Brandon Hamilton vs. Foundation Building Materials, LLC.

Reply to Motion

Cal. Super. - 4th Dist.February 9, 2016

O o 0 9 S N u n k A W N = R O N O N R D R N N N N N = m o m m m m m m e m e m e e 0 0 ~ ~ N ° W h A h Ww W N = O O 0 N N x Ww W N = O o Kathy K. Lee-Chun (Bar No. 237105) kleechun@archernorris.com ARCHER NORRIS A Professional Law Corporation 777 S. Figueroa Street, Suite 4250 Los Angeles, California 90017-1540 Telephone: 213.437.4000 Facsimile: 213.437.4011 Attorneys for Defendant Clark Design/Build of California, Inc. SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF ORANGE BRANDON HAMILTON and HILLARY HAMILTON, Plaintiffs, V. FOUNDATION BUILDING MATERIALS, LLC., CLARK CONSTRUCTION GROUP, LLC, and DOES 1 TO 50, Defendants. Case No. 30-2016-00834367-CU-PO-CJC REPLY BRIEF IN SUPPORT OF DEFENDANT CLARK DESIGN/BUILD OF CALIFORNIA, INC.’S MOTION FOR SUMMARY JUDGMENT . [Filed concurrently with Reply to Foundation Building Materials, LLC’s Separate Statement ofUndisputed Material Facts; Requestfor Judicial Notice; Evidentiary Objections to the Declarations ofSam Iler and Steve Padilla; Response to Foundation Building Materials LLC’s Objections to Evidence] Action Filed: 2-9-16 Hearing Reservation ID# 72443624 Date: January 5, 2017 Time: 1:30 p.m. Department: C33 I INTRODUCTION In opposition to Defendant Clark Design/Build of California, Inc.’s (“Clark”) Motion for Summary Judgment, and despite Plaintiffs Brandon Hamilton and Hillary Hamilton (collectively REPLY BRIEF IN SUPPORT OF DEFENDANT CLARK DESIGN/BUILD OF CALIFORNIA, INC.'S MOTIONFOR SUMMARY JUDGMENT O o 0 N N B s W N B O N R N N N N N N N m m e m e m e m e m m m m d e m pe ed p e c o 9 A N n n k r W N = O 0 0 N N N D W N e m © | “Plaintiffs”) conceding that Clark has no liability in this action, Defendant Foundation Building Materials, LLC (“FBM”) makes two basic arguments in a desperate attempt to keep Clark in this case.” However, neither argumentis supported by the law or the undisputed material facts in this case. As such, FBM’s Opposition should be quickly dismissed by the Court, and Clark’s Motion for Summary Judgment should be granted. FBM’s first and primary argument is that there are triable issues ofmaterial fact as to whether Clark, as the general contractor presiding over a large-scale construction project, is subject to liability under the holding of Hooker v. Department of Transportation (“Hooker”) (2002) 27 Cal.4th 198. According to FBM, Clark’s role in providing its subcontractors with a sign-in sheet to facilitate the orderly scheduling of deliveries to the project constitutes the “retained control” over the means and methods of the work ofits subcontractors that is required to impose liability upon a hiring entity under Hooker. FBM further argues that Clark’s failure to designate a specific Clark employee to monitor the subcontractors for compliance with the sign-in sheet constituted an “omission” by Clark which “affirmatively contributed” to an environment where there were multiple subcontractors attempting to make deliveries at the same time. Even though the undisputed evidence shows that this incident and Plaintiffs’ resulting injuries were solely attributable to the negligence of FBM’s own employee, Alejandro Castaneda, in operating a forklift with a load in front of him blocking his line of sight, FBM twists the facts to argue that this “cramped working environment” is what ultimately led to the incident and Plaintiffs’ injuries. However, FBM has failed to provide any facts or evidence, either through the contractual agreements governing the work on the project, or the deposition testimony of any of the parties, which shows that there was a requirement or an expectation on Clark to provide an employee to actively monitor the sign-in sheet for subcontractor compliance, and that Clark’s failure to do so was the breach of any agreement or expectation by anyone associated with the project. Moreover, FBM has not produced any facts or evidence supporting an argument that Clark was not allowed ! Although Plaintiffs originally named Clark as a defendantin this action, Plaintiffs elected to file a Notice of Non- Opposition to Clark’s Motion for Summary Judgment on December 20, 2016. See Exhibit “A”to the concurrently filed Request for Judicial Notice. ? The only opposition to Clark’s Motion for Summary Judgment is from FBM, which has named Clark as a cross- defendant on an equitable indemnity claim. 