This case was last updated from Los Angeles County Superior Courts on 09/05/2021 at 02:22:41 (UTC).

LA LOMA DEVELOPMENT COMPANY VS CAROLLO ENGINEERS, INC.

Case Summary

On 09/04/2019 LA LOMA DEVELOPMENT COMPANY filed a Contract - Other Contract lawsuit against CAROLLO ENGINEERS, INC. This case was filed in Los Angeles County Superior Courts, Spring Street Courthouse located in Los Angeles, California. The Judge overseeing this case is JAMES E. BLANCARTE. The case status is Other.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    *******8184

  • Filing Date:

    09/04/2019

  • Case Status:

    Other

  • Case Type:

    Contract - Other Contract

  • County, State:

    Los Angeles, California

Judge Details

Judge

JAMES E. BLANCARTE

 

Party Details

Plaintiff

LA LOMA DEVELOPMENT COMPANY

Defendant

CAROLLO ENGINEERS INC.

Attorney/Law Firm Details

Plaintiff Attorney

ROTHNER GLENN

Defendant Attorney

MCDONALD SHEILA

 

Court Documents

Request for Dismissal - Request for Dismissal

8/24/2021: Request for Dismissal - Request for Dismissal

Order to Show Cause re: Dismissal (Settlement) - Order to Show Cause re: Dismissal (Settlement)

8/3/2021: Order to Show Cause re: Dismissal (Settlement) - Order to Show Cause re: Dismissal (Settlement)

Notice (name extension) - Notice of Remote Appearance by LACourtConnect (Video)

3/11/2021: Notice (name extension) - Notice of Remote Appearance by LACourtConnect (Video)

Declaration (name extension) - Declaration of Tyler S Sanders in Support

8/13/2020: Declaration (name extension) - Declaration of Tyler S Sanders in Support

Request (name extension) - Request to Court Clerk for Court File

8/13/2020: Request (name extension) - Request to Court Clerk for Court File

Notice (name extension) - Notice TABLE OF CONTENTS OF EVIDENCE AND EXHIBITS 1-4 IN SUPPORT OF DEFENDANT CAROLLO ENGINEERS, INC.S MOTION FOR SUMMARY JUDGMENT

8/13/2020: Notice (name extension) - Notice TABLE OF CONTENTS OF EVIDENCE AND EXHIBITS 1-4 IN SUPPORT OF DEFENDANT CAROLLO ENGINEERS, INC.S MOTION FOR SUMMARY JUDGMENT

Separate Statement - Separate Statement

8/13/2020: Separate Statement - Separate Statement

Proof of Service (not Summons and Complaint) - Proof of Service (not Summons and Complaint)

1/5/2021: Proof of Service (not Summons and Complaint) - Proof of Service (not Summons and Complaint)

Objection (name extension) - Objection Carollo Engineers Objections to Evidence in Plaintiff Opposition to Motion for Summary Judgment

1/14/2021: Objection (name extension) - Objection Carollo Engineers Objections to Evidence in Plaintiff Opposition to Motion for Summary Judgment

Reply (name extension) - Reply Carollo Engineers Reply Brief in Support of Motion for Summary Judgment

1/14/2021: Reply (name extension) - Reply Carollo Engineers Reply Brief in Support of Motion for Summary Judgment

Minute Order - Minute Order (Hearing on Motion for Summary Judgment)

1/19/2021: Minute Order - Minute Order (Hearing on Motion for Summary Judgment)

Answer - Answer

1/30/2020: Answer - Answer

Minute Order - Minute Order (Hearing on Demurrer - without Motion to Strike)

12/17/2019: Minute Order - Minute Order (Hearing on Demurrer - without Motion to Strike)

Demurrer - without Motion to Strike - Demurrer - without Motion to Strike

11/7/2019: Demurrer - without Motion to Strike - Demurrer - without Motion to Strike

Opposition (name extension) - Opposition to Defendant's Demurrer

12/4/2019: Opposition (name extension) - Opposition to Defendant's Demurrer

Proof of Mailing (Substituted Service) - Proof of Mailing (Substituted Service)

9/27/2019: Proof of Mailing (Substituted Service) - Proof of Mailing (Substituted Service)

Summons - Summons on Complaint

9/4/2019: Summons - Summons on Complaint

Civil Case Cover Sheet - Civil Case Cover Sheet

9/4/2019: Civil Case Cover Sheet - Civil Case Cover Sheet

30 More Documents Available

 

Docket Entries

  • 08/31/2021
  • DocketOrder to Show Cause Re: Dismissal (Settlement) scheduled for 10/07/2021 at 09:30 AM in Spring Street Courthouse at Department 25 Not Held - Vacated by Court on 08/31/2021

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  • 08/24/2021
  • DocketOn the Amended Complaint (2nd) filed by La Loma Development Company on 01/02/2020, entered Request for Dismissal with prejudice filed by La Loma Development Company as to Carollo Engineers, Inc.

