Motion-Secondary: THE INFINITY OWNERS ASSOCIATION VS. 300 SPEAR REALTY VENTURE, LLC ET AL

On May 25, 2017 a Motion-Secondary was filed involving a dispute between 300 Spear Realty Venture, Llc, Griswold Controls, Llc, Laars Heating Systems Company, Permasteelisa North America Corp., Red-White Valve Corp., Viracon, Inc., Watermark Designs Ltd., Webcor Construction, Lp,, Zurn Industries Llc, The Infinity Owners Association, and 300 Spear Realty Venture, Llc, Allied Tube & Conduit Corporation, Deneef Construction Chemicals, Inc., Does 1 Through 400 Inclusive, Griswold Controls, Llc, J.W. Mcclenahan Co., Kryton International Inc., Laars Heating Systems Company, Leonard Valve Company, Permasteelisa North America Corp., Red-White Valve Corp., Roy E. Hanson Jr. Manufacturing, Victaulic Company, Viracon, Inc., Watermark Designs Ltd., Webcor Builders, Inc., Webcor Construction, Lp,, Wessels Company, Zurn Industries Llc, for CONSTRUCTION in the District Court of San Francisco County.

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1 Bruce Mayfield, Esq., SBN 57730
bmayfield@fentongrant.com
2 Charles M. Litt, Esq., SBN 178401 ELECTRONICALLY
charleslitt@fentongrant.com F I L E D
3 John Stander, Esq., SBN 168392 Superior Court of California,
j stander@fentongrant.com County of San Francisco

4 FENTON GRANT MAYFIELD KANEDA & LITT, LLP 06/12/2020
1255 Treat Boulevard, Suite 805 Clerk of the Court
5 Walnut Creek, CA 94597 BY: RONNIE OTERO
Deputy Clerk
Tel: (925) 357-3135 / Fax: (925) 705-4743
6 Attorneys for Plaintiff,
THE INFINITY OWNERS ASSOCIATION
7
8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 COUNTY OF SAN FRANCISCO
10 THE INFINITY OWNERS ASSOCIATION, a Case No.: CGC-17-559163
California nonprofit mutual benefit corporation,
11 Assigned for all purposes to Judge A. C.
Plaintiff, Massullo, Department 304, Complex
12 v. Litigation Dept.
13 300 SPEAR REALTY VENTURE, LLC, a PLAINTIFF THE INFINITY OWNERS
Delaware limited liability company; WEBCOR ASSOCIATION'S JOINT
14 CONSTRUCTION L.P., a successor-in-interest to OPPOSITION TO:
WEBCOR CONSTRUCTION, INC., dba 1) DEFENDANTS 300 SPEAR
15 WEBCOR BUILDERS, a California limited REALTY VENTURE, LLC AND
liability partnership; PERMASTEELISA NORTH WEBCOR CONSTRUCTION L.P.'S
16 AMERICA CORP., a Delaware corporation; and JOINT MOTION FOR SUMMARY
DOES 1 through 400 inclusive, ADJUDICATION OF PLAINTIFF'S
17 FIRST AND FOURTH CAUSES OF
Defendants. ACTION, AND CLAIMS RELATING
18 TO PLUMBING ISSUES;
300 SPEAR REALTY VENTURE, LLC, a 2) CROSS-DEFENDANT
19 Delaware limited liability company, WATERMARK DESIGN LTD'S
MOTIONS FOR SUMMARY
20 Cross-Complainant, JUDGMENT OR IN THE
v. ALTERNATIVE SUMMARY
21 ADJUDICATION OF DEFENDANT
PERMASTEELISA NORTH AMERICA CORP., 300 SPEAR REALTY VENTURE,
22 VIRACON, INC.; VICTAULIC COMPANY; CLA- LLC'S CROSS-COMPLAINT AND
VAL CO.; LEONARD VAL VE COMPANY; WEBCOR BUILDERS' CROSS-
23 GRISWOLD CONTROLS, LLC; XYLEM INC., COMPLAINT;
dba BELL & GOSSETT; RED-WHITE VALVE 3) CROSS-DEFENDANT ZURN
24 CORP.; ZURN INDUSTRIES LLC; INDUSTRIES. LLC'S MOTION FOR
WATERMARK.DESIGNS LTD.; LAARS SUMMARY ADJUDICATION OF
25 SYSTEMS INC.; WESSELS COMPANY; DE PLAINTIFF'S CLAIMS RELATING
NEEF CONSTRUCTION CHEMICALS (US) INC; TO PLUMBING ISSUES, OR
26 KRYTON INTERNATIONAL INC. and ROES 1 to ALTERNATEILY SHAWER AND TUB
100, inclusive, VAL VE ISSUES;
27 RED-WHITE VALVE CORP.'S
Cross-Defendants MOTION FOR SUMMARY
28 ADJUCATION; AND

PLAINTIFF'S JOINT OPPOSITION TO MOTIONS FOR SUMMARY ADJUDICATION
GRISWOLD CONTROLS' LLC'S
1 MOTION FOR SUMMARY
JUDGMENT
2
Date: August 11-12, 2020
3 Time: 9:15 a.m. & 10:00 a.m.
Dept: 304
4
Complaint Filed: May 25, 2017
5 Trial Date:, October 13, 2020
6
7
AND ALL RELATED ACTIONS
8