5 REPLY BRIEF IN SUPPORT OF DEFENDANT CLARK DESIGN/BUILD OF CALIFORNIA, INC.'S MOTIONFOR SUMMARY JUDGMENT O o 0 3 O N n h b h W N N O N N N O N N N N O N O N m m m e e e e m e m e e e m e d 0 ~N N O N W n b h W N m e O O 0 N N R W N D = e O o to delegate certain safety protocols to its subcontractors, including making sure that subcontractor deliveries were made in a safe manner. Perhaps more importantly, the law in California is clear that a general contractor’s role in simply scheduling the work of its various subcontractors to occur in an orderly fashion, which was Clark’s role with its sign-in sheet (and which would certainly be expected of a general contractor coordinating a large scale construction project), does not in and ofitself subject the general contractor to liability under Hooker. Given all of these factors, FBM’s argument that Clark’s actions in this case subject it to liability under Hooker fails asa matterof law. FBM'’s second, and equally unavailing argument, is that Clark’s alleged breach of a non- delegable Cal-OSHA regulation automatically confers affirmative control on the part of Clark. This argument makes little sense and is a mischaracterization of the law on the issue. Most importantly, FBM has failed to provide any evidentiary or legal support that the regulatory duty allegedly breached by Clark was non-delegable. In Seabright Ins. Co. v. US Airways, Inc. (“Seabright”) (2011) 52 Cal.4th 590, the California Supreme Court specifically rejected the premise that the tort law duty, if any, that a hirer owes under Cal-OSHA andits regulations to the employees of an independent contractor is non-delegable. Id. at 601. In holding that such regulations are delegable, the Seabright Court held that in order to impose liability upon a hiring for an alleged violation of a regulatory duty, the plaintiff must show that the hirerretained control over the means and methods of the subcontractors’ and its employees’ work, and that retained control affirmatively caused the incident and the resulting injuries. Because FBM has failed to produce any facts or evidence showing any retained control over the work its various subcontractors (including, but not limited to, FBM, Anning-Johnson Company and Nevell Group, Inc.), or affirmative contribution on the part of Clark, this argument also fails as a matter of law.} In short, and no matter how hard FBM tries to mischaracterize the evidence, the undisputed material facts conclusively show that Clark did not supervise, instruct, or otherwise 3 In fact, the overwhelming testimony establishes that Plaintiff Brandon Hamilton took all of his directions from his own employer, Anning-Johnson, and FBM, who was Nevell’s materials supplier, took all of its directions from Nevell. Clark did not retain any control over the actions or work of any of these entities such that liability can be imposed. 3 REPLY BRIEF IN SUPPORT OF DEFENDANT CLARK DESIGN/BUILD OF CALIFORNIA, INC.'S MOTION FOR SUMMARY JUDGMENT O O © N N O N u n B R W N = o o ~ J A N w n £ W w N o - o O O o o o ~ J a N w n ES N W w b o p d o S advise its subcontractors or their employees on the means and methods of their work on the project which would subject Clark to liability under the Hooker exception to the Privette doctrine.* Clark allowed its subcontractors to coordinate their own material deliveries and it delegated to its subcontractors the ability to advise their own suppliers as to where and when the deliveries should occur. Other than requiring its subcontractors to comply with the basic safety requirements of a construction site, designating delivery access locations, and providing a sign-in sheet for subcontractors’ benefit in coordinating delivery dates, times and locations, Clark had no additional involvement in the work of its subcontractors. This limited involvement does not equate to retained control that is required under Hooker, and