This case was last updated from Los Angeles County Superior Courts on 06/26/2020 at 16:56:27 (UTC).

C W DRIVER INC VS LEGENDARY STRUCTURES INC ET AL

Case Summary

On 07/05/2016 C W DRIVER INC filed a Contract - Other Contract lawsuit against LEGENDARY STRUCTURES INC. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are MEL RED RECANA, MALCOLM MACKEY, KENNETH R. FREEMAN, MONICA BACHNER and RUTH ANN KWAN. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****5934

  • Filing Date:

    07/05/2016

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Contract - Other Contract

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

MEL RED RECANA

MALCOLM MACKEY

KENNETH R. FREEMAN

MONICA BACHNER

RUTH ANN KWAN

 

Party Details

Plaintiff and Petitioner

C.W. DRIVER INC

Defendants, Respondents and Cross Defendants

JD REINFORCING COMPANY INC

LAND MARK ELECTRIC INC

LEGENDARY STRUCTURES INC

PERI FORMWORK SYSTEMS INC

REINFORCING READY

DOES 1-50

C.W. DRIVER LLC

SPECS N MORE [DBA ROE 2]

JD REINFORCING COMPANY INC.

FIDELITY AND DEPOSIT COMPANY OF MARYLAND

LEGENDARY BUILDERS CORPORATION

LEGENDARY STRUCTURES INC. [MOE 22]

VENTANA MEDICAL CENTER LP

C.W. DRIVER LLC [LC105608]

18131 VENTURA BLVD. LLC

Cross Plaintiffs and Cross Defendants

JESSEN-WRIGHT STRUCTURAL ENGINEERS

LEGENDARY STRUCTURES INC. [MOE 22]

VENTANA MEDICAL CENTER LP

IDG PARKITECTS INC.

18131 VENTURA BLVD. LLC

Defendants and Cross Defendants

C.W. DRIVER LLC

JESSEN-WRIGHT STRUCTURAL ENGINEERS

JD REINFORCING COMPANY INC.

LEGENDARY STRUCTURES INC. [ROE 4]

FIDELITY AND DEPOSIT COMPANY OF MARYLAND

LEGENDARY STRUCTURES INC. [MOE 22]

VENTANA MEDICAL CENTER LP

IDG PARKITECTS INC.

HAMPTON REAL ESTATE HOLDINGS LP

18131 VENTURA BLVD. LLC

56 More Parties Available

Attorney/Law Firm Details

Plaintiff and Petitioner Attorney

PEPPER HAMILTON LLP

Defendant and Cross Defendant Attorneys

LUBKA & WHITE LLP

ABDULAZIZ GROSSBART & RUDMAN

HOLLINS ANDY

ATTORNEYS HOLLINS LAW

HOLLINS ANDREW STEWART

GROPMAN TED R.

HIRSCH MICHAEL DAVID ESQ.

THE GREEN LAW GROUP LLP

HART WILLIAM ROBERT

COX CASTLE & NICHOLSON LLP [S. FRAN.]

RICHARDSON MICHAEL DANTON

WEIL JEAN A.

LYNBERG & WATKINS APC

LARIN MICHAEL J.

SEVERSON & WERSON APC [IRVINE]

Cross Plaintiff Attorneys

SHUMENER ODSON & OH LLP

STEC CHARLES KENNETH

Other Attorneys

MURTAUGH TREGLIA STERN & DEILY LLP

CARNO LAW GROUP APLC

28 More Attorneys Available

 

Court Documents

Certificate of Mailing for - CERTIFICATE OF MAILING FOR (RULING ON SUBMITTED MATTER) OF 10/11/2019

10/11/2019: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (RULING ON SUBMITTED MATTER) OF 10/11/2019

Reply - REPLY IN SUPPORT OF LEGENDARY STRUCTURES, INC.'S MOTION FOR LEAVE TO FILE SECOND AMENDED CROSS-COMPLAINT OF LEGENDARY STRUCTURES, INC.; REPLY DECLARATION OF MICHAEL A. LONG IN SUPPORT THEREOF

1/28/2020: Reply - REPLY IN SUPPORT OF LEGENDARY STRUCTURES, INC.'S MOTION FOR LEAVE TO FILE SECOND AMENDED CROSS-COMPLAINT OF LEGENDARY STRUCTURES, INC.; REPLY DECLARATION OF MICHAEL A. LONG IN SUPPORT THEREOF

Answer - ANSWER TO CROSS-COMPLAINT OF IDG PARKITECTS, INC.

