Suit Lists Alleged Defects at Edgewater Isle North
In 1994, Edgewater Isle Homeowners Association filed the HOA industry-obligatory construction defects lawsuit. Most every CID homeowners association development built in the 1980's and 1990's went through this type of litigation. (New legislation has passed regarding filing this type of lawsuit since 1994. Those interested should review California Civil Code § 6000 - 6150 (Chapter 11).)
Four years and three attorneys later, the lawsuit settled. Reconstruction ran from 2000 - 2003. Homeowners received a "special assessment" a second time to complete the reconstruction after the board of directors did not plan accordingly and failed to spend the settlement funds in an organized and prioritized manner (i.e., the Board left Building 18 to the end, and ran out of money by doing so).
Edgewater Isle North Homeowners Association failed to address the status of defects which had been previously identified in a preliminary list of defects but which were not part of the defects corrected or replaced by the settlement. See California Civil Code ยง6100 (current law).
TOM FIER Attorney for Plaintiff |
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Summons Issued
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN MATEO
EDGEWATER ISLE HOMEOWNERS Plaintiff v.
THE ANDEN GROUP, a California Defendants. |
Case No.: 388872 SECOND AMENDED COMPLAINT |
Plaintiff complains of Defendants above-named, and each of them, jointly and severally, and alleges:
COMMON ALLEGATIONS
1. Plaintiff EDGEWATER ISLE HOMEOWNERS ASSOCIATION, INC. (hereinafter "EDGEWATER ISLE"), is a California non-profit mutual benefit corporation. Plaintiff EDGEWATER ISLE is, and at all times herein mentioned, was, responsible for (a) maintaining, preserving, repairing, operating and managing all common areas and facilities at EDGEWATER ISLE and (b) promoting the health, safety and welfare of the residents of EDGEWATER ISLE. EDGEWATER ISLE is a condominium development in San Mateo, California.
2. EDGEWATER ISLE consists of that certain real property located in San Mateo, County of San Mateo, State of California, more particularly described as: Lot 2 as shown on that certain map entitled, "EDGEWATER ISLE SUBDIVISION MAP FOR CONDOMINIUM PURPOSES BEING A RESUBDIVISION OF LOT 1 AS SAID LOT IS SHOWN ON THAT CERTAIN MAP ENTITLED 'EDGEWATER PARK SUBDIVISION MAP''', recorded in Book 108 of Maps, pages 66 and 67 and corrected by certificate of correction recorded in Document No. 83061568, San Mateo County Records, City of San Mateo, San Mateo County, California, filed in the Office of the County Recorder of San Mateo County, State of California on November 29, 1983, in Volume 111 of Maps at pages 2 and 3.
3. Plaintiff EDGEWATER ISLE brings this action in its own right and as a duly qualified representative of each of the present owners of the properties in EDGEWATER ISLE (Plaintiff's members) pursuant to Code of Civil Procedure §§374 and 382, and
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applicable law.
4. Plaintiff EDGEWATER ISLE is informed and believes and thereon alleges that Defendant THE ANDEN GROUP was and is a California partnership doing business in the County of San Mateo, State of California.
5. Defendant THE ANDEN GROUP was the owner of the land referred to in Paragraph 2 above. Defendant THE ANDEN GROUP was also the developer and participated in the sales of EDGEWATER ISLE.
6. Plaintiff EDGEWATER ISLE is informed and believes and thereon alleges that Defendant THE ANDEN CORPORATION was a corporation doing business in the County of San Mateo, State of California.
7. Plaintiff EDGEWATER ISLE is informed and believes and thereon alleges that defendant KLINGBEIL GROUP, INC. was and is an Ohio corporation, doing business in the County of San Mateo, State of California. Defendant KLINGBEIL GROUP, INC. was also a general partner in the partnership of Defendant MIDEN CORPORATION.
8. Plaintiff EDGEWATER ISLE is informed and believes and thereon alleges that Defendant THE ANDEN GROUP changed its organization from a general partnership to a limited partnership. The current general partners are Defendants ESDEN PARTNERS, a California Limited Partnership and Defendant MDG ASSOCIATES, LTD., a California Limited Partnership, both are doing business in the County of San Mateo, State of California.
9. Plaintiff EDGEWATER ISLE is informed and believes and thereon alleges that Defendant ESR Corporation, a California
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corporation is a general partner of Defendant ESDEN PARTNERS, doing business in the County of San Mateo, State of California.
