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MOOI
SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO
Document Scanning Lead Sheet
May-15-2014 10:47 am
Case Number: CGC-13-531203
Filing Date: May-15-2014 10:44
Filed by: CAROL BALISTRERI
Juke Box: 001 Image: 04484320
COMPLAINT
88 TOWNSEND STREET OWNERS ASOCIATION, VS. 699 SECOND
DEVELOPMENT LLC, et al
001004484320
Instructions:
Please place this sheet on top of the document to be scanned.oO ND HW Fb
Thomas E. Miller, Esq. (Bar No. 57821)
Rachel M. Miller, Esq. (Bar No. 182630)
Thomas W. J. Purtell, Esq. (Bar No. 229961)
Emma E. Nelson-Munson, Esq. (Bar No..27] 708
THE MILLER LAW FIRM N A L
235 Montgomery St., Suite 930
San Francisco, CA 94104
Telephone: (415) 437-1800 / Fax: (415) 437-0177
tmiller@constructiondefects.com
Attorneys for Plaintiff
F I L.ED
SY are oan Francisco
MAY 15 2014
SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF SAN FRANCISCO
88 TOWNSEND STREET OWNERS
ASSOCIATION, a California non-profit
mutual benefit corporation,
Plaintiff,
vs.
699 SECOND DEVELOPMENT, LLC, a
California Limited liability company;
CANNON CONSTRUCTORS, INC., a
California Corporation; Sternberg Benjamin
Architects, Inc., a California corporation;
MARVIN WINDOWS AND DOORS, a
Minnesota corporation, BLOMBERG
BUILDING MATERIALS dba
BLOMBERG WINDOW SYSTEMS, a
California corporation, and DOES 1-100,
102-125, and 129-150, inclusive,
Defendants.
Case No. CGC-13-531203
SECOND AMENDED COMPLAINT FOR
DAMAGES:
(1) VIOLATION OF RESIDENTIAL
BUILDING STANDARDS (Cal. Civ. Code §§ 896
and 897)
(2) NEGLIGENCE
(3) STRICT PRODUCTS LIABILITY,
BUILDING
(4) STRICT PRODUCTS LIABILITY,
WINDOWS
(5) BREACH OF IMPLIED WARRANTY
(6) NEGLIGENCE OF DESIGN
PROFESSIONALS
(7) IMPROPER SETTING OF RESERVES
(8) NEGLIGENT MISREPRESENTATION
Plaintiff 88 TOWNSEND STREET OWNERS ASSOCIATION complains of
Defendants, and each of them, as follows:
GENERAL ALLEGATIONS
1. Plaintiff 88
TOWNSEND
STREET OWNERS ASSOCIATION
(“ASSOCIATION”) is a non-profit mutual benefit corporation, formed pursuant to the laws of
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SECOND AMENDED COMPLAINT FOR DAMAGESwn
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the State of California, with its principal place of business located in the City of San Francisco,
County of San Francisco, State of California.
2. ASSOCIATION was created to provide management, maintenance, and repairs of
certain real property located at 88 Townsend Street, in the City of San Francisco, County of San
Francisco, State of California, and more particularly described as: “‘Map of 88 Townsend Street,
a Mixed Use Condominium, recorded the 9th day of November, 2004, in Book 88 of
Condominium Maps, Page 147 through 158 inclusive, Official Records of the City and County of
San Francisco, State of California (the “Map”).” The Project consists of 112 (one hundred and
twelve) residential condominium units, 2 (two) commercial units, and common areas and is
owned by ASSOCIATION’S members and managed and maintained by the ASSOCIATION for
the general use and benefit of ASSOCIATION members.
3. ASSOCIATION is informed, believes and thereon alleges that defendant 699
SECOND DEVELOPMENT, LLC (‘699 SECOND”) is and was and at all times mentioned in
this Complaint is or was a California limited liability company doing business in the City of San
Francisco, County of San Francisco, State of California.
4. ASSOCIATION is informed and believes and thereon alleges that defendant
CANNON CONSTRUCTORS, INC. (“CANNON”) is and was at all times mentioned in this
Complaint is or was a California corporation doing business in the City of San Francisco, County
of San Francisco, State of California.
5. ASSOCIATION is informed, believes and thereon alleges that defendant
STERNBERG BENJAMIN ARCHITECTS, INC. (“STERNBERG BENJAMIN
ARCHITECTS”) is and was and at all times mentioned in this Complaint is or was a California
corporation doing business in the City of San Francisco, County of San Francisco, State of
California.
6. ASSOCIATION is informed, believes and thereon alleges that defendant
MARVIN WINDOWS AND DOORS (“MARVIN WINDOWS”) is and was and at all times
mentioned in this Complaint is and was a Minnesota corporation doing business in the City of
San Francisco, County of San Francisco, State of California.
2.
SECOND AMENDED COMPLAINT FOR DAMAGESYD WwW FB WN
7. ASSOCIATION is informed, believes and thereon alleges that defendant
BLOMBERG BUILDING MATERIALS DBA BLOMBERG WINDOW SYSTEMS
(“BLOMBERG?”) is and was and at all times mentioned in this Complaint is or was a California
corporation doing business in the City of San Francisco, County of San Francisco, State of
California.
8. The true names and capacities, whether individual, corporate, associate, or
otherwise, of the Defendants named herein as DOES 1 through DOES 150 (other than DOES
101, 126, 127, and 128 previously named as STERNBERG BENJAMIN ARCHITECTS, INC,
MARVIN WINDOWS AND DOORS, BLOMBERG GLASS, and BLOMBERG BUILDING
MATERIALS DBA BLOMBERG WINDOW SYSTEM respectively) are unknown to
ASSOCIATION at this time. ASSOCIATION sues the Defendant DOES by such fictitious
names pursuant to California Code of Civil Procedure § 474, and will amend this Complaint to
show their true names and capacities when the same have been ascertained. ASSOCIATION is
informed and believes, and based on such information and belief alleges, that each of the
Defendant DOES is legally responsible in some manner for the events and happenings referred to
in this Complaint and/or also unlawfully caused the damages to ASSOCIATION as alleged
herein.
9. ASSOCIATION is informed and believes and thereon alleges that defendants 699
SECOND and DOES 1 through 35 (referred to herein as “BUILDER DEFENDANTS”)
developed, planned, improved, designed, constructed, promoted, marketed, advertised, and sold
the units within the Project to individual members of the ASSOCIATION or their predecessors in
title.
10. ASSOCIATION is informed and believes and thereon alleges that BUILDER
DEFENDANTS created ASSOCIATION and caused it to accept management, operation, and
control of the common areas and various aspects of the Project for the benefit of its members, as
more fully set forth in the Final Subdivision Public Reports (hereinafter “Public Reports”), issued
by the California Department of Real Estate and incorporated herein as though fully set forth.
11. ASSOCIATION is informed and believes and thereon alleges that as part of and
3.
SECOND AMENDED COMPLAINT FOR DAMAGESpursuant to the Public Reports, BUILDER DEFENDANTS caused and assented to the filing of
certain Articles of Incorporation (hereinafter the “Articles”) in the Office of the Secretary of State
of the State of California, further caused and assented to the preparation and execution of certain
Bylaws (hereinafter the “Bylaws”) pertaining to the ASSOCIATION, and further caused and
assented to the recordation of a certain Declaration of Covenants and Restrictions of 88
Townsend Street, a Condominium Project (hereinafter the “Declaration”), recorded on November
16, 2004 as the Enabling Declaration by the BUILDER DEFENDANTS in the office of the San
Francisco County Recorder’s Office, City of San Francisco, County of San Francisco, State of
California (the Articles, Bylaws, Declaration, Condominium Plan, and Operating Rules, which
are referenced and defined in the Declaration, are hereinafter referred to collectively as the
“Governing Documents”).
12, As set forth in the Governing Documents, the purpose and powers of
ASSOCIATION are, in general, to provide administration, maintenance, preservation, and
architectural control of the residences and common areas within the Project; to preserve the
values and amenities in the Project; to promote the general welfare of the community comprising
the ASSOCIATION; and to possess and exercise all powers of a non-profit mutual benefit
corporation operating for the benefit and on behalf of the members of the ASSOCIATION,
subject only to the limitations set forth in the Governing Documents, and, more specifically, to
exercise all of the powers and privileges and to perform all of the duties and obligations of the
ASSOCIATION arising from the Governing Documents with the purpose of enhancing,
maintaining and protecting the value and attractiveness of the Project.
13. As further set forth in the Governing Documents, ASSOCIATION is obligated to
maintain in good condition, repair, replace, and manage the common areas for the common use
and enjoyment of all members of ASSOCIATION. ASSOCIATION is obligated to keep such
real property and improvements in good condition and repair, provide for all necessary
maintenance services, and cause all acts to be done, including enforcement of the Declaration and
the rights and obligations there under, which may be necessary or proper to assure the
maintenance of such real property and improvements “in good condition.”
4.
SECOND AMENDED COMPLAINT FOR DAMAGES14. | ASSOCIATION is informed and believes and thereon alleges that defendants
CANNON and DOES 36 through 100 (collectively referred to herein as “CONTRACTORS”)
were contractors, individuals, associations, partnerships, and/or corporations, and all their
employees and agents who performed services as general contractor or subcontractors and/or
provided equipment, materials, and/or supplies for the construction of the Project.
15. ASSOCIATION is informed and believes and thereon alleges that defendant
STERNBERG BENJAMIN ARCHITECTS, and DOES 102 through 125 (collectively referred to
herein as “DESIGNERS” were architects, engineers, design professionals and consultants who
provided design services in connection with the planning, design, specification, inspection,
development, and construction of the Project.
16. | ASSOCIATION is informed and believes and thereon alleges that defendants
MARVIN WINDOWS, BLOMBERG and DOES 129 through 150 (collectively referred to herein
as “SUPPLIERS” were individuals and/or business entities who supplied, manufactured and/or
distributed materials, products, and goods used in or for the construction of the Project.
17. The use of the terms “Defendants” in any of the allegations in this Complaint,
unless specifically alleged otherwise, is intended to include and charge, both jointly and
severally, not only the named defendants but also all defendants designated as DOES 1 through
150, inclusive, as though the term “Defendants” was followed in each and every instance
throughout this Complaint with the phrase “and each of them jointly and severally, including all
named defendants and defendants included herein and sued under the fictitious names of DOES 1
through 150, inclusive.
18. The true names and capacities, whether individual, corporate, associate, or
otherwise, of the Defendants named herein as DOES 1 through DOES 150 are unknown to
ASSOCIATION at this time. ASSOCIATION sues the defendant DOES by such fictitious names
pursuant to California Code of Civil Procedure Section 474 (all further Code references are to
California Codes unless otherwise noted), and will amend this Complaint to show their true
names and capacities when the same have been ascertained. ASSOCIATION is informed and
believes, and based on such information and belief alleges, that each of the defendant DOES is
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SECOND AMENDED COMPLAINT FOR DAMAGESlegally responsible in some manner for the events and happenings referred to in this Complaint
and/or also unlawfully caused the damages to ASSOCIATION as alleged herein.
