Case Name: Corvin Business Center Owners’ Association v. Corvin Commercial Condominiums, LLC, et al.
Case No.: 1-10-CV-189732

This is a construction defect action by plaintiffs Corvin Business Center Owners Association (the “Association”) and Future Securities, LLC (“Future Securities”) (collectively “Plaintiffs”) arising out of the conversion of five commercial condominiums at the Corvin Business Center in Santa Clara, California (the “Subject Property”). The case was originally filed on December 15, 2010. The operative Fourth Amended Complaint (“4AC”) alleges that defendant Corvin Commercial Condominiums, LLC (“CCC” or the “Declarant”) purchased the property for purposes of converting it into a commercial condominium development and selling the condominium units for profit. The 4AC alleges that defendant Calvano Commercial Enterprises, Inc. (“CCE”) is the managing member of CCC, and defendant Mark A. Calvano (“Calvano”) is an officer, director and controlling shareholder and alter ego of CCE. In the 4AC, CCC, CCE, Calvano and Does 1-100 are collectively referred to as the “Developers.” The 4AC further alleges that defendant TF McGuckin, Inc. (“McGuckin”), previously identified as Doe 101, was the general contractor hired by CCC to perform the physical alterations and improvements to the Subject Property.

On December 22, 2011, CCC, CCE and Calvano (“CCC et al.”) filed a Cross Complaint against McGuckin, Future Securities, Candy Martinez, and Roe defendants for: (1) implied contractual indemnity; (2) total indemnity; (3) equitable indemnity; (4) express indemnity; (5) breach of express and implied warranties; (6) breach of written contract; (7) negligence; (8) contribution; (9) declaratory relief re: duty to defend; (10) declaratory relief re: duty to indemnify; and (11) declaratory relief re: contractual duties.

On March 29, 2012, Plaintiffs filed the 4AC, which asserts twelve causes of action for: (1) violation of Civil Code section 1134 (against the Developers); (2) negligence (against the Developers); (3) strict/products liability (against the Developers and Manufacturers); (4) negligence and violation of statute (against the Developers and Contractors); (5) breach of implied warranty (against the Developers, Contractors and Manufacturers); (6) breach of contract (against the Contractors); (7) breach of fiduciary duty (against the Directors); (8) breach of contract (against the Declarant); (9) intentional nondisclosure (against the Developers); (10) negligent nondisclosure (against the Developers); (11) violation of Civil Code section 1102 (against the Sellers); (12) bond liability (against Does 701-800).

On August 17, 2012, CCC et al. filed a Second Amended Cross-Complaint (“2ACC”).

On November 27, 2012, CCC et al. filed their Third Amended Cross-Complaint (“3ACC”) asserting eleven (11) causes of action against various cross-defendants including McGuckin and F&F Steel & Stairway, Inc. (“F&F”) for: (1) implied contractual indemnity; (2) total indemnity; (3) equitable indemnity; (4) express indemnity; (5) breach of express and implied warranties; (6) breach of written contract; (7) negligence; (8) contribution; (9) declaratory relief re: duty to defend; (10) declaratory relief re: duty to indemnify; and (11) declaratory relief re: contractual duties.

On June 12, 2013, Plaintiffs filed an “Amendment to Complaint to Substitute True Names for Fictitious Names Does 1-7, 103-115, and 501-502.” Plaintiffs substituted F&F in place of Doe 106.

On October 1, 2013, McGuckin filed its First Amended Cross-Complaint (“1ACC”) against various subcontractor cross-defendants including F&F for: (1) breach of contract; (2) breach of third-party beneficiary contract; (3) express indemnity; (4) equitable indemnity and contribution; (5) apportionment of fault; (6) breach of express warranty; (7) breach of implied warranty; (8) negligence; (9) professional negligence; and (10) declaratory relief.

On May 9, 2014, the Court granted in part CCC et al.’s motion for summary adjudication against McGuckin on the 2ACC’s ninth cause of action for declaratory relief re: duty to defend, finding that under the Prime Contract between CCC and McGuckin, McGuckin owed CCC a duty to defend. The motion was denied as to CCE and Calvano because they were not parties to the alleged contract containing the indemnity provision.

Before the Court now are four motions: (1) CCC et al.’s motion to enforce the Court’s May 9, 2014 Order and for fees and costs; (2) McGuckin’s motion for sanctions against CCC and its counsel pursuant to Code of Civil Procedure section 128.7; (3) F&F’s motion for summary judgment, or alternatively summary adjudication, as to Plaintiffs’ 4AC, CCC et al.’s 3ACC, and McGuckin’s 1ACC; and (4) McGuckin’s motion for summary judgment, or alternatively summary adjudication, regarding Plaintiffs’ 4AC.

I. Motion to Enforce May 9, 2014 and Motion for Sanctions

CCC moves to enforce the Court’s May 9, 2014 order partially granting CCC’s motion for summary adjudication as to McGuckin’s duty to defend. CCC seeks an order requiring McGuckin to immediately provide a defense in this action and to reimburse CCC for past attorney’s and paralegal fees and costs incurred in the amount of $427,834.57. CCC also seeks to direct McGuckin to implement procedures and provide instructions and information necessary to facilitate its current and ongoing duty to defend CCC.

In opposition, McGuckin argues the motion is premature because the Court’s May 9, 2014 Order clearly states that CCC’s defense is to continue to be paid by CCC, subject to a motion at the end of the case to determine how much of CCC’s fees were incurred related to CCC’s defense of claims. McGuckin argues that there are causes of action in the 4AC for which McGuckin is not a named defendant (e.g,. the seventh cause of action for breach of fiduciary duty, eighth cause of action for breach of purchase and sale agreements), and McGuckin would not be responsible for CCC’s defense of such causes of action. McGuckin further argues that the Court’s May 9, 2014 Order clearly held that McGuckin did not owe CCE and Calvano a duty to defend because they were not parties to the CCC-McGuckin contract, but CCC has failed to provide an accounting or breakdown of what fees were incurred for the different causes of action and entity defendants.

In McGuckin’s motion for sanctions under Code of Civil Procedure section 128.7, McGuckin argues that CCC’s motion to enforce the Court’s May 9, 2014 Order is frivolous because it was brought with the improper purpose of harassing McGuckin, it lacks legal merit because it is clearly counter to the language of the Court’s May 9, 2014 Order, and it lacks evidentiary support. McGuckin seeks sanctions in the amount of $4,690.00 for fees and costs incurred in connection with CCC’s attempts to obtain payments from McGuckin.