9 COMES NOW Plaintiff THE INFINITY OWNERS ASSOCIATION (hereafter

10 "ASSOCIATION") and hereby jointly opposes the following motions:

11 1) DEFENDANT 300 SPEAR REALTY VENTURE, LLC .AND WEBCOR
CONSTRUCTION L.P. 'S JOINT MOTION FOR SUMMARY ADJUDICATION OF
12 PLAINTIFF'S FIRST AND FOURTH CAUSES OF ACTION, AND CLAIMS
RELATING TO PLUMBING ISSUES;
13

14 2) CROSS-DEFENDANT WATERMARK DESIGN LTD'S MOTIONS FOR SUMMARY
JUDGMENT OR IN THE ALTERNATIVE SUMMARY ADJUDICATION OF
15 DEFENDANT 300 SPEAR REALTY VENTURE, LLC'S CROSS-COMPLAINT AND
WEBCOR BUILDERS' CROSS-COMPLAINT;
16
3) CROSS-DEFENDANT ZURN INDUSTRIES. LLC'S MOTION FOR SUMMARY
17
ADJUDICATION OF PLAINTIFF'S CLAIMS RELATING TO PLUMBING ISSUES,
18 OR ALTERNA TEL Y SHOWER AND TUB VALVE ISSUES;

19 4) CROSS-DEFENDANT RED-WHITE VALVE CORP.'S MOTION FOR SUMMARY
ADJUCATION; and
20
5) CROSS-DEFENDANT GRISWOLD CONTROLS' LLC'S MOTION FOR SUMMARY
21
JUDGMENT.
22
ASSOCIATION's Joint Opposition is based upon the attached Memorandum of Points and
23
Authorities, ASSOCIATION's Separate Statement of Facts, and the Declarations of Harvey
24
Kreitenberg, Dr. Arun Kumar, and John Stander, and the respective exhibits thereto filed
25
concurrently herewith.
26
27
Ill

PLAINTIFF'S JOINT OPPOSITION TO MOTIONS FOR SUMMARY ADJUDICATION
TABLE OF CONTENTS
1
PAGE
2 MEMORANDUM OF POINTS AND AUTHORITIES ................................................... 1

3 I. INTRODUCTION ................................................................................. 1

4 II. STATEMENT OF FACTS ........................................................................ 2
5 A. WATERMARK AND ZURN TUB AND SHOWER FIXTURES AND VALVES ..... .3
6 B. GRISWOLD CIRCUIT SETTERS .............................................................. 4
C. RED-WHITE SHUT OFF VALVES ............................................................ 4
7 D. 300 SPEAR AND WEBCOR ..................................................................... 4
E. VICTAULIC COUPLING GASKETS AND BUTTERFLY VALVES ................... 5
8 F. LEONARDTEMPERINGVALVES ........................................................... 6
9 III. ARGUMENT ........................................................................................ 6
10
A. STRUCTURE OF THE RIGHT TO REP AIR ACT AND ITS STATUTES OF
11 LIMITATIONS ..................................................................................... 7

12 B. THE RULES OF STATUTORY CONSTRUCTION DICTATE THAT THE
FUNCTIONALITY STANDARDS MOVING PARTIES VIOLATED ARE
13 GOVERNED BY THE TEN-YEAR STATUTE OF LIMIATATIONS .................... 9
14
C. THE CANON OF STATUTORY INTERPRETATION THAT A SPECIFIC
15 PROVISION GOVERNS OVER A GENERAL PROVISION, DOES NOT APPLY
HERE ............................................................................................... 12
16
D. THE WORK OF EACH OF THE MOVING PARTIES VIOLATES ONE OR MORE
17 OF THE FUNCTIONALITY STANDARDS GOVERNED BY THE TEN YEAR
18 STATUTE OF LIMITATIONS ................................................................. 14

19 1. CROSS DEFENDANTS WATERMARK AND ZURN ........................... 14
2. CROSS DEFENDANT GRISWOLD ................................................ 15
20 3. CROSS DEFENDANT RED-WHITE ................................................ 16
4. CROSS DEFENDANT VICTAULIC ................................................ 16
21
5. CROSS DEFENDANT LEONARD VALVE........................................ 17
22 6. DEFENDANTS 300 SPEAR AND WEBGOR ...................................... 17

23 E. PLAINTIFF'S CAUSES OF ACTION FOR NEGLIGENCE AND STRICT
LIABILITY ARE APPROPRIATELY PLED ................................................ 18
24
IV. CONCLUSION ................................................................................... 18
25
26

