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Ryan P. Harley, Esq. (SBN 245059)
Evan M. Reese, Esq. (SBN 302952)
COLLINS COLLINS MUIR + STEWART LLP
1999 Harrison Street, Suite 1700
Oakland, CA 94612
(510) 844-5100 – FAX (510) 844-5101
Attorneys for Defendant/Cross-Complainant,
WEC AND ASSOCIATES, INC.
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SANTA CLARA
YOUQIN CAO, an Individual and CASE NO. 17CV310601
XINRONG JIANG, an Individual, Assigned to Hon. Maureen A. Folan, Dept.
Plaintiffs, CROSS COMPLAINT OF WEC AND
ASSOCIATES, INC. FOR:
vs.
EQUITABLE INDEMNITY
CALIFORNIA HOME BUILDERS & IMPLIED INDEMNITY
DESIGN, INC. dba CALIFORNIA HOMES APPORTIONMENT OF
& DESIGNS, INC., a California Corporation; FAULT/CONTRIBUTION
CALIFORNIA HOMES AND KITCHEN EXPRESS INDEMNITY
DESIGN CENTER, INC., a California DECLARATORY RELIEF
Corporation; WEC ASSOCIATES, INC., a
California Corporation; and DOES 2 through
Complaint Filed: 05/19/17
Defendants. FAC Filed: 08/15/17
Trial Date: None
WEC AND ASSOCIATES, INC.
Cross-Complainant,
CALIFORNIA HOME BUILDERS &
DESIGN, INC., a California corporation, and
ROES 1-100, inclusive.
Cross Defendants.
COMES NOW, Defendant/Cross-Complainant WEC ASSOCIATES, INC.
(hereinafter “WEC”), and alleges as follows:
20705 – XC OF WEC (05-01-18)
1999 Harrison St , Ste.1700
Oakland, CA
Phone (510) 844
Fax (510) 844
CROSS COMPLAINT OF WEC AND ASSOCIATES, INC.
GENERAL ALLEGATIONS:
Defendant/Cross Complainant WEC is and was at all times mentioned herein, a
California corporation authorized to do business in the State of California;
WEC is informed and believes, and thereon alleges, that Cross Defendant
CALIFORNIA HOME BUILDERS & DESIGN, INC. (hereinafter “CALIFORNIA HOMES”) is, and
at all times mentioned herein was, a California corporation authorized to do business in the State of
California;
The true names and capacities of Cross Defendants ROES 1 through ROES 100,
inclusive, are presently unknown to WEC, and for that reason they have been sued herein by their
fictitious names. WEC is informed and believes, and hereby alleges that each of said fictitiously named
Cross Defendants is in some manner responsible for the acts and omissions complained of herein and
for WEC’s damages as alleged herein. WEC will seek leave to amend this Cross Complaint to allege
the true names and capacities of said fictitiously named Cross Defendants once the same have been
ascertained
Plaintiffs YOUQIN CAO and XINRONG JIANG have filed a First Amended
Complaint (“FAC”) in the Superior Court of California, County of Santa Clara, Case No.
17CV310601. Although WEC specifically denies each of Plaintiffs’ allegations, WEC hereby
incorporates by reference the factual allegations of the FAC as the basis for the below cause of action.
all times mentioned, each of the Cross Defendants herein named was the actively
and primarily responsible for the acts, omissions, and defects alleged in Plaintiffs FAC, in that Cross
Defendants were negligent in carrying out their respective duties. Such failure and active negligence
and/or intentional conduct are the sole and proximate causes of the alleged damages, if any.
At all times herein mentioned, each of the Cross Defendants herein named was the
duly authorized agent, servant, or employee of each remaining Cross Defendant and, in doing the acts
herein alleged, were acting within the course and scope of such agency, service, or employment and
with the knowledge, consent, or ratification of each of the remaining Cross Defendants
XC OF WEC (05
1999 Harrison St , Ste.1700
Oakland, CA
Phone (510) 844
Fax (510) 844
CROSS COMPLAINT OF WEC AND ASSOCIATES, INC.