even if it did, there are no facts or evidence suggesting that this retained control affirmatively contributed to Plaintiffs’ injuries in any way. As such, Clark has no liability in this action under Privette and its progeny, and Clark’s Motion for Summary Judgment must be granted. II. CLARK'S ROLE IN DESIGNATING PROJECT LOCATIONS WHERE SUBCONTRACTOR MATERIALS COULD BE DELIVERED AND PROVIDING A SIGN-IN SHEET FOR THE PURPOSE OF COORDINATING AND MONITORING SUBCONTRACTOR DELIVERY DATES, TIMES AND LOCATIONS, DOES NOT SUBJECT CLARK TO LIABILITY UNDER THE HOOKER EXCEPTION TO PRIVETTE In opposition to Clark’s Motion for Summary Judgment, FBM’s first and primary argumentis that Clark’s role in establishing a sign-in sheet for subcontractor delivery dates, times and locations, and then failed to actively monitor and enforce the subcontractors’ delivery for compliance with the sign-in sheet, subjects Clark to liability under the holding of Hooker. However, the facts and holding of Hooker, in conjunction with the holdings of a number of California cases discussing a general contractor’s role in scheduling the work of its subcontractors, does not support FBM’s argument. In Hooker, the widow of a deceased crane operator who had been employed by a general contractor hired by the Department of Transportation (Caltrans) to construct an overpass, sued Caltrans for negligently exercising its retained control over jobsite safety. Hooker, supra, 27 Cal.4th at 202. The Caltrans construction manual provided that Caltrans was responsible for * All references to the Privette doctrine are to Privette v. Syperior Court (1993) § Cal.4th 689 and its progeny. REPLY BRIEF IN SUPPORT OF DEFENDANT CLARK DESIGN/BUILD OF CALIFORNIA, INC.'S MOTIONFOR SUMMARY JUDGMENT © 0 J ON hh RA W N N O N O N N D N N N D O N O N = e m e m p m e m e m p m p m e m 0 N N U n A W N = O O N N N N D A W N O o obtaining the contractor's compliance with all safety laws and regulations, and Caltrans's onsite engineer had the power to shut the project down because of safety conditions and to remove employees of the contractor for failing to comply with safety regulations. Id. at 202-203. The plaintiff's husband died after the crane tipped over when he attempted to operate it without re- extending the crane's outriggers. Id. at 202. He had retracted the outriggers in order to allow Caltrans vehicles and other construction vehicles to use the narrow overpass. Id. at 214. The plaintiff alleged Caltrans was negligent in permitting this traffic to use the overpass while the crane was being operated. Id. at 202, 214-215. The Court held that the hirer of a subcontractor will be held liable onlyif two conditions are met. First, the hiring entity must retain control over the means and methods of the subcontractor’s work. Second, the exercise of this retained control by the hiring entity must affirmatively contribute to the employee’s injuries. Id. at 212. The Hooker Court made clear that only if both of these requirements were met would the hiring entity be subject to liability under this very narrow exception to the general rule of non-liability established under Privette. Although the court found theplaintiff in Hooker had raised triable issues of material fact as to whether Caltrans retained control over safety conditions at the worksite, she failed to raise triable issues of material fact as to whether Caltrans actually exercisedits retained control so as to affirmatively contribute to the death of her husband. Hooker, supra, 27 Cal.4th at 202. (Emphasis added). The court stated: “‘[A] general contractor owes no duty of care to an employee of a subcontractor to prevent or correct unsafe procedures or practices to which the contractor did not contribute by direction, induced reliance, or other affirmative conduct. The mere failure to exercise a power to compel the subcontractor to adopt safer procedures does not, without more, violate any duty owed to the plaintiff.”” Id. at 209. In conclusion, the Hooker Court held that a general contractor contributes to an unsafe procedure or practice by its affirmative conduct only where the general contractor “‘is actively involved in, or