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  • Robert Ackerman vs. Bonadelle Homes, Inc. / COMPLEX10 Unlimited - Construction Defect document preview
  • Robert Ackerman vs. Bonadelle Homes, Inc. / COMPLEX10 Unlimited - Construction Defect document preview
  • Robert Ackerman vs. Bonadelle Homes, Inc. / COMPLEX10 Unlimited - Construction Defect document preview
  • Robert Ackerman vs. Bonadelle Homes, Inc. / COMPLEX10 Unlimited - Construction Defect document preview
  • Robert Ackerman vs. Bonadelle Homes, Inc. / COMPLEX10 Unlimited - Construction Defect document preview
  • Robert Ackerman vs. Bonadelle Homes, Inc. / COMPLEX10 Unlimited - Construction Defect document preview
  • Robert Ackerman vs. Bonadelle Homes, Inc. / COMPLEX10 Unlimited - Construction Defect document preview
  • Robert Ackerman vs. Bonadelle Homes, Inc. / COMPLEX10 Unlimited - Construction Defect document preview 
						
                                
Preview

                                Emmett E. Seltzer (SBN 226598)
     Hoosai R. Kabiri (SBN 319400)
     KAHANA & FELD LLP
     505 14" St, Suite 1240
     Oakland, CA 94612
     Telephone: (510) 859-8017
     Facsimile: (949) 245-7597
     E-mail: eseltzer@kahanafeld.com
     hkabiri@kahanafeld.com

     Avi Glikman, Esq.
     ELIZABETH K. MEYERS & ASSOCIATES
     One MacArthur Place, Suite 405
     Santa Ana, CA 92707
     Tel: (925) 681-3540 / Fax: (214) 451-6398        E-FILED
      Vvi.glikman@aig.com                             10/28/2020 4:37 PM
                                                      Superior Court of California
10   Lauren A. Whalen, Esq.                           County of Fresno
     WOOD, SMITH, HENNING & BERMAN LLP py: kK. Daves, Deputy
11   1401 Willow Pass Road, Suite 700
     Concord, CA 94520
12   Tel: (925) 222-3400 / Fax: (925) 356-8250
     lwhalen@wshblaw.com
13
     Attorneys for Defendants and Cross-
14   Complainants BONADELLE HOMES, INC.,
     BN 5233 LP, BN 5950 LP, BN 5312 LP, BN 4870 LP
15

16                        SUPERIOR COURT OF THE STATE OF CALIFORNIA

17                                         COUNTY OF FRESNO

18
     ROBERT C. ACKERMAN, et al.,                    Case No. 18CECG03693
19                                                  Complaint Filed:  October 2, 2018
                      Plaintiffs,
20                                                  Assigned for all Purposes to:
     vs.                                            Honorable Rosemary McGuire
21                                                  Dept. 403
     BONADELLE HOMES, INC., et al.,
22                                                  DEFENDANTS BONADELLE, INC., BN 5233
                      Defendants.                   LP, BN 5950 LP, BN 5312 LP, BN 4870 LP’S
23                                                  OPPOSITION TO TRAVELERS’ MOTION
                                                    TO INTERVENE
24

25   AND ALL RELATED CROSS-ACTIONS

26

27

28
                                                     -l-
           DEFENDANTS BONADELLE, INC., BN 5233 LP, BN 5950 LP, BN 5312 LP, BN 4870 LP’S OPPOSITION
                               TO TRAVELERS’ MOTION TO INTERVENE
COME        NOW     defendants BONADELLE            HOMES,       INC., BN 5233 LP, BN 5950 LP, BN

     5312 LP, and BN 4870 (hereinafter, collectively, “Defendants” or “Bonadelle’”’) hereby submits the

     following memorandum of points and authorities in opposition to Traveler’s motion to intervene.



               I           Introduction

               Travelers Property Casualty Company of America and The Travelers Indemnity Company

     of Connecticut (collectively “Travelers”) served their motion to intervene on August                       12, 2020

     asserting that they were entitled to intervene as a matter of right. Bonadelle is insured by Travelers

     as an additional insured under policies of general liability insurance held by Ken Perry Tile, Inc.