10/19/2018: Answer - ANSWER TO CROSS-COMPLAINT OF IDG PARKITECTS, INC.

Notice - Notice of Continuance of Hearing

2/15/2019: Notice - Notice of Continuance of Hearing

Declaration - DECLARATION AMENDED AND RESTATED DECLARATION OF EDWARD MORALES IN SUPPORT PARTIAL OBJECTION OF 18131 VENTURA TO THE REPORT AND RECOMMENDATION DATED APRIL 16 2019

4/26/2019: Declaration - DECLARATION AMENDED AND RESTATED DECLARATION OF EDWARD MORALES IN SUPPORT PARTIAL OBJECTION OF 18131 VENTURA TO THE REPORT AND RECOMMENDATION DATED APRIL 16 2019

Order - ORDER [PROPOSED] ORDER GRANTING C.W. DRIVER, INC.'S EX PARTE APPLICATION FOR AN ORDER STRIKING AND/OR SEALING "C.W. DRIVER, INC.'S OPPOSITION TO OWNERS' AMENDED AND RESTATED PARTIAL OBJECTION

7/3/2019: Order - ORDER [PROPOSED] ORDER GRANTING C.W. DRIVER, INC.'S EX PARTE APPLICATION FOR AN ORDER STRIKING AND/OR SEALING "C.W. DRIVER, INC.'S OPPOSITION TO OWNERS' AMENDED AND RESTATED PARTIAL OBJECTION

Demurrer - without Motion to Strike

10/24/2018: Demurrer - without Motion to Strike

Opposition - Opposition Opposition of 18131 Ventura Blvd, LLC, TriStar Realty Group, LLC, and Ventana Medical Center, LP to Joint Motion to Designate Case as Complex

1/31/2019: Opposition - Opposition Opposition of 18131 Ventura Blvd, LLC, TriStar Realty Group, LLC, and Ventana Medical Center, LP to Joint Motion to Designate Case as Complex

EX PARTE APPLICATION FOR ORDER DECLARING CASES RELATED AND CONSOLIDATED; DECLARATION OF JAMES S. MORSE

3/6/2018: EX PARTE APPLICATION FOR ORDER DECLARING CASES RELATED AND CONSOLIDATED; DECLARATION OF JAMES S. MORSE

OPPOSITION TO EX PARTE APPLICATION TO CONTINUE HEARING; DECLARATION OF COLIN T. MURPHY

5/4/2018: OPPOSITION TO EX PARTE APPLICATION TO CONTINUE HEARING; DECLARATION OF COLIN T. MURPHY

ANSWER OF LEGENDARY STRUCTURES INC. AND LEGENDARY BUILDERS CORPORATION TO PERI FORMWORK SYSTEMS INC.'S UNVERIFIED CROSS-COMPLAINT

6/4/2018: ANSWER OF LEGENDARY STRUCTURES INC. AND LEGENDARY BUILDERS CORPORATION TO PERI FORMWORK SYSTEMS INC.'S UNVERIFIED CROSS-COMPLAINT

OPPOSITION TO PERI FORM WORK SYSTEMS, INC.'S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION TO THE SECOND AMENDED CROSS-COMPLAINT FILED BY 18131 VENTURA BLVD, LLC, TRISTAR RE

8/7/2018: OPPOSITION TO PERI FORM WORK SYSTEMS, INC.'S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION TO THE SECOND AMENDED CROSS-COMPLAINT FILED BY 18131 VENTURA BLVD, LLC, TRISTAR RE

