Preview
J. STEPHANIE KRMPOTIC, SBN 128671
CHRISTINA W. SUN, SBN 306762 SUPERIOR COURT
COUNTY OF CA
LOW, BALL & LYNCH OF PLACEH CRNIA
WV
505 Montgomery Street, 7th Floor
San Francisco, California 94111 EB 02 2018
WH
Telephone: (415) 981-6630
EXECUTIVAKE CHATTER
D
Facsunile: (415) 982-1634 E OFFICE
BR
jskrmpotic@lowball.com By: C. Waggoner,
R & CLERK
Deputy
ONNH
Attorneys for Defendant/Cross-Complainant/Cross-Defendant
OREGON SHEPHERD, LLC dba OREGON
SHEPHERD, an Oregon Limited Liability Company
IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF PLACER
oo
10
11 JANENE BAUHOFER and MICHAEL No. SCV0039397
JOHNSON, | (Unlimited Jurisdiction)
12
Plaintiffs,
13 OREGON SHEPHERD, LLC dba OREGON
vs. SHEPHERD’S REPLY IN SUPPORT OF
14 MOTION FOR DETERMINATION OF GOOD
QUINCY McCOURT, individually and dba FAITH SETTLEMENT
15 McQUIN CONSTRUCTION
MANAGEMENT; OREGON SHEPHERD, - . Date: February 13, 2018
16 LLC dba OREGON SHEPHERD, an Oregon Time: 8:30 a.m.
Limited Liability Company; and DOES 1-50, Dept. .40
17 inclusive,
18 Defendants. Complaint Filed: April 28, 2017
19 AND RELATED CROSS-ACTIONS.
20
21 Oregon Shepherd, LLC, dba Oregon Shepherd (“Oregon Shepherd”) hereby submits itsreply in -
22 support of the Motion for Determination of Good Faith Settlement. --
23 L The Settlement Between Oregon Shepherd and Plaintiffsis Within the Ballpark of its
24 Proportionate Liability.
Plaintiffs, Janene Bauhofer and Michael Johnson (“Plaintiffs”) prepared a Cost Analysis Report to
26 repair the dance cabin. The Cost Analysis Report indicates a totalrepair cost of $91,247.31. A true and
- 27 correct copy of the Cost Analysis Report is attached as Exhibit “A.” All parties and their experts
28 attended a joint expert meeting to meet and confer regarding the cost of repair for the dance’studio, and
f.
OREGON SHEPHERD, LLC dba OREGON SHEPHERD’S REPLY IN SUPPORT OF MOTION FOR
DETERMINATION OF GOOD FAITH SETTLEMENT *
J:\1203\SF0840\Pleadings\GTS
Motion\Reply
toOpposition.docx
agreed the total cost of repair was in the range of $91,247.31.
HR
The settlement between Oregon Shepherd and Plaintiffs, for $125,000.00, exceeds the total
wD
cost
of repair for the dance studio and accounts for other allegations inPlaintiffs’ complaint.
WH
I. McCourt Construction Wrongfully Asserts
KR
Oregon Shepherd has Ultimate Liability
for the Plaintiffs Damages
DN
Oregon Shepherd contends Quincy McCourt, individually and dba McQuin Construction
Management (“McQuin Construction”)
DY
mishandled the wool insulation by delaying construction of the
dance
OD
studio, and failing to install exterior windows ‘and doors within a reasonable amount of time,
which exposed the wool insulation
50
and made itsusceptible to infestation. Specifically, as seen in
documents produced during informal discovery, Oregon Shepherd shipped the wool insulation to the:
be
BS
job siteon September 3, 2013. McQuin Construction installed the wool insulation in the dance studio’s
BRE
walls, vaulted ceiling spaces, and beneath thefloors, McQuin Construction billed Plaintiffs with
“Window and Exterior Doors” on December 27, 2013. The doors and exterior windows may not have
a
been installed until three months after the wool insulation was shipped to the j ob site,and/or installed in
ae
R
the dance studio. The delay in installation of the exterior windows and doors is entirely the
BBBRBEREHRRA
responsibility of McQuin Construction.
