Cross ComplaintCal. Super. - 6th Dist.May 29, 2018I 2 a J 4 5 6 1 8 9 10 11 I2 T3 I4 15 r6 17 18 I9 20 2l 22 ZJ 24 25 26 27 28 ROGERS JOSEPH O'DONNELL ALAN J. WILHELMY (State Bar No. 12116l) zuCHARD M. HARRIS (State Bar No. 268|ll) 31 1 California Street, lOth Floor San Francisco, California 94104 Telephone : 41 5.95 6.2828 Facsimile: 415.956.6451 Attorneys for Defendant and Cross- Complainant HDR CONSTRUCTORS, INC., a Nebraska corporation; and Defendants THE WESTERN SURETY COMPANY AKA WESTERN SURE,TY COMPANY SUPERIOR COURT OF THE STATE OF CALIFORNIA COLINTY OF SANTA CLARA J.R. F'ILANC CONSTRUCTION COMPANY, INC./GSE CONSTRUCTION COMPANY, INC., a Joint Venture, Plaintiff, VS. FIDR CONSTRUCTORS, INC., a Nebraska corporation; TI{E V/ESTERN SURETY COMPANY AKA WESTERN SURETY COMPANY, and DOES 1 through 100, Defendants. HDR CONSTRUCTORS, INC., a Nebraska corporation Cross-Complainant, VS J.R. FILANC CONSTRUCTION COMPANY, INC./GSE CONSTRUCTION COMPANY, INC., a Joint Venture, and IìOES 1 through 25, inclusive, Cross-Defendants. Case No. 18CV329038 Assigned to: I-Ionorable Theodore C. Zayner, Dept. 6 HDR CONSTRUCTORS, INC.'S CROSS- COMPLAINT FOR BREACH OF CONTRACT; CONTRACTUAL INDEMNITY, EQUITABLE INDEMNITY AND DECLARATORY RELIEF Complaint Filed: };4.ay 29,2018 Trial Date: Not Set Page I HDR's Cross-Cotnplaint for Breach of Contract; Contlactual L-rdernnity, Equitable Indernnity and Declaratory Iìelicf Case No. 115CV216843 4677 48.1. Electronically Filed by Superior Court of CA, County of Santa Clara, on 7/30/2018 10:42 AM Reviewed By: E. Fang Case #18CV329038 Envelope: 1777280 18CV329038 Santa Clara - Civil E. Fang 1 2 a J 4 5 6 1 8 9 10 11 t2 13 T4 15 t6 I7 18 19 20 2l 22 23 24 25 26 27 2B Cross-Complainant alleges as follows: GENERAL ALLEGATIONS i. HDR Constructors, Inc. ("Cross-Complainant") is a corporation qualified to and doing business in the State of California. At all times relevant hereto, Cross- Complainant was licensed as a general contractor by the California Contractor's State License Board. 2. At all times mentioned in this Cross-Complaint, Cross-Defendant J.R. Filanc Construction Company, Inc./GSE Construction Company,Inc. ("Cross-Defendant") was a joint venture doing business in the State of California. 3. The true narres or capacities, whether individual, corporate, associate, or otherwise, of Cross-Defendants named as ROES 1 through 100, inclusive, are unknown to Cross-Complainant, and Cross-Complainant therefore sues these Cross-Defendants by fictitious names. Cross-Complainant will seek leave to amend this Cross-Complaint to show the true names and capacities of the ROE defendants when ascertained. Cross-Complainant is informed and believes and thereon alleges that ROES I through 100 inclusive, are in some manner legally liable to Cross-Complainant for the acts and omissions set for"th below, and Cross-Complainant will amend this Cross-Complaint to state the exact grounds of liability when discovered. 4. At all times mentioned, each of the Cross-Defendants was the agent and employee of each of the remaining Cross-Defendants and was at all times acting within the scope and course of such agency and employment. WHEREFORE, Cross-Complainant prays for judgment as set forth below. FIRST CAUSE OF ACTION (Breach of Contract) 5. Cross-Complainant incorporates Paragraphs 1 through 4 of the General Allegations as though fully set forth herein. 6. Cross-Complainant and Cross-Defendant entered into a written subcontract dated September 3,2015, for certain work for the Montevina Water Treatment Paee2 HDR's Cross-Cornplaint for Breach of Contraot; Contractual Indcurnity, ìiquitable Indemnity and Declaratory Relief Case No. 115CV216843 4677 48.1 I 2 a J 4 5 6 l 8 9 10 11 t2 13 T4 15 16 t7 18 T9 20 2I 22 23 24 25 26 21 2B Plant ("the Project") owned by the San Jose Water Company ("the Project owner"). The subcontract incorporated by reference the Project plans and specifications, the Project Schedule and the terms of the Prime Contract to the extent applicable to the work of the Subcontract. 7. Cross-Defendant breached the written subcontract by failing to perform all of the subcontract work in accordance with the terms of the Project Schedule resulting in delays to the Project. The delays to the Project caused by Cross-Defendant, including but not limited to workmanship issues and delays relating to the need to perform re-work in order to conform to the requirements of the subcontract, have triggered liability for liquidated damages under the terms of the Prime Contract and incorporated into the Subcontract in the amount of $681,500. Cross-Complainant has further been damaged in the amount of the extended general conditions actually incurred by Cross Complainant as a result of the breach by Cross Defendant and the failure of Cross Defendant to timely perform the work in accordance with the Project Schedule. 