19. | ASSOCIATION is informed and believes and thereon alleges that BUILDER
DEFENDANTS and DOES 1 through 150, inclusive, whether individual, corporate, associate, or
otherwise, are fictitious names of Defendants whose true names and capacities are, at this time,
unknown to ASSOCIATION. ASSOCIATION is informed and believes and thereon alleges, that
at all times herein mentioned, each of the Defendants sued herein and as a Doe Defendant is and
was acting for itself or as an agent, servant and/or employee of his or its co-Defendants, and in
doing the things hereinafter mentioned was acting in the scope of authority as such agent,
servant, and employee, and with the authorization, permission and consent of his or its co-
Defendants; and each of said fictitiously named Defendants whether acting for himself or itself as
agent, corporation, association or otherwise, is in some way liable or responsible to
ASSOCIATION and its members on the claims hereinafter alleged. Defendants proximately
caused the injuries and damages as hereinafter alleged. At such time as Defendants’ true names
become known to ASSOCIATION, ASSOCIATION will seek leave to amend this Complaint to
insert the true names and capacities of the Doe Defendants named herein.
20. | ASSOCIATION is further informed and believes, and based on such information
and belief alleges, that at all times pled in this Complaint, Defendants, and each of them, were the
agents and/or employees of the other, and in doing the things alleged herein, Defendants were
acting within the course and scope of their agency and/or employment.
21. | ASSOCIATION is informed and believes, and thereon alleges, that from the
inception of the Project’s construction to the date of this Complaint, Defendants, and each of
them, performed inspections and reported to one another on conditions of various improvements
of the Project, including, without limitation, garage walls and floor, exterior walls, interior walls,
patios and decks, joint sealant systems and products, weather sealant systems, historic facade,
stucco systems and assemblies, paint, spandrel panels, flashing systems and assemblies,
waterproofing systems and assemblies, plumbing systems and components, waste line systems
and components, storm-water and irrigation drainage systems, railing systems, roof and roofing
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SECOND AMENDED COMPLAINT FOR DAMAGESsystems, window washing equipment and systems, windows and doors and their hardware,
concrete window sills, lighting systems, structural slab and foundation systems, concrete
flatwork, concrete sills, concrete sidewalk, ventilation, electrical systems and products,
mechanical equipment and systems, noise transmission, sheet metal systems, ventilation systems,
planters, fire protection systems, fire insulation, and made representations and recommendations
to each other as to researching and specifying these conditions.
22. ASSOCIATION is informed and believes, and thereon alleges, that from the date
of the ASSOCIATION’S creation through the present date, that the Defendants or Defendants’
agents were members of the board of directors and established reserves for long term
maintenance repairs and made inspections, investigated, concealed by temporary repairs, and did
not reveal, disclose, or inform ASSOCIATION or its members of various building deficiencies
and defective conditions of the Project that were observed and/or discovered during inspections,
investigations, and temporary repairs conducted by the Defendants and did not disclose
budgetary deficiencies in Association’s reserves, and ASSOCIATION reasonably relied on the
implied and express representations by Defendants that the Project was adequately reserved and
free from building standard deficiencies, defective conditions, construction or design defects,
premature and unreasonable deterioration of the improvements at the Project, was constructed in
accordance with applicable building standards, and that the ASSOCIATION’S obligations of
maintenance, repairs, and replacement of the common areas and condominium units as also
required by the Governing Documents could be funded by the pro-forma budget submitted by
BUILDER DEFENDANTS to the California Department of Real Estate.
23. | ASSOCIATION is informed and believes and thereon alleges that each of the
violations of residential building standards for the original construction alleged herein were
timely alleged in compliance with the limitations periods prescribed in Civil Code Section 896
and 897.
24. Since completion of construction of the Project, BUILDER DEFENDANTS
promised, agreed to, and did make some repairs to the Project’s common area and separate
interests, but failed to provide the Association with accurate and complete information about the
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SECOND AMENDED COMPLAINT FOR DAMAGESrepairs, assuring the Association that any and all building standard violations were incidental
anomalies and not systematic and widespread, and concealing, either intentionally or negligently,
the true conditions. In so doing, ASSOCIATION reasonably relied on said promises, agreements,
and repairs and thereby deferred the filing of this action.
25. Pursuant to the Governing Documents and Civil Code Section 5980,
ASSOCIATION brings this action individually, on its own behalf, and in its representative
capacity for damage to the common areas, damages to the separate property interests which arise
out of or are integrally related to damage to the common areas and damages to the separate
interests that the ASSOCIATION is obligated to maintain or repair. Pursuant to said section,
ASSOCIATION has standing to institute the instant action for the damages alleged herein.
26. ASSOCIATION is informed and believes and thereon alleges that
ASSOCIATION and its members have sustained and suffered consequential damages resulting
from Defendants’ acts and/or omissions, including, without limitation, physical injury, and/or
destruction of tangible property and the loss of use of common areas, consequential damages to
common areas, damage to the separate interests which ASSOCIATION is obligated to maintain
or repair, and damage to the separate interests which arises out of, or which is integrally related
to damage to the common areas or separate interests which ASSOCIATION is obligated to
maintain or repair. ASSOCIATION has or will incur relocation expenses in connection with the
repair and remediation of such defects and damages.
27. ASSOCIATION is informed and believes that each of the BUILDER
DEFENDANTS is a Builder within the meaning of Civil Code Section 91 1(a) as each of the
BUILDER DEFENDANTS was a builder, developer, general contractor, contractor, or original
seller who at the time of sale was also in the business of selling residential units to the public for
the property that is the subject of the ASSOCIATION’S claim or was in the business of building,
developing, or constructing residential units for public purchase for the property that is the
subject of the ASSOCIATION’S claim. As a result, each of the BUILDER DEFENDANTS is
liable to ASSOCIATION for violation of the building standards of residential construction
enumerated in Civil Code Sections 896 and 897, et seq.
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SECOND AMENDED COMPLAINT FOR DAMAGES28. | ASSOCIATION is further informed and believes that each of the BUILDER
DEFENDANTS is a Builder within the meaning of Civil Code Section 911(b) as each of the
BUILDER DEFENDANTS is a partner, member of, subsidiary of or otherwise similarly
affiliated with the builder and the role of each of the BUILDER DEFENDANTS was not limited
to that entity’s capacity as general contractor or contractor. As a result, each of the BUILDER
DEFENDANTS is liable to ASSOCIATION for violation of the standards of residential
construction enumerated in Civil Code Sections 896 and 897, et seq.
FIRST CAUSE OF ACTION
(For Violations of the Residential Building Standards
Set Forth in Civil Code Sections 896 and 897 against BUILDER DEFENDANTS,
CONTRACTORS and SUPPLIERS,
and DOES 1-100, 102-125, and 129-150)
29. | ASSOCIATION incorporates and re-alleges, as though fully set forth in
this cause of action, the preceding paragraphs of this Complaint.
30. ASSOCIATION is informed and believes, and thereon alleges, that BUILDER
DEFENDANTS, CONTRACTORS, SUPPLIERS and each of them, provided services to the
Project as developer, builder, seller, general contractor, subcontractor, architect, engineer,
consultant, and/or material suppliers and developed, planned, improved, designed, supplied
materials for, constructed, and/or sold the units within the Project to the individual members of
the ASSOCIATION or their predecessors in title.
31. The Project was constructed in violation of the residential building standards set
for in Civil Code Sections 896 and 897, including but not limited to the violations identified in
Exhibit “A” to this complaint and incorporated herein by reference (the “Building Standard
Violations”). ASSOCIATION’S investigation is continuing and additional Building Standard
Violations may be discovered as this action proceeds.
32. The Building Standard Violations existed at the time that the BUILDER
DEFENDANTS created the ASSOCIATION, recorded the Map, filed their final subdivision
reports, created and recorded the operative Declaration, and created and filed the articles of
incorporation and by-laws of the ASSOCIATION.
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SECOND AMENDED COMPLAINT FOR DAMAGES33. To the extent any particular Building Standard Violations were caused in whole or
in part by CONTRACTORS, and/or SUPPLIERS those violations are the result of their negligent
act or omission.
34. As a direct and proximate result of the Building Standard Violations,
ASSOCIATION has sustained and will continue to sustain damages, for the value of repairing
any violation of the standards set forth in this title, the reasonable cost of repairing any damages
caused by the repair efforts, the reasonable cost of repairing and rectifying any damages resulting
from the failure of the home to meet the standards, the reasonable cost of removing and replacing
any improper repair by the builder, reasonable relocation and storage expenses, lost business
income if the home was used as a principal place of business licensed to be operated from the
home, reasonable investigative costs for each established violations and all other costs or fees
recoverable by contract or statute all as set forth in Civil Code Section 944. Such damages far
exceed the minimum jurisdictional amount of the Court according to proof at the time of trial.
SECOND CAUSE OF ACTION
(For Negligence Against All Defendants and DOES 1-100, 102-125, and 129-150)
35. ASSOCIATION incorporates and re-alleges, as though fully set forth in
this cause of action, the preceding paragraphs of this Complaint.
36. Defendants, and each of them, negligently planned, designed, improved,
constructed, inspected, installed, repaired, investigated, and replaced the Project’s site and
structural elements, including, but not limited to, the Project’s garage area, walkways, exterior
siding, stucco and other finishes, exterior waterproofing systems, windows and window systems,
doors and frames, roofing and flashing systems, drainage systems, caulking and waterproofing,
electrical, heating, ventilation, plumbing, historic fagade, and other elements of the Project
presently unknown (hereinafter referred to collectively as ’Project Defects”), and otherwise
failed to use adequate materials, products, goods, devices and procedures, design plans or
specifications, so that those elements of the Project do not function or perform properly; and are
defective so as to create unsafe and unhealthy conditions; and have caused consequential
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SECOND AMENDED COMPLAINT FOR DAMAGESdamages to the buildings, improvements, personal property at the Project, and loss of use of
property.
37. BUILDER DEFENDANTS, and each of them, failed to supervise the work of
other Defendants herein, failed to ensure that reported and known defects were repaired, failed to
notify ASSOCIATION and its members of the existence of the Project defects pursuant to
California Administrative Code § 2800(f), and failed to notify potential purchasers of the impact
of the Project’s defective systems on the ASSOCIATION’S operating budget in accordance with
Title 10, California Administrative Code § 2800(j-(k), and regulations and directives of the
California Department of Real Estate.
38. Specifically, BUILDER DEFENDANTS: (1) failed to properly inspect, repair and
maintain the elements of the Project; (2) negligently advised ASSOCIATION that the Project
was in a condition suitable for acceptance and habitation, free from defects and/or that all Project
Defects had been repaired or did not require repair; (3) performed inspections and repairs using
methods and materials which were and are below applicable industry standards; and (4)
negligently failed to adequately investigate Project Defects, and advise the ASSOCIATION of
any repairs or investigations undertaken.
39. | BUILDER DEFENDANTS and Defendant CONTRACTORS, and each of them,
failed to properly construct, improve, repair, supervise and inspect construction on the Project, so
as to eliminate or mitigate the damages alleged herein.
40. BUILDER DEFENDANTS and Defendant DESIGNERS, and each of them, so
negligently planned and designed the building elements and common areas of the Project that the
details, plans, and specifications provided, and inspections performed, were insufficient, and said
Defendants failed to warn of potential defects and failed to observe and report Project Defects to
the other Defendants herein.