asserts control over, the manner of performance of the contracted work. Such an assertion of control occurs, for example, when the principal employer directs that the contracted work be done by use of a certain mode or otherwise interferes with the means and methods by which the work is to be REPLY BRIEF IN SUPPORT OF DEFENDANT CLARK DESIGN/BUILD OF CALIFORNIA, INC.'S MOTIONFOR SUMMARY JUDGMENT N O O0 0 N N S N V n A W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 accomplished.” Id. at 215. Applying these standards to the facts before it, the Hooker court held: “While the evidence suggests that the crane tipped over because the crane operator swung the boom while the outriggers were retracted, and that the crane operator had a practice of retracting the outriggers to permit construction traffic to pass the crane on the overpass, there was no evidence Caltrans's exercise of retained control over safety conditions at the worksite affirmatively contributed to the adoption of that practice by the crane operator. There was, at most, evidence that Caltrans's safety personnel were aware of an unsafe practice and failed to exercise the authority they retained to correct it.” /d. at 215. (Emphasis added). Here, the undisputed material facts establish that Clark’s role and involvement in the project were certainly no greater than the role and involvement of the hiring entity in Hooker. Clark’s role in the project was limited to designating subcontractor points of delivery, providing its subcontractors with a delivery sign-in sheet as a means to be aware of potentially conflicting delivery times, and monitoring the sign-in sheet to be able to prioritize critical deliveries over non-critical deliveries, as well as subcontractor compliance with the appropriate delivery protocol. (UMF Nos. 11-17). Other than providing the sign-in sheet as a means for the subcontractors to coordinate amongst themselves, Clark had no further role in dictating how, when and where the subcontractors’ deliveries would occur.” (UMF No. 18). Even assuming that Clark’s use of a subcontractor sign-in sheet did constitute retained control, there are absolutely no facts or evidence that this retained control led to the incident and Plaintiffs’ injuries. Rather, the undisputed material facts show that the incident occurred due to a combination of factors associated with Plaintiff's own employer, Anning-Johnson Company (“Anning-Johnson™), requiring Plaintiff to retrieve and transport materials from a certain location ° A number of California Courts have further addressed the issue as to whether a general contractors retaining control over the scheduling of its subcontractors’ work on construction project constitutes the retained control and the affirmative contribution that is required to impose liability under the Hooker exception. Those Courts have uniformly held that the general contractor’s scheduling of various subcontractors to work in the same area at the same time did not subject the general contractor to liability under Hooker unless it was shown that the retention of this control over the scheduling also affirmatively contributed to the incident and the plaintiff's resulting injuries. See Brannan v. Lathrop Construction Associates, Inc. (2012) 206 Cal.App.4th 1170; see also Sheeler v. Greystone Homes, Inc. (2003) 113 Cal.App.4th 908. 6 REPLY BRIEF IN SUPPORT OF DEFENDANT CLARK DESIGN/BUILD OF CALIFORNIA, INC.'S MOTIONFOR SUMMARY JUDGMENT N O 0 N N O N v n B A 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 at a certain time, in conjunction with the negligence of Castaneda in improperly operating a forklift with an obstructed line of sight. (UMF Nos. 24-31, 35). FBM’s argument is not that the sign-in delivery protocol was the negligent omission. Rather, FBM contends that Clark failed to enforce the delivery protocol which mirrors the contention in Hooker where the Court found no affirmative contribution from Caltrans. FBM’s driver, Castaneda, did not take instruction on the means or methods of transporting the load on the forklift, nor did Plaintiff receive any direction from Clark on the means and methods of the retrieval of Anning-Johnson’s