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  • 08/24/2021
  • DocketAddress for Sheila McDonald (Attorney) clerical correction

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  • 08/03/2021
  • DocketOrder to Show Cause Re: Dismissal (Settlement) scheduled for 10/07/2021 at 09:30 AM in Spring Street Courthouse at Department 25

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  • 08/03/2021
  • DocketOrder to Show Cause re: Dismissal (Settlement); Filed by: Clerk

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  • 08/03/2021
  • DocketOrder to Show Cause Re: Failure to File Proof of Service scheduled for 09/07/2022 at 08:30 AM in Spring Street Courthouse at Department 25 Not Held - Vacated by Court on 08/03/2021

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  • 08/03/2021
  • DocketNon-Jury Trial scheduled for 08/25/2021 at 08:30 AM in Spring Street Courthouse at Department 25 Not Held - Vacated by Court on 08/03/2021

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  • 08/02/2021
  • DocketUpdated -- Notice of Settlement: Status Date changed from 08/02/2021 to 08/02/2021; As To Parties: removed

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  • 06/28/2021
  • DocketNotice of Change of Firm Name; Filed by: Carollo Engineers, Inc. (Defendant); New Firm Name: W&D Law, LLP

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  • 06/28/2021
  • DocketUpdated -- Sheila McDonald (Attorney): Organization Name changed from Weil & Drage to W&D Law, LLP

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43 More Docket Entries
  • 09/27/2019
  • DocketProof of Mailing (Substituted Service); Filed by: La Loma Development Company (Plaintiff); As to: Carollo Engineers, Inc. (Defendant); Mailing Date: 09/12/2019; Service Cost: 125.00; Cost Waived: No

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  • 09/27/2019
  • DocketProof of Service by Substituted Service; Filed by: La Loma Development Company (Plaintiff); As to: Carollo Engineers, Inc. (Defendant); Proof of Mailing Date: 09/12/2019; Service Cost: 125.00; Service Cost Waived: No

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  • 09/06/2019
  • DocketNon-Jury Trial scheduled for 03/03/2021 at 08:30 AM in Stanley Mosk Courthouse at Department 94

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  • 09/06/2019
  • DocketOrder to Show Cause Re: Failure to File Proof of Service scheduled for 09/07/2022 at 08:30 AM in Stanley Mosk Courthouse at Department 94

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  • 09/06/2019
  • DocketCase assigned to Hon. James E. Blancarte in Department 94 Stanley Mosk Courthouse

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  • 09/04/2019
  • DocketComplaint; Filed by: La Loma Development Company (Plaintiff); As to: Carollo Engineers, Inc. (Defendant)

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  • 09/04/2019
  • DocketSummons on Complaint; Issued and Filed by: La Loma Development Company (Plaintiff); As to: Carollo Engineers, Inc. (Defendant)

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  • 09/04/2019
  • DocketCivil Case Cover Sheet; Filed by: La Loma Development Company (Plaintiff); As to: Carollo Engineers, Inc. (Defendant)

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  • 09/04/2019
  • DocketNotice of Case Assignment - Limited Civil Case; Filed by: Clerk

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  • 09/04/2019
  • DocketFirst Amended Standing Order; Filed by: Clerk

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Tentative Rulings

Case Number: 19STLC08184    Hearing Date: March 16, 2021    Dept: 25

HEARING DATE: Tue., March 16, 2021 JUDGE /DEPT: Blancarte/25

CASE NAME: La Loma Development Co. v. Carollo Engineers, Inc.

CASE NUMBER: 19STLC08184 COMPL. FILED: 09-04-19

NOTICE: OK DISC. C/O: 01-31-21

DISC. MOT. C/O: 02-15-21

TRIAL DATE: 03-02-21

PROCEEDINGS: MOTION FOR SUMMARY JUDGMENT

MOVING PARTY: Defendant Carollo Engineers, Inc.

RESP. PARTY: Plaintiff La Loma Development, Co.

MOTION FOR SUMMARY JUDGMENT

(CCP § 437c)

TENTATIVE RULING:

Defendant Carollo Engineers, Inc.’s Motion for Summary Judgment is DENIED.

