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1 GARCIA | MARSALLI, LLP
3478 Buskirk Avenue, Suite 1000
2 Pleasant Hill, CA 94523 10/6/2020
Phone: (925) 287-6488
3
Fax: (925) 287-6489
4 Israel E. Garcia, State Bar No. 216183
Jerod A. Marsalli, State Bar No. 217342
5
Attorneys for Plaintiffs,
6 Jason Strawn & Kelli Strawn, et al.
7
SUPERIOR COURT OF THE STATE OF CALIFORNIA
8
FOR THE COUNTY OF BUTTE
9
10 JASON STRAWN & KELLI STRAWN; ) CASE NO.: 20CV00847
DOMENIC CONSOLE & DELCIE MILLS; )
11 RICHARD S. MATSON, TRUSTEE OF THE )
WARREN ROSE TRUST FBO STEPHEN FIRST AMENDED COMPLAINT FOR
ROSE DATED JUNE 22, 2002; BETH MARIE )
12 DAMAGES:
3478 Buskirk Avenue, Suite 1000
)
GARCIA | MARSALLI, LLP
TURNER & DAVID WAYNE TURNER;
Pleasant Hill, CA 94523
13 JANA K BLEVINS & CINDY MCKAY; ) 1. STRICT PRODUCTS LIABILITY
BRANDON DAVID & ROBYN M ) 2. STRICT PRODUCTS LIABILITY
14 BLAKLEY; KATHRYN BAILEY & ) (COMPONENT PRODUCTS)
CHRISTINA BAILEY; BENJAMIN SCOTT ) 3. BREACH OF IMPLIED WARRANTY
15 CORNELIUS; SCOTT NEWMAN & RAVEN ) (MERCHANTABILITY)
NEWMAN; KYLE PATTERSON & VALERIE 4. BREACH OF CONTRACT
ROMINEK; THE MOORE FAMILY; OTTO )
16 5. NEGLIGENCE
HOVORKA, JR. & KIMBERLY HOVORKA; )
6. BREACH OF EXPRESS WARRANTY
17 KATHERINE LEE DANIELS & MATTHEW ) 7. VIOLATION OF BUILDING STANDARDS
DANIELS; DIFABACHEW BELAY ) AS SET FORTH IN CALIFORNIA CIVIL
18 KONDIDIE & YEHEYWOT Z MAKONEN; ) CODE §895, ET SEQ.
MICHAEL CHIOTTI & DANIELLE )
19 CHIOTTI; JASON W. BERRY & MARISSA
BERRY, TRUSTEES JASON W. BERRY )
20 AND MARISSA BERRY REVOCABLE )
TRUST 2018; TRENT DATWYLER & )
21 JENNIFER WICKMAN; BRIAN NOZISKA & )
NATALIE NOZISKA; )
22 )
Plaintiffs, )
23 vs. )
24 )
DISCOVERY BUILDERS, Inc., a California )
25 Corporation; and DOES 1-1000, inclusive; )
)
26 Defendants. )
)
27 )
28 )
1
FIRST AMENDED COMPLAINT FOR DAMAGES
Plaintiffs allege:
1
2 1. Plaintiffs are individuals residing in the County of Butte, State of California.