Minute Order -

8/27/2018: Minute Order -

Declaration - Declaration of Kent Jessen in Support of Jessen-Wright Structural Engineer's Motion for Summary Judgment

11/16/2018: Declaration - Declaration of Kent Jessen in Support of Jessen-Wright Structural Engineer's Motion for Summary Judgment

PROOF OF SERVICE OF SUMMONS

8/5/2016: PROOF OF SERVICE OF SUMMONS

DECLARATION OF EDWARD O. MORALES PURSUANT TO CODE CIV. PROC. SECTION 430.31 RE: INABILITY TO MEET AND CONFER REGARDING 18131 VENTURA, LLC AND VENTANA MEDICAL CENTER, LP'S DEMURRER TO PERI FORMWORK SYS

9/1/2017: DECLARATION OF EDWARD O. MORALES PURSUANT TO CODE CIV. PROC. SECTION 430.31 RE: INABILITY TO MEET AND CONFER REGARDING 18131 VENTURA, LLC AND VENTANA MEDICAL CENTER, LP'S DEMURRER TO PERI FORMWORK SYS

SEPARATE STATEMENT IN SUPPORT OF MOTION OF CROSS-DEFENDANT TRISTAR REALTY GROUP, LLC TO: (1) COMPEL FURTHER RESPONSES TO SPECIAL INTERROGATORIES; AND (2) IMPOSITION OF MONETARY SANCTIONS AGAINST LEGEN

9/29/2017: SEPARATE STATEMENT IN SUPPORT OF MOTION OF CROSS-DEFENDANT TRISTAR REALTY GROUP, LLC TO: (1) COMPEL FURTHER RESPONSES TO SPECIAL INTERROGATORIES; AND (2) IMPOSITION OF MONETARY SANCTIONS AGAINST LEGEN

CROSS-COMPLAINT OF VENTANA MEDICAL CENTER, LP AGAINST DFS FLOORING LP FOR: (1) BREACH OF CONTRACT (SUBCONTRACT); ETC

10/10/2017: CROSS-COMPLAINT OF VENTANA MEDICAL CENTER, LP AGAINST DFS FLOORING LP FOR: (1) BREACH OF CONTRACT (SUBCONTRACT); ETC

946 More Documents Available

 

Docket Entries

  • 09/08/2020
  • Hearing09/08/2020 at 10:00 AM in Department 71 at 111 North Hill Street, Los Angeles, CA 90012; Jury Trial

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  • 08/28/2020
  • Hearing08/28/2020 at 09:00 AM in Department 71 at 111 North Hill Street, Los Angeles, CA 90012; Final Status Conference

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  • 08/04/2020
  • Hearing08/04/2020 at 08:30 AM in Department 71 at 111 North Hill Street, Los Angeles, CA 90012; Hearing on Motion for Summary Judgment

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  • 07/24/2020
  • Hearing07/24/2020 at 11:00 AM in Department 71 at 111 North Hill Street, Los Angeles, CA 90012; Hearing on Motion for Summary Judgment

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  • 07/16/2020
  • Hearing07/16/2020 at 13:30 PM in Department 71 at 111 North Hill Street, Los Angeles, CA 90012; Hearing on Motion for Summary Adjudication

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  • 07/16/2020
  • Hearing07/16/2020 at 13:30 PM in Department 71 at 111 North Hill Street, Los Angeles, CA 90012; Hearing on Motion for Summary Judgment

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  • 07/16/2020
  • Hearing07/16/2020 at 13:30 PM in Department 71 at 111 North Hill Street, Los Angeles, CA 90012; Hearing on Motion for Summary Judgment

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  • 07/16/2020
  • Hearing07/16/2020 at 13:30 PM in Department 71 at 111 North Hill Street, Los Angeles, CA 90012; Hearing on Demurrer - without Motion to Strike

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  • 07/16/2020
  • Hearing07/16/2020 at 13:30 PM in Department 71 at 111 North Hill Street, Los Angeles, CA 90012; Hearing on Motion for Sanctions

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  • 07/16/2020
  • Hearing07/16/2020 at 13:30 PM in Department 71 at 111 North Hill Street, Los Angeles, CA 90012; Hearing on Demurrer - without Motion to Strike