FIRST CAUSE OF ACTION
(Equitable Indemnity Against CALIFORNIA HOMES and ROES 1 100, inclusive
WEC incorporates the allegations contained in paragraphs 1 through 6, inclusive, and
by this reference incorporates the same as though fully set forth herein
WEC is informed and believes and based upon such information and belief alleges, that
any and all events and happening, injuries, and damages, if any, referred to in Plaintiffs’ FAC on file
herein were proximately caused by negligence and/or otherwise tortious misconduct of Cross
Defendants CALIFORNIA HOMES and ROES 1 100. On that basis, Cross Defendants
CALIFORNIA HOMES and ROES 1 100 owe WEC a duty of equitable indemnity for all the damages
caused by Cross Defendants CALIFORNIA HOMES and ROES 100.
WEC is entitled, at a minimum, to a declaration of this Court as to the respect degrees
of negligence or the percentage of fault of whatever nature, if any, of WEC and Cross Defendants
CALIFORNIA HOMES and ROES 1 100 which proximately caused or contributed to the damages
now complained of by Cross Complainant, and WEC is entitled to be indemnified, at a minimum, on
the basis of comparative/partial indemnity principles applied by, between, and among WEC and Cross
Defendants CALIFORNIA HOMES and ROES 1 100 herein.
SECONDCAUSE OF ACTION
(Implied Indemnity Against CALIFORNIA HOMES and ROES 1 100, inclusive
WEC hereby incorporates the allegations contained in paragraphs 1 through 9,
inclusive, and by this reference incorporates the same as though fully set forth herein.
WEC is informed and believes and thereon alleges that if there is any liability on its
part to Plaintiff or any other party as a result of alleged damages described in Plaintiff’s FAC, then
said damages were proximately caused or contributed to by the negligence, recklessness, or other
conduct of Cross Defendants CALIFORNIA HOMES and ROES 1
Therefore, if Plaintiff or any other party recovers against WEC, by way of judgment,
settlement, or otherwise, then WEC is entitled to be indemnified by Cross Defendants
CALIFORNIA HOMES and ROES 1
XC OF WEC (05
1999 Harrison St , Ste.1700
Oakland, CA
Phone (510) 844
Fax (510) 844
CROSS COMPLAINT OF WEC AND ASSOCIATES, INC.
Additionally, WEC has incurred and will continue to incur attorneys’ fees and costs
in defending Plaintiffs’ FAC, and is entitled to be reimbursed for these attorneys’ fees and costs.
THIRD CAUSE OF ACTION
(Apportionment of Fault/Contribution Against CALIFORNIA HOMES and ROES 1
WEC hereby incorporates the allegation contained in paragraphs 1 through 13,
inclusive, and by this reference incorporates the same as though fully set forth herein.
Without admitting liability which has been and continues to be denied, WEC is not
singularly or totally liable, if at all, for the injuries and/or damages, if any, allegedly sustained by the
other parties to this action. If it is found that WEC is liable to any party hereto, then WEC alleges that
the liability is passive and derivative only and that Cross Defendants CALIFORNIA HOMES and
ROES 1 100 liabilities are active and primary. Further, in the event that WEC is liable to any other
party hereto, the liability of WEC must be reduced to the extent proportionate to the degree of fault, if
any, of all other parties held liable.
By reason of the foregoing, WEC is entitled to contribution from the Cross Defendants
CALIFORNIA HOMES and ROES 1 0 herein, and each of them, in an amount equal to and
proportional to that amount of fault and/or other liability attributable to such Cross Defendants.
As a direct and proximate result, WEC is entitled to contribution from and judgment
against Cross efendants CALIFORNIA HOMES and ROES 1 100, and each of them, according to
proof.
FOURTH CAUSE OF ACTION
(Express Indemnity Against CALIFORNIA HOMES and ROES 1 100
WEC hereby incorporates by reference paragraphs 1 through 17 inclusive, and by
this reference incorporates the same as though fully set forth herein.
WEC is informed and believes, and based upon such information and belief, alleges
that it entered into contract with each of the Cross Defendants CALIFORNIA HOMES, and that
this contract ontains an indemnity, defense hold harmless and attorneys’ fees provisions.