27
28

PLAINTIFF'S JOINT OPPOSITION TO MOTIONS FOR SUMMARY ADJUDICATION
TABLE OF AUTHORITIES
1
CASES PAGE
2 Becerra v. Super. Ct. of City and County ofSan Francisco
(2020) 44 Cal.App.5th 897 ........................................................................... 13
3 Collection Bureau ofSan Jose v. Rumsey
(2000) 24 Cal.4th 301 ........................................................................... .12, 13
4 De Anza Santa Cruz Mobile Estates Homeowners Assn. v.De Anza Santa Cruz Mobile Estates
5 (2001) 114 Cal. Rptr. 2d 708 ........................................................................ 10
Dyna-Med, Inc. v. Fair Employment & Housing Com.
6 (1987) 43 Cal.3d 1379, Cal.Rptr. 67, 743 P.2d 323 ............................................... 9
Granite Construction Co. v.Superior Court
7 (1983) 149 Cal.App.3d 465 ......................................................................... .10
Kane v. Hurley
8
(1994) 30 Cal.App.4th 859 ........................................................................ 9
9 Kohler Co. v. Superior Court
(2018) 29 Cal.App.5th 55 ................................................................. , .......... 10
10 Manufacturers Life Ins. Co. v. Superior Court
(1995) 10 Cal.4th 257 ................................................................................ .10
11 McMillin Albany LLC v. Superior Court ·
(2018) 4 Cal.5th241 ...................................................................... 7, 11, 12, 18
12
Medical Bd. of California v. Superior Ct. ·
13 (2001) 88 Cal.App.4th 1001 .............................. ;·..................................... 13, 14
Ruiz v. Sylva
14 (2002) 102 Cal.App.4th 199 ........................................................................... 9
Ventura County Deputy Sheriffs' Assn. v. Board of Retirement
15 (1997) 16 Cal. 4th 483 ................................................................................ 10
16
CIVIL CODE /CIVIL PROCEDURE SECTIONS
17 Civil Code Section 895 ....................................................................................... 1, 7
Civil Code Section 896 ...................................... , .............................. , .......... ..passim
18 Civil Code Section 897 ................................................................................. .passim
Civil Code Section 911 ............................................ , ......................... , .............. 5, 17
19 Civil Code Section 93 6 ................................... , ... , ....... , ................... , .................... 18
Civil Code Section 941 ............................................................. 2, 8, 9, 10, 11, 12, 14, 20
20
Civil Code Section 942 ............................................................... , .......................... 7
21 Civ. Proc. Code §1858 ................................................................................... , ..... 11

22 OTHER CITES
82 C.J.S. Statutes§ 407 ....................................................................... , ............... 11
23

28
ii
PLAINTIFF'S JOINT OPPOSITION TO MOTIONS FOR SUMMARY ADJUDICATION
MEMORANDUM OF POINTS AND AUTHORITIES
1

2 I. INTRODUCTION

Defendants 300 SPEAR REALTY VENTURE, LLC (hereafter "300 Spear") and
3
WEBCOR CONSTRUCTION, L.P. ("Webcor"), and Cross-Defendants GRISWOLD
4
CONTROLS, LLC (hereafter "Griswold"), RED-WHITE VAL VE CORP. (hereafter "Red-White
5
Valve"); ZURN INDUSTRIES LLC, (hereafter "Zurn"); and WATERMARK DESIGNS LTD.;
6
(hereafter "Watermark") (all collectively referred to hereafter as "Moving Parties") all make the
7
same argument to support their respective motions for summary judgment and/or adjudication-
8
that ASSOCIATION's plumbing claims are barred by the four-year statute of limitations set forth
9
in in Civil Code section 896(e ).
10
The argument is without merit. ASSOCIATION does not seek to assert claims pursuant to
11
Civil Code section 896(e ). Rather, ASSOCIATION asserts its plumbing claims under Civil Code
12
sections 896 paras.(a)14 ("The lines and components of the plumbing system, sewer system, and
13
utility systems shall not leak"); (a)15 ("Plumbing lines, sewer lines, and utility lines shall not
14
corrode so as to impede the useful life of the systems"); (a)l 7 ("Showers, baths, and related
15
waterproofing systems shall not leak water into the interior of walls, flooring systems, or the
16
interior of other components"); (g)(3)(A) ("To the extent not otherwise covered by these standards,
17
manufactured products, including, but not limited to ... plumbing products and fixtures ...shall be
18
installed so as not to interfere with the products' useful life"), and Civil Code section 897 ("To the
19
extent that a function or component of a structure is not addressed by these standards, it shall be
20
actionable if it causes damage.") Each of those functionality standards are expressly governed by
21
a ten-year statute of limitations.
22
Moving Parties' argument fails to recognize the careful and deliberate statutory scheme set
23
forth in Civil Code sections 895 et seq., commonly referred to as the Right to Repair Act ("the
24
Act"). The Act enumerates multiple functionality standards for residential construction that if
25
violated, give rise to liability. The functionality standards are set out in Civil Code sections 896
26
and 897. Several of the functionality standards have a limitations period set forth directly in the
27
paragraph containing that functionality standard, solely applicable to that functionality standard.
28
1
PLAINTIFF'S JOINT OPPOSITION TO MOTIONS FOR SUMMARY ADJUDICATION
For functionality standards that do not contain a specific limitations period, the limitations period
1
is ten years. This is stated clearly in Civil Code section 941:
2
Except as specifically set forth in this title,no action may be brought to recover
3 under this title more than 10 years after substantial completion of the
improvement but not later than the date of recordation of a valid notice of
4 completion.
5
Civ. Code §941(a) (emphasis added).
6 Moving Parties seek to apply a four-year limitations period contained in a single
7 functionality standard subdivision, Civil Code section 896(e) to allplumbing related functionality
8 standards, no matter where they are in the statute. Moving Parties ignore the fact that Civil Code
9 section 896 subdivision (e), by its express language, limits its application to a violation of
10 subdivision (e). "However, no action shall be brought for a violation of this subdivision more than
11 four years after close of escrow." Civ. Code §896(e) (emphasis added.) Moving parties argue that
12 the four year limitation period set forth in Civil Code section _896( e) should be applied to violation
13 of all plumbing related standards, which are contained in entirely different subdivisions.
14 The Legislature did not intend to have all plumbing related claims subject to a four-year
15 limitations period. If that had been its intent, it would have put a similar limitations period in each
16 plumbing related functionality standard as it did in other subdivisions where it desired to impose a
17 limitations period less than ten years. Alternatively, the Legislature could have put a single
18 limitations period on all plumbing related functionality standards in a single subdivision, making
19 clear that a four-year limitations period applied to all of them. The law is clear, the legislature did
20 not do this. It must be presumed that the Legislature intended to do what it did. Moving Parties are
21 asking the Court to rewrite the Act. Their motions must be denied.
22 II. STATEMENT OF FACTS
23 The scope of work performed by each of the Moving Parties at the Infinity resulted in
24 violations of one or more of the following functionality standards in the Act:
25 1) The lines and components of the plumbing system, sewer system, and utility systems
shall not leak. (Civ. Code §896(a)(14));
26
2) Plumbing lines, sewer lines, and utility lines shall not corrode so as to impede the
27 useful life of the systems. (Civ. Code §896(a)(l5); and
28
2
PLAINTIFF'S JOINT OPPOSITION TO MOTIONS FOR SUMMARY ADJUDICATION
3) Showers, baths, and related waterproofing systems shall not leak water into the interior
1 of walls, flooring systems, or the interior of other components. (Civ. Code §896(a)(l 7).