10. Plaintiff EDGEWATER ISLE is informed and believes and thereon alleges that Defendant TMD CORPORATION, a California corporation, is a general partner of Defendant MDG ASSOCIATES, LTD.
11. Plaintiff EDGEWATER ISLE is informed and believes and thereon alleges that Defendant GLORIA DEVELOPMENT CO., INC., a California corporation was and is doing business in the County of San Mateo, State of California.
12. Plaintiff EDGEWATER ISLE is informed and believes and thereon alleges that Defendant O'BRIEN & HICKS, INC. is a California corporation that was and is doing business in the County of San Mateo, state of California.
13. Plaintiff EDGEWATER ISLE is informed and believes and thereon alleges that Defendant O'BRIEN & HICKS (S) 1988 & BEYOND, LTD., a business organization unknown, was and is doing business in the County of San Mateo, State of California.
14. Plaintiff EDGEWATER ISLE is informed and believes and thereon alleges that Defendant MIDEN CORPORATION was and is a California corporation doing business in the County of San Mateo, State of California. Defendant MIDEN CORPORATION was also a general partner in the partnership of Defendant THE ANDEN GROUP.
15. The true names and capacities, whether individual, corporate, associate, representative or otherwise, of Defendants names herein as DOES ONE through DOE TWO HUNDRED, inclusive, are
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unknown to Plaintiff EDGEWATER ISLE, who therefore sues said Defendants by such fictitious names, and Plaintiff EDGEWATER ISLE will amend this complaint to show their true names when the same have been ascertained. DOES ONE through TWO HUNDRED worked on the design, specifications, inspection, surveying, grading, planning, construction, supervision, management, observation and/or some other phase of construction at EDGEWATER ISLE, as subcontractors or otherwise, and/or were elected and served as directors of EDGEWATER ISLE.
16. Plaintiff EDGEWATER ISLE is informed and believes and thereon alleges that at all times, mentioned herein, and when doing activities alleged herein, each of the Defendants herein was the agent of the other, was acting within the scope of his authority, was acting jointly with the other Defendants, was aiding and abetting the other Defendants and was otherwise participating in the activities alleged herein either directly or indirectly.
17. Plaintiff EDGEWATER ISLE is informed and believes and thereon alleges that each of the Defendants may have been a corporation or related business entities and, at all times herein mentioned, there existed a unity of interest and ownership between the named Defendants, DOES 1 to 100, and DOES 101 to 200 such that an individuality and separateness never existed. DOES 101 to 200 are the alter ego of the named Defendants and DOES 1 to 100. Adherence to the fiction of the separate existence of the named Defendants, DOES 1 to 100 and DOES 101 to 200 would permit an abuse of the corporate/business privilege. The corporate/business fiction should be disregarded.
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18. Plaintiff EDGEWATER ISLE is informed and believes and thereon alleges that at all times mentioned herein, each of the Defendants knew that EDGEWATER ISLE would be sold and used by members of the general public for the purpose of residential dwelling units, and said Defendants, and each of them, knew or should have known that the persons who purchased said units would do so without inspection for the defects set forth herein.
FIRST CAUSE OF ACTION (NEGLIGENCE)
19. Plaintiff EDGEWATER ISLE refers to Paragraphs 1 through 10 of this complaint and incorporates said paragraphs herein by this reference as fully as if said paragraphs were set forth at length.
20. The residential buildings, related common area and facilities of EDGEWATER ISLE contain defects in the design, engineering, specifications, surveying, grading, planning, supervision and observation of construction (hereinafter "the Defects"). The Defects were caused by the misfeasance and nonfeasance of each Defendant, acting individually or in :1 combination. Defendants, and each of them, owed Plaintiff EDGEWATER ISLE and Plaintiff's members a duty to use reasonable care in the design, engineering, specifications, surveying, grading, planning, supervision and observation of construction of the residential buildings and related common areas and facilities. Said misfeasance and nonfeasance manifests the failure by Defendants, and each of them, to use reasonable care. The Defects proximately caused, among other things, are
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settlement problems, structural problems, slab curl problems, fence/post rot problems, and other defects in and about the residential buildings, related common areas and facilities. The Defects are not all-inclusive. Plaintiff EDGEWATER ISLE is continuing its investigation into defective construction and will amend this complaint or make disclosure of additional defects and damages when such become known or upon proof thereof at trial.
21. The Defects were latent and were discovered within three (3) years of the filing of this complaint. Plaintiff EDGEWATER ISLE believes that some or all of the Defects were concealed by Defendants.