SERVICE:

[X] Proof of Service Timely Filed (CRC 3.1300) OK

[X] Correct Address (CCP 1013, 1013a) OK

[X] 75/80 Day Lapse (CCP 12c and 1005 (b)) OK

OPPOSITION: Filed on January 5, 2021 [ ] Late [ ] None

REPLY: Filed on January 14, 2021 [X] Late [ ] None

DEF. SUPP. BRIEF: Filed on February 23, 2021 [ ] Late [ ] None

PLF. SUPP. BRIEF: Filed on February 26, 2021 [ ] Late [ ] None

ANALYSIS:

  1. Background

On September 4, 2019, Plaintiff La Loma Development Company (“Plaintiff”) filed an action for breach of contract against Defendant Carollo Engineers, Inc. (“Defendant”). Plaintiff filed a First Amended Complaint on October 3, 2019 and a Second Amended Complaint (the “SAC”) on January 2, 2020. Defendant filed an Answer on January 30, 2020.

On August 13, 2020, Defendant filed the instant Motion for Summary Judgment (the “Motion”). Plaintiff filed an Opposition on January 5, 2021.

The matter came up for hearing on January 19, 2021. Notably, the Court did not consider Defendant’s Reply brief because it was untimely filed only three court days before the scheduled hearing. Following Defendant’s counsel’s argument, the Court continued the matter and ordered the parties to file and serve supplemental papers that included the arguments presented at the hearing. (1/19/21 Minute Order.)

Defendant filed a supplemental brief on February 23 and Plaintiff filed its supplemental brief on February 26.

  1. Legal Standard

A party seeking summary judgment has the burden of producing evidentiary facts sufficient to entitle him/her to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c); Vesely v. Sager (1971) 5 Cal.3d 153.) The moving party must make an affirmative showing that he/she is entitled to judgment irrespective of whether or not the opposing party files an opposition. (Villa v. McFerren (1995) 35 Cal.App.4th 733.)

When a Defendant or Cross-Defendant seeks summary judgment, he/she must show either (1) that one or more elements of the cause of action cannot be established; or (2) that there is a complete defense to that cause of action. (Code Civ. Proc., § 437c, subd. (p)(2).) When a Plaintiff or Cross-Complainant seeks summary judgment, he/she must produce admissible evidence on each element of each cause of action on which judgment is sought. (Code Civ. Proc., § 437c, subd. (p)(1).) The moving party’s “affidavits must cite evidentiary facts, not legal conclusions or ‘ultimate’ facts” and be strictly construed. (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519; Hayman v. Block (1986) 176 Cal.App.3d 629, 639.)

The opposing party on a motion for summary judgment is under no evidentiary burden to produce rebuttal evidence until the moving party meets his or her initial movant’s burden. (Binder v. Aetna Life Insurance Company (1999) 75 Cal.App.4th 832.) Once the initial movant’s burden is met, then the burden shifts to the opposing party to show, with admissible evidence, that there is a triable issue requiring the weighing procedures of trial. (Code Civ. Proc., § 437c, subd. (p).) The opposing party may not simply rely on his/her allegations to show a triable issue but must present evidentiary facts that are substantial in nature and rise beyond mere speculation. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151.) As to any alternative request for summary adjudication of issues, such alternative relief must be clearly set forth in the Notice of Motion and the general burden-shifting rules apply but the issues upon which summary adjudication may be sought are limited by statute. (Code Civ. Proc., § 437c, subd. (f)(1).) “A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (Code Civ. Proc., § 437c, subd. (f)(1).)

  1. Defendant’s Late Objections

Defendant’s objections to the declaration of Marco Barrentes are SUSTAINED as to No. 1 and OVERRUILED as to Nos. 2-8.

  1. Discussion

A. Request for Judicial Notice

Defendant requests that the Court take judicial notice of Plaintiff’s Second Amended Complaint. (Mot., RJN, p. 2.) Defendant’s request is GRANTED. (Evid. Code, § 452, subd. (d).)

B. Breach of Contract

Plaintiff alleges a single cause of action for breach of a written contract with oral modifications or, in the alternative breach of a separate oral contract. (SAC, ¶ BC-1, Attach. 1.)