10   and Stonetech Fabrication, Inc. In their motion, Travelers asserts that Travelers is subrogated to

11   Bonadelle’s right to recover against the potentially liable third-parties in this action and therefore

12   are entitled to intervene in the cross-complaint as a matter of right. Travelers also claims that

13   intervention is the only way for Travelers to protect its subrogation rights.

14

15             A. Travelers Is Not Entitled To Intervene As A Matter Of Right Because No Good Cause

16             Exists To Allow Intervention

17             CCP section 387(d)(1)(B) provides:

18
                        “Tf any provision of law confers an unconditional right to intervene or if the person
19             seeking intervention claims an interest relating to the property or transaction which is the
               subject of the action and that person is so situated that the disposition of the action may as a
20             practical matter impair or impede that person’s ability to protect that interest, unless that
               person’s interest is adequately represented by existing parties...” (emphasis added)
21

22             Here,       Travelers’s    interests   are      adequately     represented    Bonadelle     therefore   an


23   unconditional right to intervene does not exist.               Both Bonadelle and Traveler’s right to recover

24   defense       costs   is premised    upon   Bonadelle’s     success    in its express   indemnity   cause of action

25   against the subcontractor cross             defendants.    Bonadelle     has the same    interest as Traveler’s   in

26   prevailing on Bonadelle’s express indemnity claims. Travelers’ assertion that their interests would

27   not be adequately represented is akin to an assertion that Bonadelle will not adequately litigate

28   their own claims. Therefore, Bonadelle’s interests with respect to its express indemnity cause of
                                                     -2-
       DEFENDANTS BONADELLE, INC., BN 5233 LP, BN 5950 LP, BN 5312 LP, BN 4870 LP’S OPPOSITION
                           TO TRAVELERS’ MOTION TO INTERVENE
action     is sufficiently   aligned   with   Travelers    such    that   Bonadelle    can   adequately    represent

     Traveler’s interests and intervention would be unnecessary.


                In fact, Travelers has appointed their own separate defense counsel to defend Bonadelle.

     Somehow Travelers is arguing that their own defense counsel can adequately litigate the indemnity

     claim. Travelers even admits in its moving papers that the insurer has the right to control the

     defense.     See Declaration     of Emmett     E.   Seltzer §4. Travelers      can    control through     their own

     appointed defense counsel.

                Travelers relies on Hodge v. Kirkpatrick Development, Inc. (2005) 130 Cal.App.4th 540 in

     their Motion to Intervene, however, Hodge             is distinguishable.      In Hodge, plaintiff homeowners
10
     submitted a claim to State Farm under a policy for water and mold damage to their house alleged
11
     caused by the negligence of third parties. Hodge                v. Kirkpatrick Development,       Inc. (2005)     130
12
     Cal.App.4th 540. State Farm denied the claim and paid a partial amount for water damage. Id.
13
     Thereafter, the Hodges filed a construction defect lawsuit against the former owner, the developer,
14
     the general contractor and one subcontractor alleging the defendants caused the water and mold
15
     damage by performing defective work and violating building codes.                      Hodge.   130 Cal. App. 4"
16
     546.     The Hodges also filed a complaint against State Farm for bad faith. Jd.                  State Farm then
17
     sought leave to intervene in the construction defect lawsuit. Jd. Hodge is distinguishable because
18
     the insurer made a partial indemnity payment and then sought leave to intervene in a subsequent
19
     construction defect suit by the homeowners against the contractors for the same loss.                   Conversely,
20
     in this case, Bonadelle and Travelers’ right to recover defense fees involve separate losses.                   There
21
     is no basis to find that Bonadelle would            place its interests ahead of Travelers’ on the issue of
22
     enforceability of the express indemnity provision in the subcontracts. Their interests are aligned,
23
     therefore Travelers does not have an unconditional right to intervene.
24
                Additionally, in their motion Travelers asserts that according to Bramalea California Inc.
25
     v. Reliable Interiors, it is entitled to recover from the Non-Defending Subcontractors defense fees
26
     it has paid to defend Bonadelle against the claims made by the homeowners in the construction
27
     defect action. See Declaration of Emmett E. Seltzer §4. They also assert that pursuant to Bramalea,
28
                                                               -3-
       DEFENDANTS BONADELLE, INC., BN 5233 LP, BN 5950 LP, BN 5312 LP, BN 4870 LP’S OPPOSITION
                           TO TRAVELERS’ MOTION TO INTERVENE
Bonadelle can only pursue those defense costs it has actually paid. See Declaration of Emmett E.

