJV,including without limitation, Plaintiff's claims 7 against WOJV in the Complaint,TJPA's claims against WOJV in the Related Action,and any 8 ~ other complaint or cross-complaint that has been filed, or hereinafter may be filed, against 9 WOJV in connection with the Project. 10 37. Pursuant to the requirements of California Civ. Code, § 2782.05(e), WOJV 11 hereby allocates to Skanska Building the entirety offees and costs incurred in connection with 12 the Complaint and any other complaint or cross-complaint that has been filed, or hereinafter 13 maybe filed, against WOJV in connection with the Project. WOJV performed all conditions 14 and obligations to be performed by it under the Subcontract, and the present action arises 15 solely out of Skanska Building's conduct, thus justifying WOJV's apportionment of all 16 liability for any damages,costs,fees or other expenses in this lawsuit, whether by virtue ofthe 17~ Complaint or any other complaint or cross-complaint that has been filed, or hereinafter maybe 18 filed, solely against Skanska Building. 19 38. In defending against claims ofPlaintiff and others in this litigation, WOJV has 20 ~ necessarily and reasonably incurred and paid attorney's fees and other legal costs. WOJV has 21 incurred,and continues to incur, necessary and reasonable attorney's fees and other legal costs 22 in responding to the claims ofPlaintiffand others and prosecuting this action against Skanska 23 Building. WOJV does not know the full amount thereof at this time and will move to amend 24 this Cross-Complaint to state the amount when it becomes known, or on proofthereof. 25 39. By virtue of Skanska Building's breaches and repudiation, and as a direct and 26 ~ proximate result thereof, WOJV has been damaged in an amount to conform to proof at trial, 27 but in excess of the jurisdictional amount of the court, and inclusive of attorneys' fees and 28 interest as allowed by law. WOl6-0000003 13130039.1 WOJV'S OROSS-COMPLAINT 1 40. WHEREFORE, WOJV prays for relief as set forth below. SECOND CAUSE OF ACTION 3 (Express Indemnity Against Cross Defendants Skanska Building and ZOES 1 4 through 100) 5 4L WOJV incorporates each and every paragraph alleged above,as iffully set forth 6 herein. 7 42. Skanska Building is contractually obligated to defend, indemnify, and hold 8 harmless WOJV for any claims, losses, or damages arising from its respective Project work, 9 under Section 15 of the Subcontract. 10 43. Accordingly, Skanska Building is obligated to defend, indemnify, and hold 11 ~ harmless WOJV from and against any liability that WOJV may incur in connection with the 12 allegations in Bratton Masonry's Complaint and TJPA's operative cross-complaints in the 13 Related Actions. 14 44. WOJV has incurred and continues to incur necessary and reasonable expenses, 1~ ~ including attorneys' fees and costs, in defending itself against the allegations in Bratton 16 Masonry's Complaint and TJPA's operative cross-complaints in the Related Actions. 17 Moreover, while WOJV denies the allegations in Bratton Masonry's Complaint and TJPA's 18 operative cross-complaints in the Related Actions,to the extent those allegations are proven to 19 be true, WOJV will incur damages and losses arising from Skanska Building's allegedly- 20 deficientperformance ofwork under the Subcontract. This incursion of expenses, damages, 21 and losses by WOJV entitles and would entitle WOJV to a defense and .indemnity under the 22 Prime Contract and the Subcontract from Skanska Building, such that WOJV may recoup 23 from Skanska Building all incurred expenses, damages,and losses, including attorneys' fees, 24 consultants' fees, costs, and interest, in an amount according to proof. 25 45. WOJV has previously demanded in writing—and by this Cross-Complaint, 26 again demands—that Skanska Building defend, indemnify, hold harmless, and otherwise 27 reimburse WOJV for the expenses, losses, and damages that it has suffered and will suffer, 28 but, to date, Skanska Building has refused to honor their contractual defense and indemnity W016-0000003 11 13130039.] WOJV'S CROSS-COMPLAINT 1 ~ obligations. 2 46. By virtue ofthe Prime Contract and Subcontract, WOJV is entitled to a defense 3 and contractual indemnification by Skanska Building, in an amount according to proof. 4 47. WHEREFORE, WOJV prays for relief as set forth below. J THIRD CAUSE OF ACTION 6 (Declaratory Relief Against Cross-Defendants Skanska Building and ZOES 1 7 through 100) 8 48. WOJV incorporates each and every paragraph alleged above,as iffully set forth 9 herein. 