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1,552 More Docket Entries
  • 08/05/2016
  • DocketProof-Service/Summons; Filed by C.W. Driver, Inc. (Cross-Defendant)

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  • 08/05/2016
  • DocketPROOF OF SERVICE OF SUMMONS

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  • 08/05/2016
  • DocketProof-Service/Summons; Filed by C.W. Driver, Inc. (Cross-Defendant)

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  • 08/05/2016
  • DocketProof-Service/Summons; Filed by C.W. Driver, Inc. (Cross-Defendant)

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  • 08/05/2016
  • DocketPROOF OF SERVICE OF SUMMONS

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  • 08/05/2016
  • DocketPROOF OF SERVICE OF SUMMONS

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  • 07/05/2016
  • DocketCOMPLAINT: 1. BREACH OF CONTRACT; ETC

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  • 07/05/2016
  • DocketComplaint; Filed by C.W. Driver, Inc. (Cross-Defendant)

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  • 07/05/2016
  • DocketSummons; Filed by C.W. Driver, Inc. (Cross-Defendant)

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  • 07/05/2016
  • DocketSUMMONS

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Tentative Rulings

Case Number: BC625934    Hearing Date: September 10, 2020    Dept: 71

Superior Court of California

County of Los Angeles

DEPARTMENT 71

TENTATIVE RULING

C.W. DRIVER, INC., a corporation,

vs.

LEGENDARY STRUCTURES, INC., a corporation, et al.

Case No.: BC625934

Hearing Date: September 10, 2020

Tentative Ruling # 1:

Jessen-Wright Structural Engineers’ demurrer to the first amended cross-complaint of Reinforcing Ready is sustained without leave to amend.

Reinforcing Ready’s demurrer to the cross-complaint of JWSE is sustained with leave to amend.

  1. JWSE’s Demurrer

    Cross-Defendant Jessen-Wright Structural Engineers (“JWSE”) demurs to the 1st (comparative (equitable) indemnity) and 2nd (declaratory relief) causes of action in the first amended cross-complaint (“FACC”) of Defendant and Cross-Complainant Reinforcing Ready, Inc. dba JD Reinforcing Ready Company (“Reinforcing”). (Notice of Demurrer, pgs. 1-2.) JWSE demurs on the grounds that the FACC fails to allege facts sufficient to constitute the causes of action and because California law does not permit equitable apportionment of damages where the underlying action is premised on a breach of a contractual duty. (Notice of Demurrer, pg. 2.)

    JWSE’s 3/4/20 request for judicial notice is granted. However, the Court will not take judicial notice of the truth of the matters asserted within the documents.

    Procedural Background

    This action arises out of allegedly defective construction work in connection with the construction of a medical office building and parking garage located at 18131 Ventura Blvd., Los Angeles, California (the “Project”). 18131 Ventura Blvd, LLC and Ventana Medical Center, LP (the “Owners”) owned the subject property and hired general contractor C.W. Driver, Inc. (“CW Driver”) to construct medical office buildings and parking garage.

    On July 5, 2016, CW Driver filed an action for breach of contract and negligence against its subcontractors Legendary Structures, Inc. (“Legendary”), Land Mark Electric, Inc. (“Land Mark”), PERI Formwork Systems, Inc. (“PERI”), and Reinforcing. On September 7, 2018, Reinforcing named JWSE as a Roe Defendant on its November 9, 2016 cross-complaint. Reinforcing’s cross-complaint alleged causes of action for (1) comparative (equitable) indemnity, (2) implied indemnity, and (3) declaratory relief. On January 14, 2020, the Court sustained JWSE’s demurrer to Reinforcing’s cross-complaint without leave to amend as to the 2nd cause of action and with leave to amend as to the 1st and 3rd causes of action. (See Court’s 1/14/20 Ruling on Submitted Matter (“Prior Ruling”).) The Court also sustained the demurrer of Cross-Defendant Keith Weitzman dba Specs & More (“Weitzman”) to the same causes of action.