In opposition to McGuckin’s motion, CCC argues the Court’s May 9, 2014 Order made no determination as to the amount or scope of the fees owed, and CCC contends that all fees incurred by its counsel in this action are owed to CCC because the defense of CCC is inseparable and intertwined with the defense of all other parties represented by its attorneys. CCC argues the May 9, 2014 Order did not state that a motion for fees must be brought at the end of the litigation; rather, it held that a motion to determine damages may be brought “later,” and in accord, CCC brought its “later” motion to enforce in October of 2014.

In support of its motion to enforce, CCC requests judicial notice of Plaintiffs’ First, Second, Third, and Fourth Amended Complaints. In opposition to CCC’s motion to enforce, McGuckin requests judicial notice of the Court’s February 5, 2015 ruling on McGuckin’s motion for summary adjudication against CCC, CCE and Calvano’s 3ACC. The requests are GRANTED as to the existence of these relevant court records. (See Cal. Evid. Code, § 452, subd. (d).)

Analysis: Regarding CCC’s motion to enforce, the Court never ordered payment of fees in the May 9, 2014 Order, so to fashion this motion as one to “enforce the Court’s order” is mistaken. The only finding in the May 9, 2014 order was that the McGuckin-CCC contract established McGuckin’s duty to defend CCC, but the Court specifically deferred a finding of damages for practical reasons. By itself, a finding of duty is not conclusive of the elements of breach, causation and damages.

In its May 9, 2014 Order, the Court relied on footnote 12 of Crawford v. Weather Shield (2008) 44 Cal.4th 541, wherein the California Supreme Court explained that in a prior case (Regan Roofing Co. v. Superior Court (1994) 24 Cal.App.4th 425), the Court of Appeal’s concerns about prematurely determining the duty to defend were based on the “practical difficulties of sorting out multiple, and potentially conflicting, duties to assume the active defense of litigation then in progress[.]” The Supreme Court figured that these difficult issues could, “if the parties agree, be deferred until the litigation is complete.” However, if parties did not agree, and a party moved for summary adjudication on the duty to defend litigation still progress, courts could “resolve legal issues then ripe for adjudication, such as whether any of the contracts at issue include a duty to defend, and, if so, whether the underlying suit or proceeding as to which a defense is sought falls within the scope of any of the parties’ contractual duty to defend. If the court finds that an ongoing duty to defend is owed by one or more parties, but the affected parties, acting in good faith, then cannot agree on how such a defense should be provided or financed, the court may, in its discretion, permit the underlying litigation to proceed with chosen counsel and paid by the party to whom the duty is owed, subject to a later determination of how damages for breach of the duty to defend should be apportioned among the breaching parties.” (Crawford, supra, 44 Cal.4th at p. 565, fn. 12.)

Here, the parties clearly have not agreed to defer the issue until the litigation is complete, and CCC did file a motion for summary adjudication that raised a ripe issue regarding the existence of McGuckin’s duty to defend, which the Court saw fit to resolve. However, the parties still cannot agree on whether there is a way to allocate defense costs attributable only to CCC’s defense on only those causes of action that implicate McGuckin’s work. Thus, the parties do not agree on how CCC’s defense should currently be provided or financed. Given this disagreement, and consistent with Crawford, the Court held that the litigation should proceed with CCC’s chosen counsel, subject to a later determination of damages, without prejudice to McGuckin asserting a statute of limitations defense.

CCC claims confusion as to when “a later determination” on damages would properly take place. The Court agrees with McGuckin that this should take place after the underlying suit is complete. In its reply, CCC argues that Crawford expressly rejected the notion of reimbursement after the litigation is over. However, what Crawford specifically rejected was Weather Shield’s interpretation of the contract at issue as requiring reimbursement after the fact for legal expenses as part of any indemnity. Interpreting the language of that contract, the Crawford court found that “[e]ven applying the rule of strict construction they espouse, the instant contract already sets forth, in unambiguous terms, an immediate and independent duty to defend.” (Crawford, supra, 44 Cal.4th at p. 567.) Footnote 12, on the other hand, suggests that as a practical matter, the Court may use its discretion to apply a reimbursement model if there are practical difficulties regarding the duty to defend, while also allowing the Court to adjudicate any ripe issues. It would not make sense to read “a later determination” of damages in Crawford footnote 12 and the Court’s May 9, 2014 as inviting motions such as CCC’s motion to enforce during the pendency of the litigation, since the same practical difficulties that were present in May of 2014 (e.g., determining the scope of McGuckin’s duty and how the defense should be provided or financed) still remain. CCC’s current motion does not resolve these practical difficulties, and it merely highlights the parties’ continuing disagreements on critical issues regarding fee apportionment.

Although the Court has held that McGuckin does not owe a contractual duty to defend to CCE and Calvano, it could very well be that the intertwined relationship of CCC, CCE and Calvano requires McGuckin to reimburse CCC for all defense costs on common issues, without apportionment to CCC only. (See Hill v. Affirmed Housing Group (2014) 226 Cal.App.4th 1192 [apportionment of fees incurred by defendant and LLC was not required because defenses asserted were so interrelated that it would have been impossible to separate them into time units billed on behalf of defendant].) On the other hand, there may be a way to rationally apportion the fees to CCC that have not been explored in the midst of this litigation. Without actual evidence of the intertwined nature of these entities, or billing records demonstrating the interrelation of defense efforts on their joint behalf, CCC has not shown an entitlement to reimbursement of all defense costs at this time.

To be clear, any motion seeking a determination on damages for McGuckin’s breach of the duty to defend shall not be brought until after the litigation (including all related cross-actions) is complete.

For all of these reasons, CCC’s motion to enforce is DENIED.

The next issue is whether CCC’s motion to enforce is sanctionable within the meaning of Code of Civil Procedure section 128.7.

“Section 128.7 requires that all pleadings filed with the court be signed by an attorney of a represented party, or, if the party is not represented by counsel, by the party. [Citation.] The signing of a filed pleading constitutes a certification by the person signing it that after a reasonable inquiry, the pleading (1) is not being presented for an improper purpose; (2) contains positions that are not frivolous; (3) alleges factual matter having evidentiary support; and (4) contains denials of factual allegations, which denials have evidentiary support. [Citation.] Based upon these requirements, the court, after proper statutory notice, may impose sanctions upon the attorneys, law firms, or parties who have improperly certified a pleading in violation of subdivision (b) of section 128.7. [Citation.]” (Optimal Markets, Inc. v. Salant (2013) 221 Cal.App.4th 912, 919-920, internal footnotes omitted.)