ae
A significant number of damages sought by Plaintiffs, such as Plaintiffs’ demand for attorney’s
fees, and damages for Plaintiffs’ breach of contract cause of action, are separate and independent from
the alleged liability of Oregon Shepherd, and based on the contract between McQuin Construction and
DR
Plaintiffs. Oregon Shepherd never entered into a contract with Plaintiffs. Finally, to the extent that
Oregon Shepherd is atfault for Plaintiffs’ damages, McQuin Construction is entitled to an offset for the
NY
amount paid by Oregon Shepherd, according to the legal theories on which they may prevail at trial.
NN
Based on the above, the amount of the settlement isan appropriate range given the alleged costs
of repair and factors affecting liability.Further McQuin Construction will receive the benefit of the
PF
Ny
amount of the settlement.
Bh
26 IH. Conclusion
aT Oregon Shepherd has agreed to pay Plaintiffs the totalsum of $125,000.00 This exceeds the
28 total cost of repair of the dance studio, as determined in a joint expert meeting, attended by the all
iO
OREGON SHEPHERD, LLC dba OREGON SHEPHERD’S REPLY IN SUPPORTOF MOTION FOR
DETERMINATION OF GOOD FAITH SETTLEMENT
J:\1203\SF0840\Pleadings\GTS
Motion\Reply
toOpposition.docx
parties. Oregon Shepherd maintains that McQuin Construction’s delay in construction
Hw
of the dance
studio led to the moth infestation of the wool insulation. A good faith settlement
DB
does not call for
perfect, or even nearly perfect apportionment of liability; itonly
wD
calls for a rough approximation
between a settling tortfeasor’s offer of settlement
BR
and his proportionate liability.North County
Contractor's Assn. v.Touchstone Ins. Services (1994) 27 Cal.App.4th 1085, 1090-91. Oregon
DWN
Shepherd respectfully requests the Court finds that itssettlement with Plaintiffs is in good faith, and
grants this Motion.
ON
Dated: February 2, 2018
SBSo
i
//£)
-p
J. STEPE MHSUN
a
B
BRE
CHRISTINA W.
SUN
Attornéys for D t/Cross-Complainant/Cross-
a
Defendant
RE
OREGON SHEPHERD, LLC dba OREGON
FE
SHEPHERD, an Oregon Limited Liability Company
a
SSRkRRERE BB TRE
Be
OREGON SHEPHERD, LLC dba OREGON SHEPHERD’S REPLY IN SUPPORT OF MOTION FOR
DETERMINATION OF GOOD FAITH SETTLEMENT
J:\1203\SF0840\Pleadings\GTS
Motion\Reply
toOpposition.docx
Johnson v.McCourt, et.
al.
Placer County Superior Court Case No. SCV-0039397
PROOF OF SERVICE
Iam over the ageof eighteen (18)years and nota partyto thewithin action.Iam employed atLow, Ball&
Lynch, 505 Montgomery Street,7th Floor,San Francisco,California94111.
On thedate indicatedbelow, I servedthe followingdocument: OREGON SHEPHERD, LLC dba OREGON
SHEPHERD’S REPLY IN SUPPORT OF MOTION FOR DETERMINATION OF GOOD FAITH SETTLEMENT
on thelistedaddresses:
Todd B.Gary, Esq. JulieD. McElroy
The Gary Law Firm KurtisJ. Anders
50 Oak Court,Suite 100 JACOBSEN & McELROY PC
Danville,California94526 2401 American River Drive, Suite100
Tel: (925)831-1155 Sacramento, CA 95825
Fax: (925)831-1188 Tel.(916) 971-4100
tgary@thegarylawfirm.com Fax (916) 971-4150
jmcelroy@jacobsenmcelroy.com
Attorneys forPlaintiffs kanders@jacobsenmcelroy.com
11 Janene Bauhofer and Michael Johnson
Attorneys forDefendants/Cross-Complainants
12 QUINCY McCOURT, individuallyand dba McQUIN
CONSTRUCTION MANAGEMENT
13
[] (BY FILE & SERVE XPRESS) | electronically
served thedocument(s) viaFile& Serve Xpress on therecipients
14 designated on theTransaction Receipt locatedon theFile & Serve Xpress website.
