Preview
- AN
“10799887*
il
31949
ALAMEDA COUNTY
QC] 10 2012
pit() foes Ox DOM
7
(6 4
Le Ce ibs
A
IPA,
ON
em es
Tete edd
OF THE STATE OF CALIFORNIA
"HE COUNTY OF ALAMEDA
ON,a No RG1i2651378
COMPLAINT FOR DAMAGES ON
COUNTS OF
1 Breach of Contract;
2 Negligence;
on; 3 Breach of Express Warranty;
4 Breach of Implied Warranty; and
5 Breach of Contract [Third Party
Beneficiary]
[Demand for Jury Trial]
—_/
ERS’ ASSOCIATION (hereinafter “ASSOCIATION”)
efendants, and DOES 1-50, and alleges as follows
RAL ALLEGATIONS
[TION was, and now is, a non-profit mutual benefit
by virtue of the laws of the State of California, with its
the City of Pleasanton, County of Alameda, State of
sponsible for the management, maintenance, repair and
ovements better known as The Gables of Pleasanton
@
“AYLOR ROOFING CORPORATION, (hereinafter
ified to do business and is actually doing business in the
of Alameda.
YLOR is, and at all relevant times mentioned herein was,
general roofing contractor, including supplying labor,
‘es, and supervision necessary for the removal of existing
1 of new roofing, gutter and downspout systems, and
1 every building within the Property.
)VE, INC. (hereinafter “GUTTERGLOVE”) was and is
doing business in the State of California, including the
)VE is, and at all relevant times mentioned herein was,
contractor and/or supplier, including supplying labor,
‘ices, and manufacturing and/or distributing materials,
“Gutterglove gutter guard” on every building within the
sities, whether individual, corporate, associate, partner or
lusive, are unknown to ASSOCIATION, who therefore
us names, ASSOCIATION will move to amend this
and capacities when the same have been ascertained.
inaware of the basis of liability as to some or all of such
38 1 through 50, inclusive, but believes that their liability
*t forth herein. ASSOCIATION will move to amend this
ity of said fictitiously-named Defendants when they have
ned and believes, and upon such information and belief
re legally responsible in some manner for the events and
2-
@
and proximately caused damage to the ASSOCIATION.
y to ASSOCIATION and its members as reasonably
naging association of the Property to use reasonable care
planning, improvement, design, construction, inspection,
ters, gutter guards, and adjacent building components at
tint any Defendant is subject to any charging allegation,
med that said DOES 1 through 50, inclusive, and each of
sing allegation.
med and believes that DOES 1 through 20, inclusive,
contractors, being individuals, associations, partnerships
loyees and agents who performed services as general
ectors on the roofs, gutters, gutter guards, and adjacent
SSOCIATION. |
med and believes, and thereon alleges, that DOES 21
yr entities (hereinafter “Design DOES”), who negligently
n for the roofs, gutters, and gutter guards at the Project.
med and believes, and thereon alleges, that DOES 31
or entities (hereinafter “Supplier DOES”), who supplied,
Is, products and goods used in or for the construction of
e Project.
med and believes that, at all times mentioned in this
38 1 through 50, were acting as the agents, servants,
of the other and were acting within the full course and
‘int venture with respect to the acts complained of in this
and consent, either express or implied, of each other. As
ity detailed in this Complaint, all Defendants are jointly
sfective roofs, gutters, and gutter guards at the Property.
ig
&
5, in the County of Alameda, a certain written agreement
was entered into by and between ASSOCIATION and
M TAYLOR to replace all fifty-six (56) roofs at the
and for related roof flashings and sidings repair. A true
‘lor Contract is attached hereto as “Exhibit A” and
‘that between July 2005 and June 2006, BIGHAM
replaced the roofs at the Project, including gutters,
ind sidings repair for the benefit of the ASSOCIATION
ble purchasers, owners, and managing association of the
vided a roofing guarantee (hereinafter “Guarantee”) to
VM TAYLOR to, at its own cost and expense, make or
: necessary to maintain the roof in a watertight condition.
