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1 BREMER WHYTE BROWN & O’MEARA LLP
Patrick Au, State Bar No. 174327
2 pau@bremerwhyte.com
Catherine Legaspi, State Bar No. 201915
3 clegaspi@bremerwhyte.com
21215 Burbank Boulevard
4 Suite 500
Woodland Hills, California 91367
5 Telephone: (818) 712-9800
Facsimile: (818) 712-9900
6
Attorneys for Cross-Defendant,
7 QUALITY PLASTERING, INC. (MOE 2)
8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 COUNTY OF SANTA BARBARA - SOUTH COUNTY
10
11 JOHN C. ELLSWORTH AND JANICE L. ) Case No. 19CV02346
ELLSWORTH as Trustees of the Casa Gran )
12 Vista Revocable Trust, ) Judge: Hon. Donna Geck
) Dept: 4
13 Plaintiffs, )
) QUALITY PLASTERING INC.’S
14 v. ) OPPOSITION TO KEN TAUB d/b/a KT
) CONSTRUCTION’S MOTION TO
15 SIERRA PACIFIC WINDOWS, A Division of ) CHALLENGE THE APPLICATION
SIERRA PACIFIC INDUSTRIES, a California ) FOR GOOD FAITH SETTLEMENT
16 Corporation; KEN TAUB dba KT ) DETERMINATION WITH
CONSTRUCTION COMPANY DBA TAUB ) PLAINTIFFS; MEMORANDUM OF
17 DESIGNS, a Sole Proprietorship and DOES 1 ) POINTS AND AUTHORITIES;
through 100, Inclusive, ) DECLARATION OF CATHERINE
18 ) LAGMAN-LEGASPI, ESQ.; AND
Defendants. ) DECLARATION OF KEVIN FRANKLIN
19 )
) Complaint Filed: May 2, 2019
20 ) Date: March 29, 2024
AND RELATED CROSS-ACTIONS. ) Time: 10:00 a.m.
21 ) Dept.: 4
22 TO ALL PARTIES AND THEIR RESPECTIVE ATTORNEYS OF RECORD:
23 PLEASE TAKE NOTICE that Cross-Defendant, QUALITY PLASTERING, INC.
24 (“QUALITY”) makes this Opposition to Defendant/Cross-Complainant KEN TAUB d/b/a KT
25 CONSTRUCTION’s motion to challenge Quality’s Application for a Good Faith Settlement
26 Determination. Through this Opposition and previously filed Application for Good Faith
27 Settlement Determination, QUALITY seeks to have its direct settlement with Plaintiffs JOHN C.
28 ELLSWORTH and JANICE L. ELLSWORTH (collectively “PLAINTIFFS”), determined to be in
BREMER WHYTE BROWN &
O’MEARA LLP
21215 Burbank Blvd.
Suite 500 QUALITY PLASTERING INC.’S OPPOSITION TO KEN TAUB d/b/a KT CONSTRUCTION’S MOTION TO CHALLENGE THE
Woodland Hills, CA 91367
(818) 712-9800
APPLICATION FOR GOOD FAITH SETTLEMENT DETERMINATION WITH PLAINTIFFS
1 good faith by this Court, in accordance with the provisions of California Code of Civil Procedure
2 section 877.6(a)(2).
3 This Opposition is based on the attached Memorandum of Points and Authorities, the
4 Declaration of Catherine Lagman-Legaspi, the Declaration of Kevin Franklin, and the previously
5 filed Application for Determination of Good Faith Settlement by Quality Plastering, Inc., the papers
6 and record on file herein, and on such evidence both oral and documentary as may be presented at
7 the hearing of the Motion.
8
9 Dated: March 18, 2024 BREMER WHYTE BROWN & O’MEARA LLP
10
11 By:
Patrick Au
12 Catherine Legaspi
Attorneys for Cross-Defendant
13 QUALITY PLASTERING, INC.
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BREMER WHYTE BROWN &
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O’MEARA LLP QUALITY PLASTERING INC.’S OPPOSITION TO KEN TAUB d/b/a KT CONSTRUCTION’ S MOTION TO CHALLENGE
21215 Burbank Blvd.
Suite 500 THE APPLICATION FOR GOOD FAITH SETTLEMENT DETERMINATION WITH PLAINTIFFS
Woodland Hills, CA 91367
(818) 712-9800
1 MEMORANDUM OF POINTS AND AUTHORITIES
2 I. INTRODUCTION/STATEMENT OF FACTS
3 This construction defect lawsuit arises from the construction of an upscale residence located
4 at 1410 Northridge Road, Santa Barbara, California (“SUBJECT PROPERTY”). Plaintiffs
5 purchased the land for the subject residence to be built in approximately November 2009. Plaintiffs
6 hired general contractor/builder Defendant KEN TAUB d/b/a/ KT CONSTRUCTION COMPANY
7 (hereinafter “TAUB CONSTRUCTION”) in July 2010 to construct the residence. The home was
8 completed in or about November 2013. (Legaspi Decl. at ¶3).
9 TAUB CONSTRUCTION retained QUALITY PLASTERING, INC. (hereinafter
10 “QUALITY”) to perform exterior plastering or stucco work for the SUBJECT PROPERTY. TAUB
11 CONSTRUCTION did not have a contract with QUALITY. Pursuant to its Proposal to Ken Taub
12 Construction dated May 29, 2012, a true and correct copy of which is attached as Exhibit “A,”
13 Quality was hired by TAUB CONSTRUCTION to perform the exterior plastering work, consisting
14 of lath, scratch coat, brown coat, and finish coat for the main house, guest house, garage, and site
15 walls on the Subject Property for a total price of $51,100. (Legaspi Decl. at ¶4).
16 In approximately early 2017, Plaintiffs began to experience water intrusion through the
17 doors and windows at the home. Plaintiffs’ investigation and testing were performed and confirmed
18 that the windows and doors were experiencing leaks as a result of both product defects as well as
19 installation defects.
20 PLAINTIFFS filed their Complaint for construction defects on May 2, 2019 against
21 Defendants Sierra Pacific Windows, the supplier of the windows and doors, and TAUB
22 CONSTRUCTION, the builder/general contractor. (A true and correct copy of Plaintiffs’
23 Complaint is attached as Exhibit “B”; Legaspi Decl. at ¶5).
24 TAUB CONSTRUCTION filed a Cross-Complaint on October 18, 2019 (a true and correct
25 copy of which is attached as Exhibit “C”) alleging causes of action for (1) Express Indemnity; (2)
26 Implied Indemnity; (3) Equitable Indemnity; (4) Breach Of Express Warranty; (5) Breach Of Implied
27 Warranty; (6) Negligence; (7) Breach Of Written and/or Oral Contract, and (8) Declaratory Relief . On
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BREMER WHYTE BROWN &
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O’MEARA LLP QUALITY PLASTERING INC.’S OPPOSITION TO KEN TAUB d/b/a KT CONSTRUCTION’ S MOTION TO CHALLENGE
21215 Burbank Blvd.
Suite 500 THE APPLICATION FOR GOOD FAITH SETTLEMENT DETERMINATION WITH PLAINTIFFS
Woodland Hills, CA 91367
(818) 712-9800
1 June 17, 2020, TAUB CONSTRUCTION filed a First Moe Amendment to its Cross-Complaint (a
2 true and correct copy of which is attached as Exhibit “D”), naming Quality Plastering, Inc. as Moe
3 2, in addition to naming seven (7) other subcontractor parties. (Legaspi Decl. at ¶6 and ¶7).
4 QUALITY PLASTERING, INC. filed its Answer to TAUB’S Cross-Complaint on August
5 19, 2020, a true and correct copy of which is attached as Exhibit “E”. (Legaspi Decl. at ¶8).
6 Despite an initial mediation on October 4, 2021 where QUALITY participated in good
7 faith, QUALITY did not receive a demand or allocation from TAUB CONSTRUCTION until a
8 year later on September 26, 2022 for the September 30, 2022 mediation with mediator Henry
9 Bongiovi. (Legaspi Decl. at ¶9).
10 In TAUB’S September 26, 2022 demand letter to QUALITY, a true and correct copy of
11 which is attached as Exhibit “F,” which is the only demand QUALITY ever received from TAUB
12 in this case, TAUB CONSTRUCTION’s total demand to QUALITY was $7,600.02 – only half,
13 or precisely 50.66% of QUALITY’s eventual $15,000 settlement with Plaintiffs. (Legaspi Decl.
14 at ¶10). Pursuant to its demand, Taub Construction stated as follows:
15 “In advance of the mediation, experts retained by [TAUB] KT Construction Company
16 observed plaintiffs’ property while also reviewing the job file documents for the project.
17 This same expert has also now reviewed and analyzed plaintiffs’ defect list and cost of
18 repair estimate. All of these same documents have already been made available to you as well.
19 In order to have a productive mediation, [TAUB] KT Construction Company submits to you its
20 settlement demands for this matter as follows:
21 $355.50 representing a pro-rata share of plaintiffs’ estimated Stearman ($23,700);
22 $966.83 as a separate contractual defense fees and costs (“Crawford”) demand based on
23 incurred defense fees and costs of $64,455.36 as of the date of this demand;
24 $6,277.89 representing a pro rata share of plaintiffs’ burdened costs.
25 $7,600.02 is the total demand to your client.”
