Complaint Unlimited Fee AppliesCal. Super. - 6th Dist.March 25, 2021OOWVQU‘I-bOONA NNNNNNNNNAAAAA-LAAAA mflmmthAOOmflmm-hWNA E-FILED 3/25/2021 3:38 PM Joseph W. McCarthy [164433] Ckflk9fcoun JOSEPH w. McCARTHY, A LAW CORPORATION SUPGFIOFCOUH 0f CA, 400 Reed Street County of Santa Clara Santa Clara, California 95050 21CV381325 Office‘ (408) 727-4111 Reviewed By: D Harris ioe@mccarthvlawcorp.com Attorney for Plaintiff Dustin Herod d.b.a. Dustin Herod Plastering SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA DUSTIN HEROD d.b.a DUSTIN HEROD PLASTERING, an Case NO .21 CV381 325 individual; COMPLAINT FOR BREACH OF Plaintiff, CONTRACT, NEGLIGENCE, BREACH OF WARRANTY AND STRICT VS. LIABILITY MANUFACTURING DEFECTS LP, a California Limited Partnership; NATIONAL GYPSUM SERVICES COMPANY, a Delaware Corporation; and DOES 1-50 inclusive ) ) ) ) ) ) g ACTION GYPSUM SUPPLY WEST, ) ) ) ) ) ) ) ) Defendants. ) ) GENERAL ALLEGATIONS l. At all times mentioned herein, Plaintiff DUSTIN HEROD d.b.a DUSTIN HEROD PLASTERING (HEROD PLASTERING). 2. At all times mentioned herein, Plaintiff is informed and believes and thereon alleges that Defendant, ACTION GYPSUM SUPPLY WEST, LP, (ACTION GYPSUM) is, and has been, a California Limited Partnership with a place of business at 5975 Rossi Lane, Gilroy, California, in Santa Clara County. 3. These causes of actions against ACTION GYPSUM arose while ACTION GYPSUM was doing business in Santa Clara County, Complaint l _L OtomNODU'I-bwk) California. 4. At all times mentioned herein, Plaintiff is informed and believes and thereon alleges that Defendant, NATIONAL GYPSUM SERVICES COMPANY (NATIONAL GYPSUM), is a Delaware Corporation with its principal place of business in Charlotte, North Carolina. 5. This Court has jurisdiction over NATIONAL GYPSUM because NATIONAL GYPSUM has designated an agent for service of process in California and these causes of action arose against NATIONAL GYPSUM while it was doing business in Santa Clara County, California. 6. Plaintiff is ignorant of the true names and capacities of the defendants sued herein as DOES l through 50, inclusive, and therefore sues these defendants by fictitious names. Plaintiff will amend this complaint when the true names and capacities of these defendants are ascertained. 7. In doing the things complained of herein, the Defendants, named or fictitious, were acting as the agent, servant, joint venturer, employee, or alter ego of each of the remaining Defendants. 8. The acts alleged herein occurred in Santa Clara County, California, and the contracts alleged herein occurred in Santa Clara County, California. FIRST CAUSE OF ACTION, BREACH OF CONTRACT (As to ACTION GYPSUM and DOES 1-50, inclusive) Count One, delivery of defective materials 9. Plaintiff incorporates by reference and re-alleges the above paragraphs as if fully set forth herein. Complaint 2 OtomflmmthA NNNNNNNNNAAAAAAAAAA mVQU'l-hOON-‘OCOWVQU'IAOONA 10. On or about June 29, 2020, HEROD PLASTERING and ACTION GYPSUM entered into a sales contract (the Contract), under which ACTION GYPSUM was to provide gypsum board and plastering materials to HEROD PLASTERING and HEROD PLASTERING agreed to pay $18,377.20. A true and correct copy of the Contract is attached as Exhibit l. ll. HEROD PLASTERING performed all acts it was obligated to perform under the Contract. 12. HEROD PLASTERING reasonably relied on ACTION GYPSUM to provide useable and defect free gypsum board. l3. HEROD PLASTERING installed the gypsum board supplied by ACTION GYPSUM but the plaster would not cure at numerous locations throughout the installation. l4. Plaintiff is informed and believes and thereon alleges that the plaster would not cure because the gypsum board had not been properly stored in a weather tight location prior to delivery and had a high moisture content. 