4 TAYLOR Guarantee is attached hereto as “Exhibit B”
», 2006, in the County of Alameda, a certain written
Contract”) was entered into by and between
'E (formerly “Commercial Gutter, Inc.”) requiring
: gutter guard on all buildings at the Project. A true and
‘t is attached hereto as “Exhibit C” and incorporated by
2006, in the County of Alameda, a certain warranty
red into by and between ASSOCIATION and
ial Gutter, Inc.”) warranting to the original owner(s) that
gutter guard will not be defective in manufactured parts,
nly, either repair the defect or replace the defective part
quivalent. A true and correct copy of the Gutterglove
chs
@
D” and incorporated by reference.
ICIATION first learned of the defective conditions that
ving: premature corrosion holes, leaks, and gutter failures
adjacent building components as a result of improperly
and/or installation and/or chemical composition of the
he “Property Defects”).
ntly unaware of when all of the defective conditions
ed themselves or caused physical injury to or destruction
se of such property, but asserts that the construction
ped and occurred over a period of time since completion
roperty, said deficiencies and resulting physical injuries
CTION, VENUE AND STANDING
on over this action pursuant to California Code of Civil
‘ks damages under the statutory and common law of the
Court pursuant to California Code of Civil Procedure
ise (a) the described injuries to property occurred in this
ctions described herein occurred within this county; (c)
) business in the State of California and/or are or were
d) because Defendants did do business in this county by
ig materials for the roofs, gutters, and gutter guards at
ATION’S Governing Documents, California Civil Code
vil Procedure Section 382, and in accordance with the
ters v. M. Penna Phillips Co. (1977) 75 Cal.App.3d 184,
pe Development Co. (1981) 114 Cal.App.3d 783, Twain
terson (1987) 193 Cal.App.3d 184, and National Solar
s&
@
Corp. (1991) 235 Cal.App.3d 1273, ASSOCIATION has
nits behalf and as a representative of its members for the
ST CAUSE OF ACTION
igainst BIGHAM TAYLOR and GUTTERGLOVE)
ates and re-alleges, as though fully set forth herein, all of
paragraphs.
nembers are, and at all times herein mentioned were, the
ontract (Exhibit A), BIGHAM TAYLOR promised to
roperty, including gutters, downspouts and related roof
formed all of the conditions, covenants and obligations
ns and conditions of said Bigham Taylor Contract.
rsached the Bigham Taylor Contract by, among other
ee from defects, failing to complete the work adequately
mplete the work with the quality of workmanship or
, failing to provide insurance for the work, and failing to
Guarantee (Exhibit B), in that BIGHAM TAYLOR
Spares designed, and/or performed defective work,
*roperty and Property Defects alleged herein to the
‘e result of each breach of the aforesaid Bigham Taylor
nore particularly set forth above, ASSOCIATION has
num jurisdictional amount of the Court, in an amount to
d including but not limited to, repair and replacement of
1 replacement of physical damage to property and work
ulting loss of use of money, testing and investigation of
g
sts for the repairs, costs of suit, attorneys’ fees pursuant
ed at Article 9.1.3.1 of the Bigham Taylor Contract, and
zes.
act (Exhibit C), GUTTERGLOVE promised to install
; at the Project.
formed all of the conditions, covenants and obligations
ns and conditions of said Gutterglove Contract.
ied the Gutterglove Contract by, among other things,
\ defects, failing to complete the work adequately for its
te the work with the quality of workmanship or
, failing to provide insurance for the work, and failing to
ranty (Exhibit D), in that GUTTERGLOVE negligently
signed, and/or performed defective work, thereby causing
damages alleged herein to the ASSOCIATION.
ate result of each breach of the aforesaid Gutterglove
yre particularly set forth above, ASSOCIATION has
num jurisdictional amount of the Court, in an amount to
1 including, but not limited to, repair and replacement of
d replacement of physical damage to property and work
ting loss of use of money, testing and investigation of
ists for the repairs, costs of suit, and other incidental and
PRAYS for judgment as hereinafter set forth.