XC OF WEC (05
1999 Harrison St , Ste.1700
Oakland, CA
Phone (510) 844
Fax (510) 844
CROSS COMPLAINT OF WEC AND ASSOCIATES, INC.
Alternatively, WEC is informed and believes that other parties, including Cross Defendants,
entered into contracts/subcontracts that provide for indemnity and the legal defense of WEC in
connection with this matter.
WEC alleges that each contract/subcontract relates to work performed and/or
materials provided by Cross Defendants CALIFORNIA HOMES and ROES 1 100 that is
connected to any and all events and happenings, injuries and damages, if any, referred to in Plaintiff
FAC on file herein.
WEC is informed and believes, and based upon such information and belief, alleges
that Cross Defendants CALIFORNIA HOMES and ROES 1 100 agreed in writing, prior to the date
the alleged occurrence(s) in Plaintiff’s FAC, to indemnify, defend and hold harmless WEC from
any claims, as well as to reimburse WEC for any expenditure, including attorneys’ fees.
In accordance with the terms of the contract/subcontract, Cross Defendants
CALIFORNIA HOMES and ROES 1 100 should be required to expressly indemnify and hold
harmless WEC immediately.
An actual controversy exists between WEC and Cross Defendants CALIFORNIA
HOMES and ROES 1 100 relating to their legal responsibly for Plaintiff’s alleged injury and
damages, if any. WEC contends that if it is found liable to Plaintiff for the damages alleged in the
FAC, WEC’s liability will be the direct, proximate results of the acts, omission, and/or negligence
of Cross Defendants CALIFORNIA HOMES and/or ROES 1 100 in the performance of their
contracts/subcontracts with WEC.
Accordingly, if judgment based thereon is obtained by Plaintiff against WEC, WEC
is entitled to judgment against Cross Defendants CALIFORNIA HOMES and/or ROES 1 100, and
each of them, in the amount of Plaintiff’s judgment, together with all costs and attorneys’ fees
incurred therein, subject to proof.
FIFTH CAUSE OF ACTION
(Declaratory Relief Against CALIFORNIA HOMES and ROES 1 100, inclusive)
WEC hereby incorporates by reference paragraphs 1 through 24 inclusive, and by
this reference incorporates the same as though fully set forth herein.
XC OF WEC (05
1999 Harrison St , Ste.1700
Oakland, CA
Phone (510) 844
Fax (510) 844
CROSS COMPLAINT OF WEC AND ASSOCIATES, INC.
An actual controversy has arisen and now exists between WEC and Cross
Defendants, and each of them, concerning their respective rights and duties. WEC contends that, by
virtue of the aforementioned contracts and the acts of and primary negligence of Cross Defendants,
and each of them, Cross Defendants are the sole and proximate cause of the injuries and damages, if
any, sustained by Plaintiff. WEC further contends that Cross Defendants are obligated to reimburse
WEC for reasonable attorneys’ fees incurred and expended by WEC in defending the action, and to
hold WEC harmless from any and all expenses, damages, judgments or other awards which may be
recovered against WEC as a result of the action. WEC is informed and believes and thereon alleges
that Cross Defendants, and each of them, contend that they are not obligated to indemnify WEC for
the action in any form or manner whatsoever.
WEC desires a judicial determination of the respective rights and duties of WEC and
Cross Defendants, and each of them, and a declaration that Cross Defendants, and each of them,
were obligated to defend the action against WEC, to reimburse WEC for reasonable attorneys’ fees
and costs, as well as consultants’ fees and costs incurred to inspect, repair and mitigate damages
and to hold WEC harmless from any and all expenses, damages, judgments or other awards which
were or may be obtained against WEC as a result of the action.
Such a declaration is appropriate at this time in order that WEC may ascertain its
rights and duties with respect to the defense of the action against WEC and the payment of any
damages, judgments or other awards which were or may be recovered against WEC as a result of
the action.