     Seltzer §]4. In Bramalea, recovery of the attorney’s fees by the developer would have resulted in a

     prohibited double recovery because the developer had not paid attorney’s fees on behalf of themselves.

     Bramalea California, Inc. v. Reliable Interiors, Inc. (2004) 119 Cal.App.4th 468. Here, Bonadelle has

     paid   attorney’s fees and       it would   not be a prohibited double         recovery   for Bonadelle          to pursue

     attorney’s fees on behalf of themselves and Travelers. Furthermore, Bramalea held that an insurer that

     paid the defense costs could not recover from a co-indemnitor on an equitable subrogation theory.

     Bramalea    California,   Inc.    v. Reliable Interiors,     Inc.   (2004)   119   Cal.App.4th   468.     The     court in

     Bramalea    found    that the attorneys fees were          not caused    by the subcontractors’         breach     of their

10   obligations to indemnify Bramalea, rather they were caused by the lawsuit brought by the homeowners

11   for construction defects which is one of the risks the insurer accepted premiums                        to recover. Jd.

12   Similarly, here, the attorney’s fees that have been incurred in the defense of Bonadelle are due to the

13   homeowner’s alleging construction defects and not by the subcontractors’ breach of their obligations,

14   therefore Travelers has no right to recover.

15            Travelers claims that Bonadelle does not have incentive to pursue damages beyond what is

16   necessary to make the insured whole,            but that is simply not true especially since Travelers                    is

17   providing defense of Bonadelle through a reservation of rights. Bonadelle does have the incentive

18   and their wherewithal to seek damages for both Bonadelle and Travelers.

19

20            B. Traveler’s Intervention Will Complicate the Already Complicated Issues In This Case

21            Both Travelers and Bonadelle           will gain nothing by allowing intervention in this case.

22   Intervention will be disruptive and enlarge the issues in the current litigation. While Bonadelle will

23   be attempting to enforce the express indemnity provisions, Traveler’s intervention will

24   be seeking reimbursement of funds they have allegedly paid toward Bonadelle’s defense. This

25   claim bears no relationship to Plaintiffs claims and could be brought by Traveler’s in a separate

26   action without      affecting their alleged rights. Therefore,           Travelers’    pursuit of funds that they

     believe are owed to them by Bonadelle should not be included in the present action and Travelers’
27
     motion to intervene should be denied.
28
                                                                 -4-
        DEFENDANTS BONADELLE, INC., BN 5233 LP, BN 5950 LP, BN 5312 LP, BN 4870 LP’S OPPOSITION
                            TO TRAVELERS’ MOTION TO INTERVENE
C. Allowing Travelers to Intervene May        Cause a Conflict of Interest

             The insurer typically hires defense counsel who represents the interests of both the insurer

     and the insured. (Assurance Co. of America v. Haven (1995) 32 Cal. App. 4th 78, 84 [38 Cal. Rptr.

     2d 25]; Gafcon    ,Inc v Posner     (2002),    1388   at p.    1406   ["attorney   retained    by an    insurance

     company to defend its insured under the insurer's contractual obligation to do so represents and

     owes   a fiduciary duty to both the insurer and insured"].) In this "usual tripartite relationship

     existing between insurer, insured and counsel, there is a single, common               interest shared among

     them." (San Diego Federal Credit Union v. Cumis Ins. Society, Inc., supra, 162 Cal.App.3d at p.

     364 (Cumis).)