3 2. The subjects of this action are the land with single family dwellings and other
4 improvements thereon, owned by Plaintiffs respectively, (hereinafter collectively referred to as the
5 “PROPERTY”) located in the County of Butte, State of California, described as follows:
6
ORIGINAL/SUBSEQUENT
# OWNER NAME PROPERTY ADDRESS
PURCHASER
7 3271 Tinker Creek Way,
1 Jason & Kelli Strawn Chico, CA 95973 SUBSEQUENT
8 611 Windham Way, Chico,
2 Domenic Console & Delcie Mills CA 95973 SUBSEQUENT
9 Richard S. Matson, Trustee of The Warren Rose Trust FBO 3104 Tule River Way,
3 Stephen Rose dated June 22, 2002 Chico, CA 95973 SUBSEQUENT
3289 Chamberlain Run,
10 4 Beth Marie Turner & David Wayne Turner Chico, CA 95973 ORIGINAL
3233 Chamberlain Run,
11 5 Jana K Blevins & Cindy McKay Chico, CA 95973 ORIGINAL
3145 Rogue River Dr,
12 6 Brandon David & Robyn M Blakley Chico, CA 95973 SUBSEQUENT
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3245 Rogue River Dr,
Pleasant Hill, CA 94523
13 7 Kathryn & Christina Bailey Chico, CA 95973 SUBSEQUENT
634 Brush Creek Ln, Chico,
8 Benjamin Scott Cornelius CA 95973 SUBSEQUENT
14 3281 Sespe Creek Way,
9 Scott & Raven Newman Chico, CA 95973 ORIGINAL
15 3220 Tinker Creek Way,
10 Kyle Patterson & Valerie Rominek Chico, CA 95973 ORIGINAL
16 3267 Tinker Creek Way,
11 The Moore Family Chico, CA 95973 SUBSEQUENT
17 603 Windham Way, Chico,
12 Otto Hovorka, Jr. & Kimberly Hovorka CA 95973 SUBSEQUENT
3236 Tinker Creek Way,
18 13 Katherine Lee Daniels & Matthew Daniels Chico, CA 95973 ORIGINAL
3171 Sawyers Bar Ln,
19 14 Difabachew Belay Kondidie & Yeheywot Z Makonen Chico, CA 95973 ORIGINAL
20 722 Niles Canyon Ln,
15 Michael & Danielle Chiotti Chico, CA 95973 ORIGINAL
21 Jason W. & Marissa Berry, Trustees Jason W. Berry and 705 Burnt Ranch Way,
16 Marissa Berry Revocable Trust 2018 Chico, CA 95973 ORIGINAL
22 701 Burnt Ranch Way,
17 Trent Datwyler & Jennifer Wickman Chico, CA 95973 ORIGINAL
23 3241 Sespe Creek Way
18 Brian & Natalie Noziska Chico, CA 95973 ORIGINAL
24
25
3. Plaintiffs are informed and believe and based thereon allege that at all times herein
26
mentioned and material hereto that Defendant DISCOVERY BUILDERS, Inc., a California
27
Corporation authorized to conduct business in California, and was the developer, builder and/or
28
general contractor of the PROPERTY and the project(s) within which the PROPERTY is located.
2
FIRST AMENDED COMPLAINT FOR DAMAGES
1 4. Plaintiffs are informed and believe and based thereon allege that, at all times herein
2 mentioned, each of the DEFENDANTS sued herein was the agent and employee of each of the
3 remaining DEFENDANTS and was at all times acting within the purpose and scope of such agency
4 and employment.
5 5. The names and capacities, whether individual, corporate, associate or otherwise of
6 certain developers, builders, general contractors, subcontractors and/or their alter egos sued herein as
7 DOES 1 through 100 inclusive, are presently unknown, and Plaintiffs will amend the Complaint to
8 insert the same when ascertained. Plaintiffs are informed and believe and based thereon allege that
9 each of these Defendants was a resident of said County and State and/or have principal offices or
10 were doing business in said County and State and were and are responsible in some way for the
11 happenings and damages alleged in this complaint. Said Defendants, along with the Defendants
12 named above, will hereinafter be referred to as the “DEVELOPER DEFENDANTS.”
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13 6. In order to build and construct said PROPERTY and project(s) the DEVELOPER
14 DEFENDANTS hired, retained, employed, or contracted for the services of certain persons or entities
15 to plan, design, and prepare drawings and specifications for the building of the PROPERTY and
16 project. The identities of said persons or entities, whether individual, corporate or otherwise, sued
17 herein as Does 101 through 200, are presently unknown to Plaintiffs who therefore sue such persons
18 by their fictitious names. Plaintiffs are informed and believe and thereon allege that said persons or
19 entities are wholly or in some part responsible for the occurrences set forth in the complaint. These
20 Defendants will hereinafter be referred to as the “DESIGN DEFENDANTS.”
21 7. In order to build and construct said project the DEVELOPER DEFENDANTS hired,
22 retained, employed, or contracted with persons or entities to provide for labor and materials in the
23 construction of the PROPERTY and project(s). The identities of said persons or entities, whether
24 individual, corporate, or otherwise, sued herein as Does 201 through 300 are presently unknown to
25 Plaintiffs who therefore sue such persons by their fictitious names. Plaintiffs are informed and believe
26 and thereon allege that said persons or entities are wholly or in some part responsible for the
27 occurrences set forth in the Complaint in accordance with that party’s individual scope of work that
28
3
FIRST AMENDED COMPLAINT FOR DAMAGES
1 is limited to work performed and criticized by Plaintiffs’ experts. These Defendants will be herein
2 after referred to as the “CONTRACTOR DEFENDANTS.”