2 4) To the extent not otherwise covered by these standards, manufactured products,
including, but not limited to ...plumbing products and fixtures ... , shall be installed so
3 as not to interfere with the products' useful life. (Civ. Code §896(g)(3)(A); and
4
5) To the extent that a function or component of a structure is not addressed by these
5 standards, it shall be actionable if it causes damage. (Civ. Code §897).

6 A. WATERMARK AND ZURN TUB AND SHOWER FIXTURES AND

7 VALVES

8 Cross-Defendant, Watermark, supplied shower and tub valves, and trim kits. Declaration of

9 Harvey Kreitenberg ("Kreitenberg Dec.") at ,r7;Watermark's Separate Statement of Undisputed

10 Facts ("SSUF") No. 8. The in-wall shower and tub valves integrated into and sold with the

11 Watermark kits were manufactured by Zurn. Kreitenberg Dec. at ,r7; Watermark SSUF No.IO. The

12 shower and tub valves and trim kit installation demonstrated a number of problems. The

13 installations were inspected by Plaintiff's plumbing expert, Harvey Kreitenberg, and the valves

14 were harvested and analyzed in a laboratory by Plaintiff's metallurgical expert, Dr. Arun Kumar.

15 (See Kreitenberg Dec. at ,r7; Declaration of Dr. Arun Kumar ("Kumar Dec.") at ,r4.)

16 The Zurn shower valves installed at the Infinity have malfunctioned. (Deposition of Glenn

17 Fay, Vol. 1 ("Fay Depo."), attached as Ex. 3 to Declaration of John Stander ("Stander Dec,") at pp.

18 177:20-180:20; Kreitenberg Dec. at ,rs). The valves were analyzed by Dr. Kumar, who concluded

19 among other things, that the stainless steel control pistons within the valves are getting stuck inside

20 the brass body. (Kumar Dec. at ,r4, and Ex. 2 thereto.) This is due to corrosion build-up over time

21 by galvanic corrosion of high-leaded red brass in contact with stainless steel. Id. The high lead and

22 zinc containing corrosion products accumulate at the stainless steel/brass body interface and cause

23 the seizing. Id.

24 The shower and tub assemblies and trim manufactured by Cross-defendant Watermark,

25 also leaked. The shower and tub assemblies were water tested by Plaintiff's experts. Kreitenberg

26 Dec. at ,r9. During testing, the assemblies leaked into the interior of the wall. (Kreitenberg Dec. at

27 ,r9, and Ex. 5 thereto.) The testing revealed that the Watermark trim-plates and trim-sleeve

