Hearing: BEACON RESIDENTIAL COMMUNITY ASSOCIATION VS. CATELLUS THIRD AND KING LLC et al

• 
• 
• 
• 
• 
• 
• 
• 

						
                                
Preview
                                M0

SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO

Document Scanning Lead Sheet
Sep-27-2012 3:22 pm

Case Number: CGC-08-478453
Filing Date: Sep-27-2012 3:19
Filed by: MARYANN E. MORAN
Juke Box: 001 Image: 03782855
MOTION FOR SUMMARY JUDGMENT

BEACON RESIDENTIAL COMMUNITY ASSOCIATION VS. CATELLUS THIRD

AND KING LLC et al

001003782855

Instructions:
Please place this sheet on top of the document to be scanned.Adam Brezine (SBN: 220852)
adam. brezine@bryancave.com
Julien E. Capers (SBN: 275733)
julien.capers@bryancave.com
BRYAN CAVE LLP

560 Mission Street, 25" Floor
San Francisco, CA 94105

Tel: (415) 268-2000

Fax: (415) 268-1999

Attorneys for Cross-Defendants
SOLUTIA INC.

SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO

oa

BEACON RESIDENTIAL COMMUNITY
ASSOCIATION,
Plaintiff,

CATELLUS THIRD AND KING, LLC; et al
Defendants.

CASE NO. CGC 08-478453

NOTICE OF MOTION AND MOTION FOR
SUMMARY JUDGMENT OR SUMMARY
ADJUDICATION OF CROSS-DEFENDANT
SOLUTIA, INC.; MEMORANDUM OF
POINTS AND AUTHORITIES IN SUPPORT

[Concurrently filed with Separate Statement of
Undisputed Material Facts and Declaration of
Adam Brezine]

Date: December 14, 2012
Time: 9:30 a.m.
Dept.: 304

Cross-Complaint filed: March 21, 2011
Trial Date: February 4, 2013

WINDOW SOLUTIONS, INC.,
Cross-Complainant,

SOLUTIA INC. and MOES 1-100, Inclusive,
Cross-Defendants.

1

Solutia Inc.’s Notice of Motion for Summary Judgment or Summary Adjudication
Case No. CGC 08-478453

#77301 v3 saCo ew NDA nH FF WBN

PLEASE TAKE NOTICE that on December 14, 2012, at 10:00 a.m., in Department 304 of
the above-referenced court, located at 400 McAllister Street, San Francisco, California, Cross-
Defendant Solutia Inc. (“Solutia”) will and hereby does move, pursuant to Code of Civil Procedure
section 437c, for summary judgment in favor of Cross-Defendant and against Cross-Complainant
Window Solutions, Inc. (“Window Solutions”), for costs of suit incurred, and for such other relief as
the Court may deem just and proper. This motion is made on the grounds that the undisputed
material facts cannot establish the elements of Window Solutions’ causes of action for negligence,
equitable indemnity, breach of oral and/or written contract, and contribution against Solutia, and
Solutia is therefore entitled to judgment as a matter of law.

In the alternative, Solutia will move and hereby moves the Court for an order adjudicating:

(a) That Solutia is entitled to judgment on the first cause of action for “negligence” because
the undisputed facts show that Solutia undertook no duty outside the scope of the parties’
sales agreement, and that Solutia satisfied its contractual obligations in full;

(b) That Solutia is entitled to judgment on the second cause of action for “equitable
indemnity” because the undisputed facts reveal no basis to hold Solutia at fault for any
portion of any damages that may be imposed on Window Solutions and it is clear that
Window Solutions cannot show it did not actively or affirmatively participate in the
conduct that gave rise to the underlying action;

(c) That Solutia is entitled to judgment on the third cause of action for “breach of oral and/or
written contract” because this action was filed more than 4 years after the contractual
relationship between Solutia and Window Solutions concluded, and in any event the
undisputed evidence shows that Solutia completely fulfilled and did not breach its
contractual obligations; and

(d) That Solutia is entitled to judgment on the fourth cause of action for “contribution”
because Window Solutions does not and cannot satisfy the statutory requirements to
establish liability on this basis.

Solutia therefore seeks an order that the final judgment in this action shall, in addition to any

matters determined at trial, award judgment as established by such adjudication.

2

Solutia Inc.’s Notice of Motion for Summary Judgment or Summary Adjudication
Case No. CGC 08-478453
#77301 v3 satCo Om ND MH FF WN =

RYN YN KN NN HY | Be Be Be Be Be Be SB eS
oN A HU BW NY = SO we IN DA BF wWwNH = CO

This Motion is based upon this Notice; the Memorandum of Points and Authorities in
Support thereof; the concurrently filed Declaration of Adam Brezine and exhibits thereto; the
concurrently filed Separate Statement of Undisputed Material Facts; the files and records in this
action; and any further evidence or argument that the Court may properly receive at or before the
hearing.

Dated: September 27, 2012 BRYAN CAVE LLP

ofl

Adam Brezine

Attorneys for Cross-Defendant
SOLUTIA INC.

3

Solutia Inc.’s Notice of Motion for Summary Judgment or Summary Adjudication
Case No. CGC 08-478453
#77301 v3 safCo wre NYy Dn Fk WYN =

NN YN NY NN NN SY | & Fe Fe SF KK K— SK
on A A FF BW NH KF SCO FA DH FF YB NK KF S&S

1. INTRODUCTION AND SUMMARY OF ARGUMENT

TABLE OF CONTENTS

I. LEGAL STANDARD......ccssecsssssssessssesssssesessnessssecsnersnsesonscanecsanesanecsusssnnsssnsensneranecnissennsetaneesss 3
I. UNDISPUTED MATERIAL FACTS ou... csceeecsescessseessscseeseessesecesscsseenecnsceneenssaneaneesaceanenenees! 4
A. Basic Background
B. Window Solutions Purchases Film From Solutia To Be Applied At
Beacon.....essoecsseceecsessesssesseessessucesecorsscssossesesecsuessscessecsceaeesccsscsacensseuatassasesscsascnsenseeaneened 4
Cc. Warranty Issued By Soluttia .........sccsecsessessssesneesseesessessnsesceneeeneeaeenecnecnecsseneesnesanennseeny 6
D. Allegations Regarding Window Film in Underlying Action....
E. Allegations in Cross-Complaint.........scecccsesssscessssssssneeensecnsecnnsesarecnnesserssuessnensenesssne 7
F. Information Produced By Window Solutions In Discovery .........:s:ssessseeesereerenees 9

Iv. ARGUMENT...
A.