             However, there are circumstances that may create a conflict of interest. For example: (1)
10
     where the insurer reserves its rights on a given issue and the outcome of that coverage issue can be
11
     controlled by the insurer's retained counsel (§ 2860, subd. (b); Golden Eagle Ins. Co. v. Foremost
12
     Ins. Co., supra, 20 Cal.App.4th at pp. 1394-1395); (2) where the insurer insures both the plaintiff
13
     and the defendant (O'Morrow        v. Borad (1946) 27 Cal. 2d 794, 800 [167 P.2d 483,                  163 A.L.R.
14
     894]); (3) where the insurer has filed suit against the insured, whether or not the suit is
15
     related to the lawsuit the insurer is obligated to defend (Truck Ins. Exchange v. Fireman's Fund
16
     Ins. Co. (1992) 6 Cal. App. 4th 1050 [8 Cal.Rptr.2d 228]);
17
             Here, while Travelers has not filed a lawsuit directly against Bonadelle, they attempt to
18
     intervene for their own interests, recover attorney’s fees which they contend are owed to them by
19
     subcontractors.   If Travelers    is allowed    to intervene    it is not beyond      reason     that this could
20
     invariably cause the case not to settle or to extend the case unnecessarily.                  For example,   let’s
21
     assume Bondaelle is able to come up with settlement numbers that can resolve the case however
22   Travelers blocks this resolution because they claim this settlement is insufficient or it does not
23   include enough    money to renumerate them for their fees. This would not only block a settlement
24   but extend the case causing more fees to be generated making it even more difficult to resolve.
25   This clearly places Travelers and Bonadelle in a conflict position          and potentially counsel retained
26   by Travelers to represent Bonadelle.

27

28
                                                           5.
       DEFENDANTS BONADELLE, INC., BN 5233 LP, BN 5950 LP, BN 5312 LP, BN 4870 LP’S OPPOSITION
                           TO TRAVELERS’ MOTION TO INTERVENE
PROOF OF SERVICE

     STATE OF CALIFORNIA                                                                         )
                                                                                                 )
     COUNTY OF ORANGE                                                                            )
             I am employed  in the County of Orange, State of Califomia. I am over the of 18, and
     nota         to the within action.    business address is KAHANA & FELD LLP, 2603 Main
     Street, Suite 350, Irvine, Califomia 92614. On the date below, I served the foregoing
     document(s) described as:

      DEFENDANTS       BONADELLE, INC., BN 5233 LP, BN 5950 LP, BN 5312 LP, BN 4870 LP’S
                     OPPOSITION TO TRAVELERS’ MOTION TO INTERVENE

     By sending a true copy thereof to the address listed below:

                                      SEE ATTACHED SERVICE LIST
10
11                   By Messenger Service.       I served the documents by providing them to a
                     professional messenger service for personal service.
12
                     By Overnight Delivery. I deposited a sealed envelope containi           a true and
13                   correct copy of     documents listed above for ovemight Express          livery and
                    with the postage fully prepaid.
14
                     By E-Mail or Electronic Transmission via File & ServeXpress. I caused the
15                   documents to be electronically transmitted through File & ServeXpress. The
                     electronic submission was   sent to the email addresses of the person(s) set forth
16                   in the attached list.

17                   By United States Mail. I deposited a sealed envelope containing a true and
                    correct copy of the documents listed above with the United States Postal Service
18                  with the postage fully prepaid. I ama resident or employed in the co       where
                     the mailing          ‘The envelope or package  was placed in the mail at Irvine,
19                   Califomia.

20          oO       By Fax Transmission. I faxed    the documents to the persons at the fax number
                    listed above, and the transmission appeared to be successful.
21
              I declare under penalty of perjury under
                                                   the laws of the State of Califomia
                                                                                that the above
22   is true and correct.

23
     Executed on October 28, 2020 at Menifee, Califomia.
24
25
                                                                    Jan Olitoquit
26
27



                                                      1
                                             PROOF OF SERVICE
SERVICE LIST
                            Ackerman, et al. v. Bonadelle Homes, Inc., et al.
                       Fresno County Superior Court Case No. 18CECG03693

     Jerod A. Marsalli, Esq.                           Peter Dekker, Esq.
     Mark Arreguin, Esq.                               Castle, Dekker & Bellagamba
     GARCIA | MARSALLI LLP                             30 Oak Court
     3478 Buskirk Avenue, Suite 1000                   Danville, CA 94526
     Pleasant Hill, CA 94523                           Tel: (925) 552-1200 / Fax: (925) 552-1201
     Tel: (925) 287-6488 / Fax: (925) 287-6489         pdekker@dekkerlaw.com
     jerod@garciamarsalli.com
     mark@garciamarsalli.com

