Reply To Opposition OtherReplyCal. Super. - 4th Dist.November 15, 2018a W N oe LL J S N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 COLLINS COLLINS MUIR + STEWART... 2011 Palomar Airport Rd., Ste 207 Carlsbad, CA 92011 Phone (760) 274-2110 Fax (760) 274-2111 Christie B. Swiss (State Bar No. 245151) David A. Nauss (State Bar No. 317578) COLLINS COLLINS MUIR + STEWART LLP 2011 Palomar Airport Road, Suite 207 Carlsbad, CA 92011 (760) 274-2110 - FAX (760) 274-2111 Attorneys for Cross-Defendants CDS ARCHITECTS, INC. d.b.a. SMITH CONSULTING ARCHITECTS SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN DIEGO- NORTH DISTRICT PHINLEY PAPEL, through his Guardian ad ) CASE NO. 37-2018-00057945 Litem, EVAN PAPEL, individually, ) Assigned Judge Earl H. Maas, 111 ) Plaintiff ) CROSS-DEFENDANT SCA’S REPLY TO ALR ) NEVADA’S OPPOSITION TO DEMURRER VS. ) TO ALR NEVADA’S CROSS-COMPLAINT ) GODDARD SYSTEMS, INC., a corporation; ) SHALINI DHIMAN DBA the GODDARD ) SCHOOL OF CARLSBAD, an individual, ) and DOES 1 through 10, inclusive, ) Location: Department N-28 ) Date: January 17, 2020 Defendant ) Time: 1:30 PM ) ALR NEVADA, INC. d.b.a. LUNSTRUM ) WINDOWS & DOORS, ) Complaint Filed: 11/15/2018 ) Cross-complainant, ) Trial Date: 05/15/2020 ) Vs. ) ) GODDARD SYSTEMS, INC., a corporation; ) SHALINI DHIMAN DBA the GODDARD ) SCHOOL OF CARLSBAD, an individual; ) CDS ARCHITECTS, INC. d.b.a. SMITH ~~) CONSULTING ARCHITECTS, a corporation) DOOR COMPONENTS, INC. a corporation; ) and ZOES 1 through 20, inclusive, Cross-defendants ) FILE #22021 1 REPLY TO OPPOSITION TO DEMURRER a W N oe LL J S N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 COLLINS COLLINS MUIR + STEWART... 2011 Palomar Airport Rd., Ste 207 Carlsbad, CA 92011 Phone (760) 274-2110 Fax (760) 274-2111 I. INTRODUCTION CDS Architects, Inc. d.b.a. Smith Consulting Architects’ (“SCA”) Demurrer should be sustained without leave to amend as ALR Nevada, Inc. d.b.a. Lunstrum Windows & Doors’ (“ALR Nevada”) Cross-Complaint concludes that SCA was negligent without any support and contrary to the properly plead facts in Plaintiff’s Complaint. ALR Nevada’s unsupported conclusions cannot support the cause of action against SCA. Additionally, the facts alleged in the Complaint bars SCA’s liability under the Completed and Accepted doctrine. Lastly, ALR Nevada’s Certificate of Merit is defective because it was filed after ALR Nevada’s Cross-Complaint and does not provide all necessary information according to the plain language of the statute. SCA’s demurrer must be sustained without leave to amend. II. ALR NEVADA’S CONCLUSION OF NEGLIGENCE IS UNSUPPORTED AND CONTRADICTORY TO THE FACTS PLEAD ALR Nevada’s claim against SCA is based on a connection between Plaintiff’s allegations and SCA that is not present and contrary to the facts alleged. ALR Nevada must prove: 1) SCA was negligent and 2) SCA’s negligence was a substantial factor in causing Plaintiff’s harm. (CACI 3800; Bailey v. Safeway, Inc. (2011) 199 Cal. App.4th 206, 217.) A demurrer must be sustained if a plaintiff or cross-complainant fails to allege sufficient facts to establish every element of a cause of action. (Rakestraw v. California Physicians’ Service (2000) 81 Cal. App.4th 39, 43.) “For purposes of the demurrer, all material facts that are properly pleaded are admitted. We also consider matters judicially noticed in testing the sufficiency of a complaint. A demurrer does not admit contentions, deductions, or conclusions of fact or law.” (Verizon California Inc. v. Board of Equalization (2014) 230 Cal. App.4th 666, 681 (internal citations omitted).) A court is to also disregard “allegations contrary to judicially noticed facts.” (Burt v. County of Orange (2004) 120 Cal.App.4th 273, 277.) ALR Nevada argues that its allegation that SCA designed the Goddard School and Plaintift’s statement that Goddard Systems and the Goddard School negligently designed the school establishes SCA was negligent. (Opposition 6:19-23.) This is illogical. Goddard Systems and Goddard School’s negligence does not become SCA’s negligence because SCA worked on the school. ALR Nevada is missing the link between SCA’s work and Goddard’s negligence. Without this link, all that is alleged FILE #22021 Z REPLY TO OPPOSITION TO DEMURRER a W N oe LL J S N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 COLLINS COLLINS MUIR + STEWART... 