Solutia Is Entitled To Summary Adjudication On WSI’s Breach of

Contract Claim Because It Is Time-Barred And Because WSI Has

Conceded It Has No Basis To Claim That Solutia Breached Any

Contractual OD] gation... ses cecesseecsessseessesceeeseesnessecnsesnessecssccucesesenscnsenseenseenennstes 11

1. Window Solutions’ Breach Of Contract Cause Of Action Is Barred
By The Statute of Limitations. .........ccccsseeseseseeteeserneeeeneensretensneeneeesneeeenenee 11

2. Even If It Were Timely, Window Solutions Cannot Prevail On The
Breach of Contract Cause of Action Because It Cannot Establish A
Breach Of Any Contract By Solutia. .......c.ccsscscsessesseeseesseeeenteceesseesneeneeennees 12

The Negligence Cause of Action Fails As A Matter Of Law Because
Window Solutions Cannot Establish Breach of Any DUuty........scesscssessesessseseeneseenee 13

Window Solutions’ “Contribution” and “Equitable Indemnity” Claims Fail
Because There Can Be No Judgment Entered Against Window Solutions

and Solutia Jointly And Window Solutions Cannot Establish Any
Wrongful Conduct By Solutia To Support A Finding of “Fault”...

Vv. CONCLUSION... cscssesccesesssssssssssesnessessenessenessecessteneeneensenecnsaeenrenseaeensneenseacsnssesacanssessseesconsenee 15

#77301 v3 saf

Solutia’s Motion for Summary Judgment or Adjudication
Case No. CGC 08-478453_

Co Oe NY HDA fF WN

10

TABLE OF AUTHORITIES
Page
Cases
Ahern v. Dillenback,
1 Cal. App. 4th 36 (1991) ...ceesecsssessssecssessseesssesnessesessmssssesssstessessaeesseesnessssssessssessnsessestsnessasesssnees 13

Applied Equipment Corp. v. Litton Saudi Arabia Ltd.,

7 Cal. 4th 503 (1994)...
Bailey v. Safeway, Inc.,

199 Cal. App. 4th 206 (2011) ...eeeceseescesssessessesstsssssesnessnesnesssesssssenssscesessssssnessnesesseesseensesneesees 14
Brantley v. Pisaro,

42 Cal. App. 4th 1591 (1996) oo... eesceesessseseeesessesstessessesseesnessseseessesssssecssssnsssssesassnssnesseeesecseesnee 3,4
Cal. Civ. Code § 1714 (a) ..cescecsccssesssessssssssssesssecssesscsssensssnsenscasessecansssesseessssnessectecsusesesseesuceneccsneneeeneesnes 13

General Elec. Co. v. State of Cal.,
32 Cal. App. 3d 918 (1973) ..ssesssessessssssseesstessesssseesesssesscssuesseesssssessnecenssessnessssecsnecseesseseesseeseessneeere 14

Ladd v. County of San Mateo,
12 Cal. 4th 913 (1996) oo. eecceeeesscessesseesseesseesessesesssnessecssesstessessecseessssssesesessnesateneessneseessnesnesseessees 13

Lortz v. Connell,
273 Cal. App. 2d 286 (1960) .....cccsscsessessssessssseseeseesseesssnsensssssnsscssecnsassacsnsacencesseensenssneseeseenseneanesnes 12

Mark K. v. Roman Catholic Archbishop of Los Angeles,
67 Cal. App. 4th 603 (1998)...

Sanders y. Atchison, Topeka & S. F. Railway Co.,

65 Cal. App. 3d 630 (1977) ..escessssecsscsesssesssesssesecesesecsseeseesessnesnecnessnsssesssesuseeeeaessecsneesaesssessesneeeaeesee 14
Union Bank v. Superior Court,

31 Cal. App. 4th 573 (1995) ....ccssecssscsessssesssesessessnssssssesssessessnecsesssssesssesuessssseesecesseasssnesaussssssneeneeesees 3
Statutes
Cal. Civ. Proc. Code § 337(1)....sessesssecssecssesssssessssseesscssessesssessnscasssssssesnesseesecacsasessesaecenessessessnesseeese 11
Cal. Civ. Proc. Code § 339(1).......sssssessssessesssessestssnesesceeesessseesnessessasssessesacuessescusracsseeseceaneeseesneesresse 11
Cal. Civ. Proc. Code § 4376(a) ....scessssesssesssscsssssssscssessssssssesessessscsansssseneessessesseenessessucesesssesseesnecsesesecaneess 3

Cal. Civ. Proc. Code § 437c(b)...
Cal. Civ. Proc. Code § 437¢(C) ...cessessessesseesrssesseescsessesscssscssecsssnsssessssesnesssncssssesseareseesecnssucsessseseeaesneseeeee 3
Cal. Civ. Proc. Code § 437c(o)(1)

Solutia’s Motion for Summary Judgment or Adjudication
Case No. CGC 08-478453
#77301 v3 safoe NY DH BBW YN

~
o

Cal. Civ. Proc. Code § 437c(p)(2) ..