22. As a proximate result of the Defects, Plaintiff EDGEWATER ISLE and Plaintiff's members have suffered and will continue to suffer damages, the exact amount of which Plaintiff EDGEWATER ISLE will state with particularity, according to proof, at the time of trial. These damages include loss of use of property, accounting, architectural, engineering, construction, and related expenses to repair and reconstruct the damage. Also, operating and reserve budgets must also be properly established and funded, which has and will further damage EDGEWATER ISLE.
23. Plaintiff EDGEWATER ISLE is informed and believes and thereon alleges that the Defects were caused by the negligence of Defendants and each of them. WHEREFORE, Plaintiff EDGEWATER ISLE prays for judgment as hereinafter alleged.
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SECOND CAUSE OF ACTION (BREACH OF IMPLIED WARRANTY)
24. Plaintiff EDGEWATER ISLE refers to Paragraphs 1 through 15 of this complaint and incorporates said paragraphs herein by this reference as fully as if said paragraphs were set forth at length.
25. Defendants, and each of them, made implied warranties of merchantability, habitability and fitness to Plaintiff EDGEWATER ISLE and Plaintiff's members, upon which Plaintiff EDGEWATER ISLE and Plaintiff's members relied, with regard to the residential buildings, related common areas and facilities at EDGEWATER ISLE.
26. By virtue of the Defects, as alleged in Paragraph 12, of which Defendants were notified within a reasonable time after discovery, said implied warranties were breached, causing damage to Plaintiff EDGEWATER ISLE and Plaintiff's members, the exact amount of which Plaintiff EDGEWATER ISLE will state with particularity, at the time of trial, according to proof. WHEREFORE, Plaintiff EDGEWATER ISLE prays for judgment as hereinafter alleged.
THIRD CAUSE OF ACTION (STRICT LIABILITY)
27. Plaintiff EDGEWATER ISLE refers to Paragraphs 1 through 18 of this complaint and incorporates said paragraphs herein by this reference as fully as if said paragraphs were set forth at length.
28. Defendants designed, developed and constructed the
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improvements known as EDGEWATER ISLE for sale to the public and advertised and sold all units, the common areas and facilities at EDGEWATER ISLE to the public.
29. Defendants defectively designed, engineered, fabricated, assembled, surveyed, graded, planned, developed, installed and constructed the related common areas and facilities, as alleged in Paragraph 12, to the damage of Plaintiff EDGEWATER ISLE and Plaintiff's members.
30. The Defects were not known to the purchasers at EDGEWATER ISLE and were not reasonably discoverable, which circumstances were known to Defendants.
31. The purchasers at EDGEWATER ISLE utilized EDGEWATER ISLE for the use for which it was designed and developed and in a manner reasonably foreseeable by Defendants.
32. Defendants, and each of them, are strictly liable for all damages stemming from the Defects, the exact amount of which Plaintiff EDGEWATER ISLE will state with particularity, at the time of trial, according to proof.
33. The acts of Defendants, and each of them, were made with oppression, fraud and malice, and Plaintiff EDGEWATER ISLE is entitled to exemplary and punitive damages.
WHEREFORE, Plaintiff EDGEWATER ISLE prays for judgment as hereinafter alleged.
FOURTH CAUSE OF ACTION (FRAUD)
34. Plaintiff EDGEWATER ISLE refers to Paragraphs 1 through 25 of this complaint and incorporates said paragraphs
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herein by this reference as fully as if said paragraphs were set forth at length.
35. Defendants, and each of them, implied and expressly represented to Plaintiff's members before said members purchased homes at EDGEWATER ISLE that the residential buildings, related common areas and facilities would be built according to certain specifications, code compliance, habitability, and that there would be high quality of construction at EDGEWATER ISLE, including without limitation, high quality of the materials to be used in constructing EDGEWATER ISLE, high quality of its workmanship, high quality of its design, high quality of its specifications, high quality of its engineering and high quality of its planning.
36. At various times, Defendants, and each of them, implied and expressly represented to Plaintiff EDGEWATER ISLE and Plaintiff's members that certain repairs, maintenance work, the cost of maintaining EDGEWATER ISLE, budgeting, and replacements had been properly and competently made and accounted for. All of the representations made were material. Plaintiff EDGEWATER ISLE is informed and believes and thereon alleges that these representations were untrue.
37. Plaintiff EDGEWATER ISLE is informed and believes and thereon alleges that these representations were made intentionally, recklessly and negligently.