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BREMER WHYTE BROWN &
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O’MEARA LLP QUALITY PLASTERING INC.’S OPPOSITION TO KEN TAUB d/b/a KT CONSTRUCTION’ S MOTION TO CHALLENGE
21215 Burbank Blvd.
Suite 500 THE APPLICATION FOR GOOD FAITH SETTLEMENT DETERMINATION WITH PLAINTIFFS
Woodland Hills, CA 91367
(818) 712-9800
1 While Quality Plastering maintained its position that any defects and repairs associated with
2 the stucco work was the result of subsequent repairs resulting from deficiencies caused by other
3 trades, and not the stucco installation performed by Quality, Quality’s counsel attended the
4 September 30, 2022 mediation and participated in settlement negotiations in good faith. However,
5 mediator Henry Bongiovi advised QUALITY’s counsel at the end of the mediation that TAUB
6 CONSTRUCTION has changed its position and informed the mediator that it would not be
7 entertaining any settlements at that time. Although QUALITY wanted to settle and resolve this
8 matter with TAUB at that time, the mediator advised no resolution was being considered by
9 TAUB. (Legaspi Decl. at ¶11).
10 Ten months later, on July 14, 2023, frustrated with the lack of progress in this case or no
11 real attempts at resolution from TAUB CONSTRUCTION two years after the initial October, 2021
12 mediation, Plaintiffs’ counsel Michael Eisenbaum sent email correspondence to TAUB
13 CONSTRUCTION’s counsel, copying all counsel; a true and correct copy of which is attached as
14 Exhibit “G.” Plaintiffs’ counsel stated in his email as follows:
15 “As you know, the trial for this case is rapidly approaching. As it appears the defendants
16 have no interest in attempting to resolve this matter since Taub has not even attempted to
17 adhere to its representations to the mediator during the settlement efforts (i.e. produce an
18 alternative scope and cost of repair), I will proceed to complete discovery to prepare for
19 trial.”
20 In this same email, Plaintiffs’ counsel lamented that: “[his] clients have never received a
21 single settlement offer despite the defendant’s acknowledgement of significant water intrusion
22 issues at windows and doors.” (Legaspi Decl. at ¶12).
23 Finally, Plaintiffs’ counsel invited counsel for the subcontractors including QUALITY
24 PLASTERING to contact him, requesting that: “In the event any of the subcontractors wish to
25 contact me to discuss an individual resolution, I am generally available.” (Legaspi Decl. at
26 ¶12).
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BREMER WHYTE BROWN &
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O’MEARA LLP QUALITY PLASTERING INC.’S OPPOSITION TO KEN TAUB d/b/a KT CONSTRUCTION’ S MOTION TO CHALLENGE
21215 Burbank Blvd.
Suite 500 THE APPLICATION FOR GOOD FAITH SETTLEMENT DETERMINATION WITH PLAINTIFFS
Woodland Hills, CA 91367
(818) 712-9800
1 Pursuant to Plaintiffs’ counsel’s invitation for the subcontractors’ counsel to directly
2 contact him to discuss an individual resolution, based on TAUB CONSTRUCTION’s inaction for
3 two years, and because QUALITY PLASTERING had no contract with TAUB CONSTRUCTION,
4 QUALITY’s counsel engaged in months-long settlement negotiations with Plaintiffs. (Legaspi
5 Decl. at ¶13). On November 1, 2023, PLAINTIFFS and QUALITY PLASTERING reached a
6 direct settlement of $15,000. This $15,000 settlement between PLAINTIFFS and QUALITY is
7 double TAUB CONSTRUCTION’s $7,600.02 demand to Quality Plastering. (Legaspi Decl. at
8 ¶14).
9 On December 20, 2023, QUALITY filed its application for good faith settlement
10 determination where it sought a determination that its $15,000 settlement with PLAINTIFFS is in
11 good faith. A true and correct copy of QUALITY’S Application for Good Faith Settlement is
12 attached as Exhibit “H.” (Legaspi Decl. at ¶15).
13 As stated above, due to the lack of attention to this matter by TAUB for essentially two
14 years, Plaintiffs invited all subcontractors to pursue direct settlements with the Plaintiffs. As a
15 result, settlements were reached between Plaintiffs and four (4) subcontractors including
16 QUALITY PLASTERING for a total of $44,000. (Legaspi Decl. at ¶16). The following table
17 summarizes the parties in this case, their scope of work, and the status of settlements, which is
18 understood to be as follows:
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BREMER WHYTE BROWN &
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O’MEARA LLP QUALITY PLASTERING INC.’S OPPOSITION TO KEN TAUB d/b/a KT CONSTRUCTION’ S MOTION TO CHALLENGE
21215 Burbank Blvd.
Suite 500 THE APPLICATION FOR GOOD FAITH SETTLEMENT DETERMINATION WITH PLAINTIFFS
Woodland Hills, CA 91367
(818) 712-9800
1 On January 12, 2024, TAUB CONSTRUCTION filed its motion to challenge the good faith
2 settlement of QUALITY with PLAINTIFFS, which QUALITY PLASTERING now opposes.
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4 II. APPLICABLE LAW
5 QUALITY PLASTERING has met its burden on its Application for Good Faith Settlement
6 Determination (hereinafter “GFS Application”), opposes TAUB CONSTRUCTION’s Motion to
7 challenge QUALITY’s GFS Application, and requests that this Honorable Court determine that the
8 settlement reached between QUALITY and Plaintiffs is in “good faith” pursuant to California
9 Code of Civil Procedure Section 877.6. California Code of Civil Procedure Section 877.6 (a)(1)
10 states as follows:
11 Any party to an action in which it is alleged that two or more parties are joint tortfeasors or
12 co-obligors on a contract debt shall be entitled to a hearing on the issue of the good faith of
13 a settlement entered into by the plaintiff or other claimant and one or more alleged
14 tortfeasors or co-obligors…
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16 Further, California Code of Civil Procedure Section 877.6 (c) provides “[a] determination
17 by the court that the settlement was made in good faith shall bar any other joint tortfeasor from any
18 further claims against the settling tortfeasor for equitable contribution, or partial or comparative
19 indemnity, based on comparative negligence or comparative fault.”
20 According to the California Supreme Court in Tech-Bilt, the factors to be taken into
21 consideration include:
22 1. A rough approximation of plaintiffs’ total recovery and the settlor’s proportionate
23 liability;
24 2. The amount paid in settlement;
25 3. A recognition that the settlor should pay less in settlement than if found liable after a
26 trial;
27 4. The allocation of the settlement proceeds among plaintiffs;
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BREMER WHYTE BROWN &
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O’MEARA LLP QUALITY PLASTERING INC.’S OPPOSITION TO KEN TAUB d/b/a KT CONSTRUCTION’ S MOTION TO CHALLENGE
21215 Burbank Blvd.
Suite 500 THE APPLICATION FOR GOOD FAITH SETTLEMENT DETERMINATION WITH PLAINTIFFS
Woodland Hills, CA 91367
(818) 712-9800
1 5. The settlor’s financial condition and insurance policy limits, if any; and
2 6. Evidence of any collusion, fraud, or tortious conduct between the settlor and the plaintiffs
3 aimed at making the nonsettling parties pay more than their fair share. (Tech-Bilt, Inc. v.
4 Woodward-Clyde & Associates (1985) 38 Cal.3d 488, 499.)
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6 Not every Tech-Bilt factor will be applicable in every case. (Dole Food Co., Inc. v. Superior
7 Court (2015) 241 Cal.App.4th 894, 909.) Good faith is more appropriately defined as, “whether the
8 amount of the settlement is within the reasonable range of the settling tortfeasor’s proportional
9 share of comparative liability for the plaintiff’s injuries.” Tech-Bilt, Inc. at 263. “‘[A] defendant’s
10 settlement figure must not be grossly disproportionate to what a reasonable person, at the time of
11 the settlement, would estimate the settling defendant’s liability to be.’” (Tech-Bilt, Inc. at 499,
12 quoting Torres v. Union Pacific Railroad Co. (1984) 157 Cal.App.3d 499, 509.) However, even a
13 settlement that seems disproportionately low may be justified by showing that damages or liability
14 are speculative. Id.
15 Once the settling party has demonstrated that a settlement exists, a presumption of good faith
16 exists. Schultz v. Superior Court (1980) 104 Cal.App.3d 250, 252. California Code of Civil
17 Procedure Section 877.6 (d) requires the party asserting the lack of good faith to have the burden
18 of proof on that issue. The objecting party must demonstrate, if he or she can, that the settlement “is
19 so far ‘out of the ballpark’ in relation to [the Tech-Bilt] factors as to be inconsistent with the
20 equitable objectives of the statute.” Id. Tech-Bilt, Inc. at 499-500. “The determination as to whether
21 a settlement is in good faith is a matter left to the discretion of the trial court.” Mattco Forge, Inc.
22 v. Arthur Young & Co. (1995) 38 Cal.App.4th 1337, 1349.