3 8. Plaintiffs are informed and believe and based thereon allege that there were other
4 persons and entities involved in the planning, design, construction, maintenance, repairs, and sale of
5 the PROPERTY and project(s). The identities of said persons or entities, whether individual,
6 corporate, or otherwise, sued herein as Does 301-1000 are presently unknown to Plaintiffs who
7 therefore sue such persons by their fictitious names. Plaintiffs are informed and believe and thereon
8 allege that said persons or entities are wholly or in some part responsible for the occurrences set forth
9 in the complaint. Plaintiffs are informed and believe and based thereon allege that at all times herein
10 mentioned Defendants and each of them were the agents, servants, employees, assistants and
11 consultants of their co-Defendants and were as such acting within the course and scope of their agency
12 and authority of such agency and employment.
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13 FIRST CAUSE OF ACTION
14 STRICT PRODUCTS LIABILITY
15 (ALL PLAINTIFFS v. DEVELOPER DEFENDANTS)
16 9. Plaintiffs repeat and reallege Paragraphs 1 through 8, inclusive, and incorporate the
17 same as if set forth herein at length.
18 10. DEVELOPER DEFENDANTS and each of them, at all times herein mentioned were
19 in the business of developing and mass producing and/or distributing homes in and, within the County
20 where the PROPERTIES are located, and selling them to members of the public at large.
21 11. Within the last ten years, the DEVELOPER DEFENDANTS and each of them,
22 developed and mass produced the PROPERTY and/or otherwise participated in the stream of
23 commerce for sale of the PROPERTY and in the projects where the PROPERTY is located.
24 12. At all times herein mentioned and material hereto, DEVELOPER DEFENDANTS
25 knew and intended that the PROPERTY would be purchased by members of the public at large, and
26 used by them without further inspection for defects.
27 13. Plaintiffs purchased the PROPERTY from said DEVELOPER DEFENDANTS and
28 moved into it with their families.
4
FIRST AMENDED COMPLAINT FOR DAMAGES
1 14. At the time of the purchase by Plaintiffs, the PROPERTY was defective and unfit for
2 its intended purposes because Defendants did not construct the PROPERTY in a workmanlike manner
3 as manifested by, but not limited to, numerous defects which have resulted in damage to the homes
4 and their component parts. The defects include, without limitation and to various degrees on the
5 plaintiffs’ respective residences, the following:
6 Faulty soil compaction, faulty existing underlying soils and expansive
7 soils resulting in soil movement and damage to the structures, concrete
8 slabs, flatwork and foundation defects; plumbing defects; electrical
9 defects; drainage defects; roof defects; HVAC defects; waterproofing
10 defects; window and door defects; landscaping and irrigation defects;
11 framing, siding and structural defects; ceramic tile,vinyl flooring and
12 countertop defects; drywall defects; fence and retaining wall defects;
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13 cabinet and wood trim defects; fireplace and chimney defects; tub and
14 shower door defects; painting defects; sheet metal defects; and stucco
15 defects.
16 15. The above-specified claims involve predominantly common questions of law or fact,
17 are typical of claims attributable to other residences in the project(s), and adequately represent all
18 other homeowners in the project(s) in which the property is located.
19 16. The Plaintiffs gave and/or attempted to give DEVELOPER DEFENDANTS due and
20 timely notice of the defective quality of the above-mentioned items.
21 17. The defects alleged herein above are defects that were not apparent by reasonable
22 inspection of the PROPERTY at the time of the purchase. The defects thereafter manifested.
23 18. Because of the defective conditions of the PROPERTY as herein above alleged,
24 Plaintiffs have been specifically damaged in the following ways, as well as others which will be
25 inserted with leave of court when ascertained:
26 A) Plaintiffs will be forced to incur expenses for the restoration and repairs of the
27 PROPERTY to cure the damage, defects and/or deficiencies. The exact amount of
28
5
FIRST AMENDED COMPLAINT FOR DAMAGES
1 the damages is presently unknown, except that the costs will exceed the sum of
2 $50,000 per home.
3 B) Plaintiffs have been damaged through the diminution in value of the PROPERTY.
4 Plaintiffs are unaware of the precise amount of such damage but will establish such
5 amount at time of trial.