Cal. Civ. Proc. Code § 875(a) ....ssecsssssssssssssssssssssessessscssessesssnessesssecsusssesnessussusenesseeseasecsscenseneeesecanenneess 13
Cal. Civ. Proc. Code § 875(C) ....ssessssssesssecsssssssescecseesscssscsscessesssesseeseceseescescssscesceseenceseeenecnesanecaseenansnes 14
Rules

CACTI 300...

CACTI 303 u.essssssesseesceeseeeneessecseesecensscncsssccnscsecesesssssusssessussucsssccsnsesesssecsucensssssssssscsacsnecnecaeensensessaceseeeneeanes 12
CACTI 3800... ..sescsecsesseessesssessessecssesssessessncsesssscssscessseesscsucsauseanessesaneesssencesecassneesncsnececeseaeeesensnecnesensenees 14
CACT 400 oc esceccsscsecsscessessecesescecencencccaccsnecsessuesseesessessussucsanesutsssessusesessesrassessueesassnesnesseeaesseanseesessncanees 13

iii
Solutia’s Motion for Summary Judgment or Adjudication
Case No. CGC 08-478453

#77301 v3 safCo em N DH FB WN

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

MEMORANDUM IN SUPPORT OF MOTION

L INTRODUCTION AND SUMMARY OF ARGUMENT

This motion addresses a very narrow sliver of part of the underlying dispute, and presents the
question whether cross-defendant Solutia, Inc. (“Solutia”) — whose only role with respect to the
Beacon Project was to sell window film to cross-claimant Window Solutions that Window Solutions
requested and later applied — can be held liable on any theory asserted in the cross-complaint. With
relevant fact discovery closed, the undisputed material facts produced in discovery confirm that
Solutia has no place in this case. Window Solutions brought Solutia into this matter by cross-
complaint over 18 months ago, but has utterly failed to elicit evidence from any source that even
suggests (let alone proves) that Solutia bears any responsibility for any purported damage suffered
by the Plaintiff Beacon Residential Community Association (“Beacon”) or any other party.

Solutia’s involvement with respect to the Beacon Project can be summarized in two words
from the Solutia employee who conducted the sale: “Very limited.” Brezine Ex. A' (Deposition of
Solutia PMK James Kinley Dep. 17:7). In 2005, Solutia (through its CPFilms subsidiary) sold a
large quantity of window film to Window Solutions, which Window Solutions then applied to
windows at the Beacon Project. Within about a year, Solutia received — and satisfied — a very small
number of warranty claims based on “cracked” windows. There is no other evidence of any claim
under the warranty, or any evidence that the film is not performing as designed. That is all Solutia
did — Solutia did not recommend applying film, or recommend any patticular film for the project, or
analyze what affect film might have, or make any representations or promises about the results of
applying film. This limited involvement is reflected in the hopelessly vague allegations of the
cross-complaint itself. But relevant fact discovery has closed, and Window Solutions cannot hide
behind conclusory allegations at this stage. As a consequence, each of Window Solutions’ claims
fails as a matter of law:

e The “breach of contract” claim fails because it is undisputed that any contractual

relationship between Window Solutions and Solutia was entered, and completed, in

1 “Brezine Ex. A” refers to exhibits to the Declaration of Adam Brezine, submitted with this motion.

1

Solutia’s Motion for Summary Judgment or Adjudication
Case No. CGC 08-478453
#77301 v3 satCo eo ND WF WN

wma
od DAA BF wBwN =

2005 — more than 4 years before the cross-complaint was filed in 2011. It is also
undisputed that Solutia fulfilled its contractual obligations, and Window Solutions
does not claim otherwise.

e The “negligence” claim fails because Window Solutions cannot and does not produce
evidence Solutia assumed any “duty” outside its agreement to sell window film — and
it is undisputed that the agreement was fully performed.

e The “equitable indemnity” and “contribution” claims fail because (a) there has been
and can be no judgment entered against both Window Solutions and Solutia; and
(b) there is no evidence to support a conclusion that Solutia contributed to any alleged
harm suffered by the Plaintiff for which Window Solutions could conceivably be held
liable, and it is undisputed that Window Solutions was an active and affirmative
participant in the alleged wrongdoing.

Solutia sold film to Window Solutions, and honored its warranty. That is all, and that is
enough to dispose of Window Solutions’ cross-complaint. This motion does not seek any
determination with regard to the broader “heat gain” issue raised by Plaintiff in the underlying
action. For purposes of this motion, it does not matter how hot it gets in certain units at the Beacon,
or whether there is any legal theory under which Plaintiff can recover for heat-related “discomfort.”
The only thing that matters is whether Window Solutions can provide any evidence that Solutia did
something wrong. Window Solutions has no such evidence, and no such evidence exists.”
Regardless of Window Solutions’ culpability (or lack thereof), Solutia should not be burdened with
the need to prepare for and attend the trial of this matter. Solutia is entitled to summary judgment on

the cross-complaint, or summary adjudication on each cause of action.

? It is equally unclear that Window Solutions should bear any responsibility for any of the damages
Plaintiff Beacon claims to have suffered, since the evidence shows that the window film Window
Solutions bought and applied is performing exactly as it is designed to perform.

2

Solutia’s Motion for Summary Judgment or Adjudication

Case No. CGC 08-478453
#77301 v3 safoe IN DW PF WN

N NM NY NY NN NR N YN | S| Be Se = SF = S| SK
oN AA BF YN |= SO eM NIN DAH FF WN = DO

IL. LEGAL STANDARD

“Any party may move for summary judgment in any action or proceeding if it is contended
that the action has no merit.” Cal. Civ. Proc. Code § 437c(a). To prevail on this motion, Solutia
need only show that a “cause of action has no merit by demonstrating that the undisputed facts
negate the existence of one or more essential elements of the cause of action.” Brantley v. Pisaro,
42 Cal. App. 4th 1591, 1593 (1996); Cal. Civ. Proc. Code § 437c(0)(1). Solutia “has met [the]
burden of showing that a cause of action has no merit if [it] has shown that one or more elements of
the cause of action, even if not separately pleaded, cannot be established, or that there is a complete
defense to that cause of action.” Cal. Civ. Proc. Code § 437c(p)(2).