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24 III. SUMMARY OF THE RELEVANT SETTLEMENT TERMS
25 The relevant settlement terms between QUALITY and PLAINTIFFS are as follows:
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BREMER WHYTE BROWN &
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O’MEARA LLP QUALITY PLASTERING INC.’S OPPOSITION TO KEN TAUB d/b/a KT CONSTRUCTION’ S MOTION TO CHALLENGE
21215 Burbank Blvd.
Suite 500 THE APPLICATION FOR GOOD FAITH SETTLEMENT DETERMINATION WITH PLAINTIFFS
Woodland Hills, CA 91367
(818) 712-9800
1 1. SETTLING PARTIES
2 The parties to this settlement are Cross-Defendant QUALITY PLASTERING, INC. and
3 PLAINTIFFS.
4 2. TERMS OF SETTLEMENT
5 PLAINTIFFS have agreed to provide a release of all claims related to QUALITY’s scope of
6 work in consideration for QUALITY’s payment to PLAINTIFFS as follows:
7 (a) QUALITY PLASTERING is to pay PLAINTIFFS the total sum of Fifteen Thousand
8 Dollars and Zero Cents ($15,000), through QUALITY PLASTERING’S insurance carriers.
9 Said payment will be made within 30 days of the full execution of the AGREEMENT and a
10 Good Faith determination by the Court. (Legaspi Decl. at ¶18).
11 3. BASIS OF SETTLEMENT
12 QUALITY desires to buy its peace with respect to this lawsuit and avoid a lengthy trial.
13 QUALITY has minimal liability, if at all, for the PLAINTIFFS’ construction defect claims. Now
14 that a settlement has been reached as described herein, QUALITY wants to be free from the
15 constraints of this lawsuit once and for all and thus it filed an Application for a Good Faith
16 Settlement Determination. (Franklin Decl. at ¶7, ¶10, ¶11, ¶12, 13; Legaspi Decl. at ¶22, ¶29, ¶30).
17
18 IV. QUALITY PLASTERING HAS MET ITS BURDEN ON ITS APPLICATION FOR
19 GOOD FAITH SETTLEMENT DETERMINATION PURSUANT TO TECH-BILT
20 Contrary to TAUB’S allegation in its motion to challenge QUALITY’S application,
21 QUALITY PLASTERING’s application for good faith settlement meets the Tech-Bilt factors and
22 establishes that its settlement with PLAINTIFFS is reasonable and “in the ballpark” of its
23 proportionate share of liability, and should be deemed in good faith.
24 As discussed thoroughly below, and in the accompanying Declarations of QUALITY’s expert,
25 Kevin Franklin, and QUALITY’s counsel, Catherine Lagman-Legaspi, QUALITY’S $15,000
26 settlement with PLAINTIFFS is reasonable, within the ballpark of QUALITY’S proportionate share of
27 liability, exceeds QUALITY’s proportionate share of liability in response to TAUB
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BREMER WHYTE BROWN &
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O’MEARA LLP QUALITY PLASTERING INC.’S OPPOSITION TO KEN TAUB d/b/a KT CONSTRUCTION’ S MOTION TO CHALLENGE
21215 Burbank Blvd.
Suite 500 THE APPLICATION FOR GOOD FAITH SETTLEMENT DETERMINATION WITH PLAINTIFFS
Woodland Hills, CA 91367
(818) 712-9800
1 CONSTRUCTION’S demand to QUALITY of $7,600.02, meets the Tech-Bilt factors as analyzed
2 below, and thus should be deemed in good faith. QUALITY’s $15,000.00 settlement with
3 PLAINTIFFS represents 87.95% of $17,055.63 - the amount of Plaintiffs’ repair costs that
4 expert Franklin would allocate to QUALITY. More importantly, QUALITY’s $15,000.00
5 settlement represents 97.36% more or $7,399.98 more than TAUB CONSTRUCTION’s own
6 demand of $7,600.02 to QUALITY, which demand Taub said was based on its expert’s
7 observation of Plaintiffs’ property, its analysis of the project job file documents, and its
8 analysis of Plaintiffs’ defect list and cost of repair estimate. TAUB’s own limited demand of
9 $7,600.02 to QUALITY based on its “expert’s analysis” directly contradicts Kruckenberg’s
10 specious allegation in his declaration that QUALITY’s settlement amounts to less than 15% of a
11 reasonable allocation of Plaintiffs’ claims. In fact, QUALITY is paying PLAINTIFFS 97.36%
12 more, or essentially double the amount of what TAUB’S own expert demanded or evaluated
13 QUALITY’s responsibility should be.
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15 A. The Settlement Between Quality and Plaintiffs Meets the Criteria Set Forth in Tech-
16 Bilt for Good Faith Settlement
17 The settlement between QUALITY and PLAINTIFFS should be deemed a good faith
18 settlement because it meets the Tech-Bilt factors. As stated above, the California Supreme Court
19 established the following factors to be considered in determining whether a good faith settlement
20 has been achieved: (1) a rough approximation of plaintiffs’ total recovery and the settlor’s
21 proportionate liability; (2) the amount paid in settlement, (3) allocation of settlement proceeds to
22 plaintiffs; (4) a settlor should pay less in settlement than a trial verdict; (5) financial condition of
23 settlor; (6) insurance policy limits of settlor; (7) the existence of any collusion, fraud, or tortious
24 conduct aimed to injure a non-settling party; and (8) an evaluation of the settlement based on
25 information available at the time of settlement. Tech-Bilt, Inc. v. Woodward-Clyde & Associates
26 (1985) 38 Cal.3d 488, 499. Each factor is considered below:
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BREMER WHYTE BROWN &
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O’MEARA LLP QUALITY PLASTERING INC.’S OPPOSITION TO KEN TAUB d/b/a KT CONSTRUCTION’ S MOTION TO CHALLENGE
21215 Burbank Blvd.
Suite 500 THE APPLICATION FOR GOOD FAITH SETTLEMENT DETERMINATION WITH PLAINTIFFS
Woodland Hills, CA 91367
(818) 712-9800
1 1. Rough Approximation of Plaintiffs’ Total Recovery and the Settlor’s
2 Proportionate Liability
3 QUALITY addresses TAUB’s claim that its settlement is not established as “in the ballpark”
4 of its proportionate share of liability based on two Tech-Bilt factors: PLAINTIFFS’ “rough
5 approximation of recovery” or the settlor’s proportionate liability. QUALITY asserts that it
6 sufficiently discussed and analyzed these two Tech-Bilt factors in its GFS application and provides
7 even more extensive evidence and analysis below.
8 As discussed in QUALITY’s GFS application, the primary issues in PLAINTIFFS’
9 residence involve the defective windows and doors. In an effort to determine the costs associated
10 with repairing the defects and damages, PLAINTIFFS retained expert XL Services (later acquired
11 by Wexco Int’l.) to prepare a cost of repair plan and estimate wherein they claim $497,857.21 in
12 total damages as a result of construction defects at the SUBJECT PROPERTY. A true and correct
13 copy of XL Services’ May 20, 2021 updated Cost of Repair Estimate is attached as Exhibit “I” to
14 this Opposition, and Exhibit “A” in Quality’s GFS Application. (Legaspi Decl. at ¶19). Of this
15 $497,857.21 amount, $339,862.11 represents the line item totals for the costs to repair the alleged
16 defects and damages, and $131,662.58 is for additional charges including permit fees, general
17 liability insurance, builders risk insurance, general conditions, professional fees, and contingency
18 fees. (Legaspi Decl. at ¶20). A summary table of line item costs contained in Plaintiffs’ May 20,
19 2021 updated Cost of Repair Estimate is instructive to understand all of Plaintiffs’ claims for which
20 they are seeking recovery, as set forth below:
21 Description Total
2300 - Earthwork and Compaction $6,283.24
22 2600 - Site Grading $7,356.82
7300-1 Roofing Underlayment Protection $3,792.93
23 7300-2 Roof Tiles Not Properly Sealed $11,092.31
7300-3 Roof Tiles Improperly Installed $3,536.84
24 7300-4 Ventilation Hoods Buried within the Roof $ 561.29
8100 - Entry Steel Doors Improperly Installed $3,186.99
25 8200-1 Wood Exterior Door Defectively Installed $209,450.81
8200-2 Interior Doors are Warped/Out of Square $8,081.13
26 8500 - Defective Windows $41,884.66
9300 - Tile Work Improperly used hard grout $911.29
27
9900-1 Improperly prepared Wood Beams ooze sap $6,658.63
28 9900-2 Improper stain finish on Door Casing 0
BREMER WHYTE BROWN &
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O’MEARA LLP QUALITY PLASTERING INC.’S OPPOSITION TO KEN TAUB d/b/a KT CONSTRUCTION’ S MOTION TO CHALLENGE
21215 Burbank Blvd.
Suite 500 THE APPLICATION FOR GOOD FAITH SETTLEMENT DETERMINATION WITH PLAINTIFFS
Woodland Hills, CA 91367
(818) 712-9800
1 Description Total
12300 Vanity Cabinets are unsupported and deflect $7,596.78
2 13150 Swimming Pool Glass Mosaic Tiles cracking $22,626.94
Additional General Items: Dumpster load, temporary power $6,020.30
3 usage (per month), and final cleaning
Labor Minimums Applied $821.15
4
Line Item Totals (for all of the above items) $339,862.11
5
Additional Charges (permit fees, general liability insurance,
6 builders risk insurance, general conditions, professional fees, $131,662.58
and contingency fees)
7
8 Subtotal: $471,524.69
9 Material Sales Tax $12,023.23
10 Net Claim $497,857.21
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PLAINTIFFS neither contracted with, nor sued QUALITY PLASTERING. While TAUB
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CONSTRUCTION retained QUALITY to do the exterior plastering or stucco at the subject property
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pursuant to QUALITY’S proposal, TAUB did not have a contract with QUALITY. Thus, neither
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PLAINTIFFS nor TAUB CONSTRUCTION are entitled to any express indemnity or contractual
15
defense fees and costs (Crawford-based defense fees) from QUALITY. Accordingly,
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PLAINTIFFS’ total recovery against QUALITY is limited to the defects and damages that can be
17
attributed to QUALITY pursuant to its stucco work. (Legaspi Decl. at ¶21).
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According to QUALITY PLASTERING’S expert Kevin Franklin who has investigated
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Plaintiffs’ claims, reviewed project documents, evaluated Plaintiffs’ defect and damage claims
20
reports, analyzed Plaintiffs’ repair cost documents including Plaintiffs’ May, 2021 updated cost
21
estimate, as it relates to the stucco work performed by QUALITY, there are no issues related to the
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stucco installation performed by QUALITY. Although there are stucco-related repairs on Plaintiff’s
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May 20, 2021 Defect List and Updated Cost of Repair Estimate, these repairs are the result of other
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alleged defective conditions at the Subject Property and the scopes of work of other subcontractors.