41. Defendant SUPPLIERS, and each of them, were the manufacturers and
distributors of products, materials and goods, used by the co-Defendants for or in the construction
of the Project. Each of said Defendant SUPPLIERS negligently designed, manufactured and
distributed such products, materials and goods by failing to prepare and disseminate adequate and
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SECOND AMENDED COMPLAINT FOR DAMAGESreasonable specifications concerning the application and use of said Defendants’ products,
materials and goods, by failing to warn prospective users and applicators of said Defendants’
products, materials and goods of the precautions to be taken in connection with the installation
thereof; and by failing to employ adequate and reasonable quality control to ensure that such
products, materials and goods were without defects. Defendant SUPPLIERS knew or should have
known that their products, materials and goods would be used for ordinary consumer and
residential purposes without substantial inspection by such consumers, including
ASSOCIATION and its members.
42. Defendants, and each of them, had a duty to ASSOCIATION and its members to
perform with reasonable care all of the foregoing described acts; and Defendant BUILDER
DEFENDANTS had a specific duty to ASSOCIATION and its members to construct and to
provide the Project in a habitable condition.
43. Asa direct and proximate result of the acts and/or omissions of Defendants, and
each of them, the ASSOCIATION has incurred damages as a result of the Project Defects,
thereby denying ASSOCIATION and its members safe, complete and undisturbed enjoyment and
use of the Project, its units and common areas, all to the ASSOCIATION’S and its members’
detriment, whose damages far exceed the minimum jurisdictional amount of the Court and
according to proof at the time of trial.
WHEREFORE, ASSOCIATION prays for judgment as hereinafter set forth.
THIRD CAUSE OF ACTION
(For Strict Products Liability Against BUILDER DEFENDANTS
and DOES 1-100, 102-125, and 129-150)
44. ASSOCIATION incorporates and re-alleges, as though fully set forth in
this cause of action, the preceding paragraphs of this Complaint.
45. Defendants, and each of them, knew and understood that the condominium units,
improvements and common areas comprising the Project would be used by ASSOCIATION’S
members for ordinary residential, commercial and community use purposes common to such
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SECOND AMENDED COMPLAINT FOR DAMAGESdevelopments. ASSOCIATION took possession of and accepted responsibility of the Project for
said purposes.
46. | ASSOCIATION is informed and believes and thereon alleges that said
Defendants, and each of them, knew that the units and common areas would be occupied,
purchased and/or acquired, and so used, by prospective occupants and purchasers after only a
superficial inspection and inquiry for defects, and that the subject units and common areas were
defective and unfit for their intended use in the manner herein described. BUILDER
DEFENDANTS knew or should have known, and implicitly represented otherwise by the
presence of the units on the real estate market, and by their advertising, promotion and sales
presentations, that the properties were unfit for the purpose of providing habitable residential
units and common property appurtenant thereto that were in a habitable condition and free from
defects.
47. ASSOCIATION is informed and believes and thereon alleges that BUILDER
DEFENDANTS, and each of them, were the manufacturers and/or distributors of products,
materials and goods used by their co-Defendants in the construction of the Project.
ASSOCIATION is further informed and believes, and thereon alleges, that Defendants
defectively designed, manufactured and distributed such products, materials and goods by failing
to prepare and disseminate adequate specifications for the installation and use of their products,
materials and goods; by failing to warn prospective users and applicators of said Defendants’
products, materials and goods of precautions to be taken in connection with the installation
thereof; and by failing to employ adequate and reasonable quality control to ensure that such
products, materials and goods were without substantial defect. Defendants knew or should have
known that their products, materials and goods would be used for ordinary consumer and
residential purposes without substantial inspection by the end users and responsible owners,
including ASSOCIATION and/or its members.
48. Asa direct and proximate result of said defects in the units, improvements and
common areas, ASSOCIATION and its members have been damaged and will continue to be
damaged by the expenditure of certain monies for repair and/or replacement of the Project
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SECOND AMENDED COMPLAINT FOR DAMAGESDefects, as well as damages to other property caused as a result of the defects alleged herein, all
in excess of the minimum jurisdictional amount of the Court, according to proof at the time of
trial.
WHEREFORE, ASSOCIATION prays for judgment as hereinafter set forth.
FOURTH CAUSE OF ACTION
(For Strict Products Liability for the windows, doors and associated hardware
Against SUPPLIERS and DOES 1-100, 102-125, and 129-150)
49. ASSOCIATION incorporates and re-alleges, as though fully set forth in
this cause of action, the preceding paragraphs of this Complaint.
50. Defendants, and each of them, knew and understood that the windows, doors
and associated hardware installed in the condominium units, improvements and common areas
comprising the Project would be used by ASSOCIATION’s members for ordinary residential,
commercial and community use purposes common to such developments. ASSOCIATION took
possession of and accepted responsibility of the Project for said purposes.
51. Atall times mentioned in this complaint, the windows, doors and associated
hardware installed in the condominium units, improvements and common areas comprising the
Project were defective as to design, manufacture, installation and warnings, causing the windows
and associated hardware, and their component parts'to be in a dangerous and defective condition
that made them unsafe for their intended use in the condominium units, improvements and
common areas comprising the Project by ASSOCIATION’s members for ordinary residential,
commercial and community use purposes common to such developments.
52. Asa direct and proximate result of the defective and dangerous condition of the
windows, doors and associated hardware as described above, the ASSOCIATION and its
members have been damaged and will continue to be damaged by the expenditure of certain
monies for repair and/or replacement of the product, as well as damages to other property caused
as a result of the defects alleged herein, all in excess of the minimum jurisdictional amount of the
Court, according to proof at the time of trial.
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SECOND AMENDED COMPLAINT FOR DAMAGESN
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FIFTH CAUSE OF ACTION
(For Breach of Implied Warranty Against BUILDER DEFENDANTS
and DOES 1-100, 102-125, and 129-150)
53. ASSOCIATION incorporates and re-alleges, as though fully set forth in this cause
of action, the preceding paragraphs of this Complaint.
54. At the time ASSOCIATION undertook the obligation for maintenance and took
possession of the Project under the Declaration, the units and common areas were newly
designed, constructed, repaired, inspected, and improved; and when the same was purchased by
individual members of ASSOCIATION, said Defendants, and each of them, impliedly warranted
to each of ASSOCIATION’S purchasing members that the subject properties would be free from
defects and fit for ordinary residential and commercial purposes, and that the completed structure
was designed and constructed in a reasonably workmanlike manner.
55. ASSOCIATION is informed and believes, and thereon alleges, that said
Defendants, and each of them, had a part in designing, building, financing, supplying,
manufacturing, and/or distributing products and goods used in or for the construction of the
Project and that they were in a better position than ASSOCIATION, and it members as buyers of
the units, to know of defects in the construction of the Project and/or defects in materials,
products, and goods for the Project; that each of said members of ASSOCIATION and
ASSOCIATION itself, at the time of purchase, and upon undertaking the obligation, respectively,
as imposed by the Governing Documents, relied on the skill and judgment of said Defendants,
and each of them, to select and provide products, materials and goods and to perform work
suitable to improve and construct the planned development units, improvements and common
areas free from defects and fit for reasonable residential and commercial use, and the implied
warranty that the improvements at the completed structure were designed and constructed in a
reasonably workmanlike manner.
56. After ASSOCIATION discovered said injuries to properties and/or defects, as
hereinbefore described, notice was given to said Defendants, orally and/or in writing, of the
breach of said implied warranties. As a direct and proximate result of the breach of said
warranties, ASSOCIATION and its members have been damaged, and will be damaged, by the
-15-
SECOND AMENDED COMPLAINT FOR DAMAGESexpenditure of certain monies for repair, installation and/or replacement of the Project Defects,
and for damage caused by or as a result of said Project Defects. ASSOCIATION is informed and
believes and thereon alleges that such costs far exceed the minimum jurisdictional amount of this
Court, according to proof at the time of trial.
SIXTH CAUSE OF ACTION
(For Negligence of Design Professionals against DESIGNERS and DOES 102-125)
57. The ASSOCIATION incorporates and re-alleges, as though fully set forth in this
cause of action, the preceding paragraphs of this Complaint.
58. | The ASSOCIATION is informed and believes and thereon alleges that
DESIGNERS entered into agreements, whether in writing or oral, with the other Defendants
herein for the purpose of providing architectural services in connection with the development of
the PROJECT and the construction of the subject improvements, and conducted construction
project management for, the construction of the PROJECT.
59. The ASSOCIATION is informed and believes and thereon alleges that
BUILDERS and CONTRACTORS entered into written contracts with other Defendants herein to
provide design, work, labor, and materials, in connection with the construction of the PROJECT.
60. DESIGNERS, and each of them, drew the plans and specifications, and/or
engaged in periodic site observations and contract administration respecting the design,
development, and construction of the PROJECT and the improvements thereon with the
knowledge that said property would be sold to and used by members of the public, including the
members of the ASSOCIATION. In so doing, DESIGNERS, and each of them, caused the
property and the improvements thereon to be constructed through their own services. The
ASSOCIATION is informed and believes and thereon alleges that DESIGNERS were
collectively paid well over nine hundred thousand dollars ($900,000.00) for their services on the
project, making it fair and equitable for these parties to have a duty of care to the
ASSOCIATION and its members. The exact amount of compensation received by these parties
is presently unknown but will be proven at trial.
-16-
SECOND AMENDED COMPLAINT FOR DAMAGESDA vn FB WwW N
61. | DESIGNERS, and each of them, were under a duty to exercise ordinary care as
engineers, architects, waterproofing consultants, and contract administrators to avoid foreseeable
injury, including property damage and loss of use, to users and purchasers of the property and
improvements, and knew or should have foreseen with reasonable certainty that the
ASSOCIATION and its members would suffer property damage and monetary damages set forth
herein if said Defendants, and each of them, failed to perform their duty to cause the property and
improvements to be developed, designed, and constructed in a proper and workmanlike fashion.
62. In performing the works of an engineer, architect, and project manager,
DESIGNERS performed their services in a manner that was below the standards of care for
architects, engineers, and project managers. Said Defendants negligently planned and designed
the buildings and the common areas for the PROJECT in that the details provided were
insufficient, and incapable of being properly executed; negligently failed to warn that their
designs would result in conditions as described and alleged herein, cause property damage, and
violate statutory requirements including but not limited to California Civil Code §§ 896, 897,
negligently failed to properly observe the work in progress; and negligently failed to observe and
report building standard violations to the other Defendants identified herein. DESIGNERS
negligently designed the PROJECT by, among other things, failing to prepare and disseminate
adequate: (1) Specifications for the application and use of Defendants’ products and materials,
and/or (2) precautions to be taken in connection with the installation thereof; and (3) by failing to
employ adequate quality control to ensure that such products and materials were free of
BUILDING STANDARD VIOLATIONS.
63. Asa direct and proximate result of the negligent actions and BUILDING
STANDARD VIOLATIONS set forth herein, the ASSOCIATION has sustained damages as set
forth herein, the exact amounts of which will be proven at trial.