Once Solutia has met its burden, the burden shifts to Window Solutions to show a triable
issue of one or more material facts exists as to that cause of action or a defense thereto. Cal. Civ.
Proc. Code §§ 437c(b), (p)(2); Union Bank v. Superior Court, 31 Cal. App. 4th 573, 590 (1995).
Window Solutions may not rely upon the mere allegations of its pleadings to show that a triable
issue of material fact exists but, instead, must set forth the specific facts showing that a triable issue
of material fact exists as to a specific cause of action. Cal. Civ. Proc. Code § 437c(p)(2). If Window
Solutions fails to meet this burden, summary judgment “shall be granted.” Cal. Civ. Proc. Code §
437c(c).

Summary adjudication should be granted if a cross-defendant establishes that “a cause of
action has no merit” because “one or more elements of the cause of action, even if not separately
pleaded, cannot be established, or that there is a complete defense to that cause of action.” Cal. Civ.
Proc. Code § 437c(p)(2). Once the cross-defendant has done so, “the burden shifts to the plaintiff or
cross-complainant . . . to show that a triable issue of one or more material facts exists as to that cause
of action or a defense thereto.” Jd. In meeting this burden, “[t]he plaintiff or cross-complainant . . .
may not rely upon the mere allegations or denials of its pleadings to show that a triable issue of
material fact exists but, mstead, shall set forth the specific facts showing that a triable issue of

material fact exists as to that cause of action or a defense thereto.” Id.

3

Solutia’s Motion for Summary Judgment or Adjudication

Case No. CGC 08-478453
#77301 v3 safOo em ND NH FF WN

NY NY WY N NY NY NK NY NR YF SF = _
RBNRRRBBKRSSVE RFRA BDREBHeS

This motion is based both upon factually insufficient discovery responses by Window
Solutions, and upon the fact that certain discovery has affirmatively negated essential elements of
Window Solutions’ purported claims. See Brantley, 42 Cal. App. 4th at 1598.

WW. UNDISPUTED MATERIAL FACTS

A. Basic Background

One of Solutia’s divisions (the “Performance Films” division) manufactures and sells
window films. SS #1; Brezine Ex. A (Deposition of Solutia PMK James Kinley at 15:4-6).
Solutia’s films division used to be a separate entity known as CPFilms. SS #2; Brezine Ex. A
(Kinley Dep. 18:24-20:7). In this motion, both Solutia and CPFilms are referred to as “Solutia,” to
avoid confusion.

There are two basic and primary purposes for applying film to a window in any given
scenario: (1) to reduce glare and (2) to reduce solar heat gain. SS #3; Brezine Ex. A (Kinley Dep.
66:23-25). Solutia also sells decorative films, safety films, and security films. Jd. (Kinley Dep.
15:25-16:2).

B. Window Solutions Purchases Film From Solutia To Be Applied At Beacon

In or about March, 2005, Window Solutions — through its former owner Bernie Bramante —
approached Solutia and asked to purchase window film that was to be applied at the Beacon Project.
SS #4; Brezine Ex. A (Kinley Dep. pp. 19-21). Window Solutions did not typically purchase or
install Solutia film — it preferred to use 3M products where it could. Brezine Ex. B (Murphy Dep.
38:18-39:20). Apparently, Window Solutions approached Solutia to buy its film in this instance
because 3M was unable to deliver the particular product, or the quantity, that Mr. Bramante desired.
Brezine Ex. B (Kinley Dep. 21:14-19)(“Bramante ... told me that 3M could not deliver the Night
Vision product, and he would like to buy our DR [product]”). Bramante “already knew what film he
wanted, because, being a 3M dealer, he had a product called Night Vision. The equivalent of the

3 “Beacon Project” is used in this motion to describe the buildings located at 250 and 260 King
Street in San Francisco.

4

Solutia’s Motion for Summary Judgment or Adjudication

Case No. CGC 08-478453
#77301 v3 saf_

o> ew N Dw Fw N

Night Vision products is [the Solutia] DR series products, so he already knew what he wanted at
that point.” SS #5; Jd. at 24:7-11.

Solutia was not involved in the decision to apply film to the windows at the Beacon, which
had already been made when Mr. Bramante contacted Solutia. SS #6; Brezine Ex. A (Kinley Dep.
17:5-18; 21;14-19; 24:3-11; 79:3-10) & Ex. C (RFA Resp. #s 2 & 4). Nor was Solutia involved in
the choice of the film to be applied. SS #7; Brezine Ex. C (RFA Resp. #4). WSI had already chosen
a particular kind of 3M film, and when it came to Solutia it asked for the Solutia film that most
closely approximated the unavailable 3M product. SS #8; Brezine Ex. A (Kinley Dep. 21:14-19;
24:03-11). In the words of Mr. Kinley, “That’s why I say it was a very limited involvement; he just
wanted to buy our film.” SS #9; Brezime Ex. A (Kinley Dep. 22:13-14). Mr. Kinley never even
went to the Beacon in connection with this sale. SS #10; Jd. at 23:15-18. Bramante “said he had
already done all of the work, had made the proposals, everything.” SS #11; Id. at 24:1-2. Although
Solutia does on occasion perform an analysis of the glass in a building in connection with a
recommendation of film, it was not asked to and did not do so here. SS #12; Brezine Ex. A (Kinley
Dep. 62:1-6). At no time did Solutia perform any “technical analysis” of the installation of the film
at the Beacon. SS #13; Jd. at 103:1-4.