    In its ruling, the Court found that the duty Reinforcing alleged JWSE had, to not negligently harm Reinforcing’s work on the project, would be implied from JWSE’s contractual obligations and not from tort liability to a third party. (Prior Ruling, pgs. 4-5.) In addition, in addressing Reinforcing’s argument JWSE owed a duty under the Biakanja factors, the Court noted Reinforcing improperly relied on facts beyond the scope of the pleadings relating to JWSE’s preparation and approval of specifications. (Prior Ruling, pg. 5.) The Court found the Biakanja factors may provide for liability if allegations suggest JWSE’s negligent performance of the contract injured a third party; however, the Court did not address whether the proposed allegations would be sufficient. (Prior Ruling, pg. 5.)

    On January 31, 2020, Reinforcing filed its FACC in which the 1st (comparative equitable indemnity) and 2nd (declaratory relief) causes of action are asserted against Cross-Defendants JWSE, Weitzman, and Koury Engineering & Testing, (“Koury”) (collectively, “Cross-Defendants”). Weitzman and Koury filed their answers on February 27, 2020 and March 4, 2020, respectively. JWSE filed the instant demurrer on March 4, 2020.

    Comparative (Equitable) Indemnity (1st COA)

“Implied contractual indemnity is a form of equitable indemnity, arising from equitable considerations either by contractual language not specifically dealing with indemnification or by the equities of the specific matter.” (Sehulster Tunnels/Pre-Con v. Traylor Bros./Obayashi Corp. (2003) 111 Cal. App. 4th 1328, 1350.) The California Supreme Court has held that although the obligation of indemnity historically took three forms including indemnity implied from a contract and indemnity arising from equities, “there are only two basic types of indemnity: express indemnity and equitable indemnity. [Citation]. Though not extinguished, implied contractual indemnity is now viewed simply as ‘a form of equitable indemnity’.” (Prince v. Pacific Gas & Electric Co. (2009) 45 Cal. 4th 1151, 1157.)

“The elements of a cause of action for indemnity are (1) a showing of fault on the part of the indemnitor and (2) resulting damages to the indemnitee for which the indemnitor is contractually or equitably responsible.” (Expressions at Rancho Niguel Ass’n v. Ahmanson Developments, Inc. (2001) 86 Cal. App. 4th 1135, 1139.) The doctrine of equitable indemnity applies “only among defendants who are jointly and severally liable to the plaintiff…[w]ith limited exception, there must be some basis for tort liability against the proposed indemnitor. [Citations omitted].” (BFGC Architects Planners, Inc. v. Forcum/Mackey Construction, Inc. (2004) 119 Cal.App.4th 848, 852; see also State Ready Mix, Inc. v. Moffatt & Nichol (2015) 232 Cal.App.4th 1227.) Generally, the basis for liability is “based on a duty owed to the underlying plaintiff… In addition, implied contractual indemnity between the indemnitor and the indemnitee can provide a basis for equitable indemnity. [Citations omitted.]” (BFGC Architects Planners, Inc. v. Forcum/Mackey Construction, Inc., supra, 119 Cal.App.4th at 852.) “[J]oint and several liability in the context of equitable indemnity is fairly expansive…[i]t can apply to acts that are concurrent or successive, joint or several, as long as they create a detriment caused by several actors. [Citations omitted.]” (Ibid.)