D CAUSE OF ACTION
nce Against all Defendants)
2s and incorporates, as though fully set forth in this cause
n the preceding paragraphs.
ae
@
entioned herein, Defendants, and each of them, were
, consulting, designing, and supplying the materials for
t building components at the Property.
, suppliers, supervisors, installers, and constructors of the
icent building components, Defendants had a duty to
1 skill as a reasonable consultant, designer, supplier,
would under the same or similar circumstances, and to
terials that were fit for their intended uses.
of them, breached their duty of care and skill to
2 the same degree of care and skill as a reasonable
ir, installer, and/or constructor would under the same or
z labor, services, equipment and material that were unfit
if them, negligently and carelessly failed to exercise
loss and to minimize and mitigate damages which could
orts on the part of said Defendants, or by expenditures
rcise of due care.
mate result of each breach of the aforesaid duties,
in excess of the minimum jurisdictional amount of the
rding to proof at trial, and including, but not limited to
‘ork and materials, repair and replacement of physical
| by Defendants, loss of use of the property, resulting loss
on of defects, contractors’ and consultants’ costs for the
oursuant to the attorney’s fee provision enumerated at
yr Contract, experts’ fees, and other incidental and
-8-
@
rom Defendants’ breaches of their respective duties of
t of the kind that do not result or occur in the absence of
or omission on the part of the ASSOCIATION.
PRAYS for judgment as hereinafter set forth.
) CAUSE OF ACTION
ess Warranty Against BIGHAM TAYLOR
GUTTERGLOVE)
2s and incorporates, as though fully set forth in this cause
n the preceding paragraphs.
1 writing, entered into the aforesaid Bigham Taylor
1 force and effect at all times material hereto, in which
ed to the ASSOCIATION to, at its own cost and expense,
as may be necessary to maintain the roof in a watertight
d the Bigham Taylor Contract in reliance on the above-
that the roofs, gutters, gutter guards, and adjacent
not constructed in a good and workmanlike manner, and
lly alleged in and set forth in the preceding paragraphs,
erein by reference.
Property Defects, ASSOCIATION, in a written letter,
TAYLOR of such defects and breaches of warranties. A
12 letter is attached as “Exhibit E.” As of the date of this
t responded to the letter or returned to correct any of the
SOCIATION for its expenses.
> result of said breaches of BIGHAM TAYLOR’s express
red damages in excess of the minimum jurisdictional
-9-
@
shown according to proof at trial, and including, but not
sfective work and materials, repair and replacement of
not owned by BIGHAM TAYLOR, loss of use of the
nd investigation of defects, contractors’ and consultants’
torneys’ fees pursuant to the attorney’s fee provision
Bigham Taylor Contract, and other incidental and
‘iting, entered into the aforesaid Gutterglove Contract
>
. and effect at all times material hereto, in which
1 to the original owner(s) that GUTTERGLOVE’S
t be defective in manufactured parts, and agreed that it
efect or replace the defective part. (See Exhibit D.)
d the Gutterglove Contract in reliance on the above-
hat the gutter screen at the Property were not engineered,
and workmanlike manner, and were defective for the
th in the preceding paragraphs, which are referred to and
Property Defects, ASSOCIATION, in written letters,
|, and June 18, 2012, notified GUTTERGLOVE of such
2 and correct copies of the August 17, 2011 and August
t F.” As of the date of this Complaint, GUTTERGLOVE
these defects or to reimburse ASSOCIATION for its
e result of said breaches of GUTTERGLOVE’S express
‘ed damages in excess of the minimum jurisdictional
: shown according to proof at trial, and including but not
efective work and materials, repair and replacement of
-10-
@
< not owned by GUTTERGLOVE, loss of use of the
y, testing and investigation of defects, contractors’ and
f suit, and other incidental and consequential damages.
PRAYS for judgment as hereinafter set forth.