supplies prior to the incident. (UMF Nos.10, 20-26, 34-37). In addition, even if the Court determines that Clark retained some modicum of control over the delivery process,this retained control was not the proximate cause of Plaintiff's injuries. The Anning-Johnson delivery was completed and the supply truck had left the project. Plaintiff was injured when he was transporting materials from a designated location and proceeded to walk in the path of travel of the forklift which he had observed pass him on several occasions. (UMF Nos. 25-28). Had the Anning-Johnson delivery precededthe FBM delivery, Plaintiff could have been in the exact same location transporting materials (without any direction from Clark). Finally, any argument on the part of FBM that a cramped working environment at the project is what led to the incident, is contrary to the testimony of FBM’s own employes, Castaneda. According to Castaneda, this was not a tight job site and Castaneda had plenty of room to operate his forklift on the date of the incident. In fact, Castaneda made between twelve to thirteen deliveries before the incident occurred, and during these deliveries he did not observe any unsafe job site conditions, nor was there ever an issue wherein numerous vehicles were operating in the same location such that vehicles were required to yield to other vehicles.’ © Given that there is no evidence that Clark did, or failed to do, anything that affirmatively contributed to, or was the proximate cause of Plaintiff's injuries, Hooker’s exception to the Privette doctrine is not applicable here and Clark should have no liability. III. FBM HAS NOT ESTABLISHED THAT CLARK BREACHED A NON-DELEGABLE 6 See Deposition of Alejandro Castaneda at Pg. 39, Lns. 14-25, Pg. 40, Lns. 1-12, Pg. 45, Lns. 7-24, Pg. 46, Lns. 4-8, and Pg. 78, Lns. 19-25,attached to the concurrently filed Declaration of Kathy K. Lee-Chun. REPLY BRIEF IN SUPPORT OF DEFENDANT CLARK DESIGN/BUILD OF CALIFORNIA, INC.'S MOTIONFOR SUMMARY JUDGMENT w m h h W N O o o o a 10 11 12 13 14 15 16 17 18 19 20 21 2 23 24 25 26 27 28 DUTY AND, EVEN IF CLARK HAD, THE UNDISPUTED MATERIAL FACTS SHOW THAT CLARK DID NOT AFFIRMATIVELY CONTRIBUTE TO THE INCIDENT AND PLAINTIFE’S INJURIES FBM’s second, and equally unavailing argument as to why Clark should be held liable for the incident, is that Clark’s alleged breach of a non-delegable regulatory Cal-OSHA duty is also supportive of affirmative contribution on the part of Clark. See Plaintiff's Opposition at 13:21- 15:7. FBM argues that Clark’s alleged violation of 8 CCR 1710(c)(3)(A) and (B), which requires that construction sites have: 1) adequate access roads for the safe delivery and movement of construction vehicles and pedestrians and, 2) a properly graded and drained area, adequately compacted to support the intended construction loads, in and of itself constitutes an action that affirmatively contributed to the incident and Plaintiffs’ injuries. Like FBM’s argumentthat Clark is subjectto liability under Hooker, this argument also fails as a matter of law. In Seabright, the California Supreme Court addressed the issue as to whether the “employee of an independent contractor could recover tort damages from the hirer of the independent contractor under a theory that the hirer had breached a non-delegable duty under Cal- OSHA regulations. The Court held that by hiring an independent contractor, the hirer implicitly delegates tothe contractor any tort law duty it owes to the contractor’s employees to ensure safety of the specific workplace that isthe subject of the contract. That implicit delegation includes any tort law duty the hirer owes to the contractor’s employees to comply with the applicable statutory or regulatory safety requirements. Seabright, supra, 52 Cal. 4th at 594. (Emphasis added). Barring the general contractor’s exercise of control over the subcontractor’s work which affirmatively contributed to plaintiff's injuries, a general contractor, hirer of a subcontractor, cannot be held liable for subcontractor’s employee’s workplace injuries allegedly resulting from the hirer’s failure to comply with safety requirements of Cal-OSHA and