8. Cross-Complainant has performed all conditions, covenants and promises to be perfbrmed by Cross-Complainant under the written construction subcontract. WHEREFORE, Cross-Complainant prays for judgment as set forth below. SECOND CAUSE OF ACTION (Contractual Indemnity) 9. Cross-Complainant incorporates Paragraphs 1 through 4 of the General Allegations and paragraphs 5 through 8 of the First Cause of Action as though fully set forth herein. 10. The written Subcontract with Cross Defendant contains express contractual indemnity language by which Cross-Defendant is required to indernnify Cross- Complainant, as follows : Article I - INDEMNITY 9.1 To the fullest extent permitted by law, Subcontractor agrees to indemnify, hold harmless and defend Contractor, Contractor's surety and Owner and their officers, employees, agents and representatives and any other party required to be indemnified under the Design-Build Agreement (Prime), jointly and severally, H DR's Cross-(.ornploi,.rt fm Indenrnity, Equitable lnclcmnity and Declaratoly Relief Case No. 115CV216843 467148.1 1 2 a J 4 5 6 7 8 9 10 11 t2 13 t4 15 16 t7 18 T9 20 2I 22 ¿J 24 25 26 27 28 from and against: c. To the fullest extent permitted by law, Subcontractor shall indemnify, defend and hold Contractor, Owner, their employees, officers, directors, and agents harmless from and against all liability, claims, losses, costs, expenses and fees arising out of the Work or this Agreement to the extent caused or alleged to have been caused by any act, error or omission of Subcontractor, its agents, employees, subcontractors, suppliers, anyone employed directly or indirectly by any of them or anyone for whose acts any of them may be liable. Subcontractor shall have no duty to indemnify Contractor or any indemnified party under this section for the active negligence or willful misconduct of any indemnified party pursuant to California Civil Code Section 2782.05. I 1. Cross Defendant is contractually bound to indemnify Cross Complainant fiom all claims, causes of action and damages arising from the work of Cross- Defendant, including, without limitation, delays to the Project Schedule and failure to complete the work of the Subcontract in accordance with the reqr"rirements of the subcontract and in a timely manner. Cross-Complainant is informed and believes and on that basis alleges that the work of the Subcontract was not timely performed by Cross Defendant, and that liquidated damages for delay have been triggered as a result of the delays by Cross Defendants and the failure of Cross Defendants to complete the work of the subcontract in accordance with the Project Schedule. If Cross Complainant is found in some manner responsible to Owner this liability would be solely derivative in nature and not resulting from the conduct of this Cross Complainant. 12. Cross Complainant is entitled to indemnity from Cross Defendant as set forth herein. WHEREFORE, Cross-Complainant prays for judgment as set forth below. THIRD CAUSE OF ACTION (Equitable Indemnity) 13. Cross-Complainant incorporates Paragraphs 1 through 4 of the General Allegations and paragraphs 5 through 8 of the þ-irst Cause of Action and paragraphs 9 through 12 of the Second Cause of Action as though fully set forth herein. 14. By virtue of the foregoing, Cross-Complainant is entitled to equitable indemnity from Cross-Defendants, and each of them, on atotal and comparative basis. Paee 4 IIDlì's Cross-Cornplaint f'ol Breach of Contract; Contractual Indernrrity, Equitable lndemnity and Declaratory Relief Case No. 115CV276843 4677 48.1 1 2 J 4 5 6 l I 9 l0 11 \2 13 t4 15 I6 tl 18 T9 20 2l 22 ¿3 24 25 26 21 28 Specifically, Cross-Complainant is entitled to be indemnified for any and all costs, expenses, damages, interest, losses, and liabilities of whatsoever nature, character or kind known or unknown that Cross-Complainant might sustain at any time as a consequence of the actions or failure to act of Cross-Defendant, including without limitation, liquidated damages, damages for delay, and extended general conditions based upon the delays caused by Cross-Defendant to the Project, including, by virtue of Section 102L6 of the Code of Civil Procedure, attorney fees incurred in prosecution of this action. WHEREFORE, Cross-Complainant prays for judgment as set forth below. FOURTH CAUSE OF ACTION (Declaratory Relief) 15, Cross-Complainant incorporates Paragraphs 1 through 4 of the General Allegations and paragraphs 5 through 8 of the First Cause of Action and paragraphs 9 through 12 of the Second Cause of Action andparagraphs 13 through 14 of the Third Cause of Action as though fully set forth herein. 