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(Franklin Decl. at ¶5, ¶6, and ¶7; Legaspi Decl. at ¶22).
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BREMER WHYTE BROWN &
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O’MEARA LLP QUALITY PLASTERING INC.’S OPPOSITION TO KEN TAUB d/b/a KT CONSTRUCTION’ S MOTION TO CHALLENGE
21215 Burbank Blvd.
Suite 500 THE APPLICATION FOR GOOD FAITH SETTLEMENT DETERMINATION WITH PLAINTIFFS
Woodland Hills, CA 91367
(818) 712-9800
1 As you can see from the summary table of line item issues and costs listed above, or more
2 fully in Plaintiffs’ actual Cost of Repair Estimate attached as Exhibit “A,” there are no items listed
3 for stucco because PLAINTIFFS are not claiming any issues attributable to the stucco work. The
4 specific issues for which Plaintiffs seek recovery are related to earthwork and compaction, site
5 grading, roofing, entry steel doors, defectively installed exterior wood doors, warped doors,
6 defective windows, tile work, wood beams, vanity cabinets, and swimming pool glass mosaic tiles.
7 (Legaspi Decl. at ¶23).
8 The lion’s share of PLAINTIFFS’ claims is that the doors, windows, and related components
9 supplied by Sierra Pacific Windows were defectively manufactured and installed, causing
10 substantial water intrusion and property damage. The proposed scope of repair associated with this
11 alleged water intrusion includes stucco repair around doors, around windows, and stucco fog coating
12 after the alleged defective windows and doors are removed and replaced. As such, any repairs
13 concerning the stucco relates to the repair of deficient work caused by other subcontractors, resulting
14 in water intrusion, and do not relate to QUALITY’s stucco installation. Furthermore, per the Cost
15 of Repair Estimate, stucco-related repairs are noted to pertain to “Earthwork and Compaction,”
16 which are incurred after masonry repairs are performed, not due to any deficient stucco work.
17 (Franklin Decl. at ¶7, ¶9, and ¶10).
18 PLAINTIFFS seek to perform stucco-repair work around these specific areas: masonry,
19 doors and windows. However, most, if not all, of the stucco repairs are not related, in any way, to
20 the original work performed by QUALITY. For example, in Plaintiffs’ issue 2300 - Earthwork and
21 Compaction (found in page 3 of Plaintiffs’ Cost to Repair Estimate, attached as Exhibit “I” to this
22 Opposition, and as Exhibit “A” to QUALITY’s GFS Application), PLAINTIFFS assert that repairs
23 must be performed to masonry because of earthwork and compaction issues that resulted in cracked
24 masonry walls. Stucco repair work amounting to $1,398.20 following masonry repairs, including a
25 stucco fog coat for $526.55, must be performed for a total cost of $1,924.75. This stucco work is
26 required due to problems with the masonry, earthwork and compaction issues, and has nothing to
27 do with QUALITY’S stucco or plastering of the masonry walls. (Franklin Decl. at ¶15; Legaspi
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BREMER WHYTE BROWN &
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O’MEARA LLP QUALITY PLASTERING INC.’S OPPOSITION TO KEN TAUB d/b/a KT CONSTRUCTION’ S MOTION TO CHALLENGE
21215 Burbank Blvd.
Suite 500 THE APPLICATION FOR GOOD FAITH SETTLEMENT DETERMINATION WITH PLAINTIFFS
Woodland Hills, CA 91367
(818) 712-9800
1 Decl. at ¶24). TAUB CONSTRUCTION’s own expert Kory Kruckenberg appears to agree with
2 because he did not allocate anything to QUALITY for this category in his Declaration. (Franklin
3 Decl. at ¶15; Kruckenberg Decl.). Therefore, QUALITY should not be responsible for these stucco
4 costs.
5 PLAINTIFFS seek to install new doors because they were defectively installed. In page 5
6 of Plaintiff’s Cost of Repair Estimate, in the category titled “8200-1 Wood Exterior Door
7 Defectively Installed,” the only items mentioning stucco are: 1) Plaintiffs’ item no. 24 - “Stucco
8 repair around doors, windows, etc. – 1st floor” with a repair cost of $8,389.11; and 2) Plaintiffs’
9 item no. 25 – “Stucco – Fog coat” with a repair cost of $11,232.96. This means the total cost for
10 stucco repairs in this category is $19,622.07. (Franklin Decl. at ¶12 and ¶13; Legaspi Decl. at ¶25).
11 Again, this stucco work is required due to claimed defects with the doors and/or windows, and not
12 because the original stucco or plastering work by QUALITY was defective in any way. In expert
13 Franklin’s opinion, any stucco repair around doors or windows is necessitated because the windows
14 and doors need to be removed, repaired or replaced, not because of any stucco deficiency, but
15 because of deficiencies in the door and window products or their installation. (Franklin Decl. at
16 ¶11, ¶12, and ¶13). Therefore, QUALITY should have not responsibility for these stucco repair
17 costs.
18 Further, TAUB CONSTRUCTION and its expert Kruckenberg’s attempt at allocating 30%
19 or $62,835.24 to Quality Plastering for Plaintiffs’ “8200-1 Wood Exterior Door Defectively
20 Installed” issue is completely meritless. Although the total cost of repair for this issue is
21 $209,450.81, Plaintiffs did not identify the stucco work as having caused this condition, nor do
22 they indicate that the stucco is 30% responsible for this condition. Again, the only mention of
23 stucco in this defect category is in the “stucco repairs” that need to be performed after, because the
24 doors were defectively installed or made, and need to be removed, repaired or replaced. Without
25 providing any facts, details, or supporting evidence specifying exactly why he allocates 30% to
26 Quality for the exterior door issues, Mr. Kruckenberg in a conclusory fashion only alleges that
27 “stucco and lath installation is an integral part of the door and window installation” as his reason
28
BREMER WHYTE BROWN &
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O’MEARA LLP QUALITY PLASTERING INC.’S OPPOSITION TO KEN TAUB d/b/a KT CONSTRUCTION’ S MOTION TO CHALLENGE
21215 Burbank Blvd.
Suite 500 THE APPLICATION FOR GOOD FAITH SETTLEMENT DETERMINATION WITH PLAINTIFFS
Woodland Hills, CA 91367
(818) 712-9800
1 for this allocation. While stucco is associated with the exterior wall assembly that includes doors,
2 stucco is not integral to the doors’ functioning or the doors’ failure in this residence. Moreover,
3 there has been no evidence provided that the stucco caused these doors to fail or leak. Simply put,
4 Quality’s stucco work did not cause the damages alleged to have resulted from the exterior doors
5 being defective in this residence. Any damage resulting from the wood exterior doors is due to the
6 doors being defectively installed or the door products themselves being deficient. In Mr. Franklin’s
7 expert opinion, based upon his entire investigation and review of pertinent documents, Quality
8 should not be allocated anything for this defect and damage issue, but at a maximum, Quality’s
9 allocation should only be for 5% of the total repair cost in this category, or $10,472.50 of
10 $209,450.81. (Franklin Decl. at ¶12).
11 Similarly, Mr. Franklin, in his expert opinion, disagrees with TAUB’S and Mr.
12 Kruckenberg’s allocation of 25% or $8,376.93 to Quality Plastering for Plaintiffs’ category “8500
13 - Defective Windows” with a total repair cost of $41,884.66. Mr. Franklin reviewed page 6 of
14 Plaintiff’s Cost of Repair Estimate that contains this defect and damage category, and it clearly
15 identifies materials and labor costs for the removal and replacement of windows, with some painting
16 and masonry work to be completed. There is absolutely no mention of stucco or plaster work at
17 all, and there is no cost allocation in this section for stucco. (Legaspi Decl. at ¶26). Again,
18 without providing any facts, details, or supporting evidence specifying exactly how he allocated
19 25% to Quality for Plaintiffs’ “defective window” issues, Mr. Kruckenberg in a conclusory fashion
20 only claims that “defective conditions and repairs to windows relate in part to the installation of the
21 stucco system” as his reason for this allocation, even if this is completely contradicted by Plaintiffs’
22 defect and repair cost report. While stucco is associated with the exterior wall assembly that
23 includes the windows, the stucco is not integral to the windows’ functioning or the windows’ failure
24 in this residence. Moreover, there has been no evidence provided that the stucco caused these
25 windows to fail or leak. The windows are defective and failing on their own. Simply put, Quality’s
26 stucco work did not cause the damages resulting from the windows being defective in this residence.
27 Any damage resulting from the windows is due to the windows being defectively installed or the
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BREMER WHYTE BROWN &
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O’MEARA LLP QUALITY PLASTERING INC.’S OPPOSITION TO KEN TAUB d/b/a KT CONSTRUCTION’ S MOTION TO CHALLENGE
21215 Burbank Blvd.
Suite 500 THE APPLICATION FOR GOOD FAITH SETTLEMENT DETERMINATION WITH PLAINTIFFS
Woodland Hills, CA 91367
(818) 712-9800
1 window products themselves being deficient. In Mr. Franklin’s expert opinion, based upon his entire
2 investigation and review of pertinent documents, Quality should not be allocated anything for this
3 defect and damage category. (Franklin Decl. at ¶13).
4 Expert Mr. Franklin also disagrees with Mr. Kruckenberg’s claim that Quality should be
5 allocated 22% for the “additional charges” known as “burden costs” in the amount of $131,662.58.