WHEREFORE, WECprays for relief as follows:
For a declaration by this Court that Cross Defendants are obligated toindemnify and
hold WEC harmless
For contribution for the proportional amount of any judgment rendered;
For a declaration of the rights, duties, and obligations between WEC and Cross
Defendants
XC OF WEC (05
1999 Harrison St , Ste.1700
Oakland, CA
Phone (510) 844
Fax (510) 844
CROSS COMPLAINT OF WEC AND ASSOCIATES, INC.
For a judgment against Cross Defendants, and each of them, in such amounts as
Plaintiffs may recover against WEC in this action
For attorneys’ fees incurred by WEC in defense of Plaintiffs’ action, and in the
prosecution of this Cross Complaint;
For cost and fees herein incurred by WECto prosecute this action;
Such other relief as the Court may deem just and proper.
DATED ay 1, 2018 COLLINS COLLINS MUIR STEWART
By: ________________________________
RYAN P. HARLEY
Attorneys for Defendant/Cross Complainant,
WEC AND ASSOCIATES, INC.
XC OF WEC (05
1999 Harrison St , Ste.1700
Oakland, CA
Phone (510) 844
Fax (510) 844
CROSS COMPLAINT OF WEC AND ASSOCIATES, INC.
PROOF OF SERVICE
(CCP 1013(a) and 2015.5; FRCP 5)
State of California,
) ss.
County of Alameda.
I am employed in the County of Alameda, State of California. I am over the age of 18 and not a party to the within action; my
business address 1999 Harrison St., Suite 1700, Oakland, California 94612.
On this date, I served the foregoing document described as SUMMONS ON CROSS COMPLAINT; CROSS COMPLAINT
OF WEC AND ASSOCIATES, INC. on the interested parties in this action by placing same in a sealed envelope, addressed as follows:
SEE ATTACHED SERVICE LIST
(BY MAIL) I caused such envelope(s) with postage thereon fully prepaid to be placed in the United States mail in Oakland, California
to be served on the parties as indicated on the attached service list. I am “readily familiar” with the firm’s practice of collection and
processing correspondence for mailing. Under that practice, it would be deposited with the U.S. Postal Service on that same day with
postage thereon fully prepaid at Oakland, California in the ordinary course of business. I am aware that on motion of the party served,
service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in
affidavit.
(BY CERTIFIED MAIL) I caused such envelope(s) with postage thereon fully prepaid via Certified Mail Return Receipt Requested
to be placed in the United States Mail in Oakland, California.
BY EXPRESS MAIL OR ANOTHER METHOD OF DELIVERY PROVIDING FOR OVERNIGHT DELIVERY
(BY ELECTRONIC FILING AND/OR SERVICE) I served a true copy, with all exhibits, electronically on designated
recipients listed on the attached Service List on: (Date) at (Time)
FEDERAL EXPRESS I caused the envelope to be delivered to an authorized courier or driver authorized to receive documents with
delivery fees provided for.
(BY FACSIMILE) I caused the above described document(s) to be transmitted to the offices of the interested parties at the facsimile
number(s) indicated on the attached Service List and the activity report(s) generated by facsimile number (510) 844 5101 indicated all
pages were transmitted.
(BY PERSONAL SERVICE) I caused such envelope(s) to be delivered by hand to the office(s) of the addressee(s).
Executed on May 1, 2018 Oakland, California.
(STATE) I declare under penalty of perjury under the laws of the State of California that the above is true and correct.
(FEDERAL) I declare that I am employed in the office of a member of the bar of this court at whose direction the service was made.
ALEXANDRA ROYBAL
aroybal@ccmslaw.com
YOUQIN CAO and XINRONG JIANG v. CALIFORNIA HOME BUILDERS & DESIGN, INC., et al.
SANTA CLARA COUNTY SUPERIOR COURT CASE NO. 17CV310601
OUR FILE NO. 20
SERVICE LIST
Jeffrey H. Belote, Esq. Brian Preston, Esq.
Kaitlyn J. Sikora, Esq. LAW OFFICES OF BRIAN PRESTON
CLARK HILL LLP 111 North Market Street, Suite 705
One Embarcadero Center, Suite 400 San Jose, CA 95113
San Francisco, CA 94111 (408) 293 2700 FAX (408) 2932711
984 8500 Fax: 415 9848599 bp@brianprestonlaw.com
jbelote@clarkhill.com ATTORNEY FOR CALIFORNIA HOME BUILDERS &
ksikora@clarkhill.com DESIGN, INC.