16. Cross-Complainant and Cross-Defendant entered a written subcontract for the performance of work at the Montevina Water Treatment Plant Project. An actual controversy presently exists between the parties in this action as to their respective rights and duties under the subcontract agreement, in particular with regard to the duty of Cross- Defendant to perform the work of the Subcontract in conformance with the Project Schedule. Cross-Complainant contends that, as a result of the breaches of contract by Cross-Defendant, Cross Complainant has been damaged by the delays Cross f)efendant caused to the Project including actual damages and/or liquidated damages that have been triggered and may be assessed by the project owner and are the responsibility of Cross-Defendant. Cross- Defendant disputes this contention. I7. Cross-Complainant is informed and believes that Cross-Defèndant is solely responsible for the delays to the Project critical path and contractual completion date and that there have been no concurrent delays to the critical path or contractual completion date from other sources except as agreed to by Cross-Complainant and Owner. Pase 5 FIDR's Cross-Cornplaint for Breach of Contract; Contractual Indemnity, Equitable Indernnity and Declaratory Relief Casc No. 115CV276843 467748 1 I 2 J 4 5 6 1 8 9 10 11 t2 13 I4 15 I6 I7 18 I9 20 2l 22 23 24 25 26 21 28 18. Cross-Complainant desires a judicial determination of the rights and duties of the parties and a declaration that project delays are the responsibility of Cross- Defendants. WHEREFORE, Cross-Complainant prays for judgment as set forth below. PRAYER 1 . For judgment against Cross-Defendant on the First Cause of Action in the amount of $681,500 or in the liquidated damages amount assessed by the Project owner according to proof at trial; 2. For judgment against Cross-Defendants on the Second and Third Causes of Action according to proof; 3. For indemnity against any claims or delay damages including liquidated damages asserted by the Project owner against Cross Complainant; 4. For a declaration of the rights and duties of the parties in the Fourth Cause of Action according to proof; 5. For costs of suit: 6. For attorneys' fees pursuant to the terms of the written Subcontract; and 1 . For such other and further relief that the court may deem just and proper. Dated: July 30, 2018 ROGERS JOSìJPH O'DONNELL \ ALAN J. WII,HELMY Attorneys for Cross-Complainant HDR CONSTRUCTORS, INC., a Nebraska corporation Page 6 I-lDR's Cross-Courplaint for Breach of Contract; Contractual Indemnity, Equitable Indernnity and Declaratory Relief Case No. 115CV216843 4677 48.1 I 2 3 4 5 6 7 8 9 10 11 T2 13 14 15 t6 T] 18 19 20 2I 22 23 24 25 26 21 28 PROOF OF SERVICE [C.C.P. $$ 1010.6, 1011, 1013, 1013a, 2015.5, C.R.C. $S 1.21' 2.260'2.306, F.R.C.P. Rule 5] I, Dawn Lorenzen, state: My business address is 311 California Street, 1Oth Floor, San Francisco, CA 94104. I am employed in the City and County of San Francisco where this service occurs o,r mailing occurrêd. The envelope or package was placed in the mail at San Francisco, California. I am over the age of eighteen years and not a party to this action. On July 30, 2018, I served the following documents described as: HDR CONSTRUCTORS, INC.'S CROSS-COMPLAINT FOR BREACH OF CONTRACT; CONTRACTUAL INDEMNITY, BQUITABLE INDEMNITY AND DECLARATORY RBLIEF and SUMMONS ON CROSS-COMPLAINT on the lollowing person(s) in this action by placing a true copy thereof enclosed in a sealed envelope, with the postage prepaid, addressed as follows: Dustin R. Jones Jon F. Gauthier Thomas F. Feerick Jr. FINCH THORNTON & BAIRD, LLP 414l Executive Drive, Suite 700 San Diego, CA 92121,-3101 djones@¡fiblaw.com j gaut hi e r @¡ft b I aw . c o m tfeerick@ftblaw.com X BY FIRST CLASS MAIL: I a_m readily faryi.lia.r w_i1h.my flttm's practice for collection and processlng of correspondence for mailing with the United States Postal Service, to-wit, that ðorrespondence will be deposited with the United States Postal Service this same day in the ordinary course of business. I sealed said envelope and placed it for collection and mailing on July 30,2018, following ordinary business praotices. BY PERSONAI- SERVIÇE: I caused such envelope(s) to be delivered by hand on July 30,æ@eaddressee(s)betweenthehouIsofnineinthemorningand five in the evening. BY OVERNIGI-IT DELIVERY: On July 30,2018, I caused such envelope to be delivered forovernightde1iverytotheoffice(s)offheaddressee(s). I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct and that this declaration was executed this date at San Francisco, California. Dated: July 30,2018 Da Pase 7 L 4677 48.1 Proof of Service - HDIì's Cross-Complaint for Breach of Contract; Contractual Indemnity, Equitable Indemnity aud Dcclaratory Relief Case No. 115CV276843