“To establish a cause of action for breach of contract, the plaintiff must plead and prove (1) the existence of the contract, (2) the plaintiff’s performance or excuse for nonperformance, (3) the defendant’s breach, and (4) resulting damages to the plaintiff. [Citation.] ‘In an action based on a written contract, a plaintiff may plead the legal effect of the contract rather than its precise language.’ [Citation.]” (Maxwell v. Dolezal (2014) 231 Cal.App.4th 93, 97-98.) The elements for breach of an oral contract are the same as those for breach of a written contract. (Stockton Mortgage, Inc. v. Tope (2014) 233 Cal.App.4th 437, 453.) The statute of limitations for written contracts is four years, but only two years for breach of oral contracts. (Code Civ. Proc., §§ 337, subd. (a), 339.)

The parties agree on the following undisputed material facts: (1) that on February 18, 2018, the parties entered into a Construction Subcontract for Design-Build Project (the “Subcontract”) concerning a certain public works project (the “Project”); (2) that the Project consisted of two phases, the first being the pre-design and design of the project and the second being construction of the project; (3) that, pursuant to the Subcontract, Defendant retained Plaintiff to attend 4 organizational, first phase pre-design and design meetings with Defendant; (4) that Plaintiff would be paid a lump sum of $10,000.00 for attending the 4 meetings, except for unit price work; (5) that Defendant paid Plaintiff a lump-sum of $10,000.00 under the Subcontract; (6) that the Subcontract contains an itemization of the documents the parties’ agreement consists of; (7) that the Subcontract contains a provision stating that “[t]here are no Subcontract Documents other than those listed” and that the “Subcontract supersedes prior negotiations, representations, and agreements regarding the Subcontract work, whether written or oral”; (8) that the Subcontract states the Subcontract Documents could only be amended, modified, or supplemented by written agreement of both parties; (10) that before entering into the Subcontract, Plaintiff provided Defendant with prices for its services. (UMF Nos. 1-5, 7-8, 12-13, 18.) (Emphasis added.)

Defendant argues that, as a matter of law, Plaintiff cannot prevail on a breach of contract cause of action with an “alleged oral modification or, alternatively, a separate oral agreement because Plaintiff’s allegations directly contradict the terms of the Subcontract.” (Mot., p. 9:2-6.) Specifically, Defendant argues the Subcontract is fully integrated and that an oral modification would be contrary to the terms of the Subcontract which requires that all increases in the scope of work or price be in writing. (Id. at p. 12:5-7.)

However, as Plaintiff notes in its Opposition, even fully integrated contracts with clauses that purport to bar subsequent oral modifications do not prohibit said modifications in all circumstances. (Oppo., p. 19:19-20.) “[N]otwithstanding a provision in a written agreement that precludes oral modification, the parties may, by their words and conduct, waive contractual rights.” (Wind Dancer Production Group v. Walt Disney Pictures (2017) 10 Cal.App.5th 56, 78.) “ ‘California Courts will find waiver when a party intentionally relinquishes a right or when that party’s acts are so inconsistent with an intent to enforce the right as to induce a reasonable belief that such a right has been relinquished. [Citation.]’ [Citation.]” (Id.)

Plaintiff presents evidence that it completed the work required under the written Subcontract, i.e., attended four meetings with Defendant, by August 31, 2018. (Oppo., Barrantes Decl., ¶¶ 11, 12, 14-16). During an August 31, 2018 meeting, Plaintiff’s representative explained that Defendant would need to pay for any additional work on Phase 1 of the Project, to which Defendant’s representatives agreed. (Id.) Plaintiff also presents evidence that between September 28, 2018 through January 24, 2019, it continued to work on the Project pursuant to Defendant’s oral and written requests. (Id. at ¶¶ 17-24, Exh. 6-10, Rothner Decl., ¶ 3, Exh. 1.) Plaintiff sent Defendant an email on December 5, 2018 with an invoice, referencing the parties’ August 31, 2018 meeting and agreement to pay for additional services. (Id. at ¶ 24, Exh. 10.) The email also states that the invoice is based on the existing Subcontract and the rates previously provided to Defendant on January 17, 2017. (Id.) Defendant did not dispute the invoice or the reference to the August 31, 2018 oral agreement. (See Id. at ¶¶ 25, 26, Exh. 11; Rothner Decl., ¶ 3, Exh. 1.) Rather, Defendant continued to request that Plaintiff perform additional work. (Id.) Defendant also assured Plaintiff on at least two occasions that the December 2018 invoice was being processed. (Id. at ¶¶ 27, 28, 29, Exh. 12.)

At the hearing and in its supplemental papers, Defendant argued Plaintiff’s failure to plead waiver in its SAC precludes it from raising it for the first time in summary judgment. (2/23/21 Def. Supp. Brief, p. 2:2-18.) Defendant notes that the Court in Goorberg v. Western Assurance Co. (1907) 150 Cal.510, 519, held “[i]f the plaintiff relies on waiver or estoppel as to any defense which would otherwise be available to the defendant under the facts stated in the complaint, the facts constituting such waiver or estoppel must be pleaded in the first instance. [Citation.]”