6 As Mr. Fran
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1 BREMER WHYTE BROWN & O’MEARA LLP Patrick Au, State Bar No. 174327 2 pau@bremerwhyte.com Catherine Legaspi, State Bar No. 201915 3 clegaspi@bremerwhyte.com 21215 Burbank Boulevard 4 Suite 500 Woodland Hills, California 91367 5 Telephone: (818) 712-9800 Facsimile: (818) 712-9900 6 Attorneys for Cross-Defendant, 7 QUALITY PLASTERING, INC. (MOE 2) 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 COUNTY OF SANTA BARBARA - SOUTH COUNTY 10 11 JOHN C. ELLSWORTH AND JANICE L. ) Case No. 19CV02346 ELLSWORTH as Trustees of the Casa Gran ) 12 Vista Revocable Trust, ) Judge: Hon. Donna Geck ) Dept: 4 13 Plaintiffs, ) ) QUALITY PLASTERING INC.’S 14 v. ) OPPOSITION TO KEN TAUB d/b/a KT ) CONSTRUCTION’S MOTION TO 15 SIERRA PACIFIC WINDOWS, A Division of ) CHALLENGE THE APPLICATION SIERRA PACIFIC INDUSTRIES, a California ) FOR GOOD FAITH SETTLEMENT 16 Corporation; KEN TAUB dba KT ) DETERMINATION WITH CONSTRUCTION COMPANY DBA TAUB ) PLAINTIFFS; MEMORANDUM OF 17 DESIGNS, a Sole Proprietorship and DOES 1 ) POINTS AND AUTHORITIES; through 100, Inclusive, ) DECLARATION OF CATHERINE 18 ) LAGMAN-LEGASPI, ESQ.; AND Defendants. ) DECLARATION OF KEVIN FRANKLIN 19 ) ) Complaint Filed: May 2, 2019 20 ) Date: March 29, 2024 AND RELATED CROSS-ACTIONS. ) Time: 10:00 a.m. 21 ) Dept.: 4 22 TO ALL PARTIES AND THEIR RESPECTIVE ATTORNEYS OF RECORD: 23 PLEASE TAKE NOTICE that Cross-Defendant, QUALITY PLASTERING, INC. 24 (“QUALITY”) makes this Opposition to Defendant/Cross-Complainant KEN TAUB d/b/a KT 25 CONSTRUCTION’s motion to challenge Quality’s Application for a Good Faith Settlement 26 Determination. Through this Opposition and previously filed Application for Good Faith 27 Settlement Determination, QUALITY seeks to have its direct settlement with Plaintiffs JOHN C. 28 ELLSWORTH and JANICE L. ELLSWORTH (collectively “PLAINTIFFS”), determined to be in BREMER WHYTE BROWN & O’MEARA LLP 21215 Burbank Blvd. Suite 500 QUALITY PLASTERING INC.’S OPPOSITION TO KEN TAUB d/b/a KT CONSTRUCTION’S MOTION TO CHALLENGE THE Woodland Hills, CA 91367 (818) 712-9800 APPLICATION FOR GOOD FAITH SETTLEMENT DETERMINATION WITH PLAINTIFFS 1 good faith by this Court, in accordance with the provisions of California Code of Civil Procedure 2 section 877.6(a)(2). 3 This Opposition is based on the attached Memorandum of Points and Authorities, the 4 Declaration of Catherine Lagman-Legaspi, the Declaration of Kevin Franklin, and the previously 5 filed Application for Determination of Good Faith Settlement by Quality Plastering, Inc., the papers 6 and record on file herein, and on such evidence both oral and documentary as may be presented at 7 the hearing of the Motion. 8 9 Dated: March 18, 2024 BREMER WHYTE BROWN & O’MEARA LLP 10 11 By: Patrick Au 12 Catherine Legaspi Attorneys for Cross-Defendant 13 QUALITY PLASTERING, INC. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 BREMER WHYTE BROWN & 2 O’MEARA LLP QUALITY PLASTERING INC.’S OPPOSITION TO KEN TAUB d/b/a KT CONSTRUCTION’ S MOTION TO CHALLENGE 21215 Burbank Blvd. Suite 500 THE APPLICATION FOR GOOD FAITH SETTLEMENT DETERMINATION WITH PLAINTIFFS Woodland Hills, CA 91367 (818) 712-9800 1 MEMORANDUM OF POINTS AND AUTHORITIES 2 I. INTRODUCTION/STATEMENT OF FACTS 3 This construction defect lawsuit arises from the construction of an upscale residence located 4 at 1410 Northridge Road, Santa Barbara, California (“SUBJECT PROPERTY”). Plaintiffs 5 purchased the land for the subject residence to be built in approximately November 2009. Plaintiffs 6 hired general contractor/builder Defendant KEN TAUB d/b/a/ KT CONSTRUCTION COMPANY 7 (hereinafter “TAUB CONSTRUCTION”) in July 2010 to construct the residence. The home was 8 completed in or about November 2013. (Legaspi Decl. at ¶3). 9 TAUB CONSTRUCTION retained QUALITY PLASTERING, INC. (hereinafter 10 “QUALITY”) to perform exterior plastering or stucco work for the SUBJECT PROPERTY. TAUB 11 CONSTRUCTION did not have a contract with QUALITY. Pursuant to its Proposal to Ken Taub 12 Construction dated May 29, 2012, a true and correct copy of which is attached as Exhibit “A,” 13 Quality was hired by TAUB CONSTRUCTION to perform the exterior plastering work, consisting 14 of lath, scratch coat, brown coat, and finish coat for the main house, guest house, garage, and site 15 walls on the Subject Property for a total price of $51,100. (Legaspi Decl. at ¶4). 16 In approximately early 2017, Plaintiffs began to experience water intrusion through the 17 doors and windows at the home. Plaintiffs’ investigation and testing were performed and confirmed 18 that the windows and doors were experiencing leaks as a result of both product defects as well as 19 installation defects. 20 PLAINTIFFS filed their Complaint for construction defects on May 2, 2019 against 21 Defendants Sierra Pacific Windows, the supplier of the windows and doors, and TAUB 22 CONSTRUCTION, the builder/general contractor. (A true and correct copy of Plaintiffs’ 23 Complaint is attached as Exhibit “B”; Legaspi Decl. at ¶5). 24 TAUB CONSTRUCTION filed a Cross-Complaint on October 18, 2019 (a true and correct 25 copy of which is attached as Exhibit “C”) alleging causes of action for (1) Express Indemnity; (2) 26 Implied Indemnity; (3) Equitable Indemnity; (4) Breach Of Express Warranty; (5) Breach Of Implied 27 Warranty; (6) Negligence; (7) Breach Of Written and/or Oral Contract, and (8) Declaratory Relief . On 28 BREMER WHYTE BROWN & 3 O’MEARA LLP QUALITY PLASTERING INC.’S OPPOSITION TO KEN TAUB d/b/a KT CONSTRUCTION’ S MOTION TO CHALLENGE 21215 Burbank Blvd. Suite 500 THE APPLICATION FOR GOOD FAITH SETTLEMENT DETERMINATION WITH PLAINTIFFS Woodland Hills, CA 91367 (818) 712-9800 1 June 17, 2020, TAUB CONSTRUCTION filed a First Moe Amendment to its Cross-Complaint (a 2 true and correct copy of which is attached as Exhibit “D”), naming Quality Plastering, Inc. as Moe 3 2, in addition to naming seven (7) other subcontractor parties. (Legaspi Decl. at ¶6 and ¶7). 4 QUALITY PLASTERING, INC. filed its Answer to TAUB’S Cross-Complaint on August 5 19, 2020, a true and correct copy of which is attached as Exhibit “E”. (Legaspi Decl. at ¶8). 6 Despite an initial mediation on October 4, 2021 where QUALITY participated in good 7 faith, QUALITY did not receive a demand or allocation from TAUB CONSTRUCTION until a 8 year later on September 26, 2022 for the September 30, 2022 mediation with mediator Henry 9 Bongiovi. (Legaspi Decl. at ¶9). 10 In TAUB’S September 26, 2022 demand letter to QUALITY, a true and correct copy of 11 which is attached as Exhibit “F,” which is the only demand QUALITY ever received from TAUB 12 in this case, TAUB CONSTRUCTION’s total demand to QUALITY was $7,600.02 – only half, 13 or precisely 50.66% of QUALITY’s eventual $15,000 settlement with Plaintiffs. (Legaspi Decl. 14 at ¶10). Pursuant to its demand, Taub Construction stated as follows: 15 “In advance of the mediation, experts retained by [TAUB] KT Construction Company 16 observed plaintiffs’ property while also reviewing the job file documents for the project. 17 This same expert has also now reviewed and analyzed plaintiffs’ defect list and cost of 18 repair estimate. All of these same documents have already been made available to you as well. 19 In order to have a productive mediation, [TAUB] KT Construction Company submits to you its 20 settlement demands for this matter as follows: 21 $355.50 representing a pro-rata share of plaintiffs’ estimated Stearman ($23,700); 22 $966.83 as a separate contractual defense fees and costs (“Crawford”) demand based on 23 incurred defense fees and costs of $64,455.36 as of the date of this demand; 24 $6,277.89 representing a pro rata share of plaintiffs’ burdened costs. 25 $7,600.02 is the total demand to your client.” 26 27 28 BREMER WHYTE BROWN & 4 O’MEARA LLP QUALITY PLASTERING INC.’S OPPOSITION TO KEN TAUB d/b/a KT CONSTRUCTION’ S MOTION TO CHALLENGE 21215 Burbank Blvd. Suite 500 THE APPLICATION FOR GOOD FAITH SETTLEMENT DETERMINATION WITH PLAINTIFFS Woodland Hills, CA 91367 (818) 712-9800 1 While Quality Plastering maintained its position that any defects and repairs associated with 2 the stucco work was the result of subsequent repairs resulting from deficiencies caused by other 3 trades, and not the stucco installation performed by Quality, Quality’s counsel attended the 4 September 30, 2022 mediation and participated in settlement negotiations in good faith. However, 5 mediator Henry Bongiovi advised QUALITY’s counsel at the end of the mediation that TAUB 6 CONSTRUCTION has changed its position and informed the mediator that it would not be 7 entertaining any settlements at that time. Although QUALITY wanted to settle and resolve this 8 matter with TAUB at that time, the mediator advised no resolution was being considered by 9 TAUB. (Legaspi Decl. at ¶11). 