15 [ ] (BY MAIL) I placed a truecopy, enclosed ina sealed,postagepaid envelope, and deposited same forcollectionand
mailing atSan Francisco, California,followingordinary businesspractices,addressed asset forthbelow.
16
[ ] (BY PERSONAL SERVICE) |caused each such crivelapstobe delivered by hand tothe addressees notedabove
17 or onthe attachment herein by
18 [ ] (BY
after
FACSIMILE)
theaddresses
I caused
noted
the
above or
said
on
document
the
tobe
attachment
transmitted
herein.
by Facsimile transmission tothe number indicated
19 [¥] (BY E-MAIL/ELECTRONIC TRANSMISSION) |caused the saiddocument(s) tobe sentto theperson(s) atthe
e-mail address(es)indicatedabove or on theattachment herein.
20
[¥] (BY OVERNIGHT COURIER) I causedeach such envelope addressed to thepartiesto bedeposited in abox or
21 otherfacilityregularlymaintained by theovernight courieror driverauthorizedby the overnight couriertoreceive
documents.
22
Iam readilyfamiliarwith thislaw firm’spracticeforthe collectionand processing ofdocuments forregular and
23 certified
mailing, overnight mail,personal service,
electronictransmission,and facsimiletransaction,and said document(s)
aredeposited with theUnited StatesPostalService orovernight courierdepository onthe same day inthe ordinarycourse
24 of business.
25 Ideclare under penaltyof perjurythatthe foregoing istrueand correct.Executed atSan Francisco,Californiaon
February 2,2018.
26
27
28
-4-
OREGON SHEPHERD, LLC dba OREGON SHEPHERD’S REPLY IN SUPPORT OF MOTION FOR
DETERMINATION OF GOOD FAITH SETTLEMENT
J:\1203\SF0840\Pleadings\GTS
Motion\ReplytoOpposition.docx
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J. STEPHANIE KRMPOTIC, SBN 128671 CHRISTINA W. SUN, SBN 306762 SUPERIOR COURT COUNTY OF CA LOW, BALL & LYNCH OF PLACEH CRNIA WV 505 Montgomery Street, 7th Floor San Francisco, California 94111 EB 02 2018 WH Telephone: (415) 981-6630 EXECUTIVAKE CHATTER D Facsunile: (415) 982-1634 E OFFICE BR jskrmpotic@lowball.com By: C. Waggoner, R & CLERK Deputy ONNH Attorneys for Defendant/Cross-Complainant/Cross-Defendant OREGON SHEPHERD, LLC dba OREGON SHEPHERD, an Oregon Limited Liability Company IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF PLACER oo 10 11 JANENE BAUHOFER and MICHAEL No. SCV0039397 JOHNSON, | (Unlimited Jurisdiction) 12 Plaintiffs, 13 OREGON SHEPHERD, LLC dba OREGON vs. SHEPHERD’S REPLY IN SUPPORT OF 14 MOTION FOR DETERMINATION OF GOOD QUINCY McCOURT, individually and dba FAITH SETTLEMENT 15 McQUIN CONSTRUCTION MANAGEMENT; OREGON SHEPHERD, - . Date: February 13, 2018 16 LLC dba OREGON SHEPHERD, an Oregon Time: 8:30 a.m. Limited Liability Company; and DOES 1-50, Dept. .40 17 inclusive, 18 Defendants. Complaint Filed: April 28, 2017 19 AND RELATED CROSS-ACTIONS. 20 21 Oregon Shepherd, LLC, dba Oregon Shepherd (“Oregon Shepherd”) hereby submits itsreply in - 22 support of the Motion for Determination of Good Faith Settlement. -- 23 L The Settlement Between Oregon Shepherd and Plaintiffsis Within the Ballpark of its 24 Proportionate Liability. Plaintiffs, Janene Bauhofer and Michael Johnson (“Plaintiffs”) prepared a Cost Analysis Report to 26 repair the dance cabin. The Cost Analysis Report indicates a totalrepair cost of $91,247.31. A true and - 27 correct copy of the Cost Analysis Report is attached as Exhibit “A.” All parties and their experts 28 attended a joint expert meeting