28 connections were not water-tight, allowing water to penetrate the waterproofing barrier of the
3
PLAINTIFF'S JOINT OPPOSITION TO MOTIONS FOR SUMMARY ADJUDICATION
shower area into the interior of the wall. Id. Testing revealed that the Watermark spout nipples
1
were also not properly sealed, also allowing water to penetrate the waterproofing barrier of the
2
shower area, allowing water into the interior of the wall. Id.
3
B. GRISWOLD CIRCUIT SETTERS
4
Cross-defendant Griswold manufactured the automatic flow control valves installed in the
5
domestic hot water lines at the Infinity buildings. (Kreitenberg,Dec. at ,r4; Griswold's SSUF, Nos.
6
10, 11.) The Griswold automatic flow control valves were observed to have "meringue" coating
7
the surface of the valve, which is a visual indication of dezi.ncification of the yellow brass valve
8
body. (Kreitenberg Dec. at ,r4, and Ex. 2 thereto; Kumar Dec. at ,rs,and Ex. 3 thereto.) Several of
9
the Griswold automatic flow control valves were harvested; and analyzed by Dr. Kumar in the
10
laboratory. (Kumar Dec. at ,rs.) The flow control valve bodies are made from leaded yellow brass
11
with zinc content at 38.7 weight percent, which is susceptible to dezincification corrosion by
12
water. Id. The examined valve shows dezincification corrosion and damage through the wall
13
thickness causing water leak on the outside surface. (Kumar Dec. at ,rs, and Ex. 3 thereto.) This
14
corrosion reduces the valves' useful life. Kreitenberg Dec. at ,r4.
15
C. RED-WHITE SHUT OFF VALVES
16
Cross-Defendant Red-White Valve manufactured the shutoff valves installed in the
17
domestic hot water lines at the Infinity buildings. (Kreitenberg Dec. at ,rs;Red-White's SSUF,
18
Nos. 15, 16), The Red-White shutoff valves exhibited signs of leaking, and dezincification.
19
(Kreitenberg Dec. at ,rs, and Ex. 3 thereto). Several of the Red-White shut off valves were
20
harvested, and analyzed by Dr. Kumar in the laboratory. (Kumar Dec. at ,r6, and Ex. 4 thereto.) Dr.
21
Kumar determined that the Red-White shutoff valve body is made from leaded yellow brass with
22
zinc content around 40 weight percent, which has suffered dezincification corrosion. (Kumar Dec.
23
at ,r6,and Ex. 4 thereto.) The examined valve shows dezincification corrosion through the wall of
24
the valve, causing damage and a water leak on the outside surface. Id.
25
D. 300 SPEAR AND WEBCOR
26
Defendant 300 Spear was the developer of the Infinity project. (See Response of Defendant
27
and Cross-Complainant 300 Spear Realty Venture, LLC to Scope of Work and General
28
4
PLAINTIFF'S JOINT OPPOSITION TO MOTIONS FOR SUMMARY ADJUDICATION
Background Interrogatories, p. 2:9, attached as Ex. 1 to Stander Dec.) Defendant Webcor was the
1
general contractor of the Infinity project, with all of the subcontractors under its supervision. (See
2
Webcor Construction, L.P,'s Responses to CMO #3, Ex.·· F, Scope of Work and General
3
Background Interrogatories, pp. 2:17-10:21, attached as Ex. 2 to Stander Dec.)
4
As developer, 300 Spear is responsible for all the work performed by Webcor and all the
5
subcontractors and suppliers working under them on the project. See Civ. Code §§896, 911. They
6
are thus subject to claims involving the defective conditions described above. They are equally
7
subject to other plumbing claims for violations of the functionality standards set forth in Civ. Code
8
sections 896(a)(14), 896(a)(15), 896(a)(l 7), 896(g)(3)(A), and section 897 as follows:
9
E. VICTAULIC COUPLING GASKETS AND BUTTERFLY VALVES
10
There has been an ongoing issue at the Infinity of large quantities of small black particles
11
in the domestic water system. (Fay Depo., at 122:4-20; 151 :1 f-16.) The building is plumbed with
12
coupling gaskets connecting the pipes. (Kreitenberg Dec. at ~10.) The coupling gaskets are
13
manufactured by Victaulic Company. Id. A number of the Victaulic coupling gaskets were
14
harvested from the Infinity buildings and were submitted Dr. Kumar for analysis. (Kumar Dec. at
15
~8, and Ex. 6 thereto.)
16
The gaskets were of two types, type 606 gaskets and type 607 gaskets. Id. The gaskets are
17
made by Victaulic from EPDM (Ethylene-Propylene-Diene-Monomer) synthetic rubber. Id. Both
18
606 and 607 gaskets have disintegrated and degraded in the potable water system in the Infinity
19
buildings. (Kumar Dec. at ~8, and Ex. 6 thereto.) In San Francisco, the domestic water has pH
20
values in the high 8 to 9 range and the water is disinfected' by chloramine. (Kumar Dec. at ~8.)
21
Both types of gaskets have material loss on the inner diameter surfaces of the gasket exposed to
22
water. (Kumar Dec. at ~8, and Ex. 6 thereto.)
23
The EPDM rubber formulation of Victaulic gaskets is becoming degraded, softer and is
24
damaged and disintegrating in high pH potable water containing chloramine through the process of
25
oxidation. (Kumar Dec. at ~8.) The degradation and disintegration of the gaskets has interfered
26
with the useful life of the component and of the plumbing lines in which they are installed.
27
(Kreitenberg Dec. at ~10.)
28
5
PLAINTIFF'S JOINT OPPOSITION TO MOTIONS FOR SUMMARY ADJUDICATION
There are a number of butterfly valves in the Infinity Buildings, also manufactured by
1
'
Victaulic Company. (Kreitenberg Dec. at ~10.) Two Victaulic butterfly valves were harvested
2
from the Infinity buildings (due to being stuck and non-operational) and were submitted to Dr.
3
Kumar for failure analysis as well as to determine the degradation mechanism of the EPDM rubber
4
coating on the valve seats. (Kumar Dec. at ~7, and Ex. 5 thereto.) The valve seats are made from
5
iron casting and coated with EPDM rubber. Id. The EPDM rubber coating had degraded and
6
cracked causing the valve seats to get stuck and the valve inoperable. Id. This degradation has
7
impaired the functionality and useful life of the valves. (Kreitenberg Dec. at ~10.)
8
Water filters were installed at the Infinity buildings after original construction to filterout
9
black particles in the water. (Fay Depo., Vol. I at 149:17-150:9.) Water filter cartridges harvested
10
and brought to Dr. Kumar for an analysis of the composition and source of the black particles
11
collected in the filters show the black particles are EPDM rubber, most probably from the
12
Victaulic gaskets which have deteriorated. (Kumar Dec. at ~9.) Dr. Kumar analyzed water filters
13
removed in 2016 and 2018, and found no appreciable difference .in the amount of particles in the
14
filters, indicating the black particles in the water system is an ongoing issue brought about by
15
degrading EPDM rubber being shed into the water system from theVictaulic gaskets. (Kumar Dec.
16
at ~9, and Ex. 7 thereto.)
17
F. LEONARD TEMPERING VALVES
18
There are a number of tempering valves in the Infinity Buildings, manufactured by Leonard
19
Valve Company. (Kreitenberg Dec. at ~6.) The tempering valves were inspected, and were found
20
to have corroded, causing the components to leak, and compromising the functionality of the
21
plumbing line, and compromising the useful life of the components and system. (Kreitenberg Dec.
22
at ~6, and Ex. 4 thereto.)
23
III. ARGUMENT
24
The sole argument made by each MOVING PARTY is that the ASSOCIATION's
25
plumbing claims are barred by the four year statute of limitations set forth in Civ. Code §896,
26
subd,(e). Their arguments are contrary to conventional statutory construction and the express
27
language and structure of the Right to Repair Act.
28
6
PLAINTIFF'S JOINT OPPOSITION TO MOTIONS FOR SUMMARY ADJUDICATION
A. STRUCTURE OF THE RIGHT TO REPAIR ACT AND ITS STATUTES OF
1 LIMITATIONS

