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  • BEACON RESIDENTIAL COMMUNITY ASSOCIATION VS. CATELLUS THIRD AND KING LLC et al CONSTRUCTION document preview
  • BEACON RESIDENTIAL COMMUNITY ASSOCIATION VS. CATELLUS THIRD AND KING LLC et al CONSTRUCTION document preview
  • BEACON RESIDENTIAL COMMUNITY ASSOCIATION VS. CATELLUS THIRD AND KING LLC et al CONSTRUCTION document preview
  • BEACON RESIDENTIAL COMMUNITY ASSOCIATION VS. CATELLUS THIRD AND KING LLC et al CONSTRUCTION document preview
  • BEACON RESIDENTIAL COMMUNITY ASSOCIATION VS. CATELLUS THIRD AND KING LLC et al CONSTRUCTION document preview
  • BEACON RESIDENTIAL COMMUNITY ASSOCIATION VS. CATELLUS THIRD AND KING LLC et al CONSTRUCTION document preview
  • BEACON RESIDENTIAL COMMUNITY ASSOCIATION VS. CATELLUS THIRD AND KING LLC et al CONSTRUCTION document preview
  • BEACON RESIDENTIAL COMMUNITY ASSOCIATION VS. CATELLUS THIRD AND KING LLC et al CONSTRUCTION document preview 
						
                                
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                                26

McCay & MoConby, LLP

Fav; (510 829-8108

Kevin P. McCarthy (SBN 144227)
Philip T. Bazzano (SBN 224415)
Grace Koss (SBN 236490)
McCARTHY & McCARTHY, LLP ELECTRONICALLY
492 Ninth Street, Suite 220

Oakland, CA 94607 cwek, IL ED...
Telephone: (510) 839-8100 County of San Francisco
Facsimile: (510) 839-8108 NOV 30 2012

Clerk of the Court
BY: JUDITH NUNEZ

Attorneys for Cross-Defendant and Cross-Complainant Deputy Cle

WINDOW SOLUTIONS, INC.

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF SAN FRANCISCO
BEACON RESIDENTIAL COMMUNITY Case No.: CGC 08-478453
ASSOCIATION,
DECLARATION OF JAN SWANEY IN
Plaintiff, SUPPORT OF WINDOW SOLUTION,

v.

INC.’S OPPOSITION TO SOLUTIA,
INC.’S MOTION FOR SUMMARY

CATELLUS THIRD AND KING, LLC, et al., JUDGMENT OR SUMMARY
ADJUDICATION
Defendants.
Date: December 14, 2012
Time: 9:30 a.m.
WINDOW SOLUTIONS, INC. Dept.: 304

Cross-Complainant, Cross-Complaint filed: March 21, 2011
Trial Date: February 4, 2012

Vv.

SOLUTIA, INC.; LLUMAR® aka LLUMAR®
WINDOW FILM and MOES 1-100, inclusive,

Cross-Defendants.

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AND RELATED CROSS-ACTIONS. )
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I, Jan Swaney, declare as follows:
1. Tam the owner and principal consultant of The Swaney Corporation and have
provided glass and glazing consultation to Cross-Defendant and Cross-Complainant

-l-

DECLARATION OF JAN SWANEY IN SUPPORT OF WINDOW SOLUTION, INC.’S OPPOSITION TO
SOLUTIA, INC.’S MOTION FOR SUMMARY JUDGMENT OR SUMMARY ADJUDICATION1]| WINDOW SOLUTIONS, INC. (hereinafter “Window Solutions”) in the above-referenced
2]| litigation. I have personal knowledge of the facts set forth herein and if called upon to do

3]| so, I could and would testify competently thereto under oath.

4 2. lam a registered civil engineer in California since 1981 and have 27 years of
5|| experience relating to business ownership, engineering, project management and estimating
6|| in the glass and glazing industry. I am experienced in all facets of glass and glazing. I have
7|| been responsible for design and installation of glazing systems for commercial, residential

81| and public works projects. I am experienced with, but not limited to, storefronts and

9|| entrances, curtain wails, sloped glazing, skylights, formed aluminum panels, monumental
10|| and commercial windows and sliding glass doors, glass and glazing, and related sealant

11]| applications.

12 3. I have been designated as an expert witness for Window Solutions in the

13]] above-referenced litigation.

14 4. T reviewed the following document: A letter dated August 27, 2008 from

15]} Stephen Weissberg, P.E. at Weir/Andrewson Associates, Inc., plaintiffs expert, to Dan

16|} Angius at Angius & Terry, plaintiffs former counsel. Page 4 of the letter states: 1) the

17|| application of the glazing film has exacerbated, rather than mitigated the solar heat gain; 2)
18|| the heat film traps the radiation at the inside face of the glazing, raising surface temperatures
19]|| in excess of 160°F; and 3) it is probable that the observed structural cracking of the interior
20] panel of insulated window glazing has been caused by the excessive heat gain and elevated
21|| glazing temperature; and 4) the excessive heat gain and elevated glazing temperature are the
22]| probable causes of failed [GU and subsequent condensation.

23 5. In its August 27, 2008 letter, Weir/Andrewson Associates, Inc. claims the

24|| film at issue exacerbated solar heat gain and trapped radiation at the inside of the glazing

25 |} causing IGU units to fail and subsequent condensation at the subject project.

