Feamster v. Gaco W. LLC

• Decision Date: 21 February 2023
• Docket Number: 18-cv-01327-HSG
• Parties: ROBERT SCOTT FEAMSTER, Plaintiff, v. GACO WESTERN, LLC, Defendant.
• Court: U.S. District Court — Northern District of California

ROBERT SCOTT FEAMSTER, Plaintiff, v. GACO WESTERN, LLC, Defendant.

No. 18-cv-01327-HSG

United States District Court, N.D. California

February 21, 2023

FINDINGS OF FACT AND CONCLUSIONS OF LAW AND ORDER DENYING PLAINTIFF'S MOTION FOR LEAVE TO AMEND

HAYWOOD S. GILLIAM, JR. United States District Judge

Plaintiff Robert Scott Feamster, now proceeding pro se, initially brought a putative class action against Defendant Gaco Western, LLC, alleging that Defendant's spray polyurethane foam, which had been installed in Plaintiff's house, was defective. See Dkt. No. 1 (“Compl.”).^[1] Plaintiff brought causes of action for violations of California's Consumers Legal Remedies Act (“CLRA”) and Unfair Competition Law (“UCL”) as well as seven common law claims. See id. The Court granted Defendant's motion to deny class certification. See Dkt. No. 95. The parties waived their demand for a jury trial, see Dkt. Nos. 168, 169, and the Court held a bench trial on May 19 and 20 2022, see Dkt. Nos. 198, 199. The following constitutes the Court's Findings of Fact and Conclusions of Law under FRCP 52(a).^[2]

Findings of Fact^[3]

1. In November 2015, Performance Foam Tech installed Gaco OnePass spray polyurethane foam insulation, also known as F1850, at Plaintiff's home. Ex. 574; Ex. 500 (Transcript of Deposition of Thomas Sojak) at 178-79, 302;^[4] Ex. 524; Trial Transcript Excerpts, Volume I at 9:16-10:10, 11:11-19 12:9-15.

2. Michael Morgan was the owner of Performance Foam Tech at the time. Ex. 500 at 302; Trial Transcript Excerpts, Volume I at 9:16-10:10.

3. Performance Foam Tech was hired for the project by Greg Vickerman, Plaintiff's general contractor overseeing the remodeling of his home. Trial Transcript Excerpts, Volume I at 9:12-13; 10:13-18.

4. At least some of the foam installed at Plaintiff's home came from lot number W15K0382. Ex. 575 (internal Gaco email chain referencing three batch numbers including W15K0382, with Dan Nelson, Gaco Western VP, Research and Development confirming that “The K lot number is the same one that failed at Feamster residence.”).

5. Presumably Performance Foam Tech, not Plaintiff, purchased the installation materials from Defendant. Plaintiff did not present any evidence suggesting that he bought the foam directly from Defendant or that he signed a contract with Defendant.^[5]

6. Around March 2016, Vickerman told Plaintiff he noticed problems with the foam. Trial Transcript Excerpts, Volume I at 14:4-14. In March or April, Vickerman and Morgan pointed out issues with the foam in the crawl space. Id. 16:11-22, 19:4-17. There were cracks and places where the foam was pulling away from the wood, and there were splits and gaps in the foam. Id. 17:21-19:17. The splitting got progressively worse over time. Id. 21:12-22:6 see also Feamster Evidence Photos.^[6]

7. Sometime between March and April 2016, Morgan reported the problem to Gaco. Id. 15:8-11, 20:13-20.

8. In mid to late April 2016, Gaco employees Craig McCalla and Craig Messer came to Plaintiff's house to look at the issues with the foam. Trial Transcript Excerpts, Volume I at 26:22-27:11. McCalla was an Area Manager covering several western states, part of California, and parts of Canada, and Messer was in the “Technical Service Wall Foam Division.” Exs. 551 (McCalla email signature block describing him as “PNW Area Manager” and listing covered territory), 549 (Messer email signature block), 500 at 299-300 (testimony by Sojak noting that “[w]e already had two people at your house” and that “[w]e had our area manager and our tech rep on the job”). According to Plaintiff, the Gaco employees suggested that the issue was an “installer problem” or the “temperature was wrong,” which Vickerman disputed. Trial Transcript Excerpts, Volume I at 27:16-18. McCalla or Messer said that the issues were unusual. Id. 30:1-6. The Gaco employees said they would get back to Plaintiff. Id. 29:8-13. They prepared a written report and a verbal report, but Plaintiff never received either report. Ex. 500 at 300; Trial Transcript Excerpts, Volume I at 29:10-18.