However, a party need not affirmatively plead waiver when it pleads sufficient facts upon which a claim of waiver could be based. (Harper v. Construction Cement Corp. (1983) 144 Cal.App.3d 616, 617.) Defendant argues that Plaintiff did not plead waiver neither in name nor by its elements. (2/23/21 Supp. Brief, p. 4:4-13.) Having reviewed Plaintiff’s SAC, the Court finds Plaintiff did plead sufficient facts upon which a claim of waiver could be based. Specifically, Plaintiff alleges (1) that the scope of the parties’ Subcontract entailed only attendance at 4 organizational meetings; (2) that Defendant’s representatives requested that Plaintiff perform additional work; (3) that Plaintiff’s representatives “explained that because these requests to attend future meetings and review plans fell outside the initial scope of work detailed in the [Subcontract], Defendant would need to compensate Plaintiff for the additional work, and Defendant’s agents, including Gil Cozes, orally agreed to pay Plaintiff for this expanded scope of work under terms similar to the original contract.” (SAC, Attach. p. 1.) These allegations sufficiently describe conduct inconsistent with the terms of the Subcontract, specifically the no oral modification provision, that can give rise to a claim of waiver.

In its supplemental papers, Defendant also argues that even if the Court considers Plaintiff’s claim of waiver, Plaintiff has not set forth any basis for the application of that doctrine. (2/23/21 Def. Supp. Brief, p. 5:19-22.) The Court disagrees.

In Wind Dancer Production Group v. Walt Disney Pictures (2017) 10 Cal.App.5th 56, 78, the court of appeals reiterated that “ ‘ “[t]he waiver may be either express, based on the words of the waiving party, or implied, based on conduct indicating an intent to relinquish the right. [Citation.]” [Citation.] Thus, “California Courts will find waiver when a party intentionally relinquishes a right or when that party’s acts are so inconsistent with an intent to enforce the right as to induce a reasonable belief that such right has been relinquished.” [Citation.]’ [Citation.]” ’ ” (Emphasis added.) Waiver is ordinarily a question of fact. (Id.)

As noted above, Plaintiff presents evidence that it explained to Defendant that any work performed beyond the scope of what was outlined in the Subcontract (i.e., attendance at four organizational meetings) would have to be separately compensated and that this information was communicated to, and purportedly accepted by Defendant’s agents, including Gil Crozes, Defendant’s Senior Vice President who also signed the Subcontract. Defendant did not dispute invoices sent by Plaintiff, and rather continued requesting that Plaintiff perform work after Defendant was informed the additional work was being performed pursuant to the terms Subcontract.

Whether Defendant’s actions constitute a waiver of the Subcontract’s express provision requiring that modifications to the scope of work be in writing is a question of fact that requires the weighing procedures of trial.

As a final note, to the extent Defendant argues the parol evidence rule bars Plaintiff’s evidence, the Court is not persuaded. (See Reply, Objections.) Plaintiff’s evidence is not being offered to demonstrate the parties entered into a prior or contemporaneous agreement that contradicts the terms of the Subcontract; rather Plaintiff offers evidence for the proposition that the parties entered into a subsequent agreement that resulted in waiver of certain privisions of the Subcontract.

Accordingly, Defendant’s Motion is DENIED.

  1. Conclusion & Order

For the foregoing reasons, Defendant Carollo Engineers, Inc.’s Motion for Summary Judgment is DENIED.

Moving party is ordered to give notice.

Case Number: 19STLC08184    Hearing Date: January 19, 2021    Dept: 25

HEARING DATE: Tue., January 19, 2021 JUDGE /DEPT: Blancarte/25

CASE NAME: La Loma Development Co. v. Carollo Engineers, Inc.

CASE NUMBER: 19STLC08184 COMPL. FILED: 09-04-19

NOTICE: OK DISC. C/O: 01-31-21

DISC. MOT. C/O: 02-15-21

TRIAL DATE: 03-02-21

PROCEEDINGS: MOTION FOR SUMMARY JUDGMENT

MOVING PARTY: Defendant Carollo Engineers, Inc.

RESP. PARTY: Plaintiff La Loma Development, Co.

MOTION FOR SUMMARY JUDGMENT

(CCP § 437c)

TENTATIVE RULING:

Defendant Carollo Engineers, Inc.’s Motion for Summary Judgment is DENIED.