SEVENTH CAUSE OF ACTION
(For Improper Setting of Reserves against BUILDER DEFENDANTS and DOES 1-35)
64. The ASSOCIATION incorporates and re-alleges, as though fully set forth in this
cause of action, the preceding paragraphs of this Complaint.
-17-
SECOND AMENDED COMPLAINT FOR DAMAGES65. BUILDER DEFENDANTS failed to set adequate reserves for the
ASSOCIATION, which BUILDER DEFENDANTS had a duty to do.
66. This lack of adequate reserves has damaged the ASSOCIATION, and the
ASSOCIATION has sustained damages as set forth herein, the exact amounts of which will be
proven at trial.
EIGHTH CAUSE OF ACTION
(For Negligent Misrepresentation against BUILDER DEFENDANTS and DOES 1-35)
67. | The ASSOCIATION incorporates and re-alleges, as though fully set forth in this
cause of action, the preceding paragraphs of this Complaint.
68. | BUILDER DEFENDANTS failed to disclose and therefore misrepresented the
need for and cost of ongoing maintenance, repair, rehabilitation and restoration of the historic
facade of the project to the ASSOCIATION.
69. | BUILDER DEFENDANTS failed to include the need for and cost of ongoing
maintenance, repair, rehabilitation and restoration to the historic facade of the project as a
component in its Department of Real Estate Budget Report, Reserves Study, Budget Analysis and
all other disclosures for the project.
70. | BUILDER DEFENDANTS had no reasonable grounds to believe that the historic
facade of the project would not require ongoing maintenance, repair, rehabilitation and
restoration.
71. | BUILDER DEFENDANTS’ negligent misrepresentations were a substantial
factor in causing the ASSOCIATION’s harm.
72. Asadirect and proximate result of these negligent misrepresentations of the
BUILDER DEFENDANTS, the ASSOCIATION has sustained damages as set forth herein, the
exact amounts of which will be proven at trial.
WHEREFORE, ASSOCIATION prays for judgment as hereinafter set forth.
-18-
SECOND AMENDED COMPLAINT FOR DAMAGESPRAYER
WHEREFORE, ASSOCIATION prays for judgment against Defendants, and each of
them, as follows:
1.
2.
3.
4.
For damages in an amount to be determined and according to proof at the time
of trial of this action;
For interest thereon, at the maximum legal rate;
For prejudgment interest on all sums awarded, at the maximum legal rate;
For damages for the reasonable value of repairing any violation of the standards
set forth in California Civil Code § 944;
5. For the reasonable cost of repairing any damages caused by the repair efforts;
6. For the reasonable cost of repairing and rectifying any damages resulting from
the failure of the home to meet the standards;
7. For the reasonable cost of removing and replacing any improper repair by the
builder;
8. Attorneys’ fees in an amount the court determines to be reasonable;
9. For reasonable relocation and storage expenses;
10. For loss of business income if the home was used as a principal place of
business licensed to be operated from the home;
11. For reasonable investigative costs for each established violation;
12. For costs of suit incurred herein;
14. For consequential damages according to proof at the time of trial and as
provided by law;
15. For expert fees and costs;
16. For loss of use of the property; and
17. For such and further relief as the Court deems just and proper.
Date: May 15, 2014 THE MILLER LAW FIRM
» My
Thomas E. Mifler, Esq.
Attorneys for Plaintiff
88 TOWNSEND STREET OWNERS
ASSOCIATION
-19-
SECOND AMENDED COMPLAINT FOR DAMAGESwn
Co Oo ND
EXHIBIT A
PRELIMINARY LIST OF VIOLATIONS OF CONSTRUCTION STANDARDS
ACTIONABLE VIOLATIONS UNDER CALIFORNIA CIVIL CODE SECTIONS 896-897
10.
11.
12.
13.
WATER ISSUES
Large cracks and bulging on the surface of the wall in several locations on 2™ Street and
Townsend Street. Civil Code §§ 896(a)(10), 896(a)(11), 896(g)(2), 897.
Moisture in bricks at base of wall on 2™ Street and Townsend Street. Civil Code §§
896(a)(10), 896(a)(11), 896(g)(2), 897.
Delamination detected with sounding in large areas of the field of the wall on 2 Street
and Townsend Street. Civil Code §§ 896(a)(10), 896(a)(11), 896(g)(2), 897.
New finish separates from the historic parge on the lower facade on 2nd Street and
Townsend Street. Civil Code §§ 896(a)(10), 896(a)(11), 896(g)(2), 897.
Efflorescence exists on the exterior brick veneer. Civil Code §§ 896(a)(10), 896(a)(11),
896(g)(2), 897.
Cracks and concrete delamination along sills below the window metal flashing on the
facade on 2nd Street and Townsend Street. Civil Code §§ 896(a)(10), 896(a)(11),
896(g)(2), 897.
Large cracks in concrete telegraphs through the coating at the planter walls in the “Zen”
and “Tuscan” courtyards. Civil Code §§ 896(a)(10), 896(a)(11), 896(g)(2), 897.
Severe cracking of the concrete sills throughout the building. Civil Code §§ 896(a)(10),
896(a)(11), 896(g)(2), 897.
The roof deck system leaks into the building envelope. Civil Code §§ 896(a)(4),
896(a)(5), 896(a)(6), 897.
The sidewalks surrounding the building were placed without a joint filler to separate it
from the building. Civil Code §§ 896(a)(9), 896(g)(1), 897.
Visible horizontal cracks in isolated areas at the EIFS system on the exterior of the
building. Civil Code §§ 896(a)(10), 896(a)(11), 896(g)(2), 897.
Diagonal cracks at some corners of the EIFS system. Civil Code §§ 896(a)(10),
896(a)(11), 896 (g)(2), 897.
Exposed mesh in isolated areas (inadequate base coat cover) at the EIFS system. Civil
Code §§ 896(a)(10), 896(a)(11), 869(g)(2), 897.
1
EXHIBIT “A” TO SECOND AMENDED COMPLAINT FOR DAMAGES14. The four drains in the planters in the “Tuscan” courtyard are inadequate and do not allow
drainage from the larger planter and the common area walking surfaces and patios. Civil
Code §§ 896(a)(9), 896(g)(7), 897.
15. Considerable ponding on walking surfaces in “Zen” courtyard that backs up into patios.
Civil Code §§ 896(a)(9), 896(g)(7), 897.
16. The storefront system or door above unit 113 allows water to penetrate the building
through the roof deck, infiltrating unit 113. Civil Code §§ 896(a)(1), 896(a)(2), 896(a)(3),
896(g)(3)(A), 897.
17. Shower valve leaks into wall cavity where weeps are not installed, throughout the
building. Civil Code §§ 896(a)(14), 896(a)(17), 896(g)(3)(A), 897.
18. Blocked deck drains at courtyard patio #2. Civil Code §§ 896(a)(9), 896(a)(13), 897.
19. Omitted counter flashing at numerous copper pipe penetrations at the “Tuscan” and “Zen”
courtyard patio decks. Civil Code §§ 896(a)(5), 897.
20. Improper dishwasher drain line grades throughout the building. Civil Code §§
896(a)(15), 896(g)(3)(A), 897.
21. Plumbing fixtures and components leak throughout the building. Civil Code §§
896(a)(14), 896(g)(3)(A), 897.
22. Improper case iron system grade in the garage. Civil Code §§ 896(a)(15), 896(e), 897.
23. Drain system leaks in the garage. Civil Code §§ 896(a)(15), 897.
24. Sewer waste system does not function properly throughout the building. Civil Code §§
896(a)(14), 896(a)(15), 896(a)(16), 897.
25. Surface water off the walking surfaces through holes in the planter walls in the “Tuscan”
courtyard and the drainage mat under the soil does not allow for rapid drainage, which is
causing water ponding on the walking surfaces to back up into the “Tuscan” and “Zen”
patios. Civil Code §§ 869(a)(9), 896(g)(3)(A), 897.
26. Efflorescence and water seepage was observed along the north wall in the parking garage.
Civil Code §§ 896(a)(12), 896(a)(13), 897.
27. The waterproofing panel on the exterior of the north wall in the parking garage has failed
along the seam and causing water damage. Civil Code §§ 896(a)(12), 896(a)(13), 897.
28. Cracks in the slab were present at the northwest comer of the garage where the electric
vault is located causing rusting and water seepage to occur. Civil Code §§ 896(a)(12),
896(a)(13), 896(g)(1), 897.
29. At spaces 84 and 75 in the parking garage, diagonal cracking was observed through the
center of the drive panels causing structural integrity problems and raveling. Civil Code
2
EXHIBIT “A” TO SECOND AMENDED COMPLAINT FOR DAMAGES30.
31.
32.
§§ 896(a)(12), 896(a)(13), 896(g)(1), 897.
In the southern end of the parking garage, the edges of the slab are irregular and poorly
formed causing cracking of the joints and raveling. Civil Code §§ 896(a)(12), 896(a)(13),
896(g)(1), 897.
Water passes through beyond, around or through the window system project wide causing
damage to other building components. Civil Code §§ 896(a)(2), 896(a)(3), 896(g)(3)(A),
897.
The windows were improperly installed project wide and has caused hardware failure and
prevent the windows from operating correctly. Civil Code §§ 896(a)(2), 896(a)(3),
896(g)(3)(A), 897.
STRUCTURAL ISSUES
- Doors and windows are difficult to operate throughout the building. Civil Code §§
896(b)(1), 896(g)(3)(A), 897.
The window washing system was not properly installed for the building. Civil Code §§
896(b)(2), 896(b)(4), 896(g)(3)(A), 897.
Drywall cracks in interiors units throughout the building. Civil Code §§ 896(b)(1),
896(b)(2), 897.
FIRE PROTECTION ISSUES
. Gas ranges are not equipped with ventilation systems throughout the building. Civil Code
§§ 896(d)(3), 896(g)(15), 897.
Excessive noise is transmitted between hallway and units due to improper fire protection
of common partitions throughout the building. Civil Code §§ 896(d)(1), 897.
Improper fire protection insulation for the roof system is causing excessive noise to occur
at the roof top deck and vents. Civil Code §§ 896(d)(1), 897.
Improper electrical wiring at the common areas causes light bulbs to burn out over short
periods of time throughout the building. Civil Code §§ 896(d)(3), 896(g)(3)(A), 897.
Electrical circuits, plugs, switches, and fixtures do not function properly throughout the
building. Civil Code §§ 896(d)(3), 896(f), 896(g)(3)(A), 897.
Lights and other electrical devices dim, blink, and flicker throughout the building. Civil
Code §§ 896(d)(3), 869(f), 896(g)(3)(A), 897.
Electrical fixtures produce “shocks” when operated throughout the building. Civil Code
§§ 896(d)(3), 869(f), 896(g)(3)(A), 897.
3
EXHIBIT “A” TO SECOND AMENDED COMPLAINT FOR DAMAGES10.
11.
12.
13.
14.
15.
16.
OTHER AREAS OF CONSTRUCTION ISSUES
The historic parge has the old red paint to which the new finish was applied on the lower
facade on 2nd Street and Townsend Street. Civil Code §§ 896(g)(3)(A), 897.