9. On April 22, 2016, McCalla sent an email to a group of Gaco employees, including Sojak and Messer, regarding “Performance Foam Tech.” Ex. 546. McCalla asked whether “any of the below batch numbers have any reported issues,” but the version of the email admitted in evidence does not list any batch numbers. McCalla said “[c]ustomer called with shrinking 1850 months later,” noted that the project was “[s]prayed last November,” and attached pictures (also not included in the version admitted in evidence). Id. at LIT 001327.^[7] McCalla said “[t]his is the 3^rd shrinkage issue I have had with material being sprayed in the month of November,” including from Performance Foam Tech, described as being a “contractor in the Bay area of CA.” Id. at LIT 001328. McCalla said “I'm getting nervous,” and noted that he had lost a customer in the Spokane, Washington area due to this issue. Id. McCalla said “Little Craig & I will be down there next week to review.” Id. at LIT 001327. The Court infers that “Little Craig” is Craig Messer, and that the “will be down there” reference is to the inspection of Plaintiff's house described above. Kamm asked “[w]hich lot numbers?” a few days later, but McCalla's response does not reflect them. He asked “[a]ny word yet?,” and Kamm's response is cut off in the exhibit. Id.

10. In an internal email exchange starting on May 5 and continuing through May 11, 2016, Messer, McCalla and other Gaco employees discussed “Foam Samples from Performance foam tech,” the company that installed Plaintiff's foam. Ex. 548. The emails discuss a “job . . . in California, [a]n area not known for cold temps,” in “an attic of a finished home.” Id. at LIT 001128. When Chantel Kamm, Quality Manager, suggested based on the sample analysis that “it looks like this may have been pass thickness, or perhaps ambient or substrate moisture,” McCalla responded “I don't buy any of that.” Id. at LIT 001127-001128. McCalla explained “I'm going to guess this is either a mixing issue or a raw issue.” Id. Messer then responded “Ok we have had a number of problems with 1850. This is a problem with the batch.” Id. at LIT 001127. Messer said “I believe this is a chemical issue for sure,” and opined “[t]his isn't the contractor[']s problem.” Id. Jim Dumar responded that “[f]rom the lot number it is probably during the mixing problems,” and opined that “[t]he odds of it being a raw material issue are low.” Id. at LIT 001126. Later in the chain, Dumar said “I just talked to Chantel and it appears of the two lots one was before the mixing was resolved, one after,” which “could help explain the different results.” Id. Dumar said it “look[ed] like it was a 50:50 mix of the two lots.” Id.

11. In what appears to be a continuation of this same thread on May 11, 2016, Messer notes in response to an email from Dumar (which is cut off in the exhibit) that “[i]t was just some areas scattered around the house so far but I'm sure it's not over yet.” Ex. 549. Dumar responded “That supports the good lot/bad lot theory,” and noted that “[w]e do not currently have any way to tell if a particular sample is off ratio or from a bad mix.” Id. Dumar's email concluded “Ok, so in summary, since there was not excess moisture present the shrinkage is most likely due to inconsistent mixing in the early lot. I still think the thicker pass exasperated [sic] the problem, but probably wouldn't have mattered if the batch had been correct.” Id.

12. On May 23, 2016, McCalla emailed Sojak about “Scott Feamster Residence.” Ex. 551. At the time, Sojak's title was “VP Sales Gaco WallFoam.” Id. McCalla's email was in response to Sojak's May 13 email asking McCalla to “find out if we can ship him material to pay for the repair.” Id. McCalla told Sojak that “Michael” (who the Court infers, given the context, was Mr. Morgan) “wants to be paid as if it were an actual new job, even though it is a foam failure repair.” Id. McCalla said he “tried to convince [Morgan] to take the 4+ sets of material,” but “[h]e declined.” Id. McCalla said “[p]er Chantel/Jim, only 6 sets of material were affected.” Id.

13. In another internal email exchange starting on June 1 at the latest and continuing through June 3, 2016, Gaco personnel discussed a forwarded email concerning “Foam samples from Performance foam tech.” Ex. 554.^[8] The capitalization in the subject line is the same as in the earlier exchange reflected in Exhibit 548, which happened between May 5 and May 11, and the chain builds on Dumar's May 11 “good lot/bad lot theory” email that was part of Exhibit 549.

On June 1, Tim Novacek emailed McCalla that “[o]verall, it looks like we shipped Performance Foam Tech 6 sets of 1850 batch W15K0034 (material manufactured before they improved mixing process).”^[9] Id. at LIT 001437. Jessica Godfoy, Customer Service Representative, then said on June 3 that “Michael just called to order 4 sets of material.” Id. The Court infers that this again was Michael Morgan, given the earlier chain involving “Michael,” replacement sets, and the Feamster residence. Later on June 3, Godfroy emailed Sojak “I just spoke with Craig over the phone and he would like to go ahead and give this customer the 4 sets. Can I get your approval to the send [sic] the 4 sets at no charge to Performance foam tech.” Id.

14. On June 2, 2016, Gaco personnel, including Mr. Sojak participated in a conference call with Plaintiff and his contractor Mr. Vickerman, Cathy Haire (who had installed Plaintiff's HVAC system), and likely Mr. Morgan from Performance Foam Tech. Trial Transcript Excerpts, Volume II at 10:14-11:10, 12:18-13:17.^[10] The discussion concerned the problems with the foam, as well as what repairing it would...