'URTH CAUSE OF ACTION
ed Warranty Against BIGHAM TAYLOR,
ERGLOVE and DOES 1-50)
:s and incorporates, as though fully set forth in this cause
n the preceding paragraphs.
hat BIGHAM TAYLOR entered into the Bigham Taylor
R promised to replace all fifty-six (56) roofs at the
and for related roof flashings and sidings repair.
that GUTTERGLOVE entered into the Gutterglove
‘mised to install Gutterglove gutter guard on all buildings
that Contractor DOES, Design DOES, and Supplier
with BIGHAM TAYLOR and/or GUTTERGLOVE that
, materials, service, and work towards the design and
guards, and adjacent building components at the Property
ad its members as reasonably foreseeable purchasers,
Property.
warranted and were obligated to perform their work in a
naterials supplied would be fit for its intended uses and
‘elform Contracting Co. (1978) 82 Cal. App. 3d 65.
that Defendants, in supervising, supplying, analyzing,
ie roofs, gutters, gutter guards, and repairs to the adjacent
mpliedly warranted that the various products, services,
1, constructed, installed and built by them would be
=|].
@
and of quality, workmanlike construction.
that the Defendants’ designing, supervising, supplying,
work of the roofs, gutters, gutter guards, and repair of
perty was defective and not fit for the purposes intended,
nstruction, and, in fact, that Defendants failed to perform
essary for the roofs, gutters, gutter guards, and adjacent
e built for the purposes intended.
Property Defects, ASSOCIATION, in written letters,
1, and June 18, 2012, notified GUTTERGUARD and on
OR of such defects and breaches of warranties. True and
as Exhibits E and F. As of the date of this Complaint,
‘TERGUARD have attempted to correct any of these
for its expenses.
nate result of said breaches of Defendants’ implied
‘ed damages in excess of the minimum jurisdictional
shown according to proof at trial, and including, but not
efective work and materials, repair and replacement of
not owned by Defendants, loss of use of the property,
nd investigation of defects, contractors’ and consultants’
torneys’ fees pursuant to the attorney’s fee provision
Bigham Taylor Contract, and other incidental and
PRAYS for judgment as hereinafter set forth.
TH CAUSE OF ACTION
‘laim for Breach of Contract Against DOES 1-50)
:s and incorporates, as though fully set forth in this cause
n the preceding paragraphs.
1d:
@
that Contractor DOES, Design DOES, and Supplier
: or supply contracts (hereinafter “Subcontractors”) with
‘LOVE to provide services, labor and/or materials for the
, gutters, gutter guards, and repair of adjacent building
ranted and agreed that their services, labor, work and/or
uards, and adjacent building components would be, and
: with the plans and specifications for the work, free from
workmanlike manner, and/or the materials were fit for
t is an intended and/or express third-party beneficiary of
in the preceding paragraphs. ASSOCIATION and its
ccupiers of the Property at all relevant and material times
Defendants knew they were designing, constructing,
yr the benefit of ASSOCIATION -- the owners of the
idants, and each of them, or ASSOCIATION rescind the
“ION did not breach any conditions, covenants and
part to be performed, nor did it interfere in or with the
rying out the obligations they undertook to one another
N and its members as reasonably foreseeable purchasers,
Property.
) the date of this Complaint, said Defendants, and each of
the terms of their respective Subcontracts by refusing,
re, maintain, repair and/or replace the Property Defects in
ns of said Subcontracts, and such conduct is and was a
sontracts.
13-
@
vided services, labor, materials and/or work pursuant to
reached those Subcontracts in that the warranted and
erials provided for the roofs, gutters, gutter guards, and
'‘roperty, were not in conformance with the plans and
lefects in workmanship and/or materials, or fit for their
—the ASSOCIATION.
nate result of the aforementioned breaches | of said
TION has suffered damages in excess of the minimum
in amount to be shown according to proof at trial, and
replacement of defective work and materials, repair and
verty and work not owned by Defendants, loss of use of
testing and investigation of defects, contractors’ and
sts of suit, attorneys’ fees, and other incidental and
PRAYS for judgment as hereinafter set forth.
YER FOR RELIEF
PRAYS for judgment against Defendants, and each of
ory damages according to proof;
es in a sum as yet unknown, which taken together with
n an amount in excess of the jurisdictional limits of the
-judgment interest at the legal rate;
investigation costs;
ed herein;
-14-
3
zurred pursuant to Article 9.1.3.1 of the Bigham Taylor
relief
: as the Court may deem just and proper.