38. Plaintiff's members relied on these representations, when purchasing their homes. As a result of said reliance, Plaintiff EDGEWATER ISLE and Plaintiff's members suffered and will continue to suffer damages, the exact amount of which
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Plaintiff EDGEWATER ISLE will state with particularity, at the time of trial, according to proof.
39. The acts of Defendants, and each of them, were made with oppression, fraud and malice, and Plaintiff is entitled to exemplary and punitive damages. WHEREFORE, Plaintiff EDGEWATER ISLE prays for judgment as hereinafter alleged.
FIFTH CAUSE OF ACTION (NEGLIGENT MISREPRESENTATION)
40. Plaintiff EDGEWATER ISLE refers to Paragraphs 1 through 31 of this complaint and incorporates said paragraphs herein by this reference as fully as if said paragraphs were set forth at length.
41. Defendants, and each of them, made statements to Plaintiff's members before said members purchased homes at EDGEWATER ISLE that the residential buildings, related common areas and facilities would be built according to certain specifications, code compliance, and habitability, and that there would be a high quality of materials used in constructing EDGEWATER ISLE, including without limitation, high quality of its design, high quality of its specifications, high quality of its planning and high quality of its engineering.
42. At various times, Defendants, and each of them, made statements to Plaintiff EDGEWATER ISLE and Plaintiff's members that certain repairs, maintenance work, the cost of maintaining EDGEWATER ISLE, budgeting, and replacements had been made and accounted for.
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43. All of these representations were made by Defendants with no reasonable basis for believing them to be true. They were made with the intention of having Plaintiff EDGEWATER ISLE and Plaintiff's members rely on these representations.
44. All of these representations were material. Plaintiff EDGEWATER ISLE is informed and believes and thereon alleges that these representations were untrue.
45. Plaintiff EDGEWATER ISLE and Plaintiff's members were not aware that the representations were untrue.
46. Plaintiff EDGEWATER ISLE and Plaintiff's members relied on these representations when purchasing their condominiums. As a result of said reliance, Plaintiff EDGEWATER ISLE and Plaintiff's members suffered and will continue to suffer damages, the exact amount of which Plaintiff EDGEWATER ISLE will state with particularity at the time of trial, according to proof.
WHEREFORE, Plaintiff EDGEWATER ISLE prays for judgment as hereinafter alleged.
SIXTH CAUSE OF ACTION (BREACH OF EXPRESS WRITTEN WARRANTY)
47. Plaintiff EDGEWATER ISLE refers to Paragraphs 1 through 38 of this complaint and incorporates said paragraphs herein by this reference as fully as if said paragraphs were set forth at length.
48. Plaintiff EDGEWATER ISLE is informed and believes and thereon alleges that Defendants, and each of them, made
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express written warranties to, and/or for the express benefit of, Plaintiff EDGEWATER ISLE and Plaintiff's members relied on the following: that all construction, repair, replacement and maintenance work of any type concerning EDGEWATER ISLE would be free from defects in labor and materials, which warranties became part of the basis of the bargain between the parties.
49. By virtue of the Defects as alleged in Paragraph 12, of which Defendants were notified within a reasonable time after discovery, said express warranties were breached, causing damage to Plaintiff EDGEWATER ISLE and Plaintiff's members, the exact amount of which Plaintiff EDGEWATER ISLE will state with particularity, at the time of trial, according to proof. WHEREFORE, Plaintiff EDGEWATER ISLE prays for judgment as hereinafter alleged.
SEVENTH CAUSE OF ACTION (BREACH OF EXPRESS ORAL WARRANTY)
50. Plaintiff EDGEWATER ISLE refers to Paragraph 1 through 41 of this complaint and incorporates said paragraphs herein by reference as fully as if said paragraphs were set forth at length.
51. Plaintiff EDGEWATER ISLE is informed and believes and thereon alleges that Defendants, and each of them, made express oral warranties to, and/or for the express benefit of, Plaintiff EDGEWATER ISLE and Plaintiff's members, and upon which Plaintiff and Plaintiff's members relied, that all construction, repair, replacement and maintenance work of any type concerning EDGEWATER ISLE would be free from defects in labor and materials, which warranties became part of the basis of the bargain between
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the parties.
52. By virtue of the Defects as herein above alleged of which Defendants were 'notified within a reasonable time after discovery, said express warranties were breached causing damage to Plaintiff EDGEWATER ISLE and Plaintiff's members, the exact amount of which Plaintiff EDGEWATER ISLE will state with particularity, at the time of trial, according to proof. WHEREFORE, Plaintiff EDGEWATER ISLE prays for judgment as hereinafter alleged.