Blind exfoliation of bricks at base of wall on the lower facade on 2nd Street and
Townsend Street. Civil Code §§ 896(g)(2), 896(g)(3)(A), 897.
Fading and discoloration of colored concrete sills throughout the building. Civil Code §§
896(g)(2), 896(g)(3)(A) 897.
Large cracks have developed through the sidewalks surrounding the building. Civil Code
§§ 896(g)(1), 897.
Sealant of expansion joint has failed adhesion testing either on both bond lines or on one
throughout the building. Civil Code §§ 896(g)(3)(A), 89
Preview
MOOI SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN FRANCISCO Document Scanning Lead Sheet May-15-2014 10:47 am Case Number: CGC-13-531203 Filing Date: May-15-2014 10:44 Filed by: CAROL BALISTRERI Juke Box: 001 Image: 04484320 COMPLAINT 88 TOWNSEND STREET OWNERS ASOCIATION, VS. 699 SECOND DEVELOPMENT LLC, et al 001004484320 Instructions: Please place this sheet on top of the document to be scanned.oO ND HW Fb Thomas E. Miller, Esq. (Bar No. 57821) Rachel M. Miller, Esq. (Bar No. 182630) Thomas W. J. Purtell, Esq. (Bar No. 229961) Emma E. Nelson-Munson, Esq. (Bar No..27] 708 THE MILLER LAW FIRM N A L 235 Montgomery St., Suite 930 San Francisco, CA 94104 Telephone: (415) 437-1800 / Fax: (415) 437-0177 tmiller@constructiondefects.com Attorneys for Plaintiff F I L.ED SY are oan Francisco MAY 15 2014 SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SAN FRANCISCO 88 TOWNSEND STREET OWNERS ASSOCIATION, a California non-profit mutual benefit corporation, Plaintiff, vs. 699 SECOND DEVELOPMENT, LLC, a California Limited liability company; CANNON CONSTRUCTORS, INC., a California Corporation; Sternberg Benjamin Architects, Inc., a California corporation; MARVIN WINDOWS AND DOORS, a Minnesota corporation, BLOMBERG BUILDING MATERIALS dba BLOMBERG WINDOW SYSTEMS, a California corporation, and DOES 1-100, 102-125, and 129-150, inclusive, Defendants. Case No. CGC-13-531203 SECOND AMENDED COMPLAINT FOR DAMAGES: (1) VIOLATION OF RESIDENTIAL BUILDING STANDARDS (Cal. Civ. Code §§ 896 and 897) (2) NEGLIGENCE (3) STRICT PRODUCTS LIABILITY, BUILDING (4) STRICT PRODUCTS LIABILITY, WINDOWS (5) BREACH OF IMPLIED WARRANTY (6) NEGLIGENCE OF DESIGN PROFESSIONALS (7) IMPROPER SETTING OF RESERVES (8) NEGLIGENT MISREPRESENTATION Plaintiff 88 TOWNSEND STREET OWNERS ASSOCIATION complains of Defendants, and each of them, as follows: GENERAL ALLEGATIONS 1. Plaintiff 88 TOWNSEND STREET OWNERS ASSOCIATION (“ASSOCIATION”) is a non-profit mutual benefit corporation, formed pursuant to the laws of -1- SECOND AMENDED COMPLAINT FOR DAMAGESwn Com nN a 10 WW 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 the State of California, with its principal place of business located in the City of San Francisco, County of San Francisco, State of California. 2. ASSOCIATION was created to provide management, maintenance, and repairs of certain real property located at 88 Townsend Street, in the City of San Francisco, County of San Francisco, State of California, and more particularly described as: “‘Map of 88 Townsend Street, a Mixed Use Condominium, recorded the 9th day of November, 2004, in Book 88 of Condominium Maps, Page 147 through 158 inclusive, Official Records of the City and County of San Francisco, State of California (the “Map”).” The Project consists of 112 (one hundred and twelve) residential condominium units, 2 (two) commercial units, and common areas and is owned by ASSOCIATION’S members and managed and maintained by the ASSOCIATION for the general use and benefit of ASSOCIATION members. 3. ASSOCIATION is informed, believes and thereon alleges that defendant 699 SECOND DEVELOPMENT, LLC (‘699 SECOND”) is and was and at all times mentioned in this Complaint is or was a California limited liability company doing business in the City of San Francisco, County of San Francisco, State of California. 4. ASSOCIATION is informed and believes and thereon alleges that defendant CANNON CONSTRUCTORS, INC. (“CANNON”) is and was at all times mentioned in this Complaint is or was a California corporation doing business in the City of San Francisco, County of San Francisco, State of California. 5. ASSOCIATION is informed, believes and thereon alleges that defendant STERNBERG BENJAMIN ARCHITECTS, INC. (“STERNBERG BENJAMIN ARCHITECTS”) is and was and at all times mentioned in this Complaint is or was a California corporation doing business in the City of San Francisco, County of San Francisco, State of California. 6. ASSOCIATION is informed, believes and thereon alleges that defendant MARVIN WINDOWS AND DOORS (“MARVIN WINDOWS”) is and was and at all times mentioned in this Complaint is and was a Minnesota corporation doing business in the City of San Francisco, County of San Francisco, State of California. 2. SECOND AMENDED COMPLAINT FOR DAMAGESYD WwW FB WN 7. ASSOCIATION is informed, believes and thereon alleges that defendant BLOMBERG BUILDING MATERIALS DBA BLOMBERG WINDOW SYSTEMS (“BLOMBERG?”) is and was and at all times mentioned in this Complaint is or was a California corporation doing business in the City of San Francisco, County of San Francisco, State of California. 8. The true names and capacities, whether individual, corporate, associate, or otherwise, of the Defendants named herein as DOES 1 through DOES 150 (other than DOES 101, 126, 127, and 128 previously named as STERNBERG BENJAMIN ARCHITECTS, INC, MARVIN WINDOWS AND DOORS, BLOMBERG GLASS, and BLOMBERG BUILDING MATERIALS DBA BLOMBERG WINDOW SYSTEM respectively) are unknown to ASSOCIATION at this time. ASSOCIATION sues the Defendant DOES by such fictitious names pursuant to California Code of Civil Procedure § 474, and will amend this Complaint to show their true names and capacities when the same have been ascertained. ASSOCIATION is informed and believes, and based on such information and belief alleges, that each of the Defendant DOES is legally responsible in some manner for the events and happenings referred to in this Complaint and/or also unlawfully caused the damages to ASSOCIATION as alleged herein. 9. ASSOCIATION is informed and believes and thereon alleges that defendants 699 SECOND and DOES 1 through 35 (referred to herein as “BUILDER DEFENDANTS”) developed, planned, improved, designed, constructed, promoted, marketed, advertised, and sold the units within the Project to individual members of the ASSOCIATION or their predecessors in title. 10. ASSOCIATION is informed and believes and thereon alleges that BUILDER DEFENDANTS created ASSOCIATION and caused it to accept management, operation, and control of the common areas and various aspects of the Project for the benefit of its members, as more fully set forth in the Final Subdivision Public Reports (hereinafter “Public Reports”), issued by the California Department of Real Estate and incorporated herein as though fully set forth. 11. ASSOCIATION is informed and believes and thereon alleges that as part of and 3. SECOND AMENDED COMPLAINT FOR DAMAGESpursuant to the Public Reports, BUILDER DEFENDANTS caused and assented to the filing of certain Articles of Incorporation (hereinafter the “Articles”) in the Office of the Secretary of State of the State of California, further caused and assented to the preparation and execution of certain Bylaws (hereinafter the “Bylaws”) pertaining to the ASSOCIATION, and further caused and assented to the recordation of a certain Declaration of Covenants and Restrictions of 88 Townsend Street, a Condominium Project (hereinafter the “Declaration”), recorded on November 16, 2004 as the Enabling Declaration by the BUILDER DEFENDANTS in the office of the San Francisco County Recorder’s Office, City of San Francisco, County of San Francisco, State of California (the Articles, Bylaws, Declaration, Condominium Plan, and Operating Rules, which are referenced and defined in the Declaration, are hereinafter referred to collectively as the “Governing Documents”). 12, As set forth in the Governing Documents, the purpose and powers of ASSOCIATION are, in general, to provide administration, maintenance, preservation, and architectural control of the residences and common areas within the Project; to preserve the values and amenities in the Project; to promote the general welfare of the community comprising the ASSOCIATION; and to possess and exercise all powers of a non-profit mutual benefit corporation operating for the benefit and on behalf of the members of the ASSOCIATION, subject only to the limitations set forth in the Governing Documents, and, more specifically, to exercise all of the powers and privileges and to perform all of the duties and obligations of the ASSOCIATION arising from the Governing Documents with the purpose of enhancing, maintaining and protecting the value and attractiveness of the Project. 13. As further set forth in the Governing Documents, ASSOCIATION is obligated to maintain in good condition, repair, replace, and manage the common areas for the common use and enjoyment of all members of ASSOCIATION. ASSOCIATION is obligated to keep such real property and improvements in good condition and repair, provide for all necessary maintenance services, and cause all acts to be done, including enforcement of the Declaration and the rights and obligations there under, which may be necessary or proper to assure the maintenance of such real property and improvements “in good condition.” 4. SECOND AMENDED COMPLAINT FOR DAMAGES14. | ASSOCIATION is informed and believes and thereon alleges that defendants CANNON and DOES 36 through 100 (collectively referred to herein as “CONTRACTORS”) were contractors, individuals, associations, partnerships, and/or corporations, and all their employees and agents who performed services as general contractor or subcontractors and/or provided equipment, materials, and/or supplies for the construction of the Project. 15. ASSOCIATION is informed and believes and thereon alleges that defendant STERNBERG BENJAMIN ARCHITECTS, and DOES 102 through 125 (collectively referred to herein as “DESIGNERS” were architects, engineers, design professionals and consultants who provided design services in connection with the planning, design, specification, inspection, development, and construction of the Project. 16. | ASSOCIATION is informed and believes and thereon alleges that defendants MARVIN WINDOWS, BLOMBERG and DOES 129 through 150 (collectively referred to herein as “SUPPLIERS” were individuals and/or business entities who supplied, manufactured and/or distributed materials, products, and goods used in or for the construction of the Project. 17. The use of the terms “Defendants” in any of the allegations in this Complaint, unless specifically alleged otherwise, is intended to include and charge, both jointly and severally, not only the named defendants but also all defendants designated as DOES 1 through 150, inclusive, as though the term “Defendants” was followed in each and every instance throughout this Complaint with the phrase “and each of them jointly and severally, including all named defendants and defendants included herein and sued under the fictitious names of DOES 1 through 150, inclusive. 18. The true names and capacities, whether individual, corporate, associate, or otherwise, of the Defendants named herein as DOES 1 through DOES 150 are unknown to ASSOCIATION at this time. ASSOCIATION sues the defendant DOES by such fictitious names pursuant to California Code of Civil Procedure Section 474 (all further Code references are to California Codes unless otherwise noted), and will amend this Complaint to show their true names and capacities when the same have been ascertained. ASSOCIATION is informed and believes, and based on such information and belief alleges, that each of the defendant DOES is 5- SECOND AMENDED COMPLAINT FOR DAMAGESlegally responsible in some manner for the events and happenings referred to in this Complaint and/or also unlawfully caused the damages to ASSOCIATION as alleged herein. 