John Menezes dba John Menezes Construction v. Ron Rebaldo, individually and doing business as Westridge Construction
Published: Apr. 18, 1998 | Result Date: Mar. 4, 1998 | Filing Date: Jan. 1, 1900 |Case number: CV079860 Bench Verdict – $0
Judge
Court
San Luis Obispo Superior
Attorneys
Plaintiff
Alan J. Carnegie
(Law Offices Alan J. Carnegie, APC)
Defendant
Experts
Plaintiff
Jerry Reiss
(technical)
David O. Carter
(technical)
Defendant
William F. Dexter
(technical)
Facts
In the underlying case, general contractor John Menezes was retained by the Erlichs to build a custom home in Pismo Beach. The defendant framing subcontractor had entered into a written subcontract with Menezes on April 23, 1990. After completion of the house, the Erlichs alleged numerous deficiencies involving both water intrusion and structural defects. The framing subcontractor and the other subcontractors settled with the Erlichs prior to commencement of trial. Menezes opposed the good faith settlements and concurrently attempted to amend his cross-complaint against the framing subcontractor, Ron Rebaldo, individually and dba Westridge Construction. The cross-complaint had alleged only equitable indemnity, and Menezes wanted to add causes of action for breach of contract and express indemnity. The trial judge sustained the good faith settlements and denied the motion to amend the cross-complaint. The jury reached a verdict in the Erlich case, awarding not only costs of repair, but also emotional distress damages, bodily injury, and loss of earnings. Menezes appealed several issues, including the granting of the good faith settlements, failure to allow him to amend the cross-complaint, and, primarily, attacking the award of emotional distress damages. The appellate court upheld the rulings and verdict, and Menezes petitioned the Supreme Court for hearing. In the interim, Menezes filed this separate complaint, alleging breach of contract and express indemnity. The parties waived jury, and the matter proceeded as a court trial.
Settlement Discussions
The plaintiff made a settlement demand for $150,000. The defendant made a settlement offer of $10,000.
Damages
Menezes sought to recoup approximately 25 percent of the total attorney fees and costs, in the amount of $160,000, that had been incurred in defending the underlying Erlich matter from the time of tender in April 1995 to the time of trial; and attorney fees and costs incurred in prosecuting the present lawsuit.
Other Information
The verdict was reached approximately one year and four months after the case was filed. SETTLEMENT CONFERECEl: A settlement conference was held on Feb. 13, 1998, before attorney Robert Dimitrijevich, resutling in no settlement. POST TRIAL MOTIONS: Defendant Rebaldo has filed a motion for attorney fees and costs pursuant to the written provision in the subcontract providing entitlement to the prevailing party. This case is a sequel to the underlying lawsuit entitled Barry and Sandra Erlich v. John Menezes, et al., which formed the subject matter of a controversial appellate decision (January 1998) 60 Cal.App.4th 1357 [71 Cal.Rptr.2d 137]. Of particular interest, because Menezes' insurer did not pay the Erlichs any money following the verdict, Menezes was precluded from seeking any recoupment of damages from Rebaldo pursuant to Civil Code º2778(2). The only claims he was permitted to pursue as damages were a proportionate share of attorney fees and costs in defending the underlying Erlich matter when Rebaldo refused the tender of defense, and recoupment of attorney fees and costs pursuant to the written subcontract in the present lawsuit. The court rendered a defense verdict with regard to both causes of action. With regard to the breach of contract, the court found that Menezes failed to bring the cause of action within the applicable statute of limitations, inasmuch as he had reason to further investigate the claims that were set forth in the Erlichs' original complaint, which was filed in October 1991. With regard to the cause of action for express indemnity, the court determined that although the language of the indemnity provision was similar to those cases which determined it was a Type 2 or general indemnity, the court believed the intention of the parties was to render it a Type 3 indemnity clause. As a separate finding, the court determined that Menezes' negligence was "active," but based on the trend of the law, Rebaldo would still be responsible for his own negligence in indemnifying Menezes. However, the court determined that Menezes failed to meet his burden of proof in allocating an amount certain and, therefore, found for the defendant.
Length
two days
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