“Frivolous” means “totally and completely without merit or … for the sole purpose of harassing an opposing party.” (Cal. Code Civ. Proc. § 128.5.)

“The primary purpose of the statute is deterrence of filing abuses, not to provide compensation for those impacted by those abuses. ‘While section 128.7 does allow for reimbursement of expenses, including attorney fees, its primary purpose is to deter filing abuses, not to compensate those affected by them. It requires the court to limit sanctions ‘to what is sufficient to deter repetition of [the sanctionable] conduct or comparable conduct by others similarly situated.’ [Citations.]” (Optimal Markets, supra, 221 Cal.App.4th at pp. 920-921.) “A trial court is to apply an objective standard in making its inquiry concerning the attorney’s or party’s allegedly sanctionable behavior in connection with a motion for sanctions brought under section 128.7. [Citations.] Thus, for example, whether an action is frivolous under section 128.7 is measured by an objective standard. [Citation.]” (Id. at p. 921.)

Applying an objective standard to the matter at hand, the Court does not feel that CCC’s motion to enforce was presented for an improper purpose. Even if the motion was premature and based on a misreading of the May 9, 2014 Order, CCC’s purpose in bringing the motion was to obtain reimbursement for its defense costs based on an existing adjudication that McGuckin owed a duty to defend CCC. The phrase “a later determination” in the Crawford dicta and the May 9, 2014 Order is at least susceptible to CCC’s interpretation, and the Court is not inclined to sanction a party based on probable errors in interpretation. Furthermore, CCC’s legal argument regarding no apportionment of defense fees for parties who are inextricably intertwined is theoretically supported by case law. (See Hill, supra, 226 Cal.App.4th 1192.) Based on these considerations, the Court does not feel that CCC’s motion to enforce constitutes a filing abuse for purposes of imposing sanctions as a deterrent. Thus, McGuckin’s motion for sanctions is DENIED.

II. F&F’s Motion for Summary Judgment, or Alternatively, Summary Adjudication

F&F moves for summary judgment, or in the alternative, summary adjudication of issues as to Plaintiffs’ 4AC, CCC, et al.’s 3ACC, and McGuckin’s 1ACC.

F&F submits that it was a subcontractor hired by McGuckin in August of 2005 to fabricate and install seven tubular steel columns and fabricate and install a single steel trash enclosure gate. (F&F’s Sep. St. of Undisputed Material Facts [“UMF”] no. 20.) According to F&F, the alleged defect involving F&F’s work is that the trash enclosure gate lacked a horizontal steel stiffener at its mid-height level as called for in the plans. (F&F UMF 16.) F&F submits that it completed its work on the trash enclosure gate on December 12, 2005 (F&F UMF 23). F&F submitted its final invoice to McGuckin on September 19, 2005 (F&F UMF 21), the Santa Clara Valley Water District issued its Permit Status Report regarding the completion of the trash enclosure on November 30, 2005 (F&F UMF 22), and F&F issued its one-year “Warranty and Guaranty” for work on December 28, 2005 (F&F UMF 24).

F&F contends that the alleged defects attributable to its work constitute patent defects because the approved plans required the horizontal steel stiffener and steel jamb on the trash enclosure gate, and the omission of these items was apparent by reasonable inspection when the gate was completed in 2005. Thus, F&F contends that all applicable statutes of limitations had run by the time the instant action and cross-actions were filed. F&F argues the discovery rule is not applicable to breach of contract causes of action absent a cover-up, and here, there was no concealment of the patent defect. F&F argues the statute of limitations on the breach of implied warranty claims begins to run at the time of delivery, and here, the patent defects were present when the gate was completed in 2005.

F&F argues the breach of warranty causes of action are defective for the additional reason that Plaintiffs, CCC et al., and McGuckin failed to allege that they provided notice to F&F steel. F&F submits that notice of a defect was never provided to it (F&F UMF 29).

In support of the motion, F&F submits the declarations of Wayne Wolski, president of F&F, and Gregg de Haan of de Haan & Associates Construction Consulting. F&F also requests judicial notice of: (1) the December 15, 2010 filing by Plaintiffs of the original Complaint (Exh. 1 to Decl. Edward C. Schroeder ISO F&F’s MSJ/MSA); (2) the November 27, 2012 filing of the 3ACC by CCC et al. (Schroeder Exh. 4); (3) the October 1, 2013 filing by McGuckin of the 1ACC (Schroeder Exh. 6); (4) and the March 28, 2012 filing of the 4AC by Plaintiffs (Schroeder Exh. 2). The request for judicial notice is GRANTED as to the existence of these pleadings and their filing dates.

In opposition, CCC et al. argue that a triable issue exists as to whether the alleged effects are patent or latent within the meaning of Code of Civil Procedure sections 337.1 and 337.15. CCC et al. argue that F&F presented no evidence that the defects are patent (e.g., location, how they would have been obvious upon reasonable inspection). CCC et al. further contend that Plaintiffs allege the trash enclosure shows efflorescence and calcium deposits along the grout lines of the CMU blocks, and these alleged defects are ignored by F&F. Finally, CCC et al. argue that any indemnity-based causes of action do not begin to accrue until a judgment is entered against them.

McGuckin argues that F&F has not shown as a matter of law that trash enclosure defects are patent. McGuckin contends that a missing horizontal tubular steel stiffener and steel jamb are not clear to the owners of the building, and F&F presents no information about the location of the missing pieces. McGuckin argues the statute of limitations on its breach of implied warranty claim has not run because when a transaction involves both goods and services, the predominant factor test is used to determine the transactions’ primary purpose, and here, the primary purpose was fabrication and installation of goods. Thus, McGuckin argues that F&F fails to show that its work should be governed by the UCC for purposes of determining when the statute of limitations begins to run. Finally, McGuckin argues the statute of limitations on claims for indemnity would not run until the indemnity claimant suffers loss or damages.

Plaintiffs’ opposition brief does not substantively challenge F&F’s motion. Rather, Plaintiffs submit that they have a pending settlement with F&F, and the parties have agreed to take F&F’s motion off calendar as to Plaintiffs, with the stipulation that if the motion to approve the settlement is denied, F&F’s motion will be re-submitted as to Plaintiffs on shortened time.