Solutia sold and delivered the film to Window Solutions sometime before May 5, 2005. SS
#14; Brezine Exs. C (RFA Response #3), D, pp. 6-8 (standard warranty form dated May 5, 2005 and
invoices), and A (Kinley Dep. 47:17-20). In total, Window Solutions ordered approximately 80,000
square feet of window film, and it was apparently used to cover 1206 different windows at the
Beacon. SS #15; Brezine Ex. A (Kinley Dep. 22:8-9 and 80:15-81-1).

Solutia was not involved in the application of the film, and did not have employees or
contractors on site at the Beacon at any time. SS #16; Brezine Ex. C (RFA Response #2) and Ex. A
(Kinley Dep. 17:05-13). Presumably, Window Solutions employees or contractors applied the film
at the Beacon, but the issue has not been the subject of discovery. WSI’s PMK witness said that he
confirmed with the prior owner that Window Solutions performed the work, but that was the extent
of their conversation. SS #17; Brezine Ex. B (Murphy Dep. 22:10-14).

s
Solutia’s Motion for Summary Judgment or Adjudication
Case No. CGC 08-478453

#77301 v3 safCwm Nn Ane WN =

NY N NY NY NY NY N NN YN | | KY FP FP Fe KF KF SF SS
outa AA FF BN He SO ONIN DH RF WN = S&S

Cc. Warranty Issued By Solutia

A letter dated May 23, 2005, and produced from the files of Mission Place in this matter,
shows the standard warranty agreement was slightly modified for the film sold to WSI. SS #18;
Brezine Ex. E (Kinley Ex. 499). Under the terms of the modified warranty, Solutia agreed to

warrant the film itself for ten years, and further warranted against cracking and seal failure for a

period of five years. Specifically, the letter states:
“GLASS BREAKAGE
CPFilms warrants that if the glass should break as a direct result of the Film
application the glass will be replaced for a period of SIXTY (60) months and up
to $500.00 per window. The deductible for this size job is $100 or 5% of the
replacement cost, whichever is greater.

WINDOW SOLUTIONS agrees to pay for $75.00 of the deductible.

SEAL FAILURE

CPFilms warrants that if the window seal fails within SIXTY (60) MONTHS the
glass will be replaced up to $500.00 per window. The deductible for this size job
is $100 or 5% of the replacement cost, whichever is greater.

WINDOW SOLUTIONS agrees to pay for $75.00 of the deductible.”

SS #19; Brezine Ex. E (Kinley Ex. 499).

The “typical” Solutia warranty for film (a copy of which was also executed on or about May
5, 2005) covers “Thermal Shock Fracture” for five years but “Seal Failure” for only three. SS #20;
Brezine Ex. D (Kinley Ex. 497, p. 1). It is not clear why the warranty was apparently modified in

this case, but Kinley does recall it being the subject of discussions (to which he was not a party) at

the time of the sale. SS# 21; Brezine Ex. A (Kinley Dep. 22:15-25; 33:15-34:11).

“Thermal Shock Fracture” refers to a type of glass breakage created by “a differential in the
temperature between parts of the glass.” SS #22; Brezine Ex. A (Kinley Dep. 35:15-36:6). It is

known to happen on very rare occasions following the application of film. Window Solutions’ PMK.

witness estimates it happens “under a tenth of a percent of the time” and that “[a]lmost always it has

to do with a defect in the glass, whether it’s a chip on the edge of the glass, which is the most

6

Solutia’s Motion for Summary Judgment or Adjudication

Case No. CGC 08-478453
477301 v3 satCo mI DHA FF WN =

wR NY NY NY NNN | | Be Be Be Se Ke Be FE
ou AA RB BNF SO eI DHA FF BN HK DS

common thing ... It could not be sitting right in its frame.” SS #23; Brezine Ex. B (Murphy Dep.
46:14-47:7).

The evidence shows that two separate warranty claims for 11 windows in total were
apparently made and fully satisfied between November, 2005 and April, 2006. SS #24; Brezine Ex.
D (Kinley Ex. 497, pp. 2-5) (“claim overview” and related documents showing claims for 7 windows
in 2006, and 4 windows in 2005). There is no evidence of any further claim under the warranty at
any time, and no warranty claims are pending. This is not surprising, since a claim for “thermal
shock fracture” is likely to be made within the “first full year” after application, if it is to be made at
all. SS #25; Brezine Ex. A (Kinley Dep. 114:13-115:04).

D. Allegations Regarding Window Film in Underlying Action

In the Third Amended Complaint, Window Solutions is named as a “Subcontractor
Defendant.” SS #26; Brezine Ex. F (Third Am. Compl. 6). Solutia is not named or mentioned at
all. SS #27; Brezine Ex. F (Third Am. Compl.). Plaintiff Beacon alleges on information and belief
that Window Solutions “installed a film on the interior panes of about 300 units ...; that the film was
installed in the wrong place; that the purpose of the film was to mitigate heat build-up in the units,
but that instead the film failed to mitigate the heat build up and even increased it and caused the
window panes to crack ....” SS #28; Brezine Ex. F (Third Am. Compl. 5(qq)).

E. Allegations in Cross-Complaint

Window Solutions filed its cross-complaint against Solutia in this matter on March 21, 2011.
SS #29; Brezine Ex. G (Cross-Complaint). The cross-complaint names Solutia as a defendant, as
well as “LLumar ® aka LLumar Window Film,” which is not an entity but a brand of film sold by
Solutia. SS #30; Brezine Ex. A (Kinley Dep. 15:17-22).* The caption of the cross-complaint also
includes fictitious defendants, but Window Solutions has not named any other specific entity as a

cross-defendant.

Because “LLumar” does not exist as an entity, it has never been (and cannot be) served with the
cross-complaint. To the extent there is any doubt about the resolution of this entire matter, this
motion is made on behalf of “LLumar” as well.