2 Civil Code sections 895 et seq., commonly referred to as the Right to Repair Act ("the

3 Act") establishes a set of functionality standards for residential construction, and provides liability

4 for builders and individual product manufacturers that fail to meet those functionality standards.

5 Civ. Code §§896, 942; McMillin Albany LLC v. Superior Court (2018) 4 Cal.5th 241, 250.
In any action seeking recovery of damages arising out of, or related to
6
deficiencies in, the residential construction, design, specifications, surveying,
7 planning, supervision, testing, or observation of construction, a builder, and to the
extent set forth in Chapter 4 (commencing with section 910), a general contractor,
8 subcontractor, material supplier, individual product manufacturer, or design
professional, shall, except as specifically set forth in this title,be liable for, and
9 the claimants claims or causes of action shall be limited to violation of, the
following standards, except as specifically set forth in this title.
10

11 Civ. Code §896.

12 Chapter Two of the Act contains two sections; sections 896 and 897. Section 896 provides

13 a detailed set of functionality standards for residential construction. Section 897 "... provides a
14 supplemental standard for any building components that section 896 may have overlooked."
15
McMillin, supra, 4 Cal.5th at p. 253. With regard to statutes of limitations, certain functionality
16
standards enumerated in section 896 have a specific limitations period specified within the same
17
functionality standard. The functionality standard cited by Moving Parties is one example of this.
18

19 It states:

20 Plumbing and sewer systems shall be installed to operate properly and shall not
21 materially impair the use of the structure by its inhabitants. However, no action
may be brought for a violation of this subdivision more than four years after close
22 of escrow.

23 Civ. Code §896(e)(emphasis added.)

24 Similarly, section 896 subdivision (g)(8) provides that with regard to untreated wood posts
25
installed in contact with the soil," ... no action shall be brought pursuant to this paragraph more
26
than two years from close of escrow." Civ. Code §896(g)(8)(emphasis added.) See also, e.g., Civ.
27
Code §896(g)(14) (Action concerning certain functionality of dryer ducts states"" ... no action
28
7
PLAINTIFF'S JOINT OPPOSITION TO MOTIONS FOR SUMMARY ADJUDICATION
shall be brought pursuant to this paragraph more than two years from close of escrow.") It must be
1
noted that all of these shorter, specific limitations periods limit themselves to actions brought
2
pursuant to the specific paragraph (or undivided subdivision) they are contained in, including the
3
one cited by Moving Parties, in section 896 subdivision (e).
4

5 The vast majority of the functionality standards listed in section 896 do not include a
6
specific limitations period, however. Examples of standards that do not specifically reference a
7 limitations period include those that are relevant to this motion and Plaintiffs plumbing claims:
8 1. The lines and components of the plumbing system, sewer system, and utility systems
shall not leak. (Civ. Code §896(a)(14));
9
2. Plumbing lines, sewer lines, and utility lines shall not corrode so as to impede the useful
10
life of the systems. (Civ. Code §896(a)(15)); and
11
3. Showers, baths, and related waterproofing systems shall not leak water into the interior
12 of walls, flooring systems, or the interior of other components. (Civ. Code §896(a)(l 7)).

13 4. To the extent not otherwise covered by these standards, manufactured products,
including, but not limited to, windows, doors, roofs, plumbing products and fixtures,
14 fireplaces, electrical fixtures, HV AC units, countertops, cabinets, paint, and appliances
shall be installed so as not to interfere with the products useful life, if any. (Civ. Code §896
15 subd. (g)(3)(A).)