ATTORNEYS FOR PLAINTIFFS
YOUQIN CAO & XINRONG JIANG
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Ryan P. Harley, Esq. (SBN 245059) Evan M. Reese, Esq. (SBN 302952) COLLINS COLLINS MUIR + STEWART LLP 1999 Harrison Street, Suite 1700 Oakland, CA 94612 (510) 844-5100 – FAX (510) 844-5101 Attorneys for Defendant/Cross-Complainant, WEC AND ASSOCIATES, INC. SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SANTA CLARA YOUQIN CAO, an Individual and CASE NO. 17CV310601 XINRONG JIANG, an Individual, Assigned to Hon. Maureen A. Folan, Dept. Plaintiffs, CROSS COMPLAINT OF WEC AND ASSOCIATES, INC. FOR: vs. EQUITABLE INDEMNITY CALIFORNIA HOME BUILDERS & IMPLIED INDEMNITY DESIGN, INC. dba CALIFORNIA HOMES APPORTIONMENT OF & DESIGNS, INC., a California Corporation; FAULT/CONTRIBUTION CALIFORNIA HOMES AND KITCHEN EXPRESS INDEMNITY DESIGN CENTER, INC., a California DECLARATORY RELIEF Corporation; WEC ASSOCIATES, INC., a California Corporation; and DOES 2 through Complaint Filed: 05/19/17 Defendants. FAC Filed: 08/15/17 Trial Date: None WEC AND ASSOCIATES, INC. Cross-Complainant, CALIFORNIA HOME BUILDERS & DESIGN, INC., a California corporation, and ROES 1-100, inclusive. Cross Defendants. COMES NOW, Defendant/Cross-Complainant WEC ASSOCIATES, INC. (hereinafter “WEC”), and alleges as follows: 20705 – XC OF WEC (05-01-18) 1999 Harrison St , Ste.1700 Oakland, CA Phone (510) 844 Fax (510) 844 CROSS COMPLAINT OF WEC AND ASSOCIATES, INC. GENERAL ALLEGATIONS: Defendant/Cross Complainant WEC is and was at all times mentioned herein, a California corporation authorized to do business in the State of California; WEC is informed and believes, and thereon alleges, that Cross Defendant CALIFORNIA HOME BUILDERS & DESIGN, INC. (hereinafter “CALIFORNIA HOMES”) is, and at all times mentioned herein was, a California corporation authorized to do business in the State of California; The true names and capacities of Cross Defendants ROES 1 through ROES 100, inclusive, are presently unknown to WEC, and for that reason they have been sued herein by their fictitious names. WEC is informed and believes, and hereby alleges that each of said fictitiously named Cross Defendants is in some manner responsible for the acts and omissions complained of herein and for WEC’s damages as alleged herein. WEC will seek leave to amend this Cross Complaint to allege the true names and capacities of said fictitiously named Cross Defendants once the same have been ascertained Plaintiffs YOUQIN CAO and XINRONG JIANG have filed a First Amended Complaint (“FAC”) in the Superior Court of California, County of Santa Clara, Case No. 17CV310601. Although WEC specifically denies each of Plaintiffs’ allegations, WEC hereby incorporates by reference the factual allegations of the FAC as the basis for the below cause of action. all times mentioned, each of the Cross Defendants herein named was the actively and primarily responsible for the acts, omissions, and defects alleged in Plaintiffs FAC, in that Cross Defendants were negligent in carrying out their respective duties. Such failure and active negligence and/or intentional conduct are the sole and proximate causes of the alleged damages, if any. At all times herein mentioned, each of the Cross Defendants herein named was the duly authorized agent, servant, or employee of each remaining Cross Defendant and, in doing the acts herein alleged, were acting within the course and scope of such agency, service, or employment and with the knowledge, consent, or ratification of each of the remaining Cross Defendants XC OF WEC (05 1999 Harrison St , Ste.1700 Oakland, CA Phone (510) 844 Fax (510) 844 CROSS COMPLAINT OF WEC AND ASSOCIATES, INC. FIRST CAUSE OF ACTION (Equitable Indemnity Against CALIFORNIA HOMES and ROES 1 100, inclusive WEC incorporates the allegations contained in paragraphs 1 through 6, inclusive, and by this reference incorporates the same as though fully set forth herein WEC is informed and believes and based upon such information and