15. As a direct result of ACTION GYPSUM’s delivery of defective materials, HEROD PLASTERING had to remove and replace the defective material which resulted in additional material and labor costs. l6. A supplier who provides defective materials is liable in contract for the costs of replacing and any other damages that were proximately caused by the defective materials and were foreseeable. 17. As a direct and proximate result of ACTION GYPSUM, HEROD PLASTERING has suffered direct damages of $76,754.72 in additional labor and materials. HEROD PLASTERING’S repair costs Complaint 3 Otomflmo'l-hOON-K NNNNNNNNNAAAAAAAAAA meU'l-FOON-‘OCOWVOUU'IhOONA are Exhibit 2. 18. Additionally, as a direct and proximate result of ACTION GYPSUM’s defective products, HEROD PLASTERING suffered consequential damages in an amount to be determined at trial. l9. Such damages were foreseeable in the normal course of business such as loss of anticipated profits, loss of business, and loss of goodwill because of the defective products. Count Two, breach of the implied covenant of good faith and fair dealing. 20. Plaintiff incorporates by reference and re-alleges the above paragraphs as if fully set forth herein. 21. In every contract there is an implied covenant of good faith and fair dealing that no party will do anything that will have the effect of impairing, destroying, or injuring the rights of the other party to receive the benefits of their agreement. 22. HEROD PLASTERING is informed and believes and thereon alleges that ACTION GYPSUM, without good faith and through conscious and deliberate acts, failed their responsibilities under the Contract by supplying defective gypsum board. 23. By ACTION GYPSUM knowingly, or negligently, supplying HEROD PLASTERING with defective gypsum board, was not acting in good faith as to performing its obligations under the Contract. 24. By ACTION GYPSUM supplying HEROD PLASTERING with defective gypsum board, ACTION GYPSUM impaired, destroyed, and injured the rights of HEROD PLASTERING to receive the benefits of the Contract . 25. HEROD PLASTERING reasonably relied on the materials to not be defective and HEROD PLASTERING installed the defective Complaint 4 .A O(OQNOCB-FOJN materials. 26. HEROD PLASTERING repaired the damage caused by the defective gypsum board and suffered both direct and consequential damages. 27. As a direct and proximate result of ACTION GYPSUM’S breach of implied covenant of good faith and fair dealing, HEROD PLASTERING has been harmed in an amount to be determined at trial. SECOND CAUSE OF ACTION, NEGLIGENCE (As to ACTION GYPSUM and DOES 1-50, inclusive) 28. Plaintiff incorporates by reference and re-alleges the above paragraphs as if fully set forth herein. 29. ACTION GYPSUM was under a duty to exercise ordinary care to avoid reasonably foreseeable harm to HEROD PLASTERING. 30. ACTION GYPSUM knew or should have reasonably foreseen that HEROD PLASTERING would be harmed if ACTION GYPSUM delivered defective materials. 31. ACTION GYPSUM breached its duty of care by negligently delivering defective materials to HEROD PLASTERING and by failing to cure the defective delivery. 32. As a direct and proximate result of ACTION GYPSUM, HEROD PLASTERING has suffered direct damages of $76,754.72 to repair the defective gypsum board. 33. Additionally, as a direct and proximate result of ACTION GYPSUM, HEROD PLASTERING suffered consequential damages in an amount to be determined at trial. //// //// Complaint 5 A OQGNGGAOON NNNNNNNNN-AAA-XAAAAAA mflmmthAoomV®m¥WNA THIRD CAUSE OF ACTION, BREACH OF IMPLIED WARRANTY OF MERCHANTABILITY (As to ACTION GYPSUM and DOES 1-50, inclusive) 34. Plaintiff incorporates by reference and re-alleges the above paragraphs as if fully set forth herein. 