Analysis: “Section 337.1 of the Code of Civil Procedure requires that an action based upon a patent deficiency resulting from the activities associated with construction of an improvement to real property (such activities occurred prior to 1964, according to the cross-complaint) be brought within four years after substantial completion of such improvement. A patent defect is one which can be discovered by such an inspection as would be made in the exercise of ordinary care and prudence. [Citations.] This is contrasted with a latent defect, one which is hidden and which would not be discovered by a reasonably careful inspection. [Citations.]” (Wagner v. State of California (1978) 86 Cal.App.3d 922, 927.) “The test used to determine whether a deficiency is patent is not a subjective one, applied to each individual user; rather, it is an objective test based on the reasonable expectations of the average consumer.” (Mattingly v. Anthony Industries, Inc. (1980) 109 Cal.App.3d 506, 511.)

It is not disputed that F&F’s contract with McGuckin was to fabricate and install seven tubular steel columns and one trash enclosure gate. (F&F’s UMF 20.) Exhibit A to Plaintiffs’ 4AC states with regard to the trash enclosure that “[t]here is…a lack of the plan specified horizontal tubular steel stiffener at the mid-height of the enclosure gate. The tubular steel gate jamb has also not been installed as per the plan requirements.”

F&F’s expert, Mr. de Haan states that he has reviewed the approved plans and contracts related to F&F’s work for the Subject Property, as well as F&F’s shop drawings of the trash enclosure gate, and that he inspected the trash enclosure gate. Mr. de Haan states: “At the site inspection, I spoke with the plaintiffs’ expert about the alleged construction defects at the Subject Property and he told me that the only construction defect involving F&F STEEL’s work was the omission of a horizontal tubular steel stiffener at the mid-height level of the trash enclosure gate.” Mr. de Haan further states, “At the site inspection, I did not see a horizontal tubular steel stiffener at the trash enclosure gate’s mid-height level nor did I see any indication that the gate had been modified or altered in the time since F&F STEEL completed its work in 2005.” Finally, Mr. de Haan states, “The Plaintiff includes a claim that the tubular steel gate jamb has not been installed as per the plan requirements. That a tubular steel gate jamb and that a horizontal tubular steel stiffener at the mid-height of the trash enclosure gate were not constructed was open and obvious upon my inspection of the trash enclosure.”

On a motion for summary judgment/adjudication, the moving party’s declarations are strictly construed. (See Heredia v. Farmers Ins. Exch. (1991) 228 Cal.App.3d 1345, 1353-1354.) Here, the problem with F&F’s evidence is that Mr. de Haan provides almost no facts to support his conclusion that the omission of a horizontal tubular steel stiffener at the mid-height level of the trash enclosure gate and the failure to install the tubular steel gate jamb as per the plan requirements are open and obvious based on the reasonable expectations of the average consumer. There is no explanation of how these components would work or appear if properly installed, nor is there any contention that the gate would function differently without the installed components in a way that is noticeable to an average consumer. Arguably, F&F did not need to rely on expert testimony to establish the open and obvious nature of the alleged defects if it was simply a matter of visible appearance, since photographs and accompanying explanations of the physical condition of the trash enclosure gate and the uninstalled components would likely suffice. However, in relying upon the opinion of an expert on the patent nature of the alleged defect, that opinion had to “disclose the matter relied on in forming the opinion expressed,” and provide “reasons or explanations” supporting the opinion. (Kelley v. Trunk (1998) 66 Cal.App.4th 519, 523-524.) “An expert’s opinion, even if uncontradicted, may be rejected if the reasons given for it are unsound. [Citation.]” (Kelly, supra, 66 Cal.App.4th at p. 523.) “[The standard for summary judgment] is not satisfied by laconic expert declarations which provide only an ultimate opinion, unsupported by reasoned explanation.” (Id. at p. 525.) Here, the de Haan declaration amounts to little more than Mr. de Haan’s assertion that he inspected the gate and found the defects to open and obvious, but he provides no explanation or reasons to support that observation. Nor is there any other evidence submitted by F&F regarding the physical condition of the trash enclosure gate and the missing components to allow the Court to independently determine the open and obvious nature of the alleged defect under the applicable legal standards.

The cases cited by F&F do not compel a different result. Mattingly involved the failure to install a fence around a swimming pool, and the court held that “[t]he swimming pool and the dangers attendant thereto as they relate to the absence of fencing are matters of such common experience that assuming, arguendo, the absence of a fence constitutes a deficiency in our situation, it is a patent deficiency and subject to the provisions of Code of Civil Procedure section 337.1.” (Mattingly, supra, 109 Cal.App.3d at p. 510-511.) Likewise, the finding of a patent defect in The Luckman Partnership Inc. v. Superior Court (2010) 184 Cal.App.4th 30 was based on common experience. There, a construction worker fell through a suspended ceiling in a convention center originally designed by the defendant-architect, and the plaintiffs claimed the architect was negligent because the guardrails on a catwalk above the suspended ceiling had been designed in a manner that meant that there was enough space between the rails for the worker to climb. The court held that any defect in the spacing of the rails was obvious, and the dangers attendant to climbing through guardrails on a catwalk were a matter of common experience. Here, F&F fails to demonstrate that based on common experience, the absence of a horizontal tubular steel stiffener and tubular steel gate jamb would be obvious defects in the trash enclosure gate. Delon Hampton & Associates, Chartered v. Superior Court (2015) 227 Cal.App.4th 250 involved a banister of a stairwell that was allegedly too low and too narrow. The court held that the defects were patent because the height of the banister and the width of the stairwell were not hidden “and the danger of ascending or descending stairs is a matter of common experience.” (Delon Hampton, supra, 227 Cal.App.4th at p. 256.) Furthermore, the court held that “[i]n addition to the defects being visually accessible, simple use of the stairwell would inform the average consumer whether the banister was too low or the stairwell was too narrow.” (Ibid.) In contrast, F&F submits no evidence from which to infer that the alleged defects were visually apparent as a matter of common experience, or that the simple use of the trash enclosure gate would have informed the average consumer that the tubular steel stiffener and tubular steel gate jamb were missing.

For all of these reasons, the Court finds that F&F fails to carry its burden to demonstrate the absence of a triable issue of material fact on the patent nature of the alleged defects.

However, the Court finds that F&F carries its burden as to the breach of warranty claims by CCC et al. and McGuckin on the grounds of lack of notice.