its regulations. /d. at 603. (Emphasis added). Thus, in order to establish liability against Clark under a theory that Clark breached its statutory safety obligations as the general contractorof the project, FBM would need to show that Clark’s actions affirmatively contributed to the incident and Plaintiffs’ injuries as required by 8 REPLY BRIEF IN SUPPORT OF DEFENDANT CLARK DESIGN/BUILD OF CALIFORNIA, INC.'S MOTIONFOR SUMMARY JUDGMENT O o 0 a N O N w n o h 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Hooker. However, as set forth above, Clark’s limited role in creating a monitoring a subcontractor delivery sign-in sheet did not in any way affirmatively contribute to the incident and Plaintiffs’ injuries. This unfortunate incident was not caused by any failure on the part of Clark to enforce a safety protocol, but was the result of a combination of factors including Anning-Johnson’s failure to follow the scheduling protocol established by Clark, FBM and Castaneda’s ratification of Anning-Johnson’s failure to follow the protocol by agreeing to off- load Anning-Johnson’s materials during FBM’s delivery time slot, and Castaneda’s negligent operation of a forklift with an obstructed line of sight. As such, FBM’s argument that Clark’s alleged breach of a non-delegable duty constitutes affirmative action which subjects Clark to liability is nothing more than a red herring, and should be quickly dismissed by this Court. IV. FBM HAS CONCEDED THAT NEITHER THE McKNOWNORKINSMANEXCEPTION TO PRIVETTE APPPLY IN THIS CASE In its Opposition, FBM has conceded that neither the McKnown “unsafe equipment” exception or the Kinsman “landowner with a pre-existing hazardous condition on the property” exception to Privette are applicable in this action. To that end, the only way that FBM will be able to establish liability against Clark in this action is to establish that Clark negligently retained control over its subcontractors’ work and the retention ofthis control affirmatively contributed to the incident and Plaintiffs’ injuries and damages under Hooker. However, Clark’s actions in this matter do not constitute a negligent retention of control and, even assuming that Clark did negligently retain control, that retention did not affirmatively contribute to the incident and Plaintiffs’ damages. As such, Plaintiffs’ claims for negligence and premises liability against Clark fail as a matter of law and,thus, so does FBM’s cross-complaint for apportionment of fault, indemnification and declaratory relief. V. BECAUSE CLARK HAS NO LIABILITY TO PLAINTIFF BRANDON HAMILTON, PLAINTIFF HILLARY HAMILTON’S DERIVATIVE CLAIM FOR 1.OSS OF CONSORTIUM FAILS AS A MATTER OF LAW. AS DOES FBM’S CROSS- COMPLAINT AGAINST CLARK FOR APPORTIONMENT OF FAULT, INDEMNIFICATION AND DECLARATORY RELIEF Because Plaintiffs’ claims for negligence and premises liability against Clark fail as a 9 REPLY BRIEF IN SUPPORT OF DEFENDANT CLARK DESIGN/BUILD OF CALIFORNIA, INC.'S MOTIONFOR SUMMARY JUDGMENT H W N © 0 9 o O Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 matter of law, Plaintiff Hillary Hamilton’s derivative claim for loss of consortium also fails as a matter of law. Williams v. State Compensation Ins. Fund (1975) 50 Cal.App.3d 116; Williams v. Schwartz (1976) 61 Cal.App.3d 628; Brittell v. Young (1979) 90 Cal.App.3d 402; Gillespie v. | Northridge Hospital Foundation (1971) 20 Cal.App.3d 867. In addition, and because there is no underlying liability against Clark on Plaintiffs’ claims, FBM’s cross-complaint for apportionment of fault, indemnification and declaratory relief also fails. See Western Steamship Lines, Inc. v. San Pedro Peninsula Hospital (1994) 8 Cal.4th 100, 114-115 (essential element of equitable indemnity is “common liability to injured person”); Munoz v. Davis (1983) 141 Cal.App.3d 420, 425 (“there can be no indemnity without liability.”) Clark has established, as a matter of law, that its actions in establishing a subcontractor delivery protocol, including the creation and supervision of a subcontractor delivery sign-in sheet, does not rise to the level of retained control that would subject Clark to liability under Hooker. In addition, and