2011 Palomar Airport Rd., Ste 207 Carlsbad, CA 92011 Phone (760) 274-2110 Fax (760) 274-2111 is that SCA designed the school. There are no facts alleging the elements of ALR Nevada’s cause of action that SCA was negligent or caused Plaintiff’s injury. The full quote from paragraph fifteen of the Complaint is “At that time and place, Defendants GOODARD SYSTEMS [sic] and Shalini Ohlman negligently, recklessly, wantonly and/or unlawfully designed, dictated, supervised, managed and/or operated the Goddard School in Carlsbad so as to cause a dangerous condition to toddlers, which thereby caused Plaintiff to suffer severe physical and emotional injuries.” Before this paragraph, Plaintiff explains multiple times that Goddard Systems and the Goddard School required the steel door be installed that lead to Plaintiff’s injury. (Complaint, 99 2, 11, 13, ROA # 1.) Plaintiff thoroughly explains how the Goddard School and Goddard Systems breached their duty to Plaintiff and caused his harm. If ALR Nevada believes that SCA was negligent in its work, it must allege some connection between SCA’s work and Plaintiff’s injuries just as Plaintiff did in its Complaint. Without facts showing SCA’s negligence and how SCA caused the alleged injury ALR Nevada’s Cross-Complaint is insufficiently plead and this Demurrer must be sustained. (See Rakestraw v. California Physicians’ Service (2000) 81 Cal.App.4th 39,43.) A contrary finding would allow every person who has worked at the Goddard School to be named as a defendant regardless of their liability and without an avenue for early dismissal. Moreover, ALR Nevada’s Cross-Complaint is completely contrary to the facts properly plead. Plaintiff repeatedly states that the Goddard School and Goddard Systems required the steel doors to be installed in the school that caused the injury. (Complaint, 9 2, 11, 13, ROA # 1.) ALR Nevada cannot pick and choose the helpful facts from Plaintiff’s Complaint. When all of Plaintiff’s alleged facts are taken as true and ALR Nevada’s conclusion of law disregarded, Verizon California Inc. v. Board of Equalization, supra, 230 Cal. App.4th at p. 681, what remains are allegations that the Goddard School and Goddard Systems caused the injury by requiring steel doors to be installed in the school. There are no allegations establishing SCA has a duty to Plaintiff, it breached that duty, or how SCA caused the alleged injury. Notably, despite Plaintiff amending its Complaint to add additional defendants and Goddard Systems filing a Cross-Complaint in this matter, neither party has brought a claim against SCA. FILE #22021 3 REPLY TO OPPOSITION TO DEMURRER a W N oe LL J S N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 COLLINS COLLINS MUIR + STEWART... 2011 Palomar Airport Rd., Ste 207 Carlsbad, CA 92011 Phone (760) 274-2110 Fax (760) 274-2111 ALR Nevada’s Cross-Complaint is a conclusion of law contrary to the facts plead. While the standard at a demurrer stage is low, ALR Nevada cannot allege a totally unsupported cause of action contrary to the facts. Consequently, this Demurrer should be sustained without leave to amend. III. THE COMPLETED AND ACCEPTED DOCTRINE IS SUPPORTED BY FACTS IN PLAINTIFE’S COMPLAINT The facts as alleged and relevant case law establish that the Completed and Accepted doctrine applies and creates a barrier to liability in this case. The completed and accepted doctrine provides that “when a contractor completes work that is accepted by the owner, the contractor is not liable to third parties injured as a result of the condition of the work, even if the contractor was negligent in performing the contract, unless the defect in the work was latent or concealed.” (Neiman v. Leo A. Daly Co. (2012) 210 Cal. App.4th 962, 969.) Here, the defect is patent just as the defective draining system in Sanchez v. Swinerton & Walberg Co., (1996) 47 Cal.App.4th 1461, was a patent defect. In Sanchez, the appellate court held the draining system’s danger “was patent as a matter of law; it would be discovered by the inspection an owner would make in the exercise of ordinary care and prudence.” (Sanchez v. Swinerton & Walberg Co., supra, 47 Cal.App.4th at p. 1471.) Likewise, the Goddard