7
Solutia’s Motion for Summary Judgment or Adjudication
Case No. CGC 08-478453

477301 v3 saf_

oOU wm ND OH WN

The cross-complaint purports to state four separate causes of action, for Negligence (Count
1), Equitable Indemnity (Count 2), Breach of Contract (Count 3), and Contribution (Count 4). There
are virtually no factual allegations to support any of the causes of action. The Cross-Complaint is
attached to the Brezine Decl. as Ex. G.

There are no allegations anywhere in the cross-complaint specifically directed to Solutia.
Instead, each cause of action is a vague skeletal assertion of some form of purported liability. For
example, although the first cause of action is titled “Negligence,” the actual allegations are simply
that (a) if Window Solutions is liable it is because of something the cross-defendants did;

(b) Window Solutions is “entitled as a matter of law to a judicial determination apportioning and
affixing the comparative negligence of each Cross-defendant for any damages awarded to Plaintiff in
this action;” and (c) an “actual controversy now exists” between Window Solutions and Solutia “as
to the right of indemnity and negligence as between [Window Solutions] and Cross-defendants.”

See Cross Compl. at §7-9. Window Solutions does not allege that Solutia undertook any duty to
Window Solutions, or that such a duty was breached, or that Window Solutions suffered damage as a
result.

Similarly, in the third cause of action entitled “Breach of Oral and/or Written Contract,”
Window Solutions alleges that it “entered into oral and/or written contracts with Cross-defendants,
and each of them, including Moes | through 100.” Cross-Compl. §15. Window Solutions does not
identify any particular contract with Solutia, or allege that such a contract was breached, other than
to vaguely assert that the “Cross-defendants breached their oral and/or written contracts...” See
Cross-Compl. ff] 14-17.

The second and fourth causes of action, for “Equitable Indemnity” and “Contribution,”
respectively, state only the legal conclusions that Window Solutions “is informed and believes” that
cross-defendants have some “equitable duty to indemnify” Window Solutions because of
unspecified “active, primary ... conduct,” (Cross-Compl. { 11), or that if Window Solutions is held
liable in the underlying case, Window Solutions “is entitled to contribution ... in excess of the
degree to which [Window Solutions’] culpability, fault or responsibility ... contributed to the
damages” that might be awarded to Plaintiff. (Cross-Compl. 19). As with the other counts, neither

8

Solutia’s Motion for Summary Judgment or Adjudication
Case No. CGC 08-478453

#77301 v3 salyp end DHA BF WN

10

cause of action identifies any particular alleged wrongdoing by Solutia, or any problem with the film
sold to Window Solutions in 2005.

F. Information Produced By Window Solutions In Discovery

Window Solutions has served no discovery in an attempt to support any of its claims against
Solutia. SS #31; Brezine Decl. (2. The “person most knowledgeable” presented by Window
Solutions in response to Plaintiff Beacon’s notice of deposition (Paul Murphy) had no firsthand
knowledge of the matter because he purchased Window Solutions after the sale and application of
window film at the project. SS #32; Brezine Ex. B (Murphy Dep. 12:2-5, 14:19-23). He was not
involved with the work done by Window Solutions at the Beacon at all. SS #33; Id. at 16:22-17:5.

About Solutia’s Llumar film, he said only that “[i]t’s easily the top or has been for many
years the top-selling product in the world, so I can’t say anything bad about the product.” SS #34;
Id, at 39:24-40:1. Murphy was unaware of Solutia or CPFilms having any role in connection with
the Beacon project other than simply selling the film that Window Solutions later applied. SS #35;
Id, at 60:24-61:2. With respect to the performance of window film generally, while he agreed with
Solutia’s witness that it is typically used to “mitigate heat and glare” it is not possible to state that
film will make any particular space “cooler” by any specific amount, because that is not how film
works — and that he had “never once answered that question in the last 40 years.” SS #36; See
Brezine Ex. A at 25;17 & 50:6-7. Using what he called the “glass of water analogy,” he explained
that you can only calculate how much the rate of “heat gain” will be reduced: “[i]f you have a glass
of water, and you put it under the faucet, and the faucet is on full, the glass will fill up in a few
minutes. If you put a glass ... under a faucet that’s dripping, it will still fill up.” SS #37; Id. at 50:3-
17.

Window Solutions did not attend the deposition of Solutia’s person most knowledgeable, and
of course therefore it had no questions for him and his testimony is undisputed. SS #38; Brezine Ex.
A (Kinley Dep. pp. 3-5)(list of counsel appearing). Further, in response to basic discovery requests,
Window Solutions has essentially conceded that it had no basis for filing the cross-complaint in the
first place. Window Solutions expressly admits that the sale of the film at issue took place almost 6
full years before the cross-complaint was filed SS# 39; (Brezine Ex. C, RFA Resp. #3), and that

9

Solutia’s Motion for Summary Judgment or Adjudication
Case No. CGC 08-478453
#77301 V3 satoem ND HF WN

Nb NY YN NY N HN BW NO mw ee
oN A A PF YwH = SD we NHN ANH BRB WN KF SS

Solutia’s role with respect to the Beacon project was limited to selling and marketing the film SS
#40; Brezine Ex. C (RFA Response #s 1, 2, & 4), and that Solutia played no role in installing the
film or in selecting the type of film to be installed. SS #41; Brezine Ex. C (RFA Response #s 1 &
4). When asked to identify any alleged “agreement” that had been breached by Solutia, Window
Solutions only asserted improper objections, such as an objection to the term “agreement.” SS #42;
See Brezine Ex. H at pp. 13-15 (Amended Form Rog. Responses, No. 50.1). Window Solutions
asserts similarly improper objections to Form Interrogatories asking it to state whether it believes
any such “agreement” has been breached (Form Rog. No. 50.2), stating only that the interrogatory
“[c]alls for a legal conclusion from an unqualified party.” SS #43; Id. at p. 15. Window Solutions’
obfuscation in response to basic form interrogatories is frustrating, but the essential truth is clear:
After 18 months of discovery, Window Solutions has no basis to claim that Solutia breached any
agreement.
IV. ARGUMENT