belief alleges, that any and all events and happening, injuries, and damages, if any, referred to in Plaintiffs’ FAC on file herein were proximately caused by negligence and/or otherwise tortious misconduct of Cross Defendants CALIFORNIA HOMES and ROES 1 100. On that basis, Cross Defendants CALIFORNIA HOMES and ROES 1 100 owe WEC a duty of equitable indemnity for all the damages caused by Cross Defendants CALIFORNIA HOMES and ROES 100. WEC is entitled, at a minimum, to a declaration of this Court as to the respect degrees of negligence or the percentage of fault of whatever nature, if any, of WEC and Cross Defendants CALIFORNIA HOMES and ROES 1 100 which proximately caused or contributed to the damages now complained of by Cross Complainant, and WEC is entitled to be indemnified, at a minimum, on the basis of comparative/partial indemnity principles applied by, between, and among WEC and Cross Defendants CALIFORNIA HOMES and ROES 1 100 herein. SECONDCAUSE OF ACTION (Implied Indemnity Against CALIFORNIA HOMES and ROES 1 100, inclusive WEC hereby incorporates the allegations contained in paragraphs 1 through 9, inclusive, and by this reference incorporates the same as though fully set forth herein. WEC is informed and believes and thereon alleges that if there is any liability on its part to Plaintiff or any other party as a result of alleged damages described in Plaintiff’s FAC, then said damages were proximately caused or contributed to by the negligence, recklessness, or other conduct of Cross Defendants CALIFORNIA HOMES and ROES 1 Therefore, if Plaintiff or any other party recovers against WEC, by way of judgment, settlement, or otherwise, then WEC is entitled to be indemnified by Cross Defendants CALIFORNIA HOMES and ROES 1 XC OF WEC (05 1999 Harrison St , Ste.1700 Oakland, CA Phone (510) 844 Fax (510) 844 CROSS COMPLAINT OF WEC AND ASSOCIATES, INC. Additionally, WEC has incurred and will continue to incur attorneys’ fees and costs in defending Plaintiffs’ FAC, and is entitled to be reimbursed for these attorneys’ fees and costs. THIRD CAUSE OF ACTION (Apportionment of Fault/Contribution Against CALIFORNIA HOMES and ROES 1 WEC hereby incorporates the allegation contained in paragraphs 1 through 13, inclusive, and by this reference incorporates the same as though fully set forth herein. Without admitting liability which has been and continues to be denied, WEC is not singularly or totally liable, if at all, for the injuries and/or damages, if any, allegedly sustained by the other parties to this action. If it is found that WEC is liable to any party hereto, then WEC alleges that the liability is passive and derivative only and that Cross Defendants CALIFORNIA HOMES and ROES 1 100 liabilities are active and primary. Further, in the event that WEC is liable to any other party hereto, the liability of WEC must be reduced to the extent proportionate to the degree of fault, if any, of all other parties held liable. By reason of the foregoing, WEC is entitled to contribution from the Cross Defendants CALIFORNIA HOMES and ROES 1 0 herein, and each of them, in an amount equal to and proportional to that amount of fault and/or other liability attributable to such Cross Defendants. As a direct and proximate result, WEC is entitled to contribution from and judgment against Cross efendants CALIFORNIA HOMES and ROES 1 100, and each of them, according to proof. FOURTH CAUSE OF ACTION (Express Indemnity Against CALIFORNIA HOMES and ROES 1 100 WEC hereby incorporates by reference paragraphs 1 through 17 inclusive, and by this reference incorporates the same as though fully set forth herein. WEC is informed and believes, and based upon such information and belief, alleges that it entered into contract with each of the Cross Defendants CALIFORNIA HOMES, and that this contract ontains an indemnity, defense hold harmless and attorneys’ fees provisions. XC OF WEC (05 1999 Harrison St , Ste.1700 Oakland, CA Phone (510) 844 Fax (510) 844 CROSS COMPLAINT OF WEC AND