to meet and confer regarding the cost of repair for the dance’studio, and f. OREGON SHEPHERD, LLC dba OREGON SHEPHERD’S REPLY IN SUPPORT OF MOTION FOR DETERMINATION OF GOOD FAITH SETTLEMENT * J:\1203\SF0840\Pleadings\GTS Motion\Reply toOpposition.docx agreed the total cost of repair was in the range of $91,247.31. HR The settlement between Oregon Shepherd and Plaintiffs, for $125,000.00, exceeds the total wD cost of repair for the dance studio and accounts for other allegations inPlaintiffs’ complaint. WH I. McCourt Construction Wrongfully Asserts KR Oregon Shepherd has Ultimate Liability for the Plaintiffs Damages DN Oregon Shepherd contends Quincy McCourt, individually and dba McQuin Construction Management (“McQuin Construction”) DY mishandled the wool insulation by delaying construction of the dance OD studio, and failing to install exterior windows ‘and doors within a reasonable amount of time, which exposed the wool insulation 50 and made itsusceptible to infestation. Specifically, as seen in documents produced during informal discovery, Oregon Shepherd shipped the wool insulation to the: be BS job siteon September 3, 2013. McQuin Construction installed the wool insulation in the dance studio’s BRE walls, vaulted ceiling spaces, and beneath thefloors, McQuin Construction billed Plaintiffs with “Window and Exterior Doors” on December 27, 2013. The doors and exterior windows may not have a been installed until three months after the wool insulation was shipped to the j ob site,and/or installed in ae R the dance studio. The delay in installation of the exterior windows and doors is entirely the BBBRBEREHRRA responsibility of McQuin Construction. ae A significant number of damages sought by Plaintiffs, such as Plaintiffs’ demand for attorney’s fees, and damages for Plaintiffs’ breach of contract cause of action, are separate and independent from the alleged liability of Oregon Shepherd, and based on the contract between McQuin Construction and DR Plaintiffs. Oregon Shepherd never entered into a contract with Plaintiffs. Finally, to the extent that Oregon Shepherd is atfault for Plaintiffs’ damages, McQuin Construction is entitled to an offset for the NY amount paid by Oregon Shepherd, according to the legal theories on which they may prevail at trial. NN Based on the above, the amount of the settlement isan appropriate range given the alleged costs of repair and factors affecting liability.Further McQuin Construction will receive the benefit of the PF Ny amount of the settlement. Bh 26 IH. Conclusion aT Oregon Shepherd has agreed to pay Plaintiffs the totalsum of $125,000.00 This exceeds the 28 total cost of repair of the dance studio, as determined in a joint expert meeting, attended by the all iO OREGON SHEPHERD, LLC dba OREGON SHEPHERD’S REPLY IN SUPPORTOF MOTION FOR DETERMINATION OF GOOD FAITH SETTLEMENT J:\1203\SF0840\Pleadings\GTS Motion\Reply toOpposition.docx parties. Oregon Shepherd maintains that McQuin Construction’s delay in construction Hw of the dance studio led to the moth infestation of the wool insulation. A good faith settlement DB does not call for perfect, or even nearly perfect apportionment of liability; itonly wD calls for a rough approximation between a settling tortfeasor’s offer of settlement BR and his proportionate liability.North County Contractor's Assn. v.Touchstone