Against this backdrop of undisputed facts, it is obvious that Window Solutions cannot prevail
on any claim against Solutia in this matter. There may be some argument by the Plaintiff against
other defendants that window film did not by itself alleviate the heat gain problem in this particular
instance — but Window Solutions’ own witness stated that film by itself is not designed to “stop”
heat gain, and Window Solutions admits that Solutia had nothing to do with the decision to apply the
film, and therefore no theory of liability can support a claim against Solutia on that basis. And there
can be no claim that Solutia did not honor the film warranty, because the only evidence is that claims
were made and honored 6 and 7 years ago, and that the warranty for cracked windows and seal
failure expired well before the cross-complaint was filed. There is no evidence of any wrongdoing
by Solutia, and there is clearly no need to subject Solutia to the expense of preparing for and sitting
through a lengthy trial where it is a pointless sideshow, at best. Even Window Solutions has no
interest in pursuing this claim, as evidenced by its failure to even attend the Solutia deposition and
failure to seek any discovery to support the cross-complaint. Summary judgment is appropriate, or

in the alternative summary adjudication on each cause of action.

10

Solutia’s Motion for Summary Judgment or Adjudication
Case No. CGC 08-478453

477301 v3 safoe IN DH FF YW DN

YP NNN NY NNN YK BS Be Bee Be we Be Be Be
eI AAR OHONH =F SOM AIA DA RB HNH SK

A. Solutia Is Entitled To Summary Adjudication On WSI’s Breach of Contract
Claim Because It Is Time-Barred And Because WSI Has Conceded It Has No
Basis To Claim That Solutia Breached Any Contractual Obligation.
1. Window Solutions’ Breach Of Contract Cause Of Action Is Barred By The

Statute of Limitations.

The statute of limitations on contract actions in California is four years for written contracts
(Cal. Civ. Proc. Code §337(1), and two years for oral agreements (Cal. Civ. Proc. Code § 339(1)).
The cross-complaint confusingly (and improperly) refers to unspecified “oral and/or written
contracts” between Window Solutions and “Cross-defendants, and each of them, including Moes 1-
100.” The cross-complaint does not identify any particular contract with Solutia that is alleged to
have been breached. When asked in form interrogatories to state whether an agreement was
breached, and if so, how, Window Solutions bizarrely objected on the basis that it did not understand
the term “agreement” and that it was not “qualified” to make that assertion (among other things).
Brezine Ex. H (Form Int. Responses). It did not, however, identify any alleged breach. Jd.

Ultimately, Window Solutions’ inability to identify the contract (or even the type of contract)
between the parties and whether it was breached is irrelevant, because even there was a breach, and
even if the longer limitations period applies, Window Solutions waited too long to file its complaint
against Solutia in this case. The undisputed evidence is that Solutia sold and delivered window film
to Window Solutions in 2005. Brezine Ex. A (Kinley Dep. 47:17-20) and D (invoices, pp. 6-8).
There is no evidence of any other agreement between the parties. Window Solutions did not file its
claim for breach of contract against Solutia until 2011, almost 6 full years later. Brezine Ex. G
(Cross-Compl.). Window Solutions does not and cannot claim any tolling of the limitations period.
The claim for breach of contract is therefore untimely, and summary adjudication in favor of Solutia
is required.

And although Beacon has not asserted any claim against Solutia in this matter, it is worth
noting that it could not make a claim for breach of contract for the types of injury allegedly sustained
in the complaint either. The warranty issued in 2005 covered cracked windows and seal failure for
up to five years — and the documents show that when a warranty claim was submitted, it was

u

Solutia’s Motion for Summary Judgment or Adjudication

Case No. CGC 08-478453
477301 v3 satoem NDA PF YW N

ybN YN YN NN KY SY Be Be Be Bee Be Be eB
oN AA FF BN f= Sow KA AA BwBHNH SF

honored. The warranty expired in 2010. Solutia has no further liability on the warranty for cracked
windows or seal failure. While the warranty runs for 10 year on the film itself, there is no claim — in
either the underlying complaint or Window Solutions’ cross-complaint — that there is anything
wrong with the film sold and delivered here.

2. Even If It Were Timely, Window Solutions Cannot Prevail On The Breach of

Contract Cause of Action Because It Cannot Establish A Breach Of Any

Contract By Solutia.

Even assuming a scenario in which Window Solutions’ contract claim could be viewed as
timely, discovery has done nothing but confirm that Window Solutions has no basis to allege that
Solutia breached any contractual obligation. The contract between the parties was limited to the sale
of window film, and that window film was delivered as promised. Window Solutions does not claim
otherwise, and in response to the standard form interrogatory (No. 50.2) asking it to identify any
alleged breach, none are identified. Instead, Window Solutions improperly objects to the term
“agreement” and says that the question “calls for a legal conclusion.”® The essential elements to be
pleaded in an action for breach of contract are (a) the existence of the contract; (b) plaintiff's
performance of the contract or excuse for non-performance; (c) defendant’s breach of the contract;
and (d) resulting damage to the plaintiff. Lortz v. Connell, 273 Cal. App. 2d 286, 290 (1960); see
also CACI 300, 303. The undisputed evidence establishes that Solutia performed its contractual
obligations by delivering the window film Window Solutions ordered, and by satisfying warranty
claims when they were made. Window Solutions cannot establish a breach or any damage, and in
discovery responses it did not even attempt to identify a breach. The contract claim therefore fails as

a matter of law.

5 These obviously improper discovery objections are the subject of an ongoing meet and confer
effort, but Window Solutions’ inability to identify any claimed breach of contract speaks for itself.