BERDING & WEIL LLP
By: WD
Daniel L. RoYtinghaus
Andrew M. Baugh
Anna P, Fabiano
Attorneys for Plaintiff
THE GABLES OWNERS’ ASSOCIATION
15
Preview
- AN “10799887* il 31949 ALAMEDA COUNTY QC] 10 2012 pit() foes Ox DOM 7 (6 4 Le Ce ibs A IPA, ON em es Tete edd OF THE STATE OF CALIFORNIA "HE COUNTY OF ALAMEDA ON,a No RG1i2651378 COMPLAINT FOR DAMAGES ON COUNTS OF 1 Breach of Contract; 2 Negligence; on; 3 Breach of Express Warranty; 4 Breach of Implied Warranty; and 5 Breach of Contract [Third Party Beneficiary] [Demand for Jury Trial] —_/ ERS’ ASSOCIATION (hereinafter “ASSOCIATION”) efendants, and DOES 1-50, and alleges as follows RAL ALLEGATIONS [TION was, and now is, a non-profit mutual benefit by virtue of the laws of the State of California, with its the City of Pleasanton, County of Alameda, State of sponsible for the management, maintenance, repair and ovements better known as The Gables of Pleasanton @ “AYLOR ROOFING CORPORATION, (hereinafter ified to do business and is actually doing business in the of Alameda. YLOR is, and at all relevant times mentioned herein was, general roofing contractor, including supplying labor, ‘es, and supervision necessary for the removal of existing 1 of new roofing, gutter and downspout systems, and 1 every building within the Property. )VE, INC. (hereinafter “GUTTERGLOVE”) was and is doing business in the State of California, including the )VE is, and at all relevant times mentioned herein was, contractor and/or supplier, including supplying labor, ‘ices, and manufacturing and/or distributing materials, “Gutterglove gutter guard” on every building within the sities, whether individual, corporate, associate, partner or lusive, are unknown to ASSOCIATION, who therefore us names, ASSOCIATION will move to amend this and capacities when the same have been ascertained. inaware of the basis of liability as to some or all of such 38 1 through 50, inclusive, but believes that their liability *t forth herein. ASSOCIATION will move to amend this ity of said fictitiously-named Defendants when they have ned and believes, and upon such information and belief re legally responsible in some manner for the events and 2- @ and proximately caused damage to the ASSOCIATION. y to ASSOCIATION and its members as reasonably naging association of the Property to use reasonable care planning, improvement, design, construction, inspection, ters, gutter guards, and adjacent building components at tint any Defendant is subject to any charging allegation, med that said DOES 1 through 50, inclusive, and each of sing allegation. med and believes that DOES 1 through 20, inclusive, contractors, being individuals, associations, partnerships loyees and agents who performed services as general ectors on the roofs, gutters, gutter guards, and adjacent SSOCIATION. | med and believes, and thereon alleges, that DOES 21 yr entities (hereinafter “Design DOES”), who negligently n for the roofs, gutters, and gutter guards at the Project. med and believes, and thereon alleges, that DOES 31 or entities (hereinafter “Supplier DOES”), who supplied, Is, products and goods used in or for the construction of e Project. med and believes that, at all times mentioned in this 38 1 through 50, were acting as the agents, servants, of the other and were acting within the full course and ‘int venture with respect to the acts complained of in this and consent, either express or implied, of each other. As ity detailed in this Complaint, all Defendants are jointly sfective roofs, gutters, and gutter guards at the Property. ig & 5, in the County of Alameda, a certain written agreement was entered into by and between ASSOCIATION and M TAYLOR to replace all fifty-six (56) roofs at the and for related roof flashings and sidings repair. A true ‘lor Contract is attached hereto as “Exhibit A” and ‘that between July 2005 and June 2006, BIGHAM replaced the roofs at the Project, including gutters, ind sidings repair for the benefit of the ASSOCIATION ble purchasers, owners, and managing association of the vided a roofing guarantee (hereinafter “Guarantee”) to VM TAYLOR to, at its own cost and expense, make or : necessary to maintain the roof in a watertight condition. 