     Attorneys for Plaintiffs                          SPECIAL MASTER

     Avi Glikman, Esq.                                 Jacqueline V. McCalla, Esq.
10   ELIZABETH K. MEYERS & ASSOCIATES                  WOOD, SMITH, HENNING            &   BERMAN
     One MacArthur Place, Suite 405                    LLP
11   Santa Ana, CA 92707                               1401 Willow Pass Road, Suite 700
     Tel: (925) 681-3540 / Fax: (214) 451-6398         Concord, CA 94520
12   avi.glikman@aig.com                               Tel: (925) 222-3400 / Fax: (925) 356-8250
13                                                     jmccalla@wshblaw.com
     Co-Counsel for Bonadelle Homes, Inc., BN
14   5233 LP, BN 5950 LP, BN 5312 LP, BN 4870
     LP                                                Co-Counsel for Bonadelle Homes, Inc., BN
15                                                     5233 LP, BN 5950 LP, BN 5312 LP, BN 4870
                                                       LP
16
     Calvin R. Stead, Esq.                             Kent Thaeler, Esq.
17   BORTON PETRINI, LLP                               Elliot H. Heller, Esq.
     5060 California Avenue, Suite 700                 FREDRICKSON, MAZEIKA & GRANT LLP
18   Bakersfield, CA 93309                             5720 Oberlin Drive
     Tel: (661) 322-3051 / Fax: (661) 322-4268         San Diego, CA 92121
19     stead@bortonpetrini.com                         Tel: (858) 642-2002 / Fax: (858) 642-2001
                                                       eheller@fmglegal.com,
20
                                                       kthaeler@gmflegal.com
21   Attorneys for Cross-Defendant,      Landscape
     Connection, Inc.                                  Attorneys for Cross-Defendant, BMC      West,
22                                                     LLC
     David J. Frankenberger, Esq.                      Gerry DeSimone, Esq.
23   Brett L. Runyon, Esq.                             Matthew Mejia, Esq.
     ERICKSEN ARBUTHNOT                                DE SIMONE & HUXSTER
24
     2440 West Shaw Avenue, Suite 101                  28230 W. Agoura Road, Suite 200
25   Fresno, CA 93711                                  Agoura Hills, CA 91301
     Tel: (559) 449-2600 / Fax: (559) 449-2603         Tel: (818) 707-0727 / Fax: (818) 707-0757
26   dfrankenberger@ericksenarbuthnot.com              Matthew@DeSimone-law.com
     brunyon@ericksenarbuthnot.com
27                                                     Attorneys for Cross-Defendant, Ferguson
28   Attorneys for Cross-Defendant,                    Enterprises,  LLC    formerly known   as
     Boehm/Wardle Corp. dba S&J Lumber, Inc,           Ferguson Enterprises, Inc.

                                            SERVICE LIST
Debra L. Braasch, Esq.                                      Jennifer Willis, Esq.
     MACDONALD            & CODY, LLP                            LAW OFFICES OF SHAWN C. MOORE
     28 Executive Park, Third Floor                              2251 Harvard Street, Suite 100
     Irvine, CA 92614                                            Sacramento, CA 95815
     Tel: (714) 831-1713 / Fax: (714) 832-3229                   Tel: (916) 921-9353 / Fax: (855) 214-7884
     dbraasch@macdonaldcody.com