SERVICE:

[X] Proof of Service Timely Filed (CRC 3.1300) OK

[X] Correct Address (CCP 1013, 1013a) OK

[X] 75/80 Day Lapse (CCP 12c and 1005 (b)) OK

OPPOSITION: Filed on January 5, 2021 [ ] Late [ ] None

REPLY: None filed as of January 14, 2021 [ ] Late [X] None

ANALYSIS:

  1. Background

On September 4, 2019, Plaintiff La Loma Development Company (“Plaintiff”) filed an action for breach of contract against Defendant Carollo Engineers, Inc. (“Defendant”). Plaintiff filed a First Amended Complaint on October 3, 2019 and a Second Amended Complaint (the “SAC”) on January 2, 2020. Defendant filed an Answer on January 30, 2020.

On August 13, 2020, Defendant filed the instant Motion for Summary Judgment (the “Motion”). Plaintiff filed an Opposition on January 5, 2021. To date, no reply brief has been filed.

  1. Legal Standard

A party seeking summary judgment has the burden of producing evidentiary facts sufficient to entitle him/her to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c); Vesely v. Sager (1971) 5 Cal.3d 153.) The moving party must make an affirmative showing that he/she is entitled to judgment irrespective of whether or not the opposing party files an opposition. (Villa v. McFerren (1995) 35 Cal.App.4th 733.)

When a Defendant or Cross-Defendant seeks summary judgment, he/she must show either (1) that one or more elements of the cause of action cannot be established; or (2) that there is a complete defense to that cause of action. (Code Civ. Proc., § 437c, subd. (p)(2).) When a Plaintiff or Cross-Complainant seeks summary judgment, he/she must produce admissible evidence on each element of each cause of action on which judgment is sought. (Code Civ. Proc., § 437c, subd. (p)(1).) The moving party’s “affidavits must cite evidentiary facts, not legal conclusions or ‘ultimate’ facts” and be strictly construed. (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519; Hayman v. Block (1986) 176 Cal.App.3d 629, 639.)

The opposing party on a motion for summary judgment is under no evidentiary burden to produce rebuttal evidence until the moving party meets his or her initial movant’s burden. (Binder v. Aetna Life Insurance Company (1999) 75 Cal.App.4th 832.) Once the initial movant’s burden is met, then the burden shifts to the opposing party to show, with admissible evidence, that there is a triable issue requiring the weighing procedures of trial. (Code Civ. Proc., § 437c, subd. (p).) The opposing party may not simply rely on his/her allegations to show a triable issue but must present evidentiary facts that are substantial in nature and rise beyond mere speculation. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151.) As to any alternative request for summary adjudication of issues, such alternative relief must be clearly set forth in the Notice of Motion and the general burden-shifting rules apply but the issues upon which summary adjudication may be sought are limited by statute. (Code Civ. Proc., § 437c, subd. (f)(1).) “A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (Code Civ. Proc., § 437c, subd. (f)(1).)

  1. Discussion

A. Request for Judicial Notice

Defendant requests that the Court take judicial notice of Plaintiff’s Second Amended Complaint. (Mot., RJN, p. 2.) Defendant’s request is GRANTED. (Evid. Code, § 452, subd. (d).)

B. Breach of Contract

Plaintiff alleges a single cause of action for breach of a written contract with oral modifications or, in the alternative breach of a separate oral contract. (SAC, ¶ BC-1, Attach. 1.)

“To establish a cause of action for breach of contract, the plaintiff must plead and prove (1) the existence of the contract, (2) the plaintiff’s performance or excuse for nonperformance, (3) the defendant’s breach, and (4) resulting damages to the plaintiff. [Citation.] ‘In an action based on a written contract, a plaintiff may plead the legal effect of the contract rather than its precise language.’ [Citation.]” (Maxwell v. Dolezal (2014) 231 Cal.App.4th 93, 97-98.) The elements for breach of an oral contract are the same as those for breach of a written contract. (Stockton Mortgage, Inc. v. Tope (2014) 233 Cal.App.4th 437, 453.) The statute of limitations for written contracts is four years, but only two years for breach of oral contracts. (Code Civ. Proc., §§ 337, subd. (a), 339.)