Ins. Services (1994) 27 Cal.App.4th 1085, 1090-91. Oregon DWN Shepherd respectfully requests the Court finds that itssettlement with Plaintiffs is in good faith, and grants this Motion. ON Dated: February 2, 2018 SBSo i //£) -p J. STEPE MHSUN a B BRE CHRISTINA W. SUN Attornéys for D t/Cross-Complainant/Cross- a Defendant RE OREGON SHEPHERD, LLC dba OREGON FE SHEPHERD, an Oregon Limited Liability Company a SSRkRRERE BB TRE Be OREGON SHEPHERD, LLC dba OREGON SHEPHERD’S REPLY IN SUPPORT OF MOTION FOR DETERMINATION OF GOOD FAITH SETTLEMENT J:\1203\SF0840\Pleadings\GTS Motion\Reply toOpposition.docx Johnson v.McCourt, et. al. Placer County Superior Court Case No. SCV-0039397 PROOF OF SERVICE Iam over the ageof eighteen (18)years and nota partyto thewithin action.Iam employed atLow, Ball& Lynch, 505 Montgomery Street,7th Floor,San Francisco,California94111. On thedate indicatedbelow, I servedthe followingdocument: OREGON SHEPHERD, LLC dba OREGON SHEPHERD’S REPLY IN SUPPORT OF MOTION FOR DETERMINATION OF GOOD FAITH SETTLEMENT on thelistedaddresses: Todd B.Gary, Esq. JulieD. McElroy The Gary Law Firm KurtisJ. Anders 50 Oak Court,Suite 100 JACOBSEN & McELROY PC Danville,California94526 2401 American River Drive, Suite100 Tel: (925)831-1155 Sacramento, CA 95825 Fax: (925)831-1188 Tel.(916) 971-4100 tgary@thegarylawfirm.com Fax (916) 971-4150 jmcelroy@jacobsenmcelroy.com Attorneys forPlaintiffs kanders@jacobsenmcelroy.com 11 Janene Bauhofer and Michael Johnson Attorneys forDefendants/Cross-Complainants 12 QUINCY McCOURT, individuallyand dba McQUIN CONSTRUCTION MANAGEMENT 13 [] (BY FILE & SERVE XPRESS) | electronically served thedocument(s) viaFile& Serve Xpress on therecipients 14 designated on theTransaction Receipt locatedon theFile & Serve Xpress website. 15 [ ] (BY MAIL) I placed a truecopy, enclosed ina sealed,postagepaid envelope, and deposited same forcollectionand mailing atSan Francisco, California,followingordinary businesspractices,addressed asset forthbelow. 16 [ ] (BY PERSONAL SERVICE) |caused each such crivelapstobe delivered by hand tothe addressees notedabove 17 or onthe attachment herein by 18 [ ] (BY after FACSIMILE) theaddresses I caused noted the above or said on document the tobe attachment transmitted herein. by Facsimile transmission tothe number indicated 19 [¥] (BY E-MAIL/ELECTRONIC TRANSMISSION) |caused the saiddocument(s) tobe sentto theperson(s) atthe e-mail address(es)indicatedabove or on theattachment herein. 20 [¥] (BY OVERNIGHT COURIER) I causedeach such envelope addressed to thepartiesto bedeposited in abox or 21 otherfacilityregularlymaintained by theovernight courieror driverauthorizedby the overnight couriertoreceive documents. 22 Iam readilyfamiliarwith thislaw firm’spracticeforthe collectionand processing ofdocuments forregular and 23 certified mailing, overnight mail,personal service, electronictransmission,and facsimiletransaction,and said document(s) aredeposited with theUnited StatesPostalService orovernight courierdepository onthe same day inthe ordinarycourse 24 of business. 25 Ideclare under penaltyof perjurythatthe foregoing istrueand correct.Executed atSan Francisco,Californiaon February 2,2018. 26 27 28 -4- OREGON SHEPHERD, LLC dba OREGON SHEPHERD’S REPLY IN SUPPORT OF MOTION FOR DETERMINATION OF GOOD FAITH SETTLEMENT J:\1203\SF0840\Pleadings\GTS Motion\ReplytoOpposition.docx