School in the exercise of ordinary care and prudence would have noticed that its steel doors directly facing the sun become extremely hot. Additionally, the facts as alleged in the Complaint show that Goddard Systems required steel doors to be installed. (Complaint, 9 2, 11, 13, ROA # 1.) A requirement made by the owner is necessarily accepted by the owner. The school being open, the doors installed, and Plaintiff being a student at the Goddard School shows SCA’s work had been completed. (Complaint, § 1, ROA # 1.) The facts of Plaintiff’s Complaint show that the completed and accepted doctrine applies to this case and bars SCA’s liability. IV. ALR NEVADA HAS FAILED TO COMPLY WITH THE CERTIFICATE OF MERIT REQUIREMENTS ALR Nevada misapplies Code of Civil Procedure section 411.35(b)(2). Section 411.35(a) provides that the certificate of merit is to be filed on or before the date of service of the complaint or FILE #22021 4 REPLY TO OPPOSITION TO DEMURRER a W N oe LL J S N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 COLLINS COLLINS MUIR + STEWART... 2011 Palomar Airport Rd., Ste 207 Carlsbad, CA 92011 Phone (760) 274-2110 Fax (760) 274-2111 cross-complaint. Subsection (b)(2) then adds if “the attorney was unable to obtain the consultation required by paragraph (1) because a statute of limitations would impair the action... the certificate required by paragraph (1) shall be filed within 60 days after filing the complaint.” A party cannot simply file a certificate of merit 60 days after filing its complaint. As ALR Nevada notes, there is no statute of limitations issue in this case so ALR Nevada had no necessity to file its Cross-Complaint before its Certificate of Merit. (Opposition 9:11.) Thus, it cannot rely on section 411.35(b)(2) to file a late certificate of merit. ALR Nevada admits that it did not file its Certificate of Merit before filing its Cross-Complaint as required by section 411.35(a). (Opposition 8:21-26.) Since ALR Nevada failed to comply with the requirements of section 411.35 this Demurrer must be sustained. Further, Code of Civil Procedure section 411.35(b) clearly states that the certificate shall declare “the person consulted shall render his or her opinion that the named defendant or cross- defendant was negligent or was not negligent.” This is not reading into the text of the statute what is not there, but a verbatim reading of the statute. This is supported by West’s California Code Forms, Code of Civil Procedure section 411.35 Form 1, which in its model certificate of merit has as the third paragraph the following: 3. I have consulted with and received an opinion from one [architect/professional engineer/land surveyor] who [is licensed to practice and practices in this state/is licensed to practice in the state of [name of state]/who teaches at an accredited college or university]. That person consulted rendered [his/her] opinion that [name of defendant], defendant in the above action, was [negligent/not negligent] in the performance of the professional services of [architecture/professional engineering/land surveying]. (Ogden & Fisher-Ogden, West’s Cal. Code Forms, Code of Civil Procedure (7th ed. 2019) § 411.35 Form 1; see also Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2019) 9 1:881.) ALR Nevada does not have to disclose the name of the professional it spoke to, but it must state whether the professional gave an opinion that the defendant was or want not negligent. Since ALR Nevada’s Certificate of Merit does not state the professional it consulted rendered an opinion FILE #22021 5 REPLY TO OPPOSITION TO DEMURRER a W N oe LL J S N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 COLLINS COLLINS MUIR + STEWART... 