10 49. A dispute and actual controversy has arisen and now exists between WOJV,on 11 the one hand, and Skanska Building and ZOES 1-100, on the other, as to the obligations of 12 Skanska Building and ZOES 1-100 to defend WOJV and indemnify it from the expenses, 13 ~ losses, and damages that WOJV has suffered and will continue to suffer as a result of these 14 Cross-Defendants' potential breaches of their respective contractual obligations to WOJV,as 15 alleged more specifically in TJPA's cross-complaints in the Related Actions. These potential 16 breaches include, without limitation, Skanska Building's allegedly failing to:(i)comply with, 17 and assume liabilities, obligations, and duties to WOJV, under the Contract Documents, 18 including, among others, the terms and conditions of the Prime Contract; (ii) defend and 19 indemnify WON under applicable provisions ofthe Contract and Subcontract;(iii)furnish all 20 labor, materials, equipment, and other facilities required to complete the work under the 21 Subcontract in accordance with. the Contract Documents;(iv) comply with any applicable 22 federal requirements in the Contract Documents, including, among others, any federal Buy 23 America requirements;(v) properly plan and sequence the work under the Subcontract;(vi) 24 prosecute the work under the Subcontracts in a prompt and diligent manner without delaying 25 or hindering the work ofthe Trade Subcontractors or others;(vii) coordinate the work under 26 the Subcontract with the work ofall other trades, contractors,subcontractors, and WOJV,in a 27 manner that facilitated the efficient completion ofthe entire Project;(viii)compensate WOJV 28 for any losses, costs, expenses, liabilities, or damages, including any liquidated damages woi6-0000003 12 13130039.1 WOJV'S CROSS-COMPLAINT 1 assessed by TJPA against WOJV,for any default in performance of the Subcontract work, 2 breach of the Subcontract, or any act of'Skanska Building that delayed WOJV's work;(ix) 3 ensure that all materials and equipment was new and that all work under the Subcontract was 4 of good quality, free from faults and defects, and in conformance with the Contract 5 Documents;(x)submit requests for information and other submittals in a timely fashion and in 6 accordance with the Contract Documents; and (xi) otherwise comply with the terms of the 7 ~ applicable Contract Documents. 8 50. WOJV has tendered to Skanska Building the claims and damages that it has 9 suffered, and would suffer, as a result ofthe allegations in TJPA's operative Cross-Complaints 10 in the Related Actions ,and hereby reiterates that tender and demands that Skanska Building 11 fulfill its obligations to WOJV pursuant to the applicable Contract Documents. 12 51. WOJV is informed and believes, and thereon alleges,that Skanska Building and 13 ~'ZOES 1-100, and each ofthem, have failed and will continue to fail and refuse to meet their 14' obligations to defend and indemnify WOJV from and against any claims,losses, and damages 15 suffered by WOJV,in an amount according to proof. 16 52. WHEREFORE, WOJV prays for relief as set forth below. 17 PRAYER FOR RELIEF 18 WHEREFORE, WOJV prays for judgment as follows: 19 First Cause of Action: 20 1. For compensatory damages arising from Skanska Building's potential breaches 21 of its.respective contractual obligations, according to proof; 22 2. For costs and expenses of suit incurred herein; and 23 3. For prejudgment and postjudgment interest in the maacimum amount allowed 24 by law, according to proof; and 25 4. For any such other and further relief as the Court deems just and proper. 26 Second Cause of Action: 27 1. For compensatory damages arising from Skanska Building's failure to defend 28 and indemnify WOJV pursuant to the terms of the Prime Contract and the Subcontract, W016-0000003 13 13130039.1 WOJV'S CROSS-COMPLAINT 1 according to proof; 2 2. For attorneys' fees; 3 3. For costs and expenses of suit incurred herein; 4 4. For prejudgment and postjudgment interest in the maximum amount allowed 5 by law, according to proof; and 6 5. For any such other and further relief as the Court deems just and proper. 7 g 1. A declaration ofthe respective rights and duties ofthe parties as set forth herein 9 and according to proof at trial; 10 2. For costs and expenses of suit incurred herein; and 11 3. For any such other and further relief as the Court deems just and proper. 12 13 Dated: September 20, 2019 HAIGHT BROWN & BONESTEEL LLP 14 15 16 By: Steven M. Cvitanovic 17 James B. De Los Reyes 18 Attorneys for Cross-Defendant WEBCOR/OBAYASHI JOINT VENTURE 19 20 21 22 23 24 25 26 27 28 W016-0000003 14 13130039.1 WOJV'S OROSS-COMPLAINT PROOF OF SERVICE 2 STATE OF CALIFORNIA,COUNTY OF SAN FRANCISCO 3 Bratton Masonry Inc. v. Skanska USA Building, Inc. Case No. CGC-19-575545 4 At the time of service, I was over 18 years of age and not a party to this action. I 5 am employed in the County of San Francisco, State of California. My business address is Three Embarcadero Center, Suite 200, San Francisco, CA 94111. 6 On Septemb