The parties agree on the following undisputed material facts: (1) that on February 18, 2018, the parties entered into a Construction Subcontract for Design-Build Project (the “Subcontract”) concerning a certain public works project (the “Project”); (2) that the Project consisted of two phases, the first being the pre-design and design of the project and the second being construction of the project; (3) that, pursuant to the Subcontract, Defendant retained Plaintiff to attend 4 organizational, pre-design and design meetings with Defendant; (4) that Plaintiff would be paid a lump sum of $10,000.00 for attending the 4 meetings, except for unit price work; (5) that Defendant paid Plaintiff a lump-sum of $10,000.00 under the Subcontract; (6) that the Subcontract contains an itemization of the documents the parties’ agreement consists of; (7) that the Subcontract contains a provision stating that “[t]here are no Subcontract Documents other than those listed” and that the “Subcontract supersedes prior negotiations, representations, and agreements regarding the Subcontract work, whether written or oral”; (8) that the Subcontract states the Subcontract Documents could only be amended, modified, or supplemented by written agreement of both parties; (10) that before entering into the Subcontract, Plaintiff provided Defendant with prices for its services. (UMF Nos. 1-5, 7-8, 12-13, 18.) (Emphasis added.)

Defendant argues that, as a matter of law, Plaintiff cannot prevail on a breach of contract cause of action with an “alleged oral modification or, alternatively, a separate oral agreement because Plaintiff’s allegations directly contradict the terms of the Subcontract.” (Mot., p. 9:2-6.) Specifically, Defendant argues the Subcontract is fully integrated and that an oral modification would be contrary to the terms of the Subcontract which requires that all increases in the scope of work or price be in writing. (Id. at p. 12:5-7.)

However, as Plaintiff notes in its Opposition, even fully integrated contracts with clauses that purport to bar subsequent oral modifications do not prohibit said modifications in all circumstances. (Oppo., p. 19:19-20.) “[N]otwithstanding a provision in a written agreement that precludes oral modification, the parties may, by their words and conduct, waive contractual rights.” (Wind Dancer Production Group v. Walt Disney Pictures (2017) 10 Cal.App.5th 56, 78.) “ ‘California Courts will find waiver when a party intentionally relinquishes a right or when that party’s acts are so inconsistent with an intent to enforce the right as to induce a reasonable belief that such a right has been relinquished. [Citation.]’ [Citation.]” (Id.)

Plaintiff presents evidence that it completed the work required under the written Subcontract, i.e., attending four meetings with Defendant, by August 31, 2018. (Oppo., Barrantes Decl., ¶¶ 11, 12, 14-16). During an August 31, 2018 meeting, Plaintiff’s representative explained that Defendant would need to pay for any additional work on Phase 1 of the Project, to which Defendant’s representatives agreed. (Id.) Plaintiff also presents evidence that between September 28, 2018 through January 24, 2019, it continued to work on the Project pursuant to Defendant’s oral and written requests. (Id. at ¶¶ 17-24, Exh. 6-10, Rothner Decl., ¶ 3, Exh. 1.) Plaintiff sent Defendant an email on December 5, 2018 with an invoice, referencing the parties’ August 31, 2018 meeting and agreement to pay for additional services. (Id. at ¶ 24, Exh. 10.) The email also states that the invoice is based on the existing Subcontract and the rates previously provided to Defendant on January 17, 2017. (Id.) Defendant did not dispute the invoice or the reference to the August 31, 2018 oral agreement. (See Id. at ¶¶ 25, 26, Exh. 11; Rothner Decl., ¶ 3, Exh. 1.) Rather, Defendant continued to request that Plaintiff perform additional work. (Id.) Defendant also assured Plaintiff on at least two occasions that the December 2018 invoice was being processed. (Id. at ¶¶ 27, 28, 29, Exh. 12.)

Waiver is ordinarily a question of fact. (Wind Dancer Production Group v. Walt Disney Pictures, supra, 10 Cal.App.5th at p. 78.) Here, whether Defendant’s actions constitute a waiver of the Subcontract’s express provision requiring that modifications to the scope of work be in writing is a question of fact that requires the weighing procedures of trial.

As Defendant has not demonstrated it is entitled to summary judgment as a matter of law, the Motion is DENIED.

  1. Conclusion & Order

For the foregoing reasons, Defendant Carollo Engineers, Inc.’s Motion for Summary Judgment is DENIED.

Moving party is ordered to give notice.

Case Number: 19STLC08184    Hearing Date: December 17, 2019    Dept: 94

DEMURRER TO FIRST AMENDED COMPLAINT

(CCP §§ 430.10, 436)

TENTATIVE RULING:

Defendant Carollo Engineers, Inc.’s Demurrer to First Amended Complaint is SUSTAINED WITH 20 DAYS’ LEAVE TO AMEND.