35. Unless excluded or modified, in a contract for the sale of goods, a warranty that the goods will be merchantable is implied if the seller is a merchant of goods of the kind. 36. A good is merchantable if it is fit for the ordinary purposes for which such goods are used. 37. ACTION GYPSUM routinely sells gypsum and plastering supplies and is therefore a merchant of goods of the kind. Unless expressly excluded or modified, a warranty of merchantability is implied in every sales contract executed by ACTION GYPSUM of the kind. 38. By HEROD PLASTERING and ACTION GYPSUM entering a sales contract for gypsum and plastering supplies, 39. ACTION GYPSUM implicitly warrantied that the goods were fit for the ordinary purposes for which such goods are used. 40. Such goods were not fit for gypsum board installation and plastering and therefore not fit for their ordinary purposes for which such goods are used. 41. As a direct and proximate result of ACTION GYPSUM’S breach of implied warranty of merchantability, HEROD PLASTERING has been harmed in an amount to be determinated at trial. //// //// //// //// Complaint 6 A O(OWNOO‘IAQJN FOURTH CAUSE OF ACTION, NEGLIGENCE (As to NATIONAL GYPSUM and DOES 1-50, inclusive) 42. Plaintiff incorporates by reference and re-alleges the above paragraphs as if fully set forth herein. 43. At all times relevant to this action HEROD PLASTERING is informed and believes and thereon alleges that defendant NATIONAL GYPSUM designed, tested, manufactured, assembled, developed, sold, and distributed gypsum board and related products. 44. 0n June 29, 2020, HEROD PLASTERING purchased gypsum board and related materials of which NATIONAL GYPSUM had supplied to ACTION GYPSUM. 45. HEROD PLASTERING used and relied on the defective materials that had been designed, tested, manufactured, assembled, developed, sold, and distributed by NATIONAL GYPSUM. 46. The defective materials failed to cure resulting in HEROD PLASTERING repurchasing materials and redoing the project. 46. At all times relevant to this ACTION GYPSUM, defendant NATIONAL GYPSUM so negligently and carelessly inspected, maintained, and distributed the gypsum supplies that they were not fit for their intended use. 47. As a direct and proximate result of NATIONAL GYPSUM’S negligence and carelessness, HEROD PLASTERING has been harmed in an amount to be determined at trial. FIFTH CAUSE OF ACTION, STRICT LIABILITY MANUFACTURING DEFECTS (As to NATIONAL GYPSUM and DOES 1-50, inclusive) 48. Plaintiff incorporates by reference and re-alleges the above paragraphs as if fully set forth herein. Complaint 7 O(OmNOECfiAOONA NNNNNNNNNAAAAAAAAAA mVODU'l-AOJN-‘OCOWVOU'IAQJN-A 49. At all times relevant to this action, the gypsum materials designed, tested, manufactured, assembled, developed, sold, and distributed by NATIONAL GYPSUM were defective as to design, and manufacture causing property damage and project delay upon their installation. 50. At all times relevant to this action, Plaintiff was and is in the class of persons whose injury was reasonably foreseeable by the manufacturing defects of NATIONAL GYPSUM's product. 51. Plaintiff routinely uses products of a like nature to those that NATIONAL GYPSUM manufactures and distributes. 52. By NATIONAL GYPSUM placing gypsum products in the stream of commerce, it is reasonably foreseeable that a plastering subcontractor would be injured by defective gypsum products. 