19. | ASSOCIATION is informed and believes and thereon alleges that BUILDER DEFENDANTS and DOES 1 through 150, inclusive, whether individual, corporate, associate, or otherwise, are fictitious names of Defendants whose true names and capacities are, at this time, unknown to ASSOCIATION. ASSOCIATION is informed and believes and thereon alleges, that at all times herein mentioned, each of the Defendants sued herein and as a Doe Defendant is and was acting for itself or as an agent, servant and/or employee of his or its co-Defendants, and in doing the things hereinafter mentioned was acting in the scope of authority as such agent, servant, and employee, and with the authorization, permission and consent of his or its co- Defendants; and each of said fictitiously named Defendants whether acting for himself or itself as agent, corporation, association or otherwise, is in some way liable or responsible to ASSOCIATION and its members on the claims hereinafter alleged. Defendants proximately caused the injuries and damages as hereinafter alleged. At such time as Defendants’ true names become known to ASSOCIATION, ASSOCIATION will seek leave to amend this Complaint to insert the true names and capacities of the Doe Defendants named herein. 20. | ASSOCIATION is further informed and believes, and based on such information and belief alleges, that at all times pled in this Complaint, Defendants, and each of them, were the agents and/or employees of the other, and in doing the things alleged herein, Defendants were acting within the course and scope of their agency and/or employment. 21. | ASSOCIATION is informed and believes, and thereon alleges, that from the inception of the Project’s construction to the date of this Complaint, Defendants, and each of them, performed inspections and reported to one another on conditions of various improvements of the Project, including, without limitation, garage walls and floor, exterior walls, interior walls, patios and decks, joint sealant systems and products, weather sealant systems, historic facade, stucco systems and assemblies, paint, spandrel panels, flashing systems and assemblies, waterproofing systems and assemblies, plumbing systems and components, waste line systems and components, storm-water and irrigation drainage systems, railing systems, roof and roofing 6- SECOND AMENDED COMPLAINT FOR DAMAGESsystems, window washing equipment and systems, windows and doors and their hardware, concrete window sills, lighting systems, structural slab and foundation systems, concrete flatwork, concrete sills, concrete sidewalk, ventilation, electrical systems and products, mechanical equipment and systems, noise transmission, sheet metal systems, ventilation systems, planters, fire protection systems, fire insulation, and made representations and recommendations to each other as to researching and specifying these conditions. 22. ASSOCIATION is informed and believes, and thereon alleges, that from the date of the ASSOCIATION’S creation through the present date, that the Defendants or Defendants’ agents were members of the board of directors and established reserves for long term maintenance repairs and made inspections, investigated, concealed by temporary repairs, and did not reveal, disclose, or inform ASSOCIATION or its members of various building deficiencies and defective conditions of the Project that were observed and/or discovered during inspections, investigations, and temporary repairs conducted by the Defendants and did not disclose budgetary deficiencies in Association’s reserves, and ASSOCIATION reasonably relied on the implied and express representations by Defendants that the Project was adequately reserved and free from building standard deficiencies, defective conditions, construction or design defects, premature and unreasonable deterioration of the improvements at the Project, was constructed in accordance with applicable building standards, and that the ASSOCIATION’S obligations of maintenance, repairs, and replacement of the common areas and condominium units as also required by the Governing Documents could be funded by the pro-forma budget submitted by BUILDER DEFENDANTS to the California Department of Real Estate. 23. | ASSOCIATION is informed and believes and thereon alleges that each of the violations of residential building standards for the original construction alleged herein were timely alleged in compliance with the limitations periods prescribed in Civil Code Section 896 and 897. 24. Since completion of construction of the Project, BUILDER DEFENDANTS promised, agreed to, and did make some repairs to the Project’s common area and separate interests, but failed to provide the Association with accurate and complete information about the -7- SECOND AMENDED COMPLAINT FOR DAMAGESrepairs, assuring the Association that any and all building standard violations were incidental anomalies and not systematic and widespread, and concealing, either intentionally or negligently, the true conditions. In so doing, ASSOCIATION reasonably relied on said promises, agreements, and repairs and thereby deferred the filing of this action. 25. Pursuant to the Governing Documents and Civil Code Section 5980, ASSOCIATION brings this action individually, on its own behalf, and in its representative capacity for damage to the common areas, damages to the separate property interests which arise out of or are integrally related to damage to the common areas and damages to the separate interests that the ASSOCIATION is obligated to maintain or repair. Pursuant to said section, ASSOCIATION has standing to institute the instant action for the damages alleged herein. 26. ASSOCIATION is informed and believes and thereon alleges that ASSOCIATION and its members have sustained and suffered consequential damages resulting from Defendants’ acts and/or omissions, including, without limitation, physical injury, and/or destruction of tangible property and the loss of use of common areas, consequential damages to common areas, damage to the separate interests which ASSOCIATION is obligated to maintain or repair, and damage to the separate interests which arises out of, or which is integrally related to damage to the common areas or separate interests which ASSOCIATION is obligated to maintain or repair. ASSOCIATION has or will incur relocation expenses in connection with the repair and remediation of such defects and damages. 27. ASSOCIATION is informed and believes that each of the BUILDER DEFENDANTS is a Builder within the meaning of Civil Code Section 91 1(a) as each of the BUILDER DEFENDANTS was a builder, developer, general contractor, contractor, or original seller who at the time of sale was also in the business of selling residential units to the public for the property that is the subject of the ASSOCIATION’S claim or was in the business of building, developing, or constructing residential units for public purchase for the property that is the subject of the ASSOCIATION’S claim. As a result, each of the BUILDER DEFENDANTS is liable to ASSOCIATION for violation of the building standards of residential construction enumerated in Civil Code Sections 896 and 897, et seq. -8- SECOND AMENDED COMPLAINT FOR DAMAGES28. | ASSOCIATION is further informed and believes that each of the BUILDER DEFENDANTS is a Builder within the meaning of Civil Code Section 911(b) as each of the BUILDER DEFENDANTS is a partner, member of, subsidiary of or otherwise similarly affiliated with the builder and the role of each of the BUILDER DEFENDANTS was not limited to that entity’s capacity as general contractor or contractor. As a result, each of the BUILDER DEFENDANTS is liable to ASSOCIATION for violation of the standards of residential construction enumerated in Civil Code Sections 896 and 897, et seq. FIRST CAUSE OF ACTION (For Violations of the Residential Building Standards Set Forth in Civil Code Sections 896 and 897 against BUILDER DEFENDANTS, CONTRACTORS and SUPPLIERS, and DOES 1-100, 102-125, and 129-150) 29. | ASSOCIATION incorporates and re-alleges, as though fully set forth in this cause of action, the preceding paragraphs of this Complaint. 30. ASSOCIATION is informed and believes, and thereon alleges, that BUILDER DEFENDANTS, CONTRACTORS, SUPPLIERS and each of them, provided services to the Project as developer, builder, seller, general contractor, subcontractor, architect, engineer, consultant, and/or material suppliers and developed, planned, improved, designed, supplied materials for, constructed, and/or sold the units within the Project to the individual members of the ASSOCIATION or their predecessors in title. 31. The Project was constructed in violation of the residential building standards set for in Civil Code Sections 896 and 897, including but not limited to the violations identified in Exhibit “A” to this complaint and incorporated herein by reference (the “Building Standard Violations”). ASSOCIATION’S investigation is continuing and additional Building Standard Violations may be discovered as this action proceeds. 32. The Building Standard Violations existed at the time that the BUILDER DEFENDANTS created the ASSOCIATION, recorded the Map, filed their final subdivision reports, created and recorded the operative Declaration, and created and filed the articles of incorporation and by-laws of the ASSOCIATION. -9- SECOND AMENDED COMPLAINT FOR DAMAGES33. To the extent any particular Building Standard Violations were caused in whole or in part by CONTRACTORS, and/or SUPPLIERS those violations are the result of their negligent act or omission. 34. As a direct and proximate result of the Building Standard Violations, ASSOCIATION has sustained and will continue to sustain damages, for the value of repairing any violation of the standards set forth in this title, the reasonable cost of repairing any damages caused by the repair efforts, the reasonable cost of repairing and rectifying any damages resulting from the failure of the home to meet the standards, the reasonable cost of removing and replacing any improper repair by the builder, reasonable relocation and storage expenses, lost business income if the home was used as a principal place of business licensed to be operated from the home, reasonable investigative costs for each established violations and all other costs or fees recoverable by contract or statute all as set forth in Civil Code Section 944. Such damages far exceed the minimum jurisdictional amount of the Court according to proof at the time of trial. SECOND CAUSE OF ACTION (For Negligence Against All Defendants and DOES 1-100, 102-125, and 129-150) 35. ASSOCIATION incorporates and re-alleges, as though fully set forth in this cause of action, the preceding paragraphs of this Complaint. 36. Defendants, and each of them, negligently planned, designed, improved, constructed, inspected, installed, repaired, investigated, and replaced the Project’s site and structural elements, including, but not limited to, the Project’s garage area, walkways, exterior siding, stucco and other finishes, exterior waterproofing systems, windows and window systems, doors and frames, roofing and flashing systems, drainage systems, caulking and waterproofing, electrical, heating, ventilation, plumbing, historic fagade, and other elements of the Project presently unknown (hereinafter referred to collectively as ’Project Defects”), and otherwise failed to use adequate materials, products, goods, devices and procedures, design plans or specifications, so that those elements of the Project do not function or perform properly; and are defective so as to create unsafe and unhealthy conditions; and have caused consequential -10- SECOND AMENDED COMPLAINT FOR DAMAGESdamages to the buildings, improvements, personal property at the Project, and loss of use of property. 37. BUILDER DEFENDANTS, and each of them, failed to supervise the work of other Defendants herein, failed to ensure that reported and known defects were repaired, failed to notify ASSOCIATION and its members of the existence of the Project defects pursuant to California Administrative Code § 2800(f), and failed to notify potential purchasers of the impact of the Project’s defective systems on the ASSOCIATION’S operating budget in accordance with Title 10, California Administrative Code § 2800(j-(k), and regulations and directives of the California Department of Real Estate. 38. Specifically, BUILDER DEFENDANTS: (1) failed to properly inspect, repair and maintain the elements of the Project; (2) negligently advised ASSOCIATION that the Project was in a condition suitable for acceptance and habitation, free from defects and/or that all Project Defects had been repaired or did not require repair; (3) performed inspections and repairs using methods and materials which were and are below applicable industry standards; and (4) negligently failed to adequately investigate Project Defects, and advise the ASSOCIATION of any repairs or investigations undertaken. 