6 C) Plaintiffs have been forced to retain expert consultants to inspect, analyze and
7 determine the method of repairing the aforementioned defects and damage. Plaintiffs
8 are unaware of the precise amount of such damage but will establish such amount at
9 time of trial.
10 19. DEVELOPER DEFENDANTS, and each of them, as developers, mass producers,
11 builders and sellers and/or otherwise within the stream of commerce are strictly liable and responsible
12 to Plaintiffs for all damage suffered as a result of the above described damage, defects and deficiencies
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13 in the PROPERTY.
14 SECOND CAUSE OF ACTION
15 STRICT PRODUCTS LIABILITY
16 (ALL PLAINTIFFS v. CONTRACTOR COMPONENT PRODUCT MANUFACTURER
17 DEFENDANTS ONLY)
18 20. Plaintiffs incorporate by reference all previous paragraphs of this complaint as though
19 set forth in full herein.
20 21. COMPONENT PRODUCT MANUFACTURER DEFENDANTS and each of them,
21 at all times herein mentioned were in the business of designing, and mass manufacturing, producing,
22 distributing, selling and reselling the SUBJECT COMPONENT PRODUCTS, within the County
23 where the PROPERTIES are located, for their installation into the PROPERTY.
24 22. Within the last ten years, the COMPONENT PRODUCT MANUFACTURER
25 DEFENDANTS and each of them, designed, developed, assembled, manufactured, marketed, mass
26 produced, distributed, sold and resold the SUBJECT COMPONENT PRODUCTS and/or otherwise
27 participated in the stream of commerce for sale of the SUBJECT COMPONENT PRODUCTS that
28 were installed into the PROPERTY.
6
FIRST AMENDED COMPLAINT FOR DAMAGES
1 23. At all times herein mentioned and material hereto, COMPONENT PRODUCT
2 MANUFACTURER DEFENDANTS knew and intended that the PROPERTY would be purchased
3 by members of the public at large, and used by them without further inspection for defects.
4 24. The SUBJECT COMPONENT PRODUCTS are finished consumer products.
5 25. COMPONENT PRODUCT MANUFACTURER DEFENDANTS sold the SUBJECT
6 COMPONENT PRODUCTS.
7 26. SUBJECT COMPONENT PRODUCTS were installed in the PROPERTY. Those
8 SUBJECT COMPONENT PRODUCTS include, but are not limited to the following:
9 windows, exterior/interior doors, sliding glass doors, garage
10 doors/automatic garage door opening systems, shower/tub enclosures,
11 shower doors, bathtubs, sinks, toilets, light fixtures, power distribution
12 panels, HVAC units, compressors, security systems, irrigation systems.
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13 27. PLAINTIFFS own the PROPERTIES and by doing so, purchased the SUBJECT
14 COMPONENT PRODUCTS. At all times herein mentioned and material hereto, COMPONENT
15 PRODUCT MANUFACTURER DEFENDANTS knew and intended that the PROPERTIES and the
16 SUBJECT COMPONENT PRODUCTS would be purchased by the PLAINTIFFS.
17 28. PLAINTIFFS are lay people and lack the knowledge and understanding to inspect the
18 SUBJECT COMPONENT PRODUCTS and to understand whether said component products have
19 any defects. PLAINTIFFS lacked the ability to test the subject component products, to know whether
20 a defect did exist at the time they purchased their PROPERTIES and /or the SUBJECT
21 COMPONENT PRODUCTS.
22 29. At the time each of the SUBJECT COMPONENT PRODUCTS left COMPONENT
23 PRODUCT MANUFACTURER DEFENDANTS’ custody, control or possession, each SUBJECT
24 COMPONENT PRODUCTS was defective and unfit for its intended purposes because the SUBJECT
25 COMPONENT PRODUCTS contained defects in their design, parts, materials used to manufacture
26 them, and how they were manufactured, which have resulted in foreseeable damage to the
27 PROPERTIES and the parts of the SUBJECT COMPONENT PRODUCTS that were the defects and
28 parts that were not the defects.