53. As a direct and proximate result of NATIONAL GYPSUM’S negligence and carelessness of the materials described above, HEROD PLASTERING has been harmed in an amount to be determined at trial. PRAYER WHEREFORE, Plaintiff Prays: l. That judgment be entered jointly and severally against defendants for general damages of $76,754.72; 2. That judgment be entered jointly and severally against defendants for consequential, compensatory and special damages in an amount to be determined at trial; 3. For an award of attorney's fees; 4. For costs of suit; 5. For prejudgment interests as provided by law or contract; and Complaint 8 O(OWNODCNAOONA NNNNNNNNNAAAAAAJAAA mVOm-thAOCOmVOU'l-hWNA 6. For such other and further relief as the Court may deem necessary and proper. DATED: March 25, 2021 («A Mfflefi Joseph W. McCarthy, Attorney for Plaintiff, DUSTIN HEROD d.b.a DUSTIN HEROD PLASTERING Complaint EXHIBIT 1 <7/ crlalv GYPSUM SUPPLY Action Gypsum Supply West LP PO BOX 80346 CITY OF INDUSTRY, CA 91716-8346 USA Phone: (408)-665-4530 BILL T0: DUSTIN HEROD PLASTERING 185 SEASIDE CIRCLE ORDER ACKNOWLEDGMENT G|L00945235 Account: 4039 0001 Branch: 14GIL phone; (831)-214-2584 Fax:( )- - SHIP TO: DHP - TUOLUMNE 3543 E TUOLUMNE RD MARINA CA 93933 TURLOCK CA 95382 Page 1 of 1 PO: DUSTIN REF: QUOTE# 820078 JOB: ORDER DATE: 06/29/20 SALES GH TYPE: W STOCK SHIP VIA: FRT TERM: EXP DELV DATE:07/14/20 AGENTS KKORBA ORDERED BY: CREATED BY: SSANCHEZ QUANTITY UOM ITEM/DESCRIPTION PRICE/UOM AMOUNT Job Contract: DUSTIN 831-214-2584 Priced By: KK/ QUOTE 198 PC 5848KK 4' X 8‘ 295.00/MSF 1,869.12 5/8" KAL KORE 547 PC 58412KK 4' x 12' 295.00/MSF 7,745.52 5/ " KAL KORE 14 PC 58XP 4'X8' 395.00/MSF 176.96 5/8" XP MILDEw RESISTANT 260 BG UNIKAL 16.25/BG 4,225.00 50 lb UNI-KAL VENEER PLASTER BG 8 Bx 6308 43.50/Bx 348.00 6x 1-1/4" BUGLE HEAD GRABBER COARSE 8M 2 Bx G408 39.50/BX 79.00 6x 1-5/ " BUGLE HEAD GRABBER COARSE 5M 1 Bx 158M 1-5/8" 42.80/Bx 42.80 PC DRYWALL NAILS #50 SUBTOTAL 14,486.40 STOCKING FEE 2,750.00 Turlock* 7.875% 1,140.80 PRINTED: 07/1 4/20 15:50:59 Weight: 87,545.60 Balance $1 8,377.20 Load: 33,31 1 .00 EXHIBIT 2 DUSTIN HEROD PLASTERING 185 SEASIDE CIR MARINA CA 93933 831-214-2584 INVOICE Company Name Action Gypsum Supply Date: 10/1 1/2020 Project Title: Turlock Job Project Description: repair defective sheetrock ( cover up, scaffolding, scrape, glue, base, sand & cleanup) Invoice Number: 1024 Description Men Hours Cost 9/2 test two patches by scraping, gluing, 5 5O $ 3,500.00 base, plaster & sanding. I ‘ I 9/9 sheetrocking patch where National i 5 i 50 : $ 3,500.00 took a piece of sheetrock to test. scraping loose plaster patches in Brooks bedroom. 9/11 finish scraping & prepping patches i 5 i 50 $ 3,500.00 in Brooks bedroom, walk in closet and 5 5 5 bathroom. 9/14 plaster patches in Brocks bedroom 6 6O $ 4,200.00 9/15 Plaster patches in Brocks walk in 5 5O $ 3,500.00 Closet and Bathroom i 1 i 9/16 scraping loose plaster patches in 4 4O $ 2,800.00 Laundry room and prep patches for 1 1 E plaster 9/17 Plaster patches in Laundry room & 4 4O $ 2,800.00 stairway. ' ‘ I 9/1 8 scrape & prep patches in 2 master 4 4O $ 2,800.00 walk in closets & hallway. ' ' I 9/21 scrape & prep patches in master i 4 i 4O $ 2,800.00 bathroom. ’ = = 9/22 plaster master walk in closets. 4 4O $ 2,800.00 9/23 Plaster master bathroom & 5 50 $ 3,500.00 upstairs bedroom. : 1 E \ Description Men ‘ Hours Cost 9/24 scrape loose plaster in Jim’s office i 4 40 ‘ $ 2,800.00 & prep for plaster 5 i 1 '6&3biégt‘ehiéfiéBf‘r'ié'egéiéfiés"""""""""""""""';i """""""" 46 37sl"'2',"866.66' "é‘xé'é'éééébééfié‘eg?&éiél'ai'aifig65%”; """""""" a """"""" ébfié“;é66.66' & breakfast nook. I ' ' "é‘x‘é‘g‘giés'i'e'é'fér'r'agidiningrooms """""""" '6'6"'?$";i,é66.66' '5/56'siér'agéégrégLig's't'aié'sfitini'y'room4 """""""" 46"?$§"'2',"866166' "16)]'Aggie}L'péiaiFs'fifiiit'y"$653""""""""""""""'"Li """""""" 4 'cs"'?sl"'2',"866.66' "i’dkééér’ébé’éfir’ég§§Efifi§éfii§6§éé """" 4 """"""" 46}é"é;é¢6‘.66' closet. I ' I "i'd/égiééi'e'fgfiB&BLAéHééiégg """""""""""" '4 """""""" 46 'é"'2',"866'.66' "ib'x'ége'éagéégr'égggég'él """""""""""""""""""" '4 """""""" 467$§"'2',"a'd6.66' "iEi/ELI'AQeEQAFaQe' """"""""""""""""""""""""" 4 """"""" 4'd'fi'émzféébibd' ‘R615éér'agégééfiefit};éiéée‘t‘ """""""""""""""" 4E """""""" 4‘6‘{é”2)”sbbl66' "ibk'é‘gigéiéé'éa't‘riciégéi """""""""""""""""""""" '4 """""""" 46"5556666‘ I _ $76,754.72 Best regards $76,754.72 Dustin Herod