ASSOCIATES, INC. Alternatively, WEC is informed and believes that other parties, including Cross Defendants, entered into contracts/subcontracts that provide for indemnity and the legal defense of WEC in connection with this matter. WEC alleges that each contract/subcontract relates to work performed and/or materials provided by Cross Defendants CALIFORNIA HOMES and ROES 1 100 that is connected to any and all events and happenings, injuries and damages, if any, referred to in Plaintiff FAC on file herein. WEC is informed and believes, and based upon such information and belief, alleges that Cross Defendants CALIFORNIA HOMES and ROES 1 100 agreed in writing, prior to the date the alleged occurrence(s) in Plaintiff’s FAC, to indemnify, defend and hold harmless WEC from any claims, as well as to reimburse WEC for any expenditure, including attorneys’ fees. In accordance with the terms of the contract/subcontract, Cross Defendants CALIFORNIA HOMES and ROES 1 100 should be required to expressly indemnify and hold harmless WEC immediately. An actual controversy exists between WEC and Cross Defendants CALIFORNIA HOMES and ROES 1 100 relating to their legal responsibly for Plaintiff’s alleged injury and damages, if any. WEC contends that if it is found liable to Plaintiff for the damages alleged in the FAC, WEC’s liability will be the direct, proximate results of the acts, omission, and/or negligence of Cross Defendants CALIFORNIA HOMES and/or ROES 1 100 in the performance of their contracts/subcontracts with WEC. Accordingly, if judgment based thereon is obtained by Plaintiff against WEC, WEC is entitled to judgment against Cross Defendants CALIFORNIA HOMES and/or ROES 1 100, and each of them, in the amount of Plaintiff’s judgment, together with all costs and attorneys’ fees incurred therein, subject to proof. FIFTH CAUSE OF ACTION (Declaratory Relief Against CALIFORNIA HOMES and ROES 1 100, inclusive) WEC hereby incorporates by reference paragraphs 1 through 24 inclusive, and by this reference incorporates the same as though fully set forth herein. XC OF WEC (05 1999 Harrison St , Ste.1700 Oakland, CA Phone (510) 844 Fax (510) 844 CROSS COMPLAINT OF WEC AND ASSOCIATES, INC. An actual controversy has arisen and now exists between WEC and Cross Defendants, and each of them, concerning their respective rights and duties. WEC contends that, by virtue of the aforementioned contracts and the acts of and primary negligence of Cross Defendants, and each of them, Cross Defendants are the sole and proximate cause of the injuries and damages, if any, sustained by Plaintiff. WEC further contends that Cross Defendants are obligated to reimburse WEC for reasonable attorneys’ fees incurred and expended by WEC in defending the action, and to hold WEC harmless from any and all expenses, damages, judgments or other awards which may be recovered against WEC as a result of the action. WEC is informed and believes and thereon alleges that Cross Defendants, and each of them, contend that they are not obligated to indemnify WEC for the action in any form or manner whatsoever. WEC desires a judicial determination of the respective rights and duties of WEC and Cross Defendants, and each of them, and a declaration that Cross Defendants, and each of them, were obligated to defend the action against WEC, to reimburse WEC for reasonable attorneys’ fees and costs, as well as consultants’ fees and costs incurred to inspect, repair and mitigate damages and to hold WEC harmless from any and all expenses, damages, judgments or other awards which were or may be obtained against WEC as a result of the action. Such a declaration is appropriate at this time in order that WEC may ascertain its rights and duties with respect to the defense of the action against WEC and the payment of any damages, judgments or other awards which were or may be recovered against WEC as a result of the action. WHEREFORE, WECprays for relief as follows: For a declaration by this Court that Cross Defendants are