7
FIRST AMENDED COMPLAINT FOR DAMAGES
1 30. The defects in the SUBJECT COMPONENT PRODUCTS design, parts and materials
2 used to manufacture them, and how they were manufactured, existed at the time the SUBJECT
3 COMPONENT PRODUCTS left the possession and control of COMPONENT PRODUCT
4 MANUFACTURER DEFENDANTS and were and are common to each of the respective SUBJECT
5 COMPONENT PRODUCTS.
6 31. The defects in the SUBJECT COMPONENT PRODUCTS have caused water
7 intrusion and penetration into the wall systems, cavities and the interior of PLAINTIFFS’
8 PROPERTIES and are, and have caused the following resultant PROPERTY damage, including but
9 not limited to:
10 a) Damage to interior drywall of PLAINTIFFS’ PROPERTY;
11 b) Damage to perimeter wall systems of PLAINTIFFS’ PROPERTY; and
12 c) Damage to the wall systems and the interior of PLAINTIFFS’ PROPERTY.
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13 This intrusion, penetration, and damage occurred in each named PLAINTIFFS’ PROPERTY.
14 32. PLAINTIFFS have also suffered the following damages in addition to all other damage
15 alleged in this Complaint as follows:
16 a) PLAINTIFFS will be forced to incur expenses for the restoration and repairs of the
17 PROPERTY to cure the damage, defects and/or deficiencies caused by the SUBJECT COMPONENT
18 PRODUCTS. PLAINTIFFS are unaware of the precise amount of such damage but will establish
19 such amount at time of trial; and
20 b) PLAINTIFFS have been damaged through the cost to repair or replace the SUBJECT
21 COMPONENT PRODUCTS. PLAINTIFFS are unaware of the precise amount of such damage but
22 will establish such amount at time of trial; and
23 c) Plaintiffs have been damaged through the diminution in value of the PROPERTY
24 caused by the SUBJECT COMPONENT PRODUCTS. Plaintiffs are unaware of the precise amount
25 of such damage but will establish such amount at time of trial; and
26 d) PLAINTIFFS have been forced to retain expert consultants to inspect, analyze and
27 determine the method of repairing the aforementioned defective SUBJECT COMPONENT
28
8
FIRST AMENDED COMPLAINT FOR DAMAGES
1 PRODUCTS. PLAINTIFFS are unaware of the precise amount of such damage but will establish
2 such amount at time of trial.
3 33. The defects alleged hereinabove are defects that were not apparent to PLAINTIFFS
4 by reasonable inspection of the PROPERTY and the SUBJECT COMPONENT PRODUCTS before
5 or at the time PLAINTIFFS individually purchased the SUBJECT COMPONENT PRODUCTS or
6 purchased their PROPERTY.
7 34. Because of the defective design and conditions of the SUBJECT COMPONENT
8 PRODUCTS, as herein alleged, PLAINTIFFS, and each of them, have the defective SUBJECT
9 COMPONENT PRODUCTS in their PROPERTY that need to be removed and replaced with non-
10 defective component products and have damage in and to their PROPERTY caused by the SUBJECT
11 COMPONENT PRODUCTS.
12 35. COMPONENT PRODUCT MANUFACTURER DEFENDANTS, and each of them,
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13 as manufacturers, mass producers, distributors and sellers of the SUBJECT COMPONENT
14 PRODUCTS, and/or otherwise having placed their SUBJECT COMPONENT PRODUCTS within
15 the stream of commerce, are strictly liable and responsible to PLAINTIFFS for all damage(s) suffered
16 as a result of the above described defects and deficiencies in the SUBJECT COMPONENT
17 PRODUCTS.
18 THIRD CAUSE OF ACTION
19 BREACH OF IMPLIED WARRANTY OF MERCHANTABILITY
20 (ORIGINAL PURCHASER PLAINTIFFS v. DEVELOPER DEFENDANTS)
21 36. Plaintiffs incorporate by reference all previous paragraphs of this complaint as though
22 set forth in full herein.
23 37. At all times herein mentioned and material hereto DEVELOPER DEFENDANTS
24 were and now are the merchants and sellers of newly constructed housing, the type of merchandise
25 sold to Plaintiffs as herein above alleged and described.
26 38. DEVELOPER DEFENDANTS, and each of them, at the time and place of the sale of
27 the PROPERTY, impliedly warranted that it was properly constructed and of merchantable quality.
28
9
FIRST AMENDED COMPLAINT FOR DAMAGES
1 39. The PROPERTY was not properly constructed, and not of merchantable quality in that
2 it was defective as previously alleged herein above in Paragraph 14.
3 40. Original Purchaser Plaintiffs discovered the defective quality of the PROPERTY.
4 Original purchaser Plaintiffs thereafter gave DEVELOPER DEFENDANTS, and each of them, due
5 and timely notice of the defective quality of the above-mentioned items.
