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  • Strawn, Jason et al  vs.  Discovery Builders, Inc, a California Corporation(10) Unlimited Construction Defect document preview
  • Strawn, Jason et al  vs.  Discovery Builders, Inc, a California Corporation(10) Unlimited Construction Defect document preview
  • Strawn, Jason et al  vs.  Discovery Builders, Inc, a California Corporation(10) Unlimited Construction Defect document preview
  • Strawn, Jason et al  vs.  Discovery Builders, Inc, a California Corporation(10) Unlimited Construction Defect document preview
  • Strawn, Jason et al  vs.  Discovery Builders, Inc, a California Corporation(10) Unlimited Construction Defect document preview
  • Strawn, Jason et al  vs.  Discovery Builders, Inc, a California Corporation(10) Unlimited Construction Defect document preview
  • Strawn, Jason et al  vs.  Discovery Builders, Inc, a California Corporation(10) Unlimited Construction Defect document preview
  • Strawn, Jason et al  vs.  Discovery Builders, Inc, a California Corporation(10) Unlimited Construction Defect document preview
						
                                

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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 3478 Buskirk Avenue, Suite 1000 GARCIA | MARSALLI, LLP 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.” 3478 Buskirk Avenue, Suite 1000 GARCIA | MARSALLI, LLP Pleasant Hill, CA 94523 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. 3478 Buskirk Avenue, Suite 1000 GARCIA | MARSALLI, LLP Pleasant Hill, CA 94523 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; 3478 Buskirk Avenue, Suite 1000 GARCIA | MARSALLI, LLP Pleasant Hill, CA 94523 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 3478 Buskirk Avenue, Suite 1000 GARCIA | MARSALLI, LLP Pleasant Hill, CA 94523 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. 3478 Buskirk Avenue, Suite 1000 GARCIA | MARSALLI, LLP Pleasant Hill, CA 94523 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. 3478 Buskirk Avenue, Suite 1000 GARCIA | MARSALLI, LLP Pleasant Hill, CA 94523 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, 3478 Buskirk Avenue, Suite 1000 GARCIA | MARSALLI, LLP Pleasant Hill, CA 94523 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 3478 Buskirk Avenue, Suite 1000 GARCIA | MARSALLI, LLP Pleasant Hill, CA 94523 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 3478 Buskirk Avenue, Suite 1000 GARCIA | MARSALLI, LLP Pleasant Hill, CA 94523 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. 3478 Buskirk Avenue, Suite 1000 GARCIA | MARSALLI, LLP Pleasant Hill, CA 94523 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. 3478 Buskirk Avenue, Suite 1000 GARCIA | MARSALLI, LLP Pleasant Hill, CA 94523 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 3478 Buskirk Avenue, Suite 1000 GARCIA | MARSALLI, LLP Pleasant Hill, CA 94523 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