4 TAYLOR Guarantee is attached hereto as “Exhibit B” », 2006, in the County of Alameda, a certain written Contract”) was entered into by and between 'E (formerly “Commercial Gutter, Inc.”) requiring : gutter guard on all buildings at the Project. A true and ‘t is attached hereto as “Exhibit C” and incorporated by 2006, in the County of Alameda, a certain warranty red into by and between ASSOCIATION and ial Gutter, Inc.”) warranting to the original owner(s) that gutter guard will not be defective in manufactured parts, nly, either repair the defect or replace the defective part quivalent. A true and correct copy of the Gutterglove chs @ D” and incorporated by reference. ICIATION first learned of the defective conditions that ving: premature corrosion holes, leaks, and gutter failures adjacent building components as a result of improperly and/or installation and/or chemical composition of the he “Property Defects”). ntly unaware of when all of the defective conditions ed themselves or caused physical injury to or destruction se of such property, but asserts that the construction ped and occurred over a period of time since completion roperty, said deficiencies and resulting physical injuries CTION, VENUE AND STANDING on over this action pursuant to California Code of Civil ‘ks damages under the statutory and common law of the Court pursuant to California Code of Civil Procedure ise (a) the described injuries to property occurred in this ctions described herein occurred within this county; (c) ) business in the State of California and/or are or were d) because Defendants did do business in this county by ig materials for the roofs, gutters, and gutter guards at ATION’S Governing Documents, California Civil Code vil Procedure Section 382, and in accordance with the ters v. M. Penna Phillips Co. (1977) 75 Cal.App.3d 184, pe Development Co. (1981) 114 Cal.App.3d 783, Twain terson (1987) 193 Cal.App.3d 184, and National Solar s& @ Corp. (1991) 235 Cal.App.3d 1273, ASSOCIATION has nits behalf and as a representative of its members for the ST CAUSE OF ACTION igainst BIGHAM TAYLOR and GUTTERGLOVE) ates and re-alleges, as though fully set forth herein, all of paragraphs. nembers are, and at all times herein mentioned were, the ontract (Exhibit A), BIGHAM TAYLOR promised to roperty, including gutters, downspouts and related roof formed all of the conditions, covenants and obligations ns and conditions of said Bigham Taylor Contract. rsached the Bigham Taylor Contract by, among other ee from defects, failing to complete the work adequately mplete the work with the quality of workmanship or , failing to provide insurance for the work, and failing to Guarantee (Exhibit B), in that BIGHAM TAYLOR Spares designed, and/or performed defective work, *roperty and Property Defects alleged herein to the ‘e result of each breach of the aforesaid Bigham Taylor nore particularly set forth above, ASSOCIATION has num jurisdictional amount of the Court, in an amount to d including but not limited to, repair and replacement of 1 replacement of physical damage to property and work ulting loss of use of money, testing and investigation of g sts for the repairs, costs of suit, attorneys’ fees pursuant ed at Article 9.1.3.1 of the Bigham Taylor Contract, and zes. act (Exhibit C), GUTTERGLOVE promised to install ; at the Project. formed all of the conditions, covenants and obligations ns and conditions of said Gutterglove Contract. ied the Gutterglove Contract by, among other things, \ defects, failing to complete the work adequately for its te the work with the quality of workmanship or , failing to provide insurance for the work, and failing to ranty (Exhibit D), in that GUTTERGLOVE negligently signed, and/or performed defective work, thereby causing damages alleged herein to the ASSOCIATION. ate result of each breach of the aforesaid Gutterglove yre particularly set forth above, ASSOCIATION has num jurisdictional amount of the Court, in an amount to 1 including, but not limited to, repair and replacement of d replacement of physical damage to property and work ting loss of use of money, testing and investigation of ists for the repairs, costs of suit, and other incidental and PRAYS for judgment as hereinafter set forth. D CAUSE OF ACTION nce Against all Defendants) 2s and incorporates, as though fully set forth in this cause n the preceding paragraphs. ae @ entioned herein, Defendants, and each of them, were , consulting, designing, and supplying the materials for t