10 Ten months later, on July 14, 2023, frustrated with the lack of progress in this case or no 11 real attempts at resolution from TAUB CONSTRUCTION two years after the initial October, 2021 12 mediation, Plaintiffs’ counsel Michael Eisenbaum sent email correspondence to TAUB 13 CONSTRUCTION’s counsel, copying all counsel; a true and correct copy of which is attached as 14 Exhibit “G.” Plaintiffs’ counsel stated in his email as follows: 15 “As you know, the trial for this case is rapidly approaching. As it appears the defendants 16 have no interest in attempting to resolve this matter since Taub has not even attempted to 17 adhere to its representations to the mediator during the settlement efforts (i.e. produce an 18 alternative scope and cost of repair), I will proceed to complete discovery to prepare for 19 trial.” 20 In this same email, Plaintiffs’ counsel lamented that: “[his] clients have never received a 21 single settlement offer despite the defendant’s acknowledgement of significant water intrusion 22 issues at windows and doors.” (Legaspi Decl. at ¶12). 23 Finally, Plaintiffs’ counsel invited counsel for the subcontractors including QUALITY 24 PLASTERING to contact him, requesting that: “In the event any of the subcontractors wish to 25 contact me to discuss an individual resolution, I am generally available.” (Legaspi Decl. at 26 ¶12). 27 28 BREMER WHYTE BROWN & 5 O’MEARA LLP QUALITY PLASTERING INC.’S OPPOSITION TO KEN TAUB d/b/a KT CONSTRUCTION’ S MOTION TO CHALLENGE 21215 Burbank Blvd. Suite 500 THE APPLICATION FOR GOOD FAITH SETTLEMENT DETERMINATION WITH PLAINTIFFS Woodland Hills, CA 91367 (818) 712-9800 1 Pursuant to Plaintiffs’ counsel’s invitation for the subcontractors’ counsel to directly 2 contact him to discuss an individual resolution, based on TAUB CONSTRUCTION’s inaction for 3 two years, and because QUALITY PLASTERING had no contract with TAUB CONSTRUCTION, 4 QUALITY’s counsel engaged in months-long settlement negotiations with Plaintiffs. (Legaspi 5 Decl. at ¶13). On November 1, 2023, PLAINTIFFS and QUALITY PLASTERING reached a 6 direct settlement of $15,000. This $15,000 settlement between PLAINTIFFS and QUALITY is 7 double TAUB CONSTRUCTION’s $7,600.02 demand to Quality Plastering. (Legaspi Decl. at 8 ¶14). 9 On December 20, 2023, QUALITY filed its application for good faith settlement 10 determination where it sought a determination that its $15,000 settlement with PLAINTIFFS is in 11 good faith. A true and correct copy of QUALITY’S Application for Good Faith Settlement is 12 attached as Exhibit “H.” (Legaspi Decl. at ¶15). 13 As stated above, due to the lack of attention to this matter by TAUB for essentially two 14 years, Plaintiffs invited all subcontractors to pursue direct settlements with the Plaintiffs. As a 15 result, settlements were reached between Plaintiffs and four (4) subcontractors including 16 QUALITY PLASTERING for a total of $44,000. (Legaspi Decl. at ¶16). The following table 17 summarizes the parties in this case, their scope of work, and the status of settlements, which is 18 understood to be as follows: 19 20 21 22 23 24 25 26 27 28 BREMER WHYTE BROWN & 6 O’MEARA LLP QUALITY PLASTERING INC.’S OPPOSITION TO KEN TAUB d/b/a KT CONSTRUCTION’ S MOTION TO CHALLENGE 21215 Burbank Blvd. Suite 500 THE APPLICATION FOR GOOD FAITH SETTLEMENT DETERMINATION WITH PLAINTIFFS Woodland Hills, CA 91367 (818) 712-9800 1 On January 12, 2024, TAUB CONSTRUCTION filed its motion to challenge the good faith 2 settlement of QUALITY with PLAINTIFFS, which QUALITY PLASTERING now opposes. 3 4 II. APPLICABLE LAW 5 QUALITY PLASTERING has met its burden on its Application for Good Faith Settlement 6 Determination (hereinafter “GFS Application”), opposes TAUB CONSTRUCTION’s Motion to 7 challenge QUALITY’s GFS Application, and requests that this Honorable Court determine that the 8 settlement reached between QUALITY and Plaintiffs is in “good faith” pursuant to California 9 Code of Civil Procedure Section 877.6. California Code of Civil Procedure Section 877.6 (a)(1) 10 states as follows: 11 Any party to an action in which it is alleged that two or more parties are joint tortfeasors or 12 co-obligors on a contract debt shall be entitled to a hearing on the issue of the good faith of 13 a settlement entered into by the plaintiff or other claimant and one or more alleged 14 tortfeasors or co-obligors… 15 16 Further, California Code of Civil Procedure Section 877.6 (c) provides “[a] determination 17 by the court that the settlement was made in good faith shall bar any other joint tortfeasor from any 18 further claims against the settling tortfeasor for equitable contribution, or partial or comparative 19 indemnity, based on comparative negligence or comparative fault.” 20 According to the California Supreme Court in Tech-Bilt, the factors to be taken into 21 consideration include: 22 1. A rough approximation of plaintiffs’ total recovery and the settlor’s proportionate 23 liability; 24 2. The amount paid in settlement; 25 3. A recognition that the settlor should pay less in settlement than if found liable after a 26 trial; 27 4. The allocation of the settlement proceeds among plaintiffs; 28 BREMER WHYTE BROWN & 7 O’MEARA LLP QUALITY PLASTERING INC.’S OPPOSITION TO KEN TAUB d/b/a KT CONSTRUCTION’ S MOTION TO CHALLENGE 21215 Burbank Blvd. Suite 500 THE APPLICATION FOR GOOD FAITH SETTLEMENT DETERMINATION WITH PLAINTIFFS Woodland Hills, CA 91367 (818) 712-9800 1 5. The settlor’s financial condition and insurance policy limits, if any; and 2 6. Evidence of any collusion, fraud, or tortious conduct between the settlor and the plaintiffs 3 aimed at making the nonsettling parties pay more than their fair share. (Tech-Bilt, Inc. v. 4 Woodward-Clyde & Associates (1985) 38 Cal.3d 488, 499.) 5 6 Not every Tech-Bilt factor will be applicable in every case. (Dole Food Co., Inc. v. Superior 7 Court (2015) 241 Cal.App.4th 894, 909.) Good faith is more appropriately defined as, “whether the 8 amount of the settlement is within the reasonable range of the settling tortfeasor’s proportional 9 share of comparative liability for the plaintiff’s injuries.” Tech-Bilt, Inc. at 263. “‘[A] defendant’s 10 settlement figure must not be grossly disproportionate to what a reasonable person, at the time of 11 the settlement, would estimate the settling defendant’s liability to be.’” (Tech-Bilt, Inc. at 499, 12 quoting Torres v. Union Pacific Railroad Co. (1984) 157 Cal.App.3d 499, 509.) However, even a 13 settlement that seems disproportionately low may be justified by showing that damages or liability 14 are speculative. Id. 15 Once the settling party has demonstrated that a settlement exists, a presumption of good faith 16 exists. Schultz v. Superior Court (1980) 104 Cal.App.3d 250, 252. California Code of Civil 17 Procedure Section 877.6 (d) requires the party asserting the lack of good faith to have the burden 18 of proof on that issue. The objecting party must demonstrate, if he or she can, that the settlement “is 19 so far ‘out of the ballpark’ in relation to [the Tech-Bilt] factors as to be inconsistent with the 20 equitable objectives of the statute.” Id. Tech-Bilt, Inc. at 499-500. “The determination as to whether 21 a settlement is in good faith is a matter left to the discretion of the trial court.” Mattco Forge, Inc. 22 v. Arthur Young & Co. (1995) 38 Cal.App.4th 1337, 1349. 23 24 III. SUMMARY OF THE RELEVANT SETTLEMENT TERMS 25 The relevant settlement terms between QUALITY and PLAINTIFFS are as follows: 26 /// 27 /// 28 BREMER WHYTE BROWN & 8 O’MEARA LLP QUALITY PLASTERING INC.’S OPPOSITION TO KEN TAUB d/b/a KT CONSTRUCTION’ S MOTION TO CHALLENGE 21215 Burbank Blvd. Suite 500 THE APPLICATION FOR GOOD FAITH SETTLEMENT DETERMINATION WITH PLAINTIFFS Woodland Hills, CA 91367 (818) 712-9800 1 1. SETTLING PARTIES 2 The parties to this settlement are Cross-Defendant QUALITY PLASTERING, INC. and 3 PLAINTIFFS. 4 2. TERMS OF SETTLEMENT 5 PLAINTIFFS have agreed to provide a release of all claims related to QUALITY’s scope of 6 work in consideration for QUALITY’s payment to PLAINTIFFS as follows: 7 (a) QUALITY PLASTERING is to pay PLAINTIFFS the total sum of Fifteen Thousand 8 Dollars and Zero Cents ($15,000), through QUALITY PLASTERING’S insurance carriers. 9 Said payment will be made within 30 days of the full execution of the AGREEMENT and a 10 Good Faith determination by the Court. (Legaspi Decl. at ¶18). 11 3. BASIS OF SETTLEMENT 12 QUALITY desires to buy its peace with respect to this lawsuit and avoid a lengthy trial. 