12
Solutia’s Motion for Summary Judgment or Adjudication
Case No. CGC 08-478453

#77301 V3 safwo em XN HAW FF YN

RN NN YN NY NK NY S| S| Be Be Be Be we Be eB
eon HA UW FF WH eK COC KO F&F NA DH F&F WN KK S&S

B. The Negligence Cause of Action Fails As A Matter Of Law Because Window
Solutions Cannot Establish Breach of Any Duty.

Window Solutions’ negligence allegations are difficult to decipher, but in essence it appears
to allege that if Window Solutions is liable for a negligent act then Solutia should be held liable as
well. The problem with this claim, as confirmed in discovery, is that there is no basis to conclude
that Solutia undertook to do anything other than sell the window film to Window Solutions that
Window Solutions requested — and it did so without complaint. There is no basis to expand Solutia’s
role after the fact in an effort to impose some other duty, nor is there any evidence that the window
film sold to Window Solutions is faulty in any way.

The elements of a claim of negligence are duty, breach, and causation resulting in injury.
Mark K. v. Roman Catholic Archbishop of Los Angeles, 67 Cal. App. 4th 603, 611 (1998). Stated
another way: (1) a legal duty to use due care; (2) a breach of that duty; and (3) the breach as the
proximate or legal cause of the resulting injury. Ladd v. County of San Mateo, 12 Cal. 4th 913, 917
(1996); Ahern y. Dillenback, 1 Cal. App. 4th 36 (1991); Cal. Civ. Code §1714(a); see also CACI
400. Asa general rule, a contracting party owes a “duty ... simply to perform the contract
according to its terms.” Applied Equipment Corp. v. Litton Saudi Arabia Ltd., 7 Cal. 4th 503, 514
(1994). That is precisely what happened here — Window Solutions asked for film, and Solutia sold
the film. There can be no negligence claim on these facts.

Cc. Window Solutions’ “Contribution” and “Equitable Indemnity” Claims Fail

Because There Can Be No Judgment Entered Against Window Solutions and
Solutia Jointly And Window Solutions Cannot Establish Any Wrongful Conduct
By Solutia To Support A Finding of “Fault”.

Contribution is a statutory remedy under California law which applies only “[w]here a
money judgment has been rendered jointly against two or more defendants in a tort action.” Cal.
Code. Civ. Proc. §875(a). The right of contribution “may be enforced only after one tortfeasor has,
by payment, discharged the joint judgment or has paid more than his pro rata share thereof. It shall

be limited to the excess so paid over the pro rata share of the person so paying and in no event shall

13

Solutia’s Motion for Summary Judgment or Adjudication
Case No. CGC 08-478453
#77301 v3 satOo em IN DW eF wBwN =

PRN PY YNRNRNR = & Boe ee
eX DEERE SSERVIAGDEBRAS

any tortfeasor be compelled to make contribution beyond his own pro rata share of the entire
judgment.” Code Civ. Proc. §875(c).

There is and can be no judgment against both Window Solutions and Solutia. If the plaintiff
Beacon prevails on its claim against Window Solutions (and it is entirely unclear that such a result is
possible, based on the facts unearthed in discovery), then the judgment would be against Window
Solutions alone. Beacon has not sued Solutia — Solutia’s liability, if any, is necessarily derivative of
Window Solutions’ — the two parties to the cross-complaint at issue here are not and cannot be “joint
tortfeasors.”

Similarly, the claim for “equitable indemnity” fails because the undisputed facts belie any
claim by Window Solutions that Solutia could be “at fault” for any damages, or that Window
Solutions did not actively or affirmatively participate in the conduct that gave rise to the underlying
action. Unlike contribution, which seeks to apportion loss among tortfeasors, the indemnity theory
would seek to shift the entire burden of any loss from Window Solutions to Solutia. See Sanders v.
Atchison, Topeka & S. F. Railway Co., 65 Cal. App. 3d 630, 638 (1977) (citations omitted). “The
elements of a cause of action for indemnity are (1) a showing of fault on the part of the indemnitor
and (2) resulting damages to the indemnitee for which the indemnitor is . . . equitably responsible.”
Bailey v. Safeway, Inc., 199 Cal. App. 4th 206, 217 (2011); See also CACI No. 3800. But because
indemnity is a more drastic loss-shifting remedy, in order to prevail on such a claim “it must appear
that [Window Solutions] did not actively nor affirmatively participate in the wrong” that led to the
underlying claim. General Elec. Co. v. State of Cal., 32 Cal. App. 3d 918, 922 (1973). The parties
do not have an indemnification agreement. As discussed above, Solutia’s role here was limited to
selling film that Window Solutions applied, and satisfying a small number of warranty claims.
There is no evidence anywhere in the record to suggest a broader role, or any basis to hold Solutia
“at fault” for any damages that Window Solutions (or any other party) may sustain as the result of
this action. And regardless, it is quite clear and indisputable that Window Solutions was actively
involved in the alleged wrong — it chose the film, bought the film, and applied the film, and does not
claim otherwise. It cannot, therefore, seek to hold Solutia liable on an “equitable indemnity” theory
as a matter of law.

4

Solutia’s Motion for Summary Judgment or Adjudication
Case No. CGC 08-478453
477301 v3 saf1

2
3
4
5
6
7
8
9

Vv. CONCLUSION

Discovery has confirmed that Solutia cannot and does not bear any responsibility for any
harm allegedly suffered by Window Solutions, or by any other party. Solutia fulfilled its contractual
obligations, and honored its warranty during the warranty period. There is no basis for any claim,
and Solutia should not be put to the expense of preparing for and attending the trial of this matter.
Solutia is entitled to summary judgment on the entire complaint, or in the alternative to summary
adjudication on each individual cause of action.

Respectfully submitted,

Dated: September 27, 2012 BRYAN CAVE LLP

Hn

Adam Brezine

Attorneys for Cross-Defendant
SOLUTIA INC.

15

Solutia’s Motion for Summary Judgment or Adjudication
Case No. CGC 08-478453
#77301 V3 sal