EIGHTH CAUSE OF ACTION (NEGLIGENCE PER SE)
53. Plaintiff EDGEWATER ISLE refers to Paragraph 1 through 44 of this complaint and incorporates said paragraphs herein by reference as fully as if said paragraphs were set forth at length.
54. Plaintiff EDGEWATER ISLE is informed and believes and thereon alleges that Defendants, and each of them, were members of the class of persons intended to be regulated by the Uniform Building Code and other codes as adopted by the city of San Mateo.
55. Plaintiff EDGEWATER ISLE is informed and believes and thereon alleges that EDGEWATER ISLE was constructed and prepared in such a manner as to not be in conformance with the Uniform Building Code sections and other codes as they apply to EDGEWATER ISLE.
56. Plaintiff EDGEWATER ISLE is informed and believes and thereon alleges that Defendants, and each of them, may have committed other acts not in conformance with the applicable
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codes, of which Plaintiff EDGEWATER ISLE is presently unaware. Plaintiff EDGEWATER ISLE will amend this complaint at such times as Plaintiff discovers the other acts or omissions, or will establish such at the time of trial according to proof.
57. As a proximate result of Defendants', and each of them, failure to construct EDGEWATER ISLE in conformance with the applicable codes, Plaintiff EDGEWATER ISLE and Plaintiff's members have suffered and will continue to suffer damages, the exact amount of which Plaintiff EDGEWATER ISLE will state with particularity, according to proof, at the time of trial. WHEREFORE, Plaintiff EDGEWATER ISLE prays for judgment as hereinafter alleged.
NINTH CAUSE OF ACTION (BREACH OF FIDUCIARY DUTIES)
58. Plaintiff EDGEWATER ISLE refers to Paragraph 1 through 49 of this complaint and incorporates said paragraphs herein by reference as fully as if said paragraphs were set forth at length.
59. Plaintiff EDGEWATER ISLE is informed and believes and thereon alleges that Defendants, and each of them, from the inception of the existence of EDGEWATER ISLE until such time as control of the actions and activities of the Board of Directors of EDGEWATER ISLE was turned over to the homeowners, owed a fiduciary duty to the homeowners as represented by said homeowners association through its Board of Directors.
60. Plaintiff EDGEWATER ISLE is informed and believes and thereon alleges that Defendants, and each of them, breached
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their fiduciary duties of undivided loyalty, honesty and good faith, and failed to exercise their supervisory and managerial responsibilities in a proper and competent manner, acted with a conflict of interest during the time they controlled the Board of Directors of EDGEWATER ISLE, and abdicated their responsibilities in that they failed to maintain adequate funds and reserves in the bank accounts of the Association to meet Association expenses, presently, and in the future.
61. Plaintiff EDGEWATER ISLE is informed and believes and thereon alleges that Defendants, and each of them, breached their fiduciary duties in additional manners and ways presently unknown and at times unknown at present to Plaintiff EDGEWATER ISLE, and Plaintiff will amend this complaint at such times as Plaintiff discovers other breaches or will establish such at the time of trial, according to proof.
62. As a result of the breach of fiduciary duties owed by said Defendants to Plaintiff EDGEWATER ISLE, Plaintiff and Plaintiff's members have suffered and will continue to suffer damages, the exact amount of which Plaintiff EDGEWATER ISLE will state with particularity, according to proof, at the time of trial.
63. The acts of Defendants, and each of them, were made with oppression, fraud and malice, and Plaintiff EDGEWATER ISLE is entitled to exemplary and punitive damages.
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WHEREFORE, Plaintiff EDGEWATER ISLE prays for judgment, on each cause of action, as follows:
ON ALL CAUSES OF ACTION:
1. In favor of Plaintiff EDGEWATER ISLE and against Defendants, and each of them, for all damages sustained by Plaintiff EDGEWATER ISLE and Plaintiff's members in an amount to be stated with particularity, at the time of trial, according to proof;
2. Interest on Plaintiff's compensatory damages at the maximum rate allowed under law;
3. For costs of suit;
4. For reasonable attorney's fees; and
5. For such other further relief as the Court may deem just and proper.
ON THE THIRD, FOURTH AND NINTH CAUSES OF ACTION
6. For punitive and exemplary damages.
DATED: October 11, 1994 |
TOM FIER |
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