Reinforcing’s equitable indemnity cause of action is based on allegations CW Driver’s negligence claim against Reinforcing involves a claim Reinforcing negligently caused damage to the trades of others. (FACC ¶5.) Reinforcing alleges it was subcontracted to install rebar and post-tension cabling, and if Reinforcing caused damage to the work of others, as alleged by CW Driver, the damages sound in tort and not in contract. (FACC ¶6.) Reinforcing denies CW Driver’s claims have merit; however, alleges to the extent they have merit, any damages were the result of acts and/or omissions of Cross-Defendants, specifically, the following acts by JWSE: (1) negligent review, mark up, and revisions of Weitzman’s original specifications; and (2) negligent contribution to the building manuals pursuant to the final specifications for the Project. (FACC ¶7(e)-(h).) Reinforcing alleges JWSE had no written agreement with Reinforcing, but at all relevant times JWSE knew the extent to which its acts and omissions could impact Reinforcing’s installation of the rebar and cabling such that it was foreseeable JWSE’s negligent review, markup, and revision of the original specifications could result in harm to Reinforcing’s work product and the work of other tradesmen. (FACC ¶9.) Reinforcing alleges JWSE’s negligence caused damage to Reinforcing’s installation work and the work of other tradesmen as alleged in CW Driver’s complaint. (FACC ¶9.) Reinforcing alleges CW Driver’s causes of action arose out of the design, planning, construction, modification, inspection at the Property and if CW Driver has been damaged by any wrongful conduct on Reinforcing’s part, then acts/omissions of Cross-Defendants caused the damages. (FACC ¶10.)

CW Driver’s complaint against Reinforcing alleges Reinforcing, as a sub-subcontractor to the concrete subcontractor Legendary on the Project, was “contractually required to perform their work in accordance with the Project plans and specifications.” (RJN Exh. A (“CWD Complaint”), ¶4.) CW Driver alleges the Owners contended that there were multiple defects with the Project, including a failure by the subcontractors to “build the Project in accordance with the Project plans and specifications.” (CWD Complaint ¶5.) CW Driver alleges as a result of the defects, Owners have demanded the concrete work be removed, replaced and/or remediated and has demanded CW Driver perform such work at its cost and to the extent such work delays completion of the Project, those costs are CW Driver’s responsibility. (CWD Complaint ¶17.) The negligence cause of action against Reinforcing alleges Reinforcing had a “duty to perform its work on the Project in a non-negligent manner” but “performed its work at the Project in a negligent manner.” (CWD Complaint ¶¶17-18, 24.) Specifically, CW Driver alleges Reinforcing’s “negligent installation of reinforcing steel… caused damage to the work” of the other contactors on the Project. (CWD Complaint ¶21.) The Court notes Owners’ fourth amended cross-complaint (“4ACC”) also asserts causes of action against Reinforcing for “negligent placement of reinforcing steel” which caused or contributed to defective work by other subcontractors; however, Reinforcing’s FACC does not reference Owner’s 4ACC. (RJN, Exh. B, [4ACC] ¶71, 72.)

Reinforcing failed to allege sufficient facts to constitute the cause of action. Specifically, Reinforcing’s allegations JWSE negligently reviewed, marked up, and/or revised Weitzman’s specifications and/or negligently contributed to the building manuals sound in contract, not in tort. As such, Reinforcing’s equitable indemnity claim is not supported. (Stop Loss Ins. Brokers, Inc. v. Brown & Toland Medical Group (2006) 143 Cal.App.4th 1036, 1040-42, n. 2.) While Reinforcing alleges the damages claimed by CW Driver sound in tort, a review of the allegations demonstrates that, to the extent Reinforcing claims damages it owes CW Driver are actually the result of JWSE breaching of duty to review the plan specifications, such a duty constitutes a negligent breach of JWSE’s duties under its contract. As such, Reinforcing’s action seeks equitable indemnity for JWSE’s breach of contractual duty.

In addition, Reinforcing failed to allege facts suggesting JWSE owed Reinforcing a duty of care, given Reinforcing and JWSE are not in privity of contract and JWSE was a design professional on the Project. The California Supreme Court has held that “a contractual obligation may create a legal duty and the breach of that duty may support an action in tort... however, conduct amounting to a breach of contract becomes tortious only when it also violates a duty independent of the contract arising from principles of tort law. [Citation] ‘ “An omission to perform a contract obligation is never a tort, unless that omission is also an omission of a legal duty.”¿’¿” (Erlich v. Menezes (1999) 21 Cal.4th 543, 551.) “Whether a defendant owes a duty of care is a question of law. Its existence depends upon the foreseeability of the risk and a weighing of policy considerations for and against imposition of liability.’ [Citation.]” (Id. at p. 552.) Moreover, “mere negligent breach of a contract” does not give rise to tort liability. (Ibid.)