building components at the Property. , suppliers, supervisors, installers, and constructors of the icent building components, Defendants had a duty to 1 skill as a reasonable consultant, designer, supplier, would under the same or similar circumstances, and to terials that were fit for their intended uses. of them, breached their duty of care and skill to 2 the same degree of care and skill as a reasonable ir, installer, and/or constructor would under the same or z labor, services, equipment and material that were unfit if them, negligently and carelessly failed to exercise loss and to minimize and mitigate damages which could orts on the part of said Defendants, or by expenditures rcise of due care. mate result of each breach of the aforesaid duties, in excess of the minimum jurisdictional amount of the rding to proof at trial, and including, but not limited to ‘ork and materials, repair and replacement of physical | by Defendants, loss of use of the property, resulting loss on of defects, contractors’ and consultants’ costs for the oursuant to the attorney’s fee provision enumerated at yr Contract, experts’ fees, and other incidental and -8- @ rom Defendants’ breaches of their respective duties of t of the kind that do not result or occur in the absence of or omission on the part of the ASSOCIATION. PRAYS for judgment as hereinafter set forth. ) CAUSE OF ACTION ess Warranty Against BIGHAM TAYLOR GUTTERGLOVE) 2s and incorporates, as though fully set forth in this cause n the preceding paragraphs. 1 writing, entered into the aforesaid Bigham Taylor 1 force and effect at all times material hereto, in which ed to the ASSOCIATION to, at its own cost and expense, as may be necessary to maintain the roof in a watertight d the Bigham Taylor Contract in reliance on the above- that the roofs, gutters, gutter guards, and adjacent not constructed in a good and workmanlike manner, and lly alleged in and set forth in the preceding paragraphs, erein by reference. Property Defects, ASSOCIATION, in a written letter, TAYLOR of such defects and breaches of warranties. A 12 letter is attached as “Exhibit E.” As of the date of this t responded to the letter or returned to correct any of the SOCIATION for its expenses. > result of said breaches of BIGHAM TAYLOR’s express red damages in excess of the minimum jurisdictional -9- @ shown according to proof at trial, and including, but not sfective work and materials, repair and replacement of not owned by BIGHAM TAYLOR, loss of use of the nd investigation of defects, contractors’ and consultants’ torneys’ fees pursuant to the attorney’s fee provision Bigham Taylor Contract, and other incidental and ‘iting, entered into the aforesaid Gutterglove Contract > . and effect at all times material hereto, in which 1 to the original owner(s) that GUTTERGLOVE’S t be defective in manufactured parts, and agreed that it efect or replace the defective part. (See Exhibit D.) d the Gutterglove Contract in reliance on the above- hat the gutter screen at the Property were not engineered, and workmanlike manner, and were defective for the th in the preceding paragraphs, which are referred to and Property Defects, ASSOCIATION, in written letters, |, and June 18, 2012, notified GUTTERGLOVE of such 2 and correct copies of the August 17, 2011 and August t F.” As of the date of this Complaint, GUTTERGLOVE these defects or to reimburse ASSOCIATION for its e result of said breaches of GUTTERGLOVE’S express ‘ed damages in excess of the minimum jurisdictional : shown according to proof at trial, and including but not efective work and materials, repair and replacement of -10- @ < not owned by GUTTERGLOVE, loss of use of the y, testing and investigation of defects, contractors’ and f suit, and other incidental and consequential damages. PRAYS for judgment as hereinafter set forth. 