13 QUALITY has minimal liability, if at all, for the PLAINTIFFS’ construction defect claims. Now 14 that a settlement has been reached as described herein, QUALITY wants to be free from the 15 constraints of this lawsuit once and for all and thus it filed an Application for a Good Faith 16 Settlement Determination. (Franklin Decl. at ¶7, ¶10, ¶11, ¶12, 13; Legaspi Decl. at ¶22, ¶29, ¶30). 17 18 IV. QUALITY PLASTERING HAS MET ITS BURDEN ON ITS APPLICATION FOR 19 GOOD FAITH SETTLEMENT DETERMINATION PURSUANT TO TECH-BILT 20 Contrary to TAUB’S allegation in its motion to challenge QUALITY’S application, 21 QUALITY PLASTERING’s application for good faith settlement meets the Tech-Bilt factors and 22 establishes that its settlement with PLAINTIFFS is reasonable and “in the ballpark” of its 23 proportionate share of liability, and should be deemed in good faith. 24 As discussed thoroughly below, and in the accompanying Declarations of QUALITY’s expert, 25 Kevin Franklin, and QUALITY’s counsel, Catherine Lagman-Legaspi, QUALITY’S $15,000 26 settlement with PLAINTIFFS is reasonable, within the ballpark of QUALITY’S proportionate share of 27 liability, exceeds QUALITY’s proportionate share of liability in response to TAUB 28 BREMER WHYTE BROWN & 9 O’MEARA LLP QUALITY PLASTERING INC.’S OPPOSITION TO KEN TAUB d/b/a KT CONSTRUCTION’ S MOTION TO CHALLENGE 21215 Burbank Blvd. Suite 500 THE APPLICATION FOR GOOD FAITH SETTLEMENT DETERMINATION WITH PLAINTIFFS Woodland Hills, CA 91367 (818) 712-9800 1 CONSTRUCTION’S demand to QUALITY of $7,600.02, meets the Tech-Bilt factors as analyzed 2 below, and thus should be deemed in good faith. QUALITY’s $15,000.00 settlement with 3 PLAINTIFFS represents 87.95% of $17,055.63 - the amount of Plaintiffs’ repair costs that 4 expert Franklin would allocate to QUALITY. More importantly, QUALITY’s $15,000.00 5 settlement represents 97.36% more or $7,399.98 more than TAUB CONSTRUCTION’s own 6 demand of $7,600.02 to QUALITY, which demand Taub said was based on its expert’s 7 observation of Plaintiffs’ property, its analysis of the project job file documents, and its 8 analysis of Plaintiffs’ defect list and cost of repair estimate. TAUB’s own limited demand of 9 $7,600.02 to QUALITY based on its “expert’s analysis” directly contradicts Kruckenberg’s 10 specious allegation in his declaration that QUALITY’s settlement amounts to less than 15% of a 11 reasonable allocation of Plaintiffs’ claims. In fact, QUALITY is paying PLAINTIFFS 97.36% 12 more, or essentially double the amount of what TAUB’S own expert demanded or evaluated 13 QUALITY’s responsibility should be. 14 15 A. The Settlement Between Quality and Plaintiffs Meets the Criteria Set Forth in Tech- 16 Bilt for Good Faith Settlement 17 The settlement between QUALITY and PLAINTIFFS should be deemed a good faith 18 settlement because it meets the Tech-Bilt factors. As stated above, the California Supreme Court 19 established the following factors to be considered in determining whether a good faith settlement 20 has been achieved: (1) a rough approximation of plaintiffs’ total recovery and the settlor’s 21 proportionate liability; (2) the amount paid in settlement, (3) allocation of settlement proceeds to 22 plaintiffs; (4) a settlor should pay less in settlement than a trial verdict; (5) financial condition of 23 settlor; (6) insurance policy limits of settlor; (7) the existence of any collusion, fraud, or tortious 24 conduct aimed to injure a non-settling party; and (8) an evaluation of the settlement based on 25 information available at the time of settlement. Tech-Bilt, Inc. v. Woodward-Clyde & Associates 26 (1985) 38 Cal.3d 488, 499. Each factor is considered below: 27 28 BREMER WHYTE BROWN & 10 O’MEARA LLP QUALITY PLASTERING INC.’S OPPOSITION TO KEN TAUB d/b/a KT CONSTRUCTION’ S MOTION TO CHALLENGE 21215 Burbank Blvd. Suite 500 THE APPLICATION FOR GOOD FAITH SETTLEMENT DETERMINATION WITH PLAINTIFFS Woodland Hills, CA 91367 (818) 712-9800 1 1. Rough Approximation of Plaintiffs’ Total Recovery and the Settlor’s 2 Proportionate Liability 3 QUALITY addresses TAUB’s claim that its settlement is not established as “in the ballpark” 4 of its proportionate share of liability based on two Tech-Bilt factors: PLAINTIFFS’ “rough 5 approximation of recovery” or the settlor’s proportionate liability. QUALITY asserts that it 6 sufficiently discussed and analyzed these two Tech-Bilt factors in its GFS application and provides 7 even more extensive evidence and analysis below. 8 As discussed in QUALITY’s GFS application, the primary issues in PLAINTIFFS’ 9 residence involve the defective windows and doors. In an effort to determine the costs associated 10 with repairing the defects and damages, PLAINTIFFS retained expert XL Services (later acquired 11 by Wexco Int’l.) to prepare a cost of repair plan and estimate wherein they claim $497,857.21 in 12 total damages as a result of construction defects at the SUBJECT PROPERTY. A true and correct 13 copy of XL Services’ May 20, 2021 updated Cost of Repair Estimate is attached as Exhibit “I” to 14 this Opposition, and Exhibit “A” in Quality’s GFS Application. (Legaspi Decl. at ¶19). Of this 15 $497,857.21 amount, $339,862.11 represents the line item totals for the costs to repair the alleged 16 defects and damages, and $131,662.58 is for additional charges including permit fees, general 17 liability insurance, builders risk insurance, general conditions, professional fees, and contingency 18 fees. (Legaspi Decl. at ¶20). A summary table of line item costs contained in Plaintiffs’ May 20, 19 2021 updated Cost of Repair Estimate is instructive to understand all of Plaintiffs’ claims for which 20 they are seeking recovery, as set forth below: 21 Description Total 2300 - Earthwork and Compaction $6,283.24 22 2600 - Site Grading $7,356.82 7300-1 Roofing Underlayment Protection $3,792.93 23 7300-2 Roof Tiles Not Properly Sealed $11,092.31 7300-3 Roof Tiles Improperly Installed $3,536.84 24 7300-4 Ventilation Hoods Buried within the Roof $ 561.29 8100 - Entry Steel Doors Improperly Installed $3,186.99 25 8200-1 Wood Exterior Door Defectively Installed $209,450.81 8200-2 Interior Doors are Warped/Out of Square $8,081.13 26 8500 - Defective Windows $41,884.66 9300 - Tile Work Improperly used hard grout $911.29 27 9900-1 Improperly prepared Wood Beams ooze sap $6,658.63 28 9900-2 Improper stain finish on Door Casing 0 BREMER WHYTE BROWN & 11 O’MEARA LLP QUALITY PLASTERING INC.’S OPPOSITION TO KEN TAUB d/b/a KT CONSTRUCTION’ S MOTION TO CHALLENGE 21215 Burbank Blvd. Suite 500 THE APPLICATION FOR GOOD FAITH SETTLEMENT DETERMINATION WITH PLAINTIFFS Woodland Hills, CA 91367 (818) 712-9800 1 Description Total 12300 Vanity Cabinets are unsupported and deflect $7,596.78 2 13150 Swimming Pool Glass Mosaic Tiles cracking $22,626.94 Additional General Items: Dumpster load, temporary power $6,020.30 3 usage (per month), and final cleaning Labor Minimums Applied $821.15 4 Line Item Totals (for all of the above items) $339,862.11 5 Additional Charges (permit fees, general liability insurance, 6 builders risk insurance, general conditions, professional fees, $131,662.58 and contingency fees) 7 8 Subtotal: $471,524.69 9 Material Sales Tax $12,023.23 10 Net Claim $497,857.21 11 PLAINTIFFS neither contracted with, nor sued QUALITY PLASTERING. While TAUB 12 CONSTRUCTION retained QUALITY to do the exterior plastering or stucco at the subject property 13 pursuant to QUALITY’S proposal, TAUB did not have a contract with QUALITY. Thus, neither 14 PLAINTIFFS nor TAUB CONSTRUCTION are entitled to any express indemnity or contractual 15 defense fees and costs (Crawford-based defense fees) from QUALITY. Accordingly, 16 PLAINTIFFS’ total recovery against QUALITY is limited to the defects and damages that can be 17 attributed to QUALITY pursuant to its stucco work. (Legaspi Decl. at ¶21). 18 According to QUALITY PLASTERING’S expert Kevin Franklin who has investigated 19 Plaintiffs’ claims, reviewed project documents, evaluated Plaintiffs’ defect and damage claims 20 reports, analyzed Plaintiffs’ repair cost documents including Plaintiffs’ May, 2021 updated cost 21 estimate, as it relates to the stucco work performed by QUALITY, there are no issues related to the 22 stucco installation performed by QUALITY. Although there are stucco-related repairs on Plaintiff’s 23 May 20, 2021 Defect List and Updated Cost of Repair Estimate, these repairs are the result of other 24 alleged defective conditions at the Subject Property and the scopes of work of other subcontractors. 25 (Franklin Decl. at ¶5, ¶6, and ¶7; Legaspi Decl. at ¶22). 