OPPOSITION: Filed on Dec. 4, 2019 [ ] Late [X] None

REPLY: None as of Dec. 12, 2019 [ ] Late [X] None

ANALYSIS:

I. Background

On September 4, 2019, Plaintiff La Loma Development Company (“Plaintiff”) filed an action for breach of contract against Defendant Carollo Engineers, Inc. (“Defendant”). On October 3, 2019, Plaintiff filed a First Amended Complaint (“FAC”).

Defendant filed a Demurrer to the First Amended Complaint on November 7, 2019. Plaintiff filed an Opposition on December 4, 2019. No reply brief has been filed.

II. Legal Standard

A demurrer for sufficiency tests whether the complaint states a cause of action.  (Hahn v. Mirda (2007) 147 Cal. App. 4th 740, 747.)  When considering demurrers, courts read the allegations liberally and in context.  (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal. App. 4th 1216, 1228.)  In a demurrer proceeding, the defects must be apparent on the face of the pleading or by proper judicial notice. (Code Civ. Proc., § 430.30, subd. (a).)  A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. (SKF Farms v. Superior Court (1984) 153 Cal. App. 3d 902, 905.)  Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. (Id.)  The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.  (Hahn, 147 Cal.App.4th at 747.)

A motion to strike lies either (1) to strike any irrelevant, false or improper matter inserted in any pleading; or (2) to strike any pleading or part thereof not drawn or filed in conformity with the laws of this state, a court rule or order of court. (Code Civ. Proc., § 436.)

III. Discussion

1. Meet & Confer Requirement

Code of Civil Procedure, section 430.31 requires that before filing a demurrer, the demurring party meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer to determine whether an agreement can be reached that would resolve the objections to be raised in the demurrer. (Code Civ. Proc., § 430.31, subd. (a).) The demurring party must file a declaration stating either that the parties met and conferred without reaching an agreement resolving the objections raised in the demurrer or stating the party subject to the demurrer failed to respond to meet and confer efforts or otherwise failed to do so in good faith. (Id., subd. (a)(3)(A)-(B).)

Defendant provides a declaration from its attorney of record Tyler S. Sanders (“Sanders”). (Mot., Sanders Decl., ¶ 1.) Sanders states he met and conferred with Plaintiff’s counsel via telephone on October 3, 2019 regarding deficiencies he perceived in the Complaint, resulting Plaintiff agreeing to amend the complaint. (Id., ¶ 3.) Sanders states he and Plaintiff’s counsel met and conferred via telephone on October 28, 2019 regarding the deficiencies he perceived in the FAC but were unable resolve the disagreement. (Id., ¶ 6.).

The meet and confer requirement is satisfied.

2. Breach of Contract (First Cause of Action)

“To establish a cause of action for breach of contract, the plaintiff must plead and prove (1) the existence of the contract, (2) the plaintiff’s performance or excuse for nonperformance, (3) the defendant’s breach, and (4) resulting damages to the plaintiff. [Citation.] ‘In an action based on a written contract, a plaintiff may plead the legal effect of the contract rather than its precise language.’ [Citation.]” (Maxwell v. Dolezal (2014) 231 Cal.App.4th 93, 97-98.)

In its Form Complaint, Plaintiff alleges that on or about February 2018, the parties entered into a “written contract and written and oral modification” entitled Construction Subcontract for Design-Build Project (the “Contract”) (Comp., BC-1), that Defendant breached the Contract by failing to pay invoices (Id., BC-2), that Plaintiff performed all obligations to defendant except those plaintiff was prevented or excused from performing (Id., BC-3), and that plaintiff suffered damages proximately caused by defendant’s breach in the amount of $25,000 resulting from unpaid invoices (Id., BC-4.)

Defendant argues Plaintiff failed to state a claim for breach of contract because the express terms of the Contract bar any oral modifications Plaintiff claims exist, so the maximum amount Plaintiff would be entitled to under the contract is $10,000. (Mot., p. 8.) Defendant also argues Plaintiff has not adequately pled the terms of the alleged contract and breach because it has failed to attach any written contract modifications to the FAC. (Mot., p. 7.) The Court agrees. It is not possible to determine the terms of the oral contract from Plaintiff’s bare allegation that oral modifications existed. Plaintiff must clearly allege the nature of the parties’ contractual relationship in order to allege a claim thereon.

The demurrer to the FAC is sustained with leave to amend.

IV. Conclusion

For the foregoing reasons, Defendant Carollo Engineers, Inc.’s Demurrer to First Amended Complaint is SUSTAINED WITH 20 DAYS’ LEAVE TO AMEND.

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SMCdept94@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.

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