even assuming that such actions did not constitute the requisite retained control, there is no evidence that this retained control affirmatively contributed to the incident or Plaintiffs’ injuries. As such, Clark has no liability to Plaintiffs for negligence or premises liability, nor does Clark have any liability to Plaintiff Hillary Hamilton for loss of consortium or any liability to FBM for apportionment of fault, indemnification or declaratory relief. VIL CONCLUSION For the foregoing reasons, as well as the reasons previously set forth in Clark’s Motion for Summary Judgment, Clark respectfully requests that this Court grant summaryjudgment in its favor as to all of Plaintiffs’ causes of action, and dismiss FBM’s cross-complaint for apportionment of fault, indemnification and declaratory relief, with prejudice, against Clark. Dated: December 30, 2016 ARCHER NORRIS Kathy K.z SS Attorneys for Defendant Clark Design/Build of California, Inc. 10 REPLY BRIEF IN SUPPORT OF DEFENDANT CLARK DESIGN/BUILD OF CALIFORNIA, INC.'S MOTIONFOR SUMMARY JUDGMENT S H O W N O w 3 O N W n 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE Name of Action: Hamilton v. Foundation Building Materials, et al. Court and Action No: Orange County Superior Court Action No. 30-2016-00834367-CU- PO-CJC I declare that I am over the age of eighteen years and not a party to this action or proceeding. My business address is 777 S. Figueroa Street, Suite 4250, Los Angeles, California 90017-1540. On December 30, 2016, I served the following document(s): REPLY BRIEF IN SUPPORT OF DEFENDANTCLARK DESIGN/BUILD OF CALIFORNIA, INC.’S MOTION FOR SUMMARY JUDGMENT Hl by placing a true copy of the document(s) listed above, enclosed in a sealed envelope, addressed as set forth on the attached Service List for collection and mailing on the date and at the business address shown above following our ordinary business practices. I am readily familiar with this business’ practice for collection and processing of correspondence for mailing with the United States Postal Service. On the same day that a sealed envelope is placed for collection and mailing,it is deposited in the ordinary course of business with the United States Postal Service with postage fully prepaid. [] by having a true copy of the document(s) listed above transmitted by facsimile to the person(s) at the facsimile number(s) set forth on the attached Service List before 5:00 p.m. The transmission was reported as complete without error by a report issued by the transmitting facsimile machine, [1 by having personally delivered a true copy of the document(s) listed above, enclosed in a sealed envelope, to the person(s) and at the address(es) set forth on the attached Service List. [] by having personal delivery by of a true copy of the document(s) listed above, enclosed in a sealed envelope, to the person(s) and at the address(es) set forth on the attached Service List. by placing a true copy of the document(s) listedabove, in a box or other facility regularly maintained by UPS, or delivered to UPS or driver authorized by UPS to receive documents, in an envelope designated by UPS, with delivery fees paid or provided for, addressed as set forth on the attached Service List. [] I electronically served the above referenced document(s) through . E-service in this action was completed on all parties listed on the attached Service List with E- Service. This service complies with the court’s order in this case. I declare under penalty of perjury that the foregoing is true and correct. Executed on December 30, 2016, at Los Angeles, California. C0404012/4830-2096-6960-1 PROOF OF SERVICE A W N O w 3 W n 10 11 12 13 14 15 16 17 18 19 20 21 C22 23 24 25 26 27 28 SERVICE LIST COUNSEL OF RECORD PHONE/FAX NO. PARTY(IES) REPRESENTE Steven J. Bell Tel: 415.431.5310 Attorneys for Plaintiffs Jones Clifford Fax: 415.431.2266 1390 Market Street, #1200 San Francisco CA 94102 email: info@jonesclifford.com Darren M. Ebner Christina M. Le Springel & Fink 18100 Von Karman Ave., #750. Irvine, CA 92612 Tel: 714.957.5742 Fax: 714.957.5762 Attorneys for Foundation Building Materials, LLC C0404012/4830-2096-6960-1 2 PROOF OF SERVICE