“‘[I]f, after acceptance of the goods, the buyer fails to give notice to the seller of the breach of any promise or warranty within a reasonable time after the buyer knows or ought to know of such breach, the seller shall not be liable therefor.’” (Vogel v. Thrifty Drug Co. 1954) 43 Cal.2d 184, 187.) “ ‘The giving of notice must be pleaded clearly and without ambiguity . . .’ [citation][.]” (Id. at p. 188.) “‘The requirement of notice of breach is based on a sound commercial rule designed to allow the defendant opportunity for repairing the defective item, reducing damages, avoiding defective products in the future, and negotiating settlements. The notice requirement also protects against stale claims. [Citation.] These considerations are as applicable to builders and sellers of new construction as to manufacturers and dealers of chattels.’ [Citation.]” (Fieldstone Co. v. Briggs Plumbing Products, Inc. (1997) 54 Cal.App.4th 357, 369-370.)

As a threshold matter, F&F argues that CCC et al. and McGuckin failed to allege that they gave notice of their warranty claims to F&F. (F&F UMF 29.) This is clearly not the case for McGuckin’s 1ACC, which expressly alleges in the sixth cause of action for breach of express warranty that “…Subcontractor Cross-Defendants have been notified timely that their work, labor, hardware, appliances, and/or materials were not of the quality warranted in the written and/or oral subcontracts.” Similarly, in the seventh cause of action for breach of implied warranty of merchantability, McGuckin alleges that “Cross-Defendants, and each of them, have been timely notified that their work and/or materials were not of marketable quality or manufactured in a reasonably workmanlike manner.” “Notwithstanding such notices, the Cross-Defendants have declined and failed to acknowledge responsibility for the same or otherwise cause the appropriate restoration and/or repairs to be made to the work and/or materials at their expense or to otherwise contribute to the costs the same.”

As for CCC et al., their 3ACC alleges that “Cross-defendants declined to correct the alleged negligent conduct or condition as referenced above.” Arguably, this is not a very clear and unambiguous allegation of giving notice to F&F of any particular breach of warranty. On the other hand, the word “decline” is reasonably understood as being in response to a request, and the reasonable implication here is that a request “to correct the alleged negligent conduct or condition as referenced above” was made, and then “declined” by F&F, which is included in the category of “Cross-Defendants.”

Nevertheless, F&F carries its burden to negate these allegations by submitting that “[n]otice of a defect was never provided to F&F STEEL.” (F&F’s UMF 29.) This is supported by the declaration of Wayne Wolski, president of F&F, who states: “At no time prior to being served with this lawsuit, did I or anyone else at F&F STEEL ever receive notice that there was an omission with the trash gate enclosure or any defects or deficiencies.”

McGuckin attempts to dispute F&F’s UMF 29 by arguing, “At the least, F&F was provided notice in the Complaint and Cross-Complaints filed in this action.” (McGuckin’s Resp. to F&F’s UMF 29.) Likewise, CCC et al. argue that “the filing and service of the subject pleadings provided notice to F&F Steel of its defective work.” (CCC et al.’s Opp. to F&F’s Sep. St. of UMF 29.) However, the law is clear that “the filing of the suit cannot constitute notice. . . . [N]otice must be pleaded and proved. The fact that the giving of notice must be pleaded obviously requires that it be given before filing suit.” (Arata v. Tonegato (1957) 152 Cal.App.2d 837, 841, original emphasis.)

For all of these reasons, F&F’s motion for summary judgment is DENIED. F&F’s alternative motion for summary adjudication is GRANTED as to CCC et al.’s fifth cause of action for breach of express and implied warranty, and McGuckin’s sixth cause of action for breach of express warranty and seventh cause of action for breach of implied warranty, but is otherwise DENIED.

F&F’s motion for summary judgment, or alternatively summary adjudication, of Plaintiffs’ 4AC is OFF CALENDAR.

III. McGuckin’s Motion for Summary Judgment, or Alternatively, Summary Adjudication

McGuckin moves for summary judgment against Plaintiffs’ 4AC, or alternatively summary adjudication as to the fourth cause of action for negligence and violation of statute, fifth cause of action for breach of implied warranty, and sixth cause of action for breach of contract.

McGuckin submits it was the general contractor, hired by CCC, to perform various construction work on the Subject Properties. (See McGuckin’s Sep. St. of UMF 2.)

McGuckin argues Plaintiffs’ causes of action fail because each of the unit owners’ purchase agreements with Defendants contain an “as is” provision. (McGuckin UMF 4, 8.) McGuckin argues that due to the waiver provision in the purchase agreements, McGuckin did not owe Plaintiffs a duty to adhere to a standard of care in the upgrades and sale of the subject properties or to ensure compliance with building codes and statutes. Regarding the fifth cause of action for breach of implied warranty, McGuckin argues that the only warranties implied in sales of real property relate to title, and because the Subject Properties were sold “as is,” this puts potential buyers on notice that the seller makes no warranties about the quality or condition of the thing sold. Regarding the sixth cause of action for breach of contract, McGuckin submits that there were no contracts between Plaintiffs and McGuckin, and Plaintiffs cannot show that they are third-party beneficiaries of the construction contracts because the contract explicitly disavows the existence of any third-party beneficiaries. (McGuckin UMF 13.)

In support of the motion, McGuckin submits a copy of Plaintiffs’ 4AC, CCC et al.’s Requests for Admissions, set one and Plaintiffs’ responses thereto, CCC et al.’s First Notice of Production of Documents and Real Property Purchase Agreements, and a copy of the McGuckin-CCC contract.

In opposition to the motion, Plaintiffs argue that McGuckin has no standing to allege an “as is” defense owed to the seller (CCC). Plaintiffs argue an exculpatory provision must be clear and unambiguous, and here, the “as is” provision regarding the seller does not clearly and unambiguously exculpate McGuckin from liability. Plaintiffs refer to their opposition to the Defendants’ MSA for the position that the properties were not sold on a strict “as is” basis. Plaintiffs further argue McGuckin has not submitted admissible evidence to support its “as is” challenge to the fourth and fifth causes of action because McGuckin’s counsel lacks personal knowledge to authenticate the purchase agreements. Plaintiffs argue the fifth cause of action for breach of implied warranty is not premised on the purchase agreements, but on the construction contracts, and Plaintiffs argue they are third-party beneficiaries of those contracts because the circumstances under which McGuckin and CCC executed the contract show that it was intended for the benefit of the future purchasers of units in the completed development. Plaintiffs argue that McGuckin has failed to submit an admissible copy of the construction contract to support its challenge to the sixth cause of action. Plaintiffs contend that the 4AC attaches a different document as the McGuckin construction contract which does not include the language that McGuckin relies upon in challenging the cause of action.