     Co-Counsel         for   Cross-Defendant,         Pacific   Co-Counsel      for     Cross-Defendant,    Pacific
     Door & Cabinet Company                                      Door & Cabinet Company
     Peter J. Krupinsky, Esq.                                    Kathleen Q. Brown, Esq.
     MANFREDI, LEVINE, ECCLES, MILLER                       &    LAW OFFICES OF JOHN A. BAIRD
     LANSON, APC                                                 P.O. Box 64093
     3226 E. Thousand Oaks Blvd., Suite 200                      St. Paul, MN 55164
     Westlake Village, CA 91362                                  Tel: (916) 638-6610 / Fax: (916) 638-6615
     Tel: (805) 379-1919 / Fax: (805) 379-3819                   kqbrown@travelers.com
10   Pkrupinsky@manfredilevine.com
11
     Attorneys for Cross-Defendant,              All     Star    Attorneys   for Cross-Defendants,           Clovis
12   Garage Door, Inc.                                           Sanger    Cabinet   Manufacturing,          Inc.,
                                                                 Stonetech Fabrication,       Inc., and Ken Perry
13                                                               Tile, Inc.
     Jon A. Van Woerkom, Esq.                                    Gino Cano, Esq.
14
     ISERT-KOTT & ASSOCIATES                                     LAW OFFICE OF PATRICK J. CAMPBELL
15   1200 Concord Avenue, Suite 190B                             3880 Atherton Road
     Concord, CA 94520                                           Rocklin, CA 95765
16   Tel: (925) 681-3596 / Fax:      (866) 386-1186              Tel: (916) 630-3803 / Fax: (916) 360-3848
     jon.vanwoerkom@aig.com                                      gcano@unitedfiregroup.com
17
     Attorneys    for     Cross-Defendant,   Donald         P.
18
     Dick Air Conditioning, Inc.                                 Attorneys     for     Cross-Defendant,     Hodge’s
19                                                               Electric, Inc.

20   Michael R. Hergenroether, Esq.                              Jeffrey B. Pape, Esq.
     Jorge Gallegos, Jr., Esq.                                   LAW OFFICE OF JEFFREY B. PAPE, P.C.
21   STAMMER         McKNIGHT           BARNUM              &    642 Pollasky Avenue, Suite 100
     BAILEY LLP                                                  Clovis, CA 93612
22   2540 West Shaw Lane, Suite 110                              Tel: (559) 299-4341
     Fresno, CA 93711                                            jeff@jpapelaw.com
23
     Tel: (559) 449-0571 / Fax: (559) 436-2619
24   michaelh@smbblaw.com
     jorgeg@smbblaw.com
25
     Attorneys   for   Cross-Defendant,                  John    Attorneys    for  Cross-Defendant           Bulrad
26   Ventresca Company, Inc.                                     Enterprises, Inc.
27

28
                                                             2
                                                  SERVICE LIST
Jesse M. Rivera, Esq.                               David M. Levy, Esq.
     RIVERA HEWITT PAUL LLP                              David E. Beeby, Esq.
     11341 Gold Express Drive, Suite 160                 ‘VAN DE POEL, LEVY, THOMAS,
     Gold River, CA 95670                                ARNEAL LLP
     Tel: (916) 922-1200 / Fax: (916) 922-1303           1600 South Main Plaza, Suite 325
     jrivera@rhplawyers.com                              Walnut Creek, CA 94596
                                                         Tel: (925) 934-6102 / Fax: (925) 934-6060
                                                         dle’   @vanle   law.com
                                                         dbeeby@vanlevylaw.com

     Co-Counsel    for Bonadelle   Homes,   Inc.,   BN   Attorneys for Cross-Defendant      Tri-Valley
     5233 LP, BN 5950 LP, BN 5312 LP, BN 4870            Plastering, Inc.
     LP
     Jeffrey N. Stewart, Esq.                            Courtesy Copy
     Jean A. Dalmore, Esq.                               Todd Pearsall
     MURCHISON & CUMMING LLP                             PEARSALL LAW, APC
10   801 South Grand Avenue, Eighth Floor                4640 Cass St. Unit 9074
     Los Angeles, CA 90017                               San Diego, CA 97004
11   Tel: (213) 630-1078 / Fax: (213) 623-6336           Tel: (619) 847-7034
     jstewart@murchisonlaw.com                           Todd.pearsall@pearsall-law.com
12   jdalmore@murchisonlaw.com
13
     Attorneys for Cross-Defendant Fresno
14   Plumbing & Heating, Inc.                            Counsel for Golden State Tile and Meraz
                                                         Roofing
15   Adrienne D. Cohen, Esq.
     Veronika J. Zappelli, Esq.
16   LAW OFFICES OF ADRIENNE D. COHEN
17   7250 Redwood Blvd., Ste. 300
     Novato, CA 94945
18   Tel: (415) 761-8655 / Fax: (415) 329-2448

19   Attorneys for Cross-Defendant, Rosenthal
     Construction DBA Rosenthal Brothers, Inc.
20

21

22

23

24

25

26

27

28
                                                     3
                                            SERVICE LIST