16 5. The standard set forth in just this chapter are intended to address every function or
component of a structure. To the extent that a function or component of a structure is not
17 addressed by these standards it shall be actionable if it causes damage. (Civil Code §897.)
18 The limitations period for all of the functionality standards, such as these, that do not
19
include a specific limitations period, is addressed in section 941, which states:
20
Except as specifically set forth in this title,no action may be brought to recover
21 under this title more than 10 years after substantial completion of the
improvement but not later than the date of recordation of a valid notice of
22 completion.
23 Civ

Case Info

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CURTIS E.A Track Judge’s New Case

Case No.

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Document Filed Date

June 12, 2020

Case Filing Date

May 25, 2017

County

Parties

300 SPEAR REALTY VENTURE, LLC Cross Complainant
300 SPEAR REALTY VENTURE, LLC Defendant
ALLIED TUBE & CONDUIT CORPORATION Cross Defendant
ALLIED TUBE & CONDUIT CORPORATION Defendant
BAKER, CHRIS Attorney
BAKER, CHRIS Attorney for the Defendant
BELLAGAMBA, ROBERT A Other
BELLAGAMBA, ROBERT ARTHUR Attorneys for Defendants
BLAKE, ALBERT PORTER Attorneys for Defendants
BOARDMAN, NORA R. Attorney
BOARDMAN, NORA R. Attorney for the Defendant
BOHM, JAMES G. Attorneys for Defendants
BOHM, JAMES G. Attorney for the Defendant
CALIFORNIA HYDRONICS CORPORATION Cross Defendant
CANNON, CATHERINE M. Attorneys for Defendants
CANNON, CATHERINE M. Attorney for the Defendant
CLA-VAL CO. Cross Defendant
COHEN, DEIDRE F Attorneys for Defendants
COHEN, DEIDRE F Attorney for the Defendant
DENEEF CONSTRUCTION CHEMICALS, INC. Cross Defendant
DENEEF CONSTRUCTION CHEMICALS, INC. Defendant
DE NEEF CONSTRUCTION CHEMICALS (US) INC Cross Defendant
DOES 1 THROUGH 100, INCLUSIVE Cross Defendant
DOES 1 THROUGH 400 INCLUSIVE Defendant
FOES 1 THROUGH 20, INCLUSIVE Cross Defendant
FORD, ROBERT ANDREW Attorneys for Defendants
FORD, ROBERT ANDREW Attorney for the Defendant
GRANT, ROGER J. Attorney for the Plaintiff
GRISWOLD CONTROLS, LLC Cross Complainant
GRISWOLD CONTROLS, LLC Cross Defendant
GRISWOLD CONTROLS, LLC Defendant
J.W. MCCLENAHAN CO. Cross Defendant
J.W. MCCLENAHAN CO. Defendant
J.W. MCCLENEHAN Cross Defendant
KAPLAN, SANDY MITCHELL Attorneys for Defendants
KAPLAN, SANDY MITCHELL Attorney for the Defendant
KRYTON INTERNATIONAL INC. Cross Defendant
KRYTON INTERNATIONAL INC. Defendant
LAARS HEATING SYSTEMS COMPANY Cross Complainant
LAARS HEATING SYSTEMS COMPANY Cross Defendant
LAARS HEATING SYSTEMS COMPANY Defendant
LAARS SYSTEMS INC. Cross Defendant
LEACH, BRIAN Attorneys for Defendants
LEACH, BRIAN Attorney for the Defendant
LEONARD VALVE CO. Cross Defendant
LEONARD VALVE COMPANY Cross Defendant
LEONARD VALVE COMPANY Defendant
LIFTER, JILL JAYE Attorneys for Defendants
LIFTER, JILL JAYE Attorney for the Defendant
LIVINGSTON, RENEE WELZE Attorney
LIVINGSTON, RENEE WELZE Attorney for the Defendant
LORBER, BRUCE W. Attorney
MARCHANT, WILLIAM L Attorneys for Defendants
MARCHANT, WILLIAM L Attorney for the Defendant
MCINERNEY, WILLIAM HUGH Attorneys for Defendants
MEEHAN, JOHN ROBERT Attorneys for Defendants
MEEHAN, JOHN ROBERT Attorney for the Defendant
MOES 1 THROUGH 100, INCLUSIVE Cross Defendant
MOES 1 THROUGH 25, INCLUSIVE Cross Defendant
MOES 1 TO 100, INCLUSIVE,, Cross Defendant
MOES 2 TO 100, INCLUSIVE Cross Defendant
MOOSHEKH, ALAN Attorneys for Defendants
MULBARGER, MITCHELL F Attorneys for Defendants
MULBARGER, MITCHELL F Attorney for the Defendant
NELDER, ROBERT LEE Attorneys for Defendants
NELDER, ROBERT LEE Attorney for the Defendant
NORMANDIN, TOM RODDY Attorneys for Defendants
NORMANDIN, TOM RODDY Attorney for the Defendant
PERMASTEELISA CLADDING TECHNOLOGIES, LP Cross Defendant
PERMASTEELISA CLADDING TECHNOLOGIES, LTD. Cross Defendant
PERMASTEELISA NORTH AMERICA CORP. Cross Complainant