'URTH CAUSE OF ACTION ed Warranty Against BIGHAM TAYLOR, ERGLOVE and DOES 1-50) :s and incorporates, as though fully set forth in this cause n the preceding paragraphs. hat BIGHAM TAYLOR entered into the Bigham Taylor R promised to replace all fifty-six (56) roofs at the and for related roof flashings and sidings repair. that GUTTERGLOVE entered into the Gutterglove ‘mised to install Gutterglove gutter guard on all buildings that Contractor DOES, Design DOES, and Supplier with BIGHAM TAYLOR and/or GUTTERGLOVE that , materials, service, and work towards the design and guards, and adjacent building components at the Property ad its members as reasonably foreseeable purchasers, Property. warranted and were obligated to perform their work in a naterials supplied would be fit for its intended uses and ‘elform Contracting Co. (1978) 82 Cal. App. 3d 65. that Defendants, in supervising, supplying, analyzing, ie roofs, gutters, gutter guards, and repairs to the adjacent mpliedly warranted that the various products, services, 1, constructed, installed and built by them would be =|]. @ and of quality, workmanlike construction. that the Defendants’ designing, supervising, supplying, work of the roofs, gutters, gutter guards, and repair of perty was defective and not fit for the purposes intended, nstruction, and, in fact, that Defendants failed to perform essary for the roofs, gutters, gutter guards, and adjacent e built for the purposes intended. Property Defects, ASSOCIATION, in written letters, 1, and June 18, 2012, notified GUTTERGUARD and on OR of such defects and breaches of warranties. True and as Exhibits E and F. As of the date of this Complaint, ‘TERGUARD have attempted to correct any of these for its expenses. nate result of said breaches of Defendants’ implied ‘ed damages in excess of the minimum jurisdictional shown according to proof at trial, and including, but not efective work and materials, repair and replacement of not owned by Defendants, loss of use of the property, nd investigation of defects, contractors’ and consultants’ torneys’ fees pursuant to the attorney’s fee provision Bigham Taylor Contract, and other incidental and PRAYS for judgment as hereinafter set forth. TH CAUSE OF ACTION ‘laim for Breach of Contract Against DOES 1-50) :s and incorporates, as though fully set forth in this cause n the preceding paragraphs. 1d: @ that Contractor DOES, Design DOES, and Supplier : or supply contracts (hereinafter “Subcontractors”) with ‘LOVE to provide services, labor and/or materials for the , gutters, gutter guards, and repair of adjacent building ranted and agreed that their services, labor, work and/or uards, and adjacent building components would be, and : with the plans and specifications for the work, free from workmanlike manner, and/or the materials were fit for t is an intended and/or express third-party beneficiary of in the preceding paragraphs. ASSOCIATION and its ccupiers of the Property at all relevant and material times Defendants knew they were designing, constructing, yr the benefit of ASSOCIATION -- the owners of the idants, and each of them, or ASSOCIATION rescind the “ION did not breach any conditions, covenants and part to be performed, nor did it interfere in or with the rying out the obligations they undertook to one another N and its members as reasonably foreseeable purchasers, Property. ) the date of this Complaint, said Defendants, and each of the terms of their respective Subcontracts by refusing, re, maintain, repair and/or replace the Property Defects in ns of said Subcontracts, and such conduct is and was a sontracts. 13- @ vided services, labor, materials and/or work pursuant to reached those Subcontracts in that the warranted and erials provided for the roofs, gutters, gutter guards, and '‘roperty, were not in conformance with the plans and lefects in workmanship and/or materials, or fit for their —the ASSOCIATION. nate result of the aforementioned breaches | of said TION has suffered damages in excess of the minimum in amount to be shown according to proof at trial, and replacement of defective work and materials, repair and verty and work not owned by Defendants, loss of use of testing and investigation of defects, contractors’ and sts of suit, attorneys’ fees, and other incidental and PRAYS for judgment as hereinafter set forth. YER FOR RELIEF PRAYS for judgment against Defendants, and each of ory damages according to proof; es in a sum as yet unknown, which taken together with n an amount in excess of the jurisdictional limits of the -judgment interest at the legal rate; investigation costs; ed herein; -14- 3 zurred pursuant to Article 9.1.3.1 of the Bigham Taylor relief : as the Court may deem just and proper. BERDING & WEIL LLP By: WD Daniel L. RoYtinghaus Andrew M. Baugh Anna P, Fabiano Attorneys for Plaintiff THE GABLES OWNERS’ ASSOCIATION 15