26
‘MoCarthy & MeCarthe, LLP ceo 2 see
62am Ses Sune 80 DECLARATION OF JAN SWANEY IN SUPPORT OF WINDOW SOLUTION, INC.’S OPPOSITION TO
fa close SOLUTIA, INC.’S MOTION FOR SUMMARY JUDGMENT OR SUMMARY ADJUDICATION

as S10) 83781081 6. Glass/glazing breakage can occur from a variety of factors such as impact,

2|| thermal stress, bending (racking of the sash), and/or excessive pressure differences between
3|| the airspace and the outside air. When considering breakage from thermal stress, it can be

4] caused by the glass not being able to sustain the thermal conditions experienced at the site.

5]] There are also many possible causes of glazing breakage and IGU failures from thermal

6|| stress. The possible causes include, but not limited to, the following or a combination of the

7|| following: glass fabrication, glass orientation to sunlight, outdoor overhangs, indoor shading

81] (blinds, draperies, etc.), size of window, flaws at the glass edge, installation (edge clearance,
9|| supports) coatings, tints, application of films, and argon filing.

10 7. A glazing breakage from thermal stress can happen with the application of
11]|]| coating/film at any stage in the life of the coating/film. Since many factors can contribute to
12]! glazing breakage or [GU failures, it is not reasonable to conclude in this litigation that

131] glazing breakage was likely to happen within the first full year after the application of the

14]| film at issue at the subject project.

15 8. T reviewed the following plaintiff's document: The Preliminary Defect List
16]| by Subtrade dated September 26, 2012. The plaintiff allocated defects regarding window
17]|| coatings to Window Solutions. The descriptions of the allocation are “3.3 A reflective film
18|| is improperly applied to windows,” “3.4 Some glazing has cracked and/or condensation,”

19]} and “3.8 Reflective film is applied directly to annealed glazing.”

20 9. Also, [ reviewed the following document: A Supplemental Report #3 dated

21}| October 3, 2012 from Tim Stokes at Richard Avelar & Associates, plaintiff's expert, to Ann
22}) Rankin at Law Offices of Ann Rankin, plaintiffs counsel. Page 11 of the report shows the
23|| following as defects and damages:

24 1) 3.3. A reflective film has been applied to windows to reduce solar

25|| heat gain and violates glazing manufacturer’s warranty provisions;

26
wecatn a necanty . 3- _
2a ese Sn DECLARATION OF JAN SWANEY IN SUPPORT OF WINDOW SOLUTION, INC.’S OPPOSITION TO
Jaoreeatea SOLUTIA, INC.’S MOTION FOR SUMMARY JUDGMENT OR SUMMARY ADJUDICATION

Fay ($10) 839-81081 2) 3.4. Some glazing has cracked and/or there is condensation on glass
2]|| panes in insulated dual window glazing (GU); and

3 3) 3.8. Reflective film is installed directly to annealed glazing (potential
4|| to cause thermal breakage).

5 10. In its Supplemental Report #3, the plaintiff claims that the film at issue being
61] installed directly to IGU units caused thermal breakage. As stated in paragraph 6 above,

7|| there are many potential causes of glazing breakage from thermal stress. The possible

8 || causes include, but not limited to, the following or a combination of the following: glass

9}|| fabrication, glass orientation to sunlight, outdoor overhangs, indoor shading (blinds,

10]) draperies, etc.), size of window, flaws at the glass edge, installation (edge clearance,

11 |] supports) coatings, tints, application of films, and argon filing.

12 11. Furthermore, I reviewed the following document: A letter by CPFilms Inc.
13]] dated March 28, 2005. The letter states: 1) the film at issue looks good on its Film to Glass
14]| chart; 2) the glass at issue is mamrfactured by Northwest Industries Inc. which has a good
15]| reputation in the industry; 3) the film at issue is compatible with the glass units at the subject
16]| project in that it would not add a significant change to the 4% seal failure rate on insulated
17|| glass units (IGU); 4) it is good to use the film at issue in San Francisco which has mild

18 || temperatures; and 5) CPFilms Inc. has a low concern for using the film at issue in the moist
19]| climate in San Francisco.

20 12. The content of this March 28, 2008 letter shows CPFilms Inc. made a

21 || technical analysis to evaluate the performance of both the film and glass at issue when

22]| installed at the subject project. CPFilms Inc. concluded that the film would apply well to
23]|| the giass and was suitable for the application as it related to performance and possible glass
241| breakage/IGU failure. By using the findings from the technical analysis, CPFilms Inc.

25 || determined its warranty coverage and priced the film at issue to be sold to Window

26 || Solutions.

sev eaten nr _ 4-
52 Nin Sey Sate 0 DECLARATION OF JAN SWANEY IN SUPPORT OF WINDOW SOLUTION, INC.’S OPPOSITION TO.

CA 94007

See aise SOLUTIA, INC."S MOTION FOR SUMMARY JUDGMENT OR SUMMARY ADJUDICATION

Fos: GIN) STH-HIU26

McCarty & MoCerdy LLP
“Tre Arian Ballig
#82 Hit Sree Sue 20

CASA
Tek G10) 28100
Fase G10) 30-8109

I declare under penalty of perjury that the foregoing is true and correct.

DATED: November 29, 2012

5

|
DECLARATION OF JAN SWANEY IN SUPPORT OF WINDOW SOLUTION, INC.’S OPPOSITION TO

SOLUTIA, INC.’S MOTION FOR S|

IARY JUDGMENT OR SUMMARY ADJUDICATION