6 41. The defects described herein above caused by the breaches of warranty by
7 DEVELOPER DEFENDANTS, and each of them, were defects not apparent by reasonable inspection
8 of the PROPERTY at the time of purchase. The defects and damages were latent and were not
9 reasonably apparent to original purchaser Plaintiffs until on or about the time of notification to the
10 DEVELOPER DEFENDANTS.
11 42. Because of the foregoing breaches of implied warranties by DEVELOPER
12 DEFENDANTS, and each of them, original purchaser Plaintiffs have been specifically damaged as
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13 herein above alleged in Paragraph 18.
14 FOURTH CAUSE OF ACTION
15 BREACH OF CONTRACT
16 (ORIGINAL PURCHASER PLAINTIFFS v. DEVELOPER DEFENDANTS)
17 43. Plaintiffs incorporate by reference all previous paragraphs of this complaint as though
18 set forth in full herein.
19 44. On various dates, original purchaser Plaintiffs entered into written sales contracts with
20 DEVELOPER DEFENDANTS pursuant to which DEVELOPER DEFENDANTS, in exchange for
21 payment of certain sums, agreed to provide original purchaser Plaintiffs with quality residences which
22 were constructed in a workmanlike manner.
23 45. Original purchaser Plaintiffs have performed all conditions, covenants, and promises
24 required by the sales contracts in accordance with the terms and conditions of the contract.
25 46. Defendants have breached the sales contracts as set forth herein by failing to provide
26 residences constructed in a workmanlike manner as previously alleged herein above in Paragraph 14,
27 as a result of which original purchaser Plaintiffs have been specifically damaged as herein above
28 alleged in Paragraph 18.
10
FIRST AMENDED COMPLAINT FOR DAMAGES
1 FIFTH CAUSE OF ACTION
2 NEGLIGENCE
3 (ALL PLAINTIFFS v. ALL DEFENDANTS)
4 47. Plaintiffs incorporate by reference all previous paragraphs of this complaint as though
5 set forth in full herein.
6 48. The aforementioned Defendants so carelessly and negligently planned constructed,
7 modified, inspected, and/or performed work and services at the PROPERTY so as to proximately
8 cause defects and damages to the systems, buildings, and improvements as herein above alleged in
9 Paragraph 14. With regard to those Defendants identified PREVIOUSLY herein as the
10 “CONTRACTOR DEFENDANTS”, Plaintiffs’ allegations are limited to that Contractor’s scope of
11 work that is implicated by the opinions of Plaintiffs’ experts
12 49. DEFENDANTS, and each of them, were under a duty to exercise ordinary care and to
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13 construct the PROPERTY in compliance with the residential building standards set forth in Civil
14 Code Sections 896 and 897 and knew or should have foreseen with reasonable certainty that
15 PLAINTIFFS would suffer property damage and monetary damages set forth herein if said
16 DEFENDANTS, and each of them, failed to perform their duty to cause the property and
17 improvements to be developed, designed, and constructed in a proper and workmanlike fashion.
18 50. Because of the carelessness and negligence of each of the Defendants, and as a
19 proximate result thereof, Plaintiffs have been damaged as previously alleged herein above in
20 Paragraph 18.
21 51. The defects and damages described herein above in Paragraph 18 caused by the
22 negligently and carelessly performed work of the Defendants, and each of them, were defects not
23 apparent by reasonable inspection of the PROPERTY at the time of purchase.
24 ///
25 ///
26 ///
27 ///
28 ///
11
FIRST AMENDED COMPLAINT FOR DAMAGES
1 SIXTH CAUSE OF ACTION
2 BREACH OF EXPRESS WARRANTY
3 (ORIGINAL PURCHASER PLAINTIFFS v. DEVELOPER DEFENDANTS)
4 52. Plaintiffs incorporate by reference all previous paragraphs of this complaint as though
5 set forth in full herein.
6 53. Developer defendants expressly warranted through the Real Estate Purchase
7 Contracts, and other documents that the subject properties were designed, constructed, developed,
8 inspected, and manufactured, in accordance with all the applicable Federal, State and municipal law,
9 ordinances, rules and regulations and that the subject properties were structurally sound, free of all
10 material defects and designed and constructed for the intended purposes. Defendants further
11 warranted that the homes and soils constructed thereon were in good working order and condition
12 with no deficiencies therein.