PERMASTEELISA NORTH AMERICA CORP. Cross Defendant
PERMASTEELISA NORTH AMERICA CORP. Defendant
PETERSON, PATRICIA J. Attorneys for Defendants
PETERSON, PATRICIA J. Attorney for the Defendant
RANGEL, JOANN M. O. Attorneys for Defendants
RANGEL, JOANN M. O. Attorney for the Defendant
RED-WHITE VALVE CORP. Cross Complainant
RED-WHITE VALVE CORP. Cross Defendant
RED-WHITE VALVE CORP. Defendant
ROES 1 TO 100, INCLUSIVE Cross Defendant
ROY E. HANSON JR. MANUFACTURING Cross Defendant
ROY E. HANSON JR. MANUFACTURING Defendant
SCHMIDT, PARRIS H Attorneys for Defendants
SCHMIDT, PARRIS H Attorney for the Defendant
SCHNEIDER, WILLIAM PATRICK Attorneys for Defendants
SCHNEIDER, WILLIAM PATRICK Attorney for the Defendant
SHEM, MARK WILLIAM Attorneys for Defendants
SHEM, MARK WILLIAM Attorney for the Defendant
SMITH, KARA ANN Attorneys for Defendants
SMITH, KARA ANN Attorney for the Defendant
THE INFINITY OWNERS ASSOCIATION Plaintiff
TOLLEFSON, SUZANNE A Attorney
TOLLEFSON, SUZANNE A Attorney for the Defendant
VICTAULIC COMPANY Cross Defendant
VICTAULIC COMPANY Defendant
VIRACON, INC. Cross Complainant
VIRACON, INC. Cross Defendant
VIRACON, INC. Defendant
WALOVICH, JOHN PAUL Attorneys for Defendants
WALOVICH, JOHN PAUL Attorney for the Defendant
WATERMARK DESIGNS LTD. Cross Complainant
WATERMARK DESIGNS LTD. Cross Defendant
WATERMARK DESIGNS LTD. Defendant
WEBCOR BUILDERS, INC. Defendant
WEBCOR CONSTRUCTION, LP, Cross Complainant
WEBCOR CONSTRUCTION, LP, Defendant
WESSELS CO. Cross Defendant
WESSELS COMPANY Cross Defendant
WESSELS COMPANY Defendant
XYLEM INC. Cross Defendant
ZURN INDUSTRIES LLC Cross Complainant
ZURN INDUSTRIES LLC Cross Defendant
ZURN INDUSTRIES LLC Defendant
Daniel Smith Attorneys for Defendants
Annie Won Attorneys for Defendants
Charles Litt Attorneys for Plaintiffs
Denis Shanagher Attorneys for Defendants
Bill Kollias Attorneys for Defendants
Richard McGreevy Attorneys for Defendants
Douglas Livingston Attorney
Phillip Baker Attorneys for Defendants
John Stander Attorneys for Plaintiffs
Darryl Yee Attorneys for Defendants
Yvonne Jorgensen Attorneys for Defendants
Gregory Hanson Attorneys for Defendants
Michael Hughes Attorneys for Defendants
Michael Burke Attorneys for Defendants
Bruce Mayfield Attorneys for Plaintiffs
Mark Bolin Attorneys for Defendants
Jesse Sullivan Attorneys for Defendants
Christopher Baker Attorneys for Defendants
Richard Eldred Attorneys for Defendants
Christopher Roa Attorneys for Defendants
Robert Ahn Attorneys for Defendants
Matthew Volkmann Attorneys for Defendants
Courtney McFate Attorneys for Defendants
John Hentschel Attorneys for Defendants
Stephen Poirier Attorneys for Defendants
Benjamin Blaisdell Attorneys for Defendants
Victor Wolf Attorney
Mitchell Fox Attorney
Marino Crinella Attorneys for Plaintiffs
Joanna Ma Attorneys for Defendants
Annie Ventocilla Attorneys for Defendants
Catherine Mineo Attorneys for Defendants
Courtney Winzeler Attorneys for Defendants
Karina Smith Attorneys for Defendants
Sandy Meade Attorneys for Defendants
Joseph Kaneda Attorneys for Plaintiffs
Denis Forster Attorneys for Plaintiffs
Roger Jones Attorneys for Plaintiffs
James Givens Attorney
John Jamgotchian Attorney
Charles McGee Attorneys for Plaintiffs
Gregory Turza Attorneys for Defendants
DANIEL SMITH Attorneys for Defendants
Duane Morikawa Attorneys for Defendants
Nora Ramirez-Pelligr Attorneys for Defendants
Stephen Wong Attorneys for Defendants
Matthew Kaplan Attorneys for Defendants
John Cushman Attorneys for Defendants
Richard Frye Attorneys for Defendants
R. Ross Attorney
Bill Hing Attorneys for Defendants
Deidre Katz Attorneys for Defendants
Bruce Wilkinson Attorneys for Defendants
Jill Jones Attorneys for Defendants
Mark Waterman Attorney
William Holcomb Attorneys for Defendants
Thomas Castle Attorney
Peter Dekker Attorney

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Motion-Secondary: THE INFINITY OWNERS ASSOCIATION VS. 300 SPEAR REALTY VENTURE, LLC ET AL

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