2011 Palomar Airport Rd., Ste 207 Carlsbad, CA 92011 Phone (760) 274-2110 Fax (760) 274-2111 that SCA was negligent or not negligent its Certificate of Merit is defective, and this Demurrer must be sustained. V. ALR NEVADA SHOULD NOT BE GRANTED LEAVE TO AMEND If the complaint is successfully challenged on demurrer, the burden is on the pleading party to show how the defective pleading can be amended. (Assoc. of Cnty. Organizers for Reform Now v. Dep't of Indus. Relations (1995) 41 Cal.App.4th 298, 302.) A failure to demonstrate possible amendments to a defective complaint should result in sustaining a demurrer without leave to amend. (Campbell v. Regents of Univ. of Cal. (2005) 35 Cal.4th 311, 320.) Accordingly, a demurrer should be sustained if there is no factual basis for relief under any theory reasonably contemplated by the pleadings. (Sher v. Leiderman (1986) 181 Cal.App.3d 867, 885.) While ALR Nevada may be able to amend the defects to its Certificate of Merit, it cannot amend the facts of the Complaint to show that SCA could be liable in this matter. ALR Nevada’s Cross-Complaint against SCA is not just flawed due to its conclusory nature, but because its allegations are contrary to the facts plead in this case. The facts within Plaintiff’s Complaint cannot be amended by ALR Nevada. Since ALR Nevada cannot amend its Cross-Complaint to overcome the facts as alleged in the Complaint, this demurrer should be sustained without leave to amend. VI. SCA TIMELY FILED ITS DEMURRER. ALR Nevada’s argument that SCA’s Demurrer is untimely is unpersuasive. A party cannot solely extend the time for a party to answer without also granting an extension to a demurrer. (McAllister v. County of Monterey (2007) 147 Cal.App.4th 253, 281 (holding that when a party grants an extension to answer a complaint the party is also granting an extension to demurrer.) After receiving an extension to respond to the Cross-Complaint, SCA filed its Demurrer on the agreed-upon date of November 15, 2019. (Declaration of Christie Swiss attached to Demurrer (“Swiss Decl.”), 4 2, Ex. A.) Assuming arguendo, SCA’s response is untimely the court still has the discretion to hear this demurrer and should as ALR Nevada has not been prejudiced by filing the Demurrer on the agreed- upon date of November 15. (McAllister v. County of Monterey, supra, 147 Cal. App.4th at pp. 281- 282.) SCA could have proceeded by Code of Civil Procedure section 430.41 (a)(2) as it was unable to meet and confer in the statutory time period and received an automatic 30-day extension within which FILE #22021 6 REPLY TO OPPOSITION TO DEMURRER a W N oe LL J S N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 COLLINS COLLINS MUIR + STEWART... 2011 Palomar Airport Rd., Ste 207 Carlsbad, CA 92011 Phone (760) 274-2110 Fax (760) 274-2111 to file a responsive pleading giving SCA till December 4, 2019, to respond. (Decl. Swiss, 45.) ALR Nevada was provided a full opportunity to respond to the demurrer and has not been prejudiced by SCA responding on the date that was agreed upon by counsel, particularly in light of SCA’s ability to respond at a later date. This Demurrer is timely and should be heard by the Court. VII. SCA MET AND CONFERRED IN GOOD FAITH On November 8, 2019, SCA sent a letter to Counsel for ALR Nevada. (Decl. Swiss, 9 3, Ex. B.) That same day, November 8, ALR Nevada responded to that letter by email establishing receipt and countering some, but not all, of the arguments set forth by SCA. (Decl. Swiss, 9 4, Ex. C.) It was clear from the email that any further conversation would be an exercise in futility as ALR Nevada argued that it never gave SCA an extension to file a demurrer, accused SCA of gamesmanship, a bad faith attempt to meet and confer, and threatened sanctions. Furthermore, “any determination by the court that the meet and confer process was insufficient shall not be grounds to overrule or sustain a demurrer.” The Court should decide this Demurrer on its merits. (Civ. Pro § 430.41(a)(4).) VIII. CONCLUSION Based on the foregoing, SCA respectfully requests that this Court sustain its Demurrer as to the entire Cross-Complaint without leave to amend. DATED: January 10, 2020 COLLINS COLLINS MUIR + STEWART LLP By: I cr?” A Nasr" DAVID A. NAUSS CHRISTIE B. SWISS Attorneys for Cross-Defendant CDS Architects, Inc., d.b.a Smith Consulting Architects FILE #22021 7 REPLY TO OPPOSITION TO DEMURRER a W N oe LL J S N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 COLLINS COLLINS MUIR + STEWART... 