Plaintiffs have also filed written objections to McGuckin’s evidence. Plaintiffs object to the purchase agreements in Prager Exhibit C as lacking authentication due to missing pages, and for McGuckin’s attempt to authenticate the purchase agreements through McGuckin’s counsel. Plaintiffs object to the McGuckin-CCC contract in Prager Exhibit D as lacking authentication, arguing that McGuckin’s counsel lacks personal knowledge required to authenticate it, and it is not trustworthy given that Tom McGuckin could have provided stronger authentication but did not.

Analysis: “Authentication of a writing means (a) the introduction of evidence sufficient to sustain a finding that it is the writing that the proponent of the evidence claims it is or (b) the establishment of such facts by any other means provided by law.” (See Evid. Code § 1400.) Here, McGuckin provides sufficient evidence that the documents in Prager Exhibit C are purchase agreements for the Subject Properties. Mr. Prager states his personal knowledge as McGuckin’s counsel that the purchase agreements in Exhibit C were produced by CCC et al. in discovery. (See The Luckman Partnership, supra, 184 Cal.App.4th at p. 34 [sufficient authentication by counsel’s declaration stating personal knowledge that attached documents were party’s verified interrogatory responses].) The fact that the purchase agreements have missing pages does not render them inadmissible. “[A]n objection that a record is ‘incomplete’ generally ‘go[es] to the weight of th[e] evidence and not its admissibility.’ [Citation.]” (People v. Martinez (2000) 22 Cal.4th 106, 128, fn. 7.) As for the McGuckin-CCC contract, the Court finds that McGuckin’s counsel is competent to authenticate a true and correct copy of the contract entered into by his client. (See The Luckman Partnership, supra, 184 Cal.App.4th at p. 34.) Plaintiffs’ objections are OVERRULED.

The “as is” and exculpatory clauses are found in the purchase agreements at paragraph 29:

 “Except as otherwise expressly set forth herein, Purchaser acknowledges that Purchaser is purchasing the Property solely in reliance on Purchaser’s own investigation and that no representations or warranties of any kind whatsoever, express or implied, have been made by Seller, Seller’s agents, or Broker. Purchaser further acknowledges that as of the close of escrow, Purchaser will be aware of all zoning regulations, other governmental requirements, site and physical conditions, and other matters affecting the use and condition of the Property, and Purchaser agrees to purchase the Property in the condition in which it is at close of escrow.”

 “Except for the specific representations or warranties of Seller contained herein, Purchaser is purchasing the Property hereunder strictly on an ‘as is’ basis. . . . The Property is to be purchased, conveyed, and accepted by Purchaser in its present condition, ‘as is,’ and no patent or latent physical condition of the Property, whether or not known or unknown or discovered at a later date, shall affect this transaction and the Purchase Price paid for the Property hereunder. Purchaser is obligated to close escrow notwithstanding the condition of the Property.”

 “Purchaser hereby waives, releases, acquits, and forever discharges Seller and Seller’s Broker of and from any and all claims, actions, causes of action, demands, rights, damages, costs, expenses, or compensation whatsoever, direct or indirect, known or unknown, foreseen or unforeseen, that it now has or which may arise in the future on account of or in any way growing out of or connected with the condition of the Property, any toxic wastes or hazardous materials located thereon, any settlement or subsidence of construction thereon, if any, or with any operative or proposed governmental laws and regulations, including, but not limited to, zoning, environmental, and land use laws and regulations to which the Property may be subject or with Purchaser’s contemplated use and development of the Property.”

Plaintiffs’ standing argument raises a fair legal question that McGuckin does not adequately address. The “as is” and exculpatory provisions are found in the purchase agreements, and they purport to relieve the “seller” from liability. McGuckin was neither a “seller” of the condominium units nor a party to the purchase agreements; it was the general contractor that performed improvements on the Subject Properties before they were sold. McGuckin cites Shapiro v. Hu (1986) 188 Cal.App.3d 324, 333-334 for the position that there can be no liability as to any party, seller or not, for the condition of real property sold “as is.” However, Shapiro does not make this precise holding, nor can such a principle be inferred from the facts of the case since it involved a lawsuit between only the buyers and the sellers of a building. McGuckin also cites Wilson v. Century 21 Great Western Realty (1993) 15 Cal.App.4th 298, 308 as holding that an “as is” provision applies to parties beyond the seller. However, in Wilson, the appellate court simply found the fraud exception to an “as is” sale did not apply because the seller’s real estate agent did not make a negligent misrepresentation and did not breach his statutory duty to perform a reasonably competent and diligent visual inspection. At most, Wilson supports extending protection under an “as is” provision to the seller’s agent or broker, which is entirely consistent with the language of the “as is” provision at issue here. McGuckin does not contend that it was a seller’s agent or broker within the meaning of the purchase agreements or the Wilson case.

Furthermore, Shapiro recognizes an important exception to the application of an “as is” clause “when a seller, through fraud or misrepresentation, intentionally conceals material defects not otherwise visible or observable to the buyer. [Citation.]” (Shapiro, supra, 188 Cal.App.3d at pp. 333-334.) “Where the seller actively misrepresents the then condition of the property [citations] or fails to disclose the true facts of its condition not within the buyer’s reach and affecting the value or desirability of the property, an “as is” provision is ineffective to relieve the seller of either his “affirmative” or “negative” fraud. . . . To enlarge the meaning of such a provision so as to make it operative against all charges of fraud would be to permit the seller to contract against his own fraud contrary to . . . law. [Citations.]” (Wilson, supra, 15 Cal.App.4th at pp. 304-305, citing Cal. Civ. Code, § 1668 [“All contracts which have for their object, directly or indirectly, to exempt any one from responsibility for his own fraud…are against the policy of the law.”].) Here, Plaintiffs’ 4AC alleges intentional nondisclosure by CCC et al., and McGuckin does not submit any argument or evidence negating these allegations of intentional nondisclosure. Thus, even if McGuckin theoretically could take advantage of a seller’s relief from liability under a purchase agreement’s exculpatory provisions, McGuckin has not demonstrated the absence of fraud by CCC et al. in sale of the Subject Properties.