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13 54. Original purchaser Plaintiffs relied on defendants’ express representations.
14 55. Defendants breached said warranties in that the properties were not properly designed
15 and constructed and were defective as set forth in Paragraph 14.
16 56. Original Purchaser Plaintiffs discovered the defective quality of the above listed items
17 involving the dwellings and pads. Original purchaser Plaintiffs thereafter gave DEVELOPER
18 DEFENDANTS that they knew of, and each of them, due and timely notice of the defective quality
19 of the above-mentioned items. DEVELOPER DEFENDANTS failed and/or refused to rectify said
20 items.
21 57. The damages described hereinabove caused by the breaches of warranty by
22 DEVELOPER DEFENDANTS, and each of them, were not apparent by reasonable inspection of the
23 property and project at the time of purchase. The defects and damages were latent and were not
24 reasonably apparent to original purchaser Plaintiffs until on or about the time of notification to the
25 DEVELOPER DEFENDANTS.
26 58. As a result of the foregoing acts or omissions by defendants, Plaintiffs have been
27 damaged as set forth in Paragraph 18.
28
12
FIRST AMENDED COMPLAINT FOR DAMAGES
1 SEVENTH CAUSE OF ACTION
2 VIOLATION OF BUILDING STANDARDS
3 AS SET FORTH IN CIVIL CODE § 895, ET SEQ.
4 (AS TO PLAINTIFFS SUBJECT TO CIVIL CODE SECTION 895 ET SEQ., AGAINST ALL
5 DEFENDANTS)
6 59. Plaintiffs incorporate by reference all previous paragraphs of this complaint as
7 though set forth in full herein.
8 60. Certain Plaintiffs entered in to purchase agreements with DEVELOPER
9 DEFENDANTS that were signed by DEVELOPER DEFENDANTS on or after January 1, 2003.
10 61. These Plaintiffs have fully complied with the provisions set forth in Civil Code
11 section 895 et. seq., to no avail, and now rightfully bring an action for violations of building
12 standards as set forth in Civil Code section 896.
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13 62. These Plaintiffs are informed and believe and thereon allege that DEVELOPER
14 DEFENDANTS violated the applicable standards set forth under Civil Code section 896, et seq.
15 Plaintiffs are informed and believe and thereon allege that that said violations rise out of, pertain to,
16 or are related to, the original construction of the PROPERTY. The violations include, without
17 limitation and to various degrees, the following:
18 (a) With respect to water issues:
19 (1) Exterior doors at the PROPERTY allow unintended water to pass beyond, around, or
20 through the door or its designed or actual moisture barriers.
21 (2) Windows, patio doors, deck doors, and their systems at the PROPERTY allow water to
22 pass beyond, around, or through the window, patio door, or deck door or its designed or
23 actual moisture barriers, including, without limitation, internal barriers within the systems
24 themselves
25 (3) Windows, patio doors, deck doors, and their systems at the PROPERTY allow excessive
26 condensation to enter the structure.
27 (4) Roofs, roofing systems, chimney caps, and ventilation components at the PROPERTY
28 allow water to enter the structure or to pass beyond, around, or through the designed or actual
13
FIRST AMENDED COMPLAINT FOR DAMAGES
1 moisture barriers, including, without limitation, internal barriers located within the systems
2 themselves.
3 (5) Decks, deck systems, balconies, balcony systems, exterior stairs, and stair systems at the
4 PROPERTY allow water to pass into the adjacent structure.
5 (6) Decks, deck systems, balconies, balcony systems, exterior stairs, and stair systems at the
6 PROPERTY allow unintended water to pass within the systems themselves.
7 (7) Foundation systems and slabs at the PROPERTY allow water or vapor to enter into the
8 structure.
9 (8) Foundation systems and slabs at the PROPERTY allow water or vapor to enter into the
10 structure so as to limit the installation of the type of flooring materials typically used for the
11 particular application.
12 (9) Hardscape, including paths and patios, irrigation systems, landscaping systems, and
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13 drainage systems, that are installed as part of the original construction of the PROPERTY,
14 are installed in such a way as to cause water or soil erosion to enter into or come in contact
15 with the structure.
16 (10) Stucco, exterior siding, exterior walls, including, without limitation, exterior framing,
17 and other exterior wall finishes and fixtures and the systems of those components and
18 fixtures, including, but not limited to, pot shelves, horizontal surfaces, columns, and plant-
19