39. | BUILDER DEFENDANTS and Defendant CONTRACTORS, and each of them, failed to properly construct, improve, repair, supervise and inspect construction on the Project, so as to eliminate or mitigate the damages alleged herein. 40. BUILDER DEFENDANTS and Defendant DESIGNERS, and each of them, so negligently planned and designed the building elements and common areas of the Project that the details, plans, and specifications provided, and inspections performed, were insufficient, and said Defendants failed to warn of potential defects and failed to observe and report Project Defects to the other Defendants herein. 41. Defendant SUPPLIERS, and each of them, were the manufacturers and distributors of products, materials and goods, used by the co-Defendants for or in the construction of the Project. Each of said Defendant SUPPLIERS negligently designed, manufactured and distributed such products, materials and goods by failing to prepare and disseminate adequate and -ll- SECOND AMENDED COMPLAINT FOR DAMAGESreasonable specifications concerning the application and use of said Defendants’ products, materials and goods, by failing to warn prospective users and applicators of said Defendants’ products, materials and goods of the precautions to be taken in connection with the installation thereof; and by failing to employ adequate and reasonable quality control to ensure that such products, materials and goods were without defects. Defendant SUPPLIERS knew or should have known that their products, materials and goods would be used for ordinary consumer and residential purposes without substantial inspection by such consumers, including ASSOCIATION and its members. 42. Defendants, and each of them, had a duty to ASSOCIATION and its members to perform with reasonable care all of the foregoing described acts; and Defendant BUILDER DEFENDANTS had a specific duty to ASSOCIATION and its members to construct and to provide the Project in a habitable condition. 43. Asa direct and proximate result of the acts and/or omissions of Defendants, and each of them, the ASSOCIATION has incurred damages as a result of the Project Defects, thereby denying ASSOCIATION and its members safe, complete and undisturbed enjoyment and use of the Project, its units and common areas, all to the ASSOCIATION’S and its members’ detriment, whose damages far exceed the minimum jurisdictional amount of the Court and according to proof at the time of trial. WHEREFORE, ASSOCIATION prays for judgment as hereinafter set forth. THIRD CAUSE OF ACTION (For Strict Products Liability Against BUILDER DEFENDANTS and DOES 1-100, 102-125, and 129-150) 44. ASSOCIATION incorporates and re-alleges, as though fully set forth in this cause of action, the preceding paragraphs of this Complaint. 45. Defendants, and each of them, knew and understood that the condominium units, improvements and common areas comprising the Project would be used by ASSOCIATION’S members for ordinary residential, commercial and community use purposes common to such -12- SECOND AMENDED COMPLAINT FOR DAMAGESdevelopments. ASSOCIATION took possession of and accepted responsibility of the Project for said purposes. 46. | ASSOCIATION is informed and believes and thereon alleges that said Defendants, and each of them, knew that the units and common areas would be occupied, purchased and/or acquired, and so used, by prospective occupants and purchasers after only a superficial inspection and inquiry for defects, and that the subject units and common areas were defective and unfit for their intended use in the manner herein described. BUILDER DEFENDANTS knew or should have known, and implicitly represented otherwise by the presence of the units on the real estate market, and by their advertising, promotion and sales presentations, that the properties were unfit for the purpose of providing habitable residential units and common property appurtenant thereto that were in a habitable condition and free from defects. 47. ASSOCIATION is informed and believes and thereon alleges that BUILDER DEFENDANTS, and each of them, were the manufacturers and/or distributors of products, materials and goods used by their co-Defendants in the construction of the Project. ASSOCIATION is further informed and believes, and thereon alleges, that Defendants defectively designed, manufactured and distributed such products, materials and goods by failing to prepare and disseminate adequate specifications for the installation and use of their products, materials and goods; by failing to warn prospective users and applicators of said Defendants’ products, materials and goods of precautions to be taken in connection with the installation thereof; and by failing to employ adequate and reasonable quality control to ensure that such products, materials and goods were without substantial defect. Defendants knew or should have known that their products, materials and goods would be used for ordinary consumer and residential purposes without substantial inspection by the end users and responsible owners, including ASSOCIATION and/or its members. 48. Asa direct and proximate result of said defects in the units, improvements and common areas, ASSOCIATION and its members have been damaged and will continue to be damaged by the expenditure of certain monies for repair and/or replacement of the Project -13- SECOND AMENDED COMPLAINT FOR DAMAGESDefects, as well as damages to other property caused as a result of the defects alleged herein, all in excess of the minimum jurisdictional amount of the Court, according to proof at the time of trial. WHEREFORE, ASSOCIATION prays for judgment as hereinafter set forth. FOURTH CAUSE OF ACTION (For Strict Products Liability for the windows, doors and associated hardware Against SUPPLIERS and DOES 1-100, 102-125, and 129-150) 49. ASSOCIATION incorporates and re-alleges, as though fully set forth in this cause of action, the preceding paragraphs of this Complaint. 50. Defendants, and each of them, knew and understood that the windows, doors and associated hardware installed in the condominium units, improvements and common areas comprising the Project would be used by ASSOCIATION’s members for ordinary residential, commercial and community use purposes common to such developments. ASSOCIATION took possession of and accepted responsibility of the Project for said purposes. 51. Atall times mentioned in this complaint, the windows, doors and associated hardware installed in the condominium units, improvements and common areas comprising the Project were defective as to design, manufacture, installation and warnings, causing the windows and associated hardware, and their component parts'to be in a dangerous and defective condition that made them unsafe for their intended use in the condominium units, improvements and common areas comprising the Project by ASSOCIATION’s members for ordinary residential, commercial and community use purposes common to such developments. 52. Asa direct and proximate result of the defective and dangerous condition of the windows, doors and associated hardware as described above, the ASSOCIATION and its members have been damaged and will continue to be damaged by the expenditure of certain monies for repair and/or replacement of the product, as well as damages to other property caused as a result of the defects alleged herein, all in excess of the minimum jurisdictional amount of the Court, according to proof at the time of trial. Mf -14- SECOND AMENDED COMPLAINT FOR DAMAGESN CoD Mm IND HW B® Ow NN DY YY NY KY NY NY Be Bee ewe ewe ew Be ew Ee iL oN DA BF BH NH |= SF GB we AX AA BRB DH FIFTH CAUSE OF ACTION (For Breach of Implied Warranty Against BUILDER DEFENDANTS and DOES 1-100, 102-125, and 129-150) 53. ASSOCIATION incorporates and re-alleges, as though fully set forth in this cause of action, the preceding paragraphs of this Complaint. 54. At the time ASSOCIATION undertook the obligation for maintenance and took possession of the Project under the Declaration, the units and common areas were newly designed, constructed, repaired, inspected, and improved; and when the same was purchased by individual members of ASSOCIATION, said Defendants, and each of them, impliedly warranted to each of ASSOCIATION’S purchasing members that the subject properties would be free from defects and fit for ordinary residential and commercial purposes, and that the completed structure was designed and constructed in a reasonably workmanlike manner. 55. ASSOCIATION is informed and believes, and thereon alleges, that said Defendants, and each of them, had a part in designing, building, financing, supplying, manufacturing, and/or distributing products and goods used in or for the construction of the Project and that they were in a better position than ASSOCIATION, and it members as buyers of the units, to know of defects in the construction of the Project and/or defects in materials, products, and goods for the Project; that each of said members of ASSOCIATION and ASSOCIATION itself, at the time of purchase, and upon undertaking the obligation, respectively, as imposed by the Governing Documents, relied on the skill and judgment of said Defendants, and each of them, to select and provide products, materials and goods and to perform work suitable to improve and construct the planned development units, improvements and common areas free from defects and fit for reasonable residential and commercial use, and the implied warranty that the improvements at the completed structure were designed and constructed in a reasonably workmanlike manner. 56. After ASSOCIATION discovered said injuries to properties and/or defects, as hereinbefore described, notice was given to said Defendants, orally and/or in writing, of the breach of said implied warranties. As a direct and proximate result of the breach of said warranties, ASSOCIATION and its members have been damaged, and will be damaged, by the -15- SECOND AMENDED COMPLAINT FOR DAMAGESexpenditure of certain monies for repair, installation and/or replacement of the Project Defects, and for damage caused by or as a result of said Project Defects. ASSOCIATION is informed and believes and thereon alleges that such costs far exceed the minimum jurisdictional amount of this Court, according to proof at the time of trial. SIXTH CAUSE OF ACTION (For Negligence of Design Professionals against DESIGNERS and DOES 102-125) 57. The ASSOCIATION incorporates and re-alleges, as though fully set forth in this cause of action, the preceding paragraphs of this Complaint. 58. | The ASSOCIATION is informed and believes and thereon alleges that DESIGNERS entered into agreements, whether in writing or oral, with the other Defendants herein for the purpose of providing architectural services in connection with the development of the PROJECT and the construction of the subject improvements, and conducted construction project management for, the construction of the PROJECT. 59. The ASSOCIATION is informed and believes and thereon alleges that BUILDERS and CONTRACTORS entered into written contracts with other Defendants herein to provide design, work, labor, and materials, in connection with the construction of the PROJECT. 60. DESIGNERS, and each of them, drew the plans and specifications, and/or engaged in periodic site observations and contract administration respecting the design, development, and construction of the PROJECT and the improvements thereon with the knowledge that said property would be sold to and used by members of the public, including the members of the ASSOCIATION. In so doing, DESIGNERS, and each of them, caused the property and the improvements thereon to be constructed through their own services. The ASSOCIATION is informed and believes and thereon alleges that DESIGNERS were collectively paid well over nine hundred thousand dollars ($900,000.00) for their services on the project, making it fair and equitable for these parties to have a duty of care to the ASSOCIATION and its members. The exact amount of compensation received by these parties is presently unknown but will be proven at trial. -16- SECOND AMENDED COMPLAINT FOR DAMAGESDA vn FB WwW N 61. | DESIGNERS, and each of them, were under a duty to exercise ordinary care as engineers, architects, waterproofing consultants, and contract administrators to avoid foreseeable injury, including property damage and loss of use, to users and purchasers of the property and improvements, and knew or should have foreseen with reasonable certainty that the ASSOCIATION and its members would suffer property damage and monetary damages set forth herein if said Defendants, and each of them, failed to perform their duty to cause the property and improvements to be developed, designed, and constructed in a proper and workmanlike fashion. 