However, McGuckin demonstrates the absence of triable issues on Plaintiffs’ sixth cause of action for breach of contract. Plaintiffs do not dispute McGuckin’s UMF 12, which states there are no contracts between McGuckin and Plaintiffs, that the 4AC does not allege any such contracts to exist. As discussed above, Plaintiffs’ objection to the McGuckin-CCC contract submitted as Prager Exhibit D is overruled.

Plaintiffs allege and argue that they are intended beneficiaries of the McGuckin-CCC contract. “California law permits third party beneficiaries to enforce the terms of a contract made for their benefit. Civil Code section 1559 states: ‘A contract, made expressly for the benefit of a third person, may be enforced by him at any time before the parties thereto rescind it.’ The third party need not be identified by name. It is sufficient if the claimant belongs to a class of persons for whose benefit it was made. [Citation.] A third party may qualify as a contract beneficiary where the contracting parties must have intended to benefit that individual, an intent which must appear in the terms of the agreement. [Citation.]” (Principal Mut. Life Ins. Co. v. Vars (1998) 65 Cal.App.4th 1469, 1485-1486.) “To recover as a third-party beneficiary, one must show that the contract in question was made expressly for his benefit. [Citations.] While it is not necessary that the third party be specifically named as a beneficiary nevertheless, … ‘an intent to make the obligation inure to the benefit of the third party must have been clearly manifested by the contracting parties. [Citations.]” (San Francisco v. Western Air Lines, Inc. (1962) 204 Cal.App.2d 105, 120.)

Here, the CCC-McGuckin contract states in Article 12.2: “The Contract Documents shall not be construed to create a contractual relationship of any kind (1) between the Architect and Contractor, (2) between the Owner and a Subcontractor or Sub-subcontractor or (3) between any persons or entities other than the Owner and Contractor.” Plaintiffs submit no evidence to dispute the express language of the CCC-McGuckin construction contract evidencing a clear intent to create no contractual relationships other than between the Owner and Contractor.

Plaintiffs argue there is a triable issue of material fact because Exhibit B to the 4AC identifies a different document as the McGuckin-CCC contract, and this Exhibit B document does not include the language that McGuckin relies upon in challenging Plaintiffs’ third-party beneficiary status. However, from a burden-shifting standpoint, McGuckin has carried its burden to demonstrate the absence of a triable issue on Plaintiffs’ third-party beneficiary status by submitting what is purported to be a true and correct copy of the McGuckin-CCC contract, which belies Plaintiffs’ claims that the construction contract confers third-party beneficiary status on them. The 4AC’s allegations on information and belief identifying a different document as the McGuckin-CCC contract are negated by McGuckin’s evidentiary showing. It was then Plaintiffs’ burden to demonstrate a triable issue of material fact, but Plaintiffs merely asserted an unmeritorious objection to McGuckin’s evidence. Plaintiffs cannot simply rely on the allegations of the 4AC to create a triable issue of material fact on what is the true McGuckin-CCC contract. (See Cal. Code Civ. Proc., § 437c, subd. (p)(2) [“The plaintiff or cross-complainant may not rely upon the mere allegations or denials of its pleadings to show that a triable issue of material fact exists…”].)

For all of these reasons, McGuckin’s motion for summary judgment is DENIED. McGuckin’s alternative motion for summary adjudication is GRANTED as to the sixth cause of action for breach of contract, but is otherwise DENIED.

Good Faith Settlement Motions

There are presently pending four separate Motions for Good Faith Settlement Determination and one separate Motion Contesting Plaintiff’s Application for Good Faith Settlement Determination. The four separate Motions for Good Faith Settlement Determination are brought, respectively, by (1) Cross-Defendant Global Landscape and Irrigation (“Global”); (2) Defendant/Cross-Defendant Indoor Air Design Inc. aka O’Neil Recycling (“Indoor”); (3) Defendant/Cross-Defendant Calvac, Inc. dba Calvac Paving (“Calvac”); and (4) Defendant/Cross-Defendant F&F Steel and Stairway, Inc. (“F&F”). In addition, Defendant Corvin Commercial Condominiums, LLC (“CCC”) has filed a Motion Contesting Plaintiffs’ Application for Determination of Good Faith Settlement.

As the same legal principles apply to all Motions set forth above, a brief discussion of the legal standards is set forth below and the Court will then address each Motion.

Legal Standards

California Code of Civil Procedure section 877.6 provides that a party to an action in which it is alleged that two or more parties are joint tortfeasors may seek a determination that a settlement was made in good faith. “A determination by the court that the settlement was made in good faith shall bar any other joint tortfeasor…from any further claims against the settling tortfeasor…for equitable comparative contribution, or partial or comparative indemnity, based on comparative negligence or comparative fault.” (Code Civ. Proc., § 877.6, subd. (c).) “The purpose of this statute is to bar claims against a settling tortfeasor and thereby promote settlement.” (Cal-Jones Properties v. Evans Pacific Corp. (1989) 216 Cal.App.3d 324, 327.)

In Tech-Bilt, Inc. v. Woodward-Cycle & Associates (1985) 38 Cal.3d 488, the Supreme Court set forth the following factors for consideration of a proposed settlement:

 a rough approximation of plaintiffs’ total recovery and the settler’s proportionate liability;
 the amount paid in settlement;
 the allocation of settlement proceeds among plaintiffs;
 discount for settlement before trial;
 the financial conditions and insurance policy limits of settling defendants; and
 the existence of collusion, fraud, or tortious conduct aimed to injure the interests of non-settling defendants.

(Tech-Bilt, supra, 38 Cal.3d at p. 499.)

In determining whether a proposed settlement is made in good faith, the court may consider affidavits and counteraffidavits. In its discretion, the Court may receive other evidence at the hearing on the motion. (Cal. Code Civ. Proc., § 877.6, subd. (b).) “The party asserting the lack of good faith shall have the burden of proof on that issue.” (Cal. Code Civ. Proc., § 877.6, subd. (d).) Bad faith may be established by “demonstrat[ing] that the settlement is so far ‘out of the ballpark’ in relation to these [Tech-Bilt] factors as to be inconsistent with the equitable objectives of the statute.” (Tech-Bilt, supra, 38 Cal.3d at pp. 499-500.)