2011 Palomar Airport Rd., Ste 207 Carlsbad, CA 92011 Phone (760) 274-2110 Fax (760) 274-2111 PROOF OF SERVICE (CCP g§ 1013(a) and 2015.5; FRCP 5) State of California, ) ) ss. County of San Diego. ) I am employed in the County of San Diego, State of California. I am over the age of 18 and not a party to the within action; my business address is 2011 Palomar Airport Rd., Suite 207, Carlsbad, California 92011. On this date, I served the foregoing document described as CROSS-DEFENDANT SCA’S REPLY TO ALR NEVADA’S OPPOSITION TO DEMURRER TO ALR NEVADA’S CROSS-COMPLAINT on the interested parties in this action by placing same in a sealed envelope, addressed as follows: SEE ATTACHED SERVICE LIST XI (BY MAIL) - I caused such envelope(s) with postage thereon fully prepaid to be placed in the United States mail in Carlsbad, California to be served on the parties as indicated on the attached service list. Iam “readily familiar” with the firm’s practice of collection and processing correspondence for mailing. Under that practice, it would be deposited with the U.S. Postal Service on that same day with postage thereon fully prepaid at Carlsbad, California in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit. [0 BY CERTIFIED MAIL) I caused such envelope(s) with postage thereon fully prepaid via Certified Mail Return Receipt Requested to be placed in the United States Mail in Carlsbad, California. BY EXPRESS MAIL OR ANOTHER METHOD OF DELIVERY PROVIDING FOR OVERNIGHT DELIVERY O [0 BY ELECTRONIC FILING AND/OR SERVICE) - I served a true copy, with all exhibits, electronically on designated recipients listed on the attached Service List on: (Date) [J FEDERAL EXPRESS - I caused the envelope to be delivered to an authorized courier or driver authorized to receive documents with delivery fees provided for. [0 BY FACSIMILE) - I caused the above-described document(s) to be transmitted to the offices of the interested parties at the facsimile number(s) indicated on the attached Service List and the activity report(s) generated by facsimile number (760) 274-2111 indicated all pages were transmitted. [0 BY PERSONAL SERVICE) - I caused such envelope(s) to be delivered by hand to the office(s) of the addressee(s). Executed on January 10, 2020 at Carlsbad, California. IX (STATE) - I declare under penalty of perjury under the laws of the State of California that the above is true and correct. [J (FEDERAL) - I declare that I am employed in the 6Thid of a membey/Qf thet ora court at whose direction the service was made. TAYLER ALFIERS talfiers@ccmslaw.com FILE #22021 8 REPLY TO OPPOSITION TO DEMURRER a W N oe LL J S N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 COLLINS COLLINS MUIR + STEWART... 2011 Palomar Airport Rd., Ste 207 Carlsbad, CA 92011 Phone (760) 274-2110 Fax (760) 274-2111 Phinley Papel, et al v. Goddard Systems, Inc, et al. SDSC Case No. 37-2018-0057945-CU-PO-NC CCMS File No 22021 SERVICE LIST ARA JABAGCHOURIAN, ESQ. LAW OFFICES OF ARA JABAGCHOURIAN, P.C. 1650 S. Amphlett Boulevard, Suite 216 San Mateo, CA 94402 Tel: (650) 437-6840//Facsimile: (650) 403-0909 ara(@arajlaw.com Attorney for Plaintiff PHINLEY PAPEL THROUGH GAL EVAN PAPEL THOMAS J. LINCOLN, ESQ. JORDAN T. NAGER, ESQ. LINCOLN, GUSTAFSON & CERCOS, LLP ATTORNEYS AT LAW 550 West "C" Street, Suite 1400 San Diego, CA 92101 Tel: (619) 233-1150/ Fax: (619) 233-6949 jnager@lgclawoffice.com Attorneys for Defendant, Cross-Defendant, Cross Complaint: ALR NEVADA, INC. D.B.A LUNSTRUM WINDOWS & DOORS SONALI OLSON, ESQ. OLSON LAW GROUP, APC 21011 Warner Center Ln, Suite C, Woodland Hills, CA 91367, Tel: (818) 960-0073 solson@olsonlawapc.com Attorney for Defendant: THE DHIMAN SCHOOL INC; DBA: THE GODDARD SCHOOL;ESA: SHALINI DHIMAN dba THE GODDARD SCHOOL OF CARLSBAD and Defendant, Cross- Complaintant DHIMAN SCHOOL INC; DBA : THE GODDARD SCHOOL FILE #22021 9 CHRISTOPHER LAVORATO, ESQ. HOWRY BREEN & HERMAN LLP 1900 Pearl Street Austin, TX 78705 Tel: (512) 474- 7300// Facsimile: (512) 474-8557 clavoratol@howrybreen.com Attorney for Plaintiff PHINLEY PAPEL THROUGH GAL EVAN PAPEL ROBERT W. BROCKMAN, ESQ. DAVID K. HABER, ESQ. DALEY & HEFT LLP 462 Stevens Ave #201, Solana Beach, CA 92075-2065 Tel: (858)755-5666; Fax: (858) 755-7870 RBrockman@daleyheft.com Attorney for Defendant, Cross-Defendant, Cross- Complaint: GODDARD SYSTEM INC DEBORAH S. TROPP, ESQ. CHRISTINEA N. MEISSNER, ESQ. MCNEIL TROPP & BRAUN, LLP 2 Park Plaza, Suite 620 Irvine, CA 92614 Tel: ((949) 259-2890/ Fax: (949) 259-2891 dtro mtbattorneys.com cmsissner@mtbattorneys.com Attorneys for Cross-Defendant/Cross-Complainant: DOOR COMPONENTS, INC. REPLY TO OPPOSITION TO DEMURRER