62. In performing the works of an engineer, architect, and project manager, DESIGNERS performed their services in a manner that was below the standards of care for architects, engineers, and project managers. Said Defendants negligently planned and designed the buildings and the common areas for the PROJECT in that the details provided were insufficient, and incapable of being properly executed; negligently failed to warn that their designs would result in conditions as described and alleged herein, cause property damage, and violate statutory requirements including but not limited to California Civil Code §§ 896, 897, negligently failed to properly observe the work in progress; and negligently failed to observe and report building standard violations to the other Defendants identified herein. DESIGNERS negligently designed the PROJECT by, among other things, failing to prepare and disseminate adequate: (1) Specifications for the application and use of Defendants’ products and materials, and/or (2) precautions to be taken in connection with the installation thereof; and (3) by failing to employ adequate quality control to ensure that such products and materials were free of BUILDING STANDARD VIOLATIONS. 63. Asa direct and proximate result of the negligent actions and BUILDING STANDARD VIOLATIONS set forth herein, the ASSOCIATION has sustained damages as set forth herein, the exact amounts of which will be proven at trial. SEVENTH CAUSE OF ACTION (For Improper Setting of Reserves against BUILDER DEFENDANTS and DOES 1-35) 64. The ASSOCIATION incorporates and re-alleges, as though fully set forth in this cause of action, the preceding paragraphs of this Complaint. -17- SECOND AMENDED COMPLAINT FOR DAMAGES65. BUILDER DEFENDANTS failed to set adequate reserves for the ASSOCIATION, which BUILDER DEFENDANTS had a duty to do. 66. This lack of adequate reserves has damaged the ASSOCIATION, and the ASSOCIATION has sustained damages as set forth herein, the exact amounts of which will be proven at trial. EIGHTH CAUSE OF ACTION (For Negligent Misrepresentation against BUILDER DEFENDANTS and DOES 1-35) 67. | The ASSOCIATION incorporates and re-alleges, as though fully set forth in this cause of action, the preceding paragraphs of this Complaint. 68. | BUILDER DEFENDANTS failed to disclose and therefore misrepresented the need for and cost of ongoing maintenance, repair, rehabilitation and restoration of the historic facade of the project to the ASSOCIATION. 69. | BUILDER DEFENDANTS failed to include the need for and cost of ongoing maintenance, repair, rehabilitation and restoration to the historic facade of the project as a component in its Department of Real Estate Budget Report, Reserves Study, Budget Analysis and all other disclosures for the project. 70. | BUILDER DEFENDANTS had no reasonable grounds to believe that the historic facade of the project would not require ongoing maintenance, repair, rehabilitation and restoration. 71. | BUILDER DEFENDANTS’ negligent misrepresentations were a substantial factor in causing the ASSOCIATION’s harm. 72. Asadirect and proximate result of these negligent misrepresentations of the BUILDER DEFENDANTS, the ASSOCIATION has sustained damages as set forth herein, the exact amounts of which will be proven at trial. WHEREFORE, ASSOCIATION prays for judgment as hereinafter set forth. -18- SECOND AMENDED COMPLAINT FOR DAMAGESPRAYER WHEREFORE, ASSOCIATION prays for judgment against Defendants, and each of them, as follows: 1. 2. 3. 4. For damages in an amount to be determined and according to proof at the time of trial of this action; For interest thereon, at the maximum legal rate; For prejudgment interest on all sums awarded, at the maximum legal rate; For damages for the reasonable value of repairing any violation of the standards set forth in California Civil Code § 944; 5. For the reasonable cost of repairing any damages caused by the repair efforts; 6. For the reasonable cost of repairing and rectifying any damages resulting from the failure of the home to meet the standards; 7. For the reasonable cost of removing and replacing any improper repair by the builder; 8. Attorneys’ fees in an amount the court determines to be reasonable; 9. For reasonable relocation and storage expenses; 10. For loss of business income if the home was used as a principal place of business licensed to be operated from the home; 11. For reasonable investigative costs for each established violation; 12. For costs of suit incurred herein; 14. For consequential damages according to proof at the time of trial and as provided by law; 15. For expert fees and costs; 16. For loss of use of the property; and 17. For such and further relief as the Court deems just and proper. Date: May 15, 2014 THE MILLER LAW FIRM » My Thomas E. Mifler, Esq. Attorneys for Plaintiff 88 TOWNSEND STREET OWNERS ASSOCIATION -19- SECOND AMENDED COMPLAINT FOR DAMAGESwn Co Oo ND EXHIBIT A PRELIMINARY LIST OF VIOLATIONS OF CONSTRUCTION STANDARDS ACTIONABLE VIOLATIONS UNDER CALIFORNIA CIVIL CODE SECTIONS 896-897 10. 11. 12. 13. WATER ISSUES Large cracks and bulging on the surface of the wall in several locations on 2™ Street and Townsend Street. Civil Code §§ 896(a)(10), 896(a)(11), 896(g)(2), 897. Moisture in bricks at base of wall on 2™ Street and Townsend Street. Civil Code §§ 896(a)(10), 896(a)(11), 896(g)(2), 897. Delamination detected with sounding in large areas of the field of the wall on 2 Street and Townsend Street. Civil Code §§ 896(a)(10), 896(a)(11), 896(g)(2), 897. New finish separates from the historic parge on the lower facade on 2nd Street and Townsend Street. Civil Code §§ 896(a)(10), 896(a)(11), 896(g)(2), 897. Efflorescence exists on the exterior brick veneer. Civil Code §§ 896(a)(10), 896(a)(11), 896(g)(2), 897. Cracks and concrete delamination along sills below the window metal flashing on the facade on 2nd Street and Townsend Street. Civil Code §§ 896(a)(10), 896(a)(11), 896(g)(2), 897. Large cracks in concrete telegraphs through the coating at the planter walls in the “Zen” and “Tuscan” courtyards. Civil Code §§ 896(a)(10), 896(a)(11), 896(g)(2), 897. Severe cracking of the concrete sills throughout the building. Civil Code §§ 896(a)(10), 896(a)(11), 896(g)(2), 897. The roof deck system leaks into the building envelope. Civil Code §§ 896(a)(4), 896(a)(5), 896(a)(6), 897. The sidewalks surrounding the building were placed without a joint filler to separate it from the building. Civil Code §§ 896(a)(9), 896(g)(1), 897. Visible horizontal cracks in isolated areas at the EIFS system on the exterior of the building. Civil Code §§ 896(a)(10), 896(a)(11), 896(g)(2), 897. Diagonal cracks at some corners of the EIFS system. Civil Code §§ 896(a)(10), 896(a)(11), 896 (g)(2), 897. Exposed mesh in isolated areas (inadequate base coat cover) at the EIFS system. Civil Code §§ 896(a)(10), 896(a)(11), 869(g)(2), 897. 1 EXHIBIT “A” TO SECOND AMENDED COMPLAINT FOR DAMAGES14. The four drains in the planters in the “Tuscan” courtyard are inadequate and do not allow drainage from the larger planter and the common area walking surfaces and patios. Civil Code §§ 896(a)(9), 896(g)(7), 897. 15. Considerable ponding on walking surfaces in “Zen” courtyard that backs up into patios. Civil Code §§ 896(a)(9), 896(g)(7), 897. 16. The storefront system or door above unit 113 allows water to penetrate the building through the roof deck, infiltrating unit 113. Civil Code §§ 896(a)(1), 896(a)(2), 896(a)(3), 896(g)(3)(A), 897. 17. Shower valve leaks into wall cavity where weeps are not installed, throughout the building. Civil Code §§ 896(a)(14), 896(a)(17), 896(g)(3)(A), 897. 18. Blocked deck drains at courtyard patio #2. Civil Code §§ 896(a)(9), 896(a)(13), 897. 19. Omitted counter flashing at numerous copper pipe penetrations at the “Tuscan” and “Zen” courtyard patio decks. Civil Code §§ 896(a)(5), 897. 20. Improper dishwasher drain line grades throughout the building. Civil Code §§ 896(a)(15), 896(g)(3)(A), 897. 21. Plumbing fixtures and components leak throughout the building. Civil Code §§ 896(a)(14), 896(g)(3)(A), 897. 22. Improper case iron system grade in the garage. Civil Code §§ 896(a)(15), 896(e), 897. 23. Drain system leaks in the garage. Civil Code §§ 896(a)(15), 897. 24. Sewer waste system does not function properly throughout the building. Civil Code §§ 896(a)(14), 896(a)(15), 896(a)(16), 897. 25. Surface water off the walking surfaces through holes in the planter walls in the “Tuscan” courtyard and the drainage mat under the soil does not allow for rapid drainage, which is causing water ponding on the walking surfaces to back up into the “Tuscan” and “Zen” patios. Civil Code §§ 869(a)(9), 896(g)(3)(A), 897. 26. Efflorescence and water seepage was observed along the north wall in the parking garage. Civil Code §§ 896(a)(12), 896(a)(13), 897. 27. The waterproofing panel on the exterior of the north wall in the parking garage has failed along the seam and causing water damage. Civil Code §§ 896(a)(12), 896(a)(13), 897. 28. Cracks in the slab were present at the northwest comer of the garage where the electric vault is located causing rusting and water seepage to occur. Civil Code §§ 896(a)(12), 896(a)(13), 896(g)(1), 897. 29. At spaces 84 and 75 in the parking garage, diagonal cracking was observed through the center of the drive panels causing structural integrity problems and raveling. Civil Code 2 EXHIBIT “A” TO SECOND AMENDED COMPLAINT FOR DAMAGES30. 31. 32. §§ 896(a)(12), 896(a)(13), 896(g)(1), 897. In the southern end of the parking garage, the edges of the slab are irregular and poorly formed causing cracking of the joints and raveling. Civil Code §§ 896(a)(12), 896(a)(13), 896(g)(1), 897. Water passes through beyond, around or through the window system project wide causing damage to other building components. Civil Code §§ 896(a)(2), 896(a)(3), 896(g)(3)(A), 897. The windows were improperly installed project wide and has caused hardware failure and prevent the windows from operating correctly. Civil Code §§ 896(a)(2), 896(a)(3), 896(g)(3)(A), 897. STRUCTURAL ISSUES - Doors and windows are difficult to operate throughout the building. Civil Code §§ 896(b)(1), 896(g)(3)(A), 897. The window washing system was not properly installed for the building. Civil Code §§ 896(b)(2), 896(b)(4), 896(g)(3)(A), 897. Drywall cracks in interiors units throughout the building. Civil Code §§ 896(b)(1), 896(b)(2), 897. FIRE PROTECTION ISSUES . Gas ranges are not equipped with ventilation systems throughout the building. Civil Code §§ 896(d)(3), 896(g)(15), 897. Excessive noise is transmitted between hallway and units due to improper fire protection of common partitions throughout the building. Civil Code §§ 896(d)(1), 897. Improper fire protection insulation for the roof system is causing excessive noise to occur at the roof top deck and vents. Civil Code §§ 896(d)(1), 897. Improper electrical wiring at the common areas causes light bulbs to burn out over short periods of time throughout the building. Civil Code §§ 896(d)(3), 896(g)(3)(A), 897. Electrical circuits, plugs, switches, and fixtures do not function properly throughout the building. Civil Code §§ 896(d)(3), 896(f), 896(g)(3)(A), 897. Lights and other electrical devices dim, blink, and flicker throughout the building. Civil Code §§ 896(d)(3), 869(f), 896(g)(3)(A), 897. Electrical fixtures produce “shocks” when operated throughout the building. Civil Code §§ 896(d)(3), 869(f), 896(g)(3)(A), 897. 3 EXHIBIT “A” TO SECOND AMENDED COMPLAINT FOR DAMAGES10. 11. 12. 13. 14. 15. 16. OTHER AREAS OF CONSTRUCTION ISSUES The historic parge has the old red paint to which the new finish was applied on the lower facade on 2nd Street and Townsend Street. Civil Code §§ 896(g)(3)(A), 897. Blind exfoliation of bricks at base of wall on the lower facade on 2nd Street and Townsend Street. Civil Code §§ 896(g)(2), 896(g)(3)(A), 897. Fading and discoloration of colored concrete sills throughout the building. Civil Code §§ 896(g)(2), 896(g)(3)(A) 897. Large cracks have developed through the sidewalks surrounding the building. Civil Code §§ 896(g)(1), 897. Sealant of expansion joint has failed adhesion testing either on both bond lines or on one throughout the building. Civil Code §§ 896(g)(3)(A), 89