“Where there are multiple defendants, each having potential liability for different areas of damage, an allocation of the settlement amount must be made.” (L.C. Rudd & Son, Inc. v. Superior Court (1997) 52 Cal.App.4th 742, 750.) The failure to allocate the settlement “may preclude a ‘good faith’ determination because there is no way to determine the appropriate setoff pursuant to section 877 against the nonsettling defendant. (Id.) As a result, “[i]t is the burden of the settling parties to explain to the court and to all other parties the evidentiary basis for any allocations and valuations made sufficient to demonstrate that a reasonable allocation was made.” (Id.) “[W]here the settling parties have failed to allocate, the trial court must allocate in the manner which is most advantageous to the nonsettling party.” (Dillingham Construction N.A., Inc. v. Nadel Partnership (1998) 64 Cal.App.4th 264, 287.)

However, “the inquiry at the good faith settlement stage is not the same as the inquiry at trial, where complete precision of allocation could presumably be achieved. Since we are dealing with a pretrial settlement, in which the factual findings or determinations made on contested issues of liability or damages are tentative, and made solely for purposes of evaluating the good faith of a settlement as of the date of the valuation [citation], we must necessarily apply a broader and more permissive standard for evaluating good faith of a settlement as to such allocation. . . . [W]hat should be required of the settling parties is that they furnish to the court and to all parties an evidentiary showing of a rational basis for the allocations made and the credits proposed. They must also show that they reached these allocations and credit proposals in an atmosphere of appropriate adverseness so that the presumption may be applied that a reasonable valuation was reached. [Citation.]” (Regan Roofing v. Superior Court (1994) 21 Cal.App.4th 1685, 1704.)

(1) Global’s Motion for Good Faith Settlement Determination: Global argues that its settlement with Plaintiffs in the sum of $5000 meets the Tech-Built factors referenced above and was the result of arms-length negotiations over an extended period of time. Global argues that given the absence of any evidence to connect any of the claimed damages to its scope of work together with the issue release set forth in the Settlement Agreement and Issue Release, that its settlement should be deemed to be in good faith pursuant to CCP 877.6. The Opposition papers filed by Defendants’ TF McGuckin, Inc. and CCC (including Calvano Commercial Enterprises and Mark Calvano) argue that the subject settlement was entered through collusion and tortious conduct and is, therefore, done in bad faith. The Court finds this argument unavailing and not supported by the evidence. Similarly, the Court finds the argument regarding the allocation issue equally unavailing. The plain language of the Settlement Agreement and Issue Release as well as the separate Declaration of Scott Williams properly addresses the allocation issue raised by Defendants. Accordingly, Global’s Motion for Good Faith Settlement is GRANTED.

(2) Indoor Air Design’s Motion for Good Faith Settlement Determination: Indoor argues in its moving papers that its settlement with Plaintiffs in the sum of $5000 meets several of the Tech-Built factors and is in good faith because Plaintiffs’ claims for defects do not include work that Indoor has performed and the list of defects does not include problems with the removal and disposal of HVAC materials before the conversion or problems with the bathroom duct work. Indoor argues that the $5000 settlement is an “overpayment” in order to “buy peace.” Finally, Indoor argues that the settlement was the product of arms-length negotiations and provides an allocation of the settlement proceeds. In Opposition, CCC, Calvano Commercial Enterprises and Mark Calvano argue that the settlement was in bad faith and does not satisfy the requirements for a good faith settlement because: (1) the Settlement Agreement was entered into through collusion and tortious conduct aimed to injure Defendant’s Interests; (2) the Settlement Agreement does not release Calvano Commercial Enterprises, Inc. or Mark Calvano or their related entities; (3) the terms of the Settlement are not certain; (4) Defendants are entitled to an offset, but no offsets are included in the Agreement. After a full review of the papers and supporting exhibits and Declarations, the Court finds that the settlement agreement does meet the standards set forth in CCP 877.6 and Tech-Built and that the opposing parties have not met their burden in showing that the Settlement Agreement was entered into in bad faith. Accordingly, Indoor’s Motion for Good Faith Settlement is GRANTED.

(3) Calvac’s Motion for Good Faith Settlement Determination: In its moving papers, Calvac argues that its settlement in the amount of $50,000 is “within the ballpark” of their proportionate liability applying the Tech-Built standards. Specifically, Calvac argues that its scope of work was limited to applying an asphaltic emulsion layer to the existing asphalt at the North parking lot and that they carried out the scope of work assigned by the contractor, TF MCGuckin even though Calvac proposed a more aggressive scope of work. Plaintiffs have alleged that the parking lot area has construction defects including cracking, deterioration, and ponding. Calvac denies liability and contends that the settlement exceeds its own estimate for necessary costs of repair and represents a significant percentage of the plaintiff’s proposed costs of repair for the asphalt issues. Per the Declaration of David DeMordaunt, the allocation of the settlement proceeds will be directed to the asphalt repair given the limited scope of work by Calvac. Opposition papers were filed by both TF McGuckin and CCC, LLC; Calvano Commercial Enterprises, Inc.; and Mark Calvano. The arguments set forth in opposition largely mirror the opposition papers in the Good Faith Settlement Motions referenced above and appear to be a “cut and paste” of earlier arguments which are not well-supported by the evidence, largely conclusionary and legally unavailing. Accordingly, Calvac’s Motion for Good Faith Settlement Determination is GRANTED.

(4) F&F Steel and Stairway’s Motion for Determination of Good Faith Settlement:
F&F Steel and Stairway contends that Plaintiff’s sole claim against the work they performed on the subject project involves two missing diagonal cross-braces on the two leaves of a corrugated metal trash enclosure gate. According to the moving papers, the plaintiff’s estimated cost of repair for this issue is $350.00 and F&F is paying more than 100 times the costs of repair to settle this claim. In its Opposition, TF McGuckin does not raise any new facts or evidence which would support a finding of bad faith. Under the present circumstances of the settlement (including an issue release of the work done by F&F), the fact that F&F named TF McGuckin as an additional insured with respect to liability for its work does not undermine or legally preclude the Court from making a finding of good faith. Accordingly, F&F’s Motion for Good Faith Settlement Determination is GRANTED.

(5) Defendants’ CCC, LLC; Calvano Commercial Enterprises, Inc.; and Mark Calvano’s Motion Contesting Plaintiffs’ Application for Good Faith Settlement Determination: For the reasons set forth above, which the Court will not repeat, the Motion to Contest the Good Faith Settlement Application by Plaintiffs is DENIED.