obligated toindemnify and hold WEC harmless For contribution for the proportional amount of any judgment rendered; For a declaration of the rights, duties, and obligations between WEC and Cross Defendants XC OF WEC (05 1999 Harrison St , Ste.1700 Oakland, CA Phone (510) 844 Fax (510) 844 CROSS COMPLAINT OF WEC AND ASSOCIATES, INC. For a judgment against Cross Defendants, and each of them, in such amounts as Plaintiffs may recover against WEC in this action For attorneys’ fees incurred by WEC in defense of Plaintiffs’ action, and in the prosecution of this Cross Complaint; For cost and fees herein incurred by WECto prosecute this action; Such other relief as the Court may deem just and proper. DATED ay 1, 2018 COLLINS COLLINS MUIR STEWART By: ________________________________ RYAN P. HARLEY Attorneys for Defendant/Cross Complainant, WEC AND ASSOCIATES, INC. XC OF WEC (05 1999 Harrison St , Ste.1700 Oakland, CA Phone (510) 844 Fax (510) 844 CROSS COMPLAINT OF WEC AND ASSOCIATES, INC. PROOF OF SERVICE (CCP 1013(a) and 2015.5; FRCP 5) State of California, ) ss. County of Alameda. I am employed in the County of Alameda, State of California. I am over the age of 18 and not a party to the within action; my business address 1999 Harrison St., Suite 1700, Oakland, California 94612. On this date, I served the foregoing document described as SUMMONS ON CROSS COMPLAINT; CROSS COMPLAINT OF WEC AND ASSOCIATES, INC. on the interested parties in this action by placing same in a sealed envelope, addressed as follows: SEE ATTACHED SERVICE LIST (BY MAIL) I caused such envelope(s) with postage thereon fully prepaid to be placed in the United States mail in Oakland, California to be served on the parties as indicated on the attached service list. I am “readily familiar” with the firm’s practice of collection and processing correspondence for mailing. Under that practice, it would be deposited with the U.S. Postal Service on that same day with postage thereon fully prepaid at Oakland, California in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit. (BY CERTIFIED MAIL) I caused such envelope(s) with postage thereon fully prepaid via Certified Mail Return Receipt Requested to be placed in the United States Mail in Oakland, California. BY EXPRESS MAIL OR ANOTHER METHOD OF DELIVERY PROVIDING FOR OVERNIGHT DELIVERY (BY ELECTRONIC FILING AND/OR SERVICE) I served a true copy, with all exhibits, electronically on designated recipients listed on the attached Service List on: (Date) at (Time) FEDERAL EXPRESS I caused the envelope to be delivered to an authorized courier or driver authorized to receive documents with delivery fees provided for. (BY FACSIMILE) I caused the above described document(s) to be transmitted to the offices of the interested parties at the facsimile number(s) indicated on the attached Service List and the activity report(s) generated by facsimile number (510) 844 5101 indicated all pages were transmitted. (BY PERSONAL SERVICE) I caused such envelope(s) to be delivered by hand to the office(s) of the addressee(s). Executed on May 1, 2018 Oakland, California. (STATE) I declare under penalty of perjury under the laws of the State of California that the above is true and correct. (FEDERAL) I declare that I am employed in the office of a member of the bar of this court at whose direction the service was made. ALEXANDRA ROYBAL aroybal@ccmslaw.com YOUQIN CAO and XINRONG JIANG v. CALIFORNIA HOME BUILDERS & DESIGN, INC., et al. SANTA CLARA COUNTY SUPERIOR COURT CASE NO. 17CV310601 OUR FILE NO. 20 SERVICE LIST Jeffrey H. Belote, Esq. Brian Preston, Esq. Kaitlyn J. Sikora, Esq. LAW OFFICES OF BRIAN PRESTON CLARK HILL LLP 111 North Market Street, Suite 705 One Embarcadero Center, Suite 400 San Jose, CA 95113 San Francisco, CA 94111 (408) 293 2700 FAX (408) 2932711 984 8500 Fax: 415 9848599 bp@brianprestonlaw.com jbelote@clarkhill.com ATTORNEY FOR CALIFORNIA HOME BUILDERS & ksikora@clarkhill.com DESIGN, INC. ATTORNEYS FOR PLAINTIFFS YOUQIN CAO & XINRONG JIANG