26 27 28 BREMER WHYTE BROWN & 12 O’MEARA LLP QUALITY PLASTERING INC.’S OPPOSITION TO KEN TAUB d/b/a KT CONSTRUCTION’ S MOTION TO CHALLENGE 21215 Burbank Blvd. Suite 500 THE APPLICATION FOR GOOD FAITH SETTLEMENT DETERMINATION WITH PLAINTIFFS Woodland Hills, CA 91367 (818) 712-9800 1 As you can see from the summary table of line item issues and costs listed above, or more 2 fully in Plaintiffs’ actual Cost of Repair Estimate attached as Exhibit “A,” there are no items listed 3 for stucco because PLAINTIFFS are not claiming any issues attributable to the stucco work. The 4 specific issues for which Plaintiffs seek recovery are related to earthwork and compaction, site 5 grading, roofing, entry steel doors, defectively installed exterior wood doors, warped doors, 6 defective windows, tile work, wood beams, vanity cabinets, and swimming pool glass mosaic tiles. 7 (Legaspi Decl. at ¶23). 8 The lion’s share of PLAINTIFFS’ claims is that the doors, windows, and related components 9 supplied by Sierra Pacific Windows were defectively manufactured and installed, causing 10 substantial water intrusion and property damage. The proposed scope of repair associated with this 11 alleged water intrusion includes stucco repair around doors, around windows, and stucco fog coating 12 after the alleged defective windows and doors are removed and replaced. As such, any repairs 13 concerning the stucco relates to the repair of deficient work caused by other subcontractors, resulting 14 in water intrusion, and do not relate to QUALITY’s stucco installation. Furthermore, per the Cost 15 of Repair Estimate, stucco-related repairs are noted to pertain to “Earthwork and Compaction,” 16 which are incurred after masonry repairs are performed, not due to any deficient stucco work. 17 (Franklin Decl. at ¶7, ¶9, and ¶10). 18 PLAINTIFFS seek to perform stucco-repair work around these specific areas: masonry, 19 doors and windows. However, most, if not all, of the stucco repairs are not related, in any way, to 20 the original work performed by QUALITY. For example, in Plaintiffs’ issue 2300 - Earthwork and 21 Compaction (found in page 3 of Plaintiffs’ Cost to Repair Estimate, attached as Exhibit “I” to this 22 Opposition, and as Exhibit “A” to QUALITY’s GFS Application), PLAINTIFFS assert that repairs 23 must be performed to masonry because of earthwork and compaction issues that resulted in cracked 24 masonry walls. Stucco repair work amounting to $1,398.20 following masonry repairs, including a 25 stucco fog coat for $526.55, must be performed for a total cost of $1,924.75. This stucco work is 26 required due to problems with the masonry, earthwork and compaction issues, and has nothing to 27 do with QUALITY’S stucco or plastering of the masonry walls. (Franklin Decl. at ¶15; Legaspi 28 BREMER WHYTE BROWN & 13 O’MEARA LLP QUALITY PLASTERING INC.’S OPPOSITION TO KEN TAUB d/b/a KT CONSTRUCTION’ S MOTION TO CHALLENGE 21215 Burbank Blvd. Suite 500 THE APPLICATION FOR GOOD FAITH SETTLEMENT DETERMINATION WITH PLAINTIFFS Woodland Hills, CA 91367 (818) 712-9800 1 Decl. at ¶24). TAUB CONSTRUCTION’s own expert Kory Kruckenberg appears to agree with 2 because he did not allocate anything to QUALITY for this category in his Declaration. (Franklin 3 Decl. at ¶15; Kruckenberg Decl.). Therefore, QUALITY should not be responsible for these stucco 4 costs. 5 PLAINTIFFS seek to install new doors because they were defectively installed. In page 5 6 of Plaintiff’s Cost of Repair Estimate, in the category titled “8200-1 Wood Exterior Door 7 Defectively Installed,” the only items mentioning stucco are: 1) Plaintiffs’ item no. 24 - “Stucco 8 repair around doors, windows, etc. – 1st floor” with a repair cost of $8,389.11; and 2) Plaintiffs’ 9 item no. 25 – “Stucco – Fog coat” with a repair cost of $11,232.96. This means the total cost for 10 stucco repairs in this category is $19,622.07. (Franklin Decl. at ¶12 and ¶13; Legaspi Decl. at ¶25). 11 Again, this stucco work is required due to claimed defects with the doors and/or windows, and not 12 because the original stucco or plastering work by QUALITY was defective in any way. In expert 13 Franklin’s opinion, any stucco repair around doors or windows is necessitated because the windows 14 and doors need to be removed, repaired or replaced, not because of any stucco deficiency, but 15 because of deficiencies in the door and window products or their installation. (Franklin Decl. at 16 ¶11, ¶12, and ¶13). Therefore, QUALITY should have not responsibility for these stucco repair 17 costs. 18 Further, TAUB CONSTRUCTION and its expert Kruckenberg’s attempt at allocating 30% 19 or $62,835.24 to Quality Plastering for Plaintiffs’ “8200-1 Wood Exterior Door Defectively 20 Installed” issue is completely meritless. Although the total cost of repair for this issue is 21 $209,450.81, Plaintiffs did not identify the stucco work as having caused this condition, nor do 22 they indicate that the stucco is 30% responsible for this condition. Again, the only mention of 23 stucco in this defect category is in the “stucco repairs” that need to be performed after, because the 24 doors were defectively installed or made, and need to be removed, repaired or replaced. Without 25 providing any facts, details, or supporting evidence specifying exactly why he allocates 30% to 26 Quality for the exterior door issues, Mr. Kruckenberg in a conclusory fashion only alleges that 27 “stucco and lath installation is an integral part of the door and window installation” as his reason 28 BREMER WHYTE BROWN & 14 O’MEARA LLP QUALITY PLASTERING INC.’S OPPOSITION TO KEN TAUB d/b/a KT CONSTRUCTION’ S MOTION TO CHALLENGE 21215 Burbank Blvd. Suite 500 THE APPLICATION FOR GOOD FAITH SETTLEMENT DETERMINATION WITH PLAINTIFFS Woodland Hills, CA 91367 (818) 712-9800 1 for this allocation. While stucco is associated with the exterior wall assembly that includes doors, 2 stucco is not integral to the doors’ functioning or the doors’ failure in this residence. Moreover, 3 there has been no evidence provided that the stucco caused these doors to fail or leak. Simply put, 4 Quality’s stucco work did not cause the damages alleged to have resulted from the exterior doors 5 being defective in this residence. Any damage resulting from the wood exterior doors is due to the 6 doors being defectively installed or the door products themselves being deficient. In Mr. Franklin’s 7 expert opinion, based upon his entire investigation and review of pertinent documents, Quality 8 should not be allocated anything for this defect and damage issue, but at a maximum, Quality’s 9 allocation should only be for 5% of the total repair cost in this category, or $10,472.50 of 10 $209,450.81. (Franklin Decl. at ¶12). 11 Similarly, Mr. Franklin, in his expert opinion, disagrees with TAUB’S and Mr. 12 Kruckenberg’s allocation of 25% or $8,376.93 to Quality Plastering for Plaintiffs’ category “8500 13 - Defective Windows” with a total repair cost of $41,884.66. Mr. Franklin reviewed page 6 of 14 Plaintiff’s Cost of Repair Estimate that contains this defect and damage category, and it clearly 15 identifies materials and labor costs for the removal and replacement of windows, with some painting 16 and masonry work to be completed. There is absolutely no mention of stucco or plaster work at 17 all, and there is no cost allocation in this section for stucco. (Legaspi Decl. at ¶26). Again, 18 without providing any facts, details, or supporting evidence specifying exactly how he allocated 19 25% to Quality for Plaintiffs’ “defective window” issues, Mr. Kruckenberg in a conclusory fashion 20 only claims that “defective conditions and repairs to windows relate in part to the installation of the 21 stucco system” as his reason for this allocation, even if this is completely contradicted by Plaintiffs’ 22 defect and repair cost report. While stucco is associated with the exterior wall assembly that 23 includes the windows, the stucco is not integral to the windows’ functioning or the windows’ failure 24 in this residence. Moreover, there has been no evidence provided that the stucco caused these 25 windows to fail or leak. The windows are defective and failing on their own. Simply put, Quality’s 26 stucco work did not cause the damages resulting from the windows being defective in this residence. 27 Any damage resulting from the windows is due to the windows being defectively installed or the 28 BREMER WHYTE BROWN & 15 O’MEARA LLP QUALITY PLASTERING INC.’S OPPOSITION TO KEN TAUB d/b/a KT CONSTRUCTION’ S MOTION TO CHALLENGE 21215 Burbank Blvd. Suite 500 THE APPLICATION FOR GOOD FAITH SETTLEMENT DETERMINATION WITH PLAINTIFFS Woodland Hills, CA 91367 (818) 712-9800 1 window products themselves being deficient. In Mr. Franklin’s expert opinion, based upon his entire 2 investigation and review of pertinent documents, Quality should not be allocated anything for this 3 defect and damage category. (Franklin Decl. at ¶13). 4 Expert Mr. Franklin also disagrees with Mr. Kruckenberg’s claim that Quality should be 5 allocated 22% for the “additional charges” known as “burden costs” in the amount of $131,662.58. 6 As Mr. Fran