Where “negligent performance of a contract gives rise to contract damages only, such alleged negligence will not support a claim for equitable indemnity.” (Stop Loss Ins. Brokers, Inc. v. Brown & Toland Medical Group (2006) 143 Cal.App.4th 1036, 1044, see also BFGC Architects Planners, Inc. v. Forcum/Mackey Construction, Inc. 119 Cal.App.4th at 853, “[w]ithout any action sounding in tort, there is no basis for a finding of potential joint and several liability… thereby precluding a claim for equitable indemnity.”].) Moreover, Stop Loss noted California law does not permit equitable apportionment of damages for breach of contract. (Stop Loss Ins. Brokers, Inc. v. Brown & Toland Medical Group, supra, 143 Cal.App.4th at 1041, n. 2.)

Reinforcing has not alleged facts suggesting the Court should impose liability based on the relationship between JWSE and Reinforcing. In Stop Loss, the Court noted “courts have not applied the Biakanja factors to create broad tort duties in arms-length business dealings whenever it is convenient to resort to the law of negligence. [Biakanja v. Irving (1958) 49 Cal.2d 647 (“Biakanja”)] and [J’Aire Corp. v. Gregory (1979) 24 Cal.3d 799 (“J’Aire”)] address the specific situation that arises when (1) the defendant was acting pursuant to a contract, and (2) the defendant’s negligent performance of the contract injures a third party.” (Stop Loss Ins. Brokers, Inc., supra, 143 Cal.App.4th at p. 1042.) Here, JWSE was acting pursuant to its contract; however, Reinforcing has not alleged facts suggesting JWSE’s negligent performance of its contract injured a third party, as was the case in Biakanja (a defendant notary’s contractual and professional duty of care to a client for whom he drafted a will extended to a third party beneficiary of the will who was injured by negligent drafting) or J’Aire (a defendant general contractor’s contractual duty of care to premises owner extended to a lessee of the premises being improved who was injured by negligent performance of the contractual duties). Reinforcing alleges JWSE “negligently” performed its contractual duty of reviewing the specifications, which resulted in “harm to [Reinforcing’s] work product” causing damage to its installation work and the work of other tradesmen. (FACC ¶9.) The allegation Reinforcing and other tradesmen were injured due to the damage to their work caused by JWSE’s negligent performance is insufficient to extend the contractual and professional duties JWSE owed to IDG and the Owners to Reinforcing. CW Driver’s action against Reinforcing is based on allegations Reinforcing negligently performed its contractual duties as a subcontractor, and if the damage to Owners, for which CW Driver bring its action, was instead due to the failure of JWSE or Weitzman to properly review or draft specifications, liability would not impose on Reinforcing because it would not have negligently carried out the plan specifications.

Even if the Court were to apply the Biakanja factors to establish a duty between Reinforcing and JWSE based on their relationship and the alleged damages, Reinforcing fails to allege facts suggesting the Biakanja factors entitle Reinforcing to a duty of care from JWSE in the absence of a contract between the parties. (See Biakanja v. Irving, supra, 49 Cal.2d at 650.) In Biakanja, the court held that the “determination whether… the defendant will be held liable to a third person not in privity is a matter of policy and involves the balancing of various factors, among which are [1] the extent to which the transaction was intended to affect the plaintiff, [2] the foreseeability of harm to [the plaintiff], [3] the degree of certainty that the plaintiff suffered injury, [4] the closeness of the connection between the defendant’s conduct and the injury suffered, [5] the moral blame attached to the defendant’s conduct, and [6] the policy of preventing future harm.” (Ibid.; see also Bily v. Arthur Young & Co. (1992) 3 Cal.4th 370, 397.)

Reinforcing does not allege facts satisfying the Biakanja factors to establish liability in the absence of contractual privity. As to the first factor, Reinforcing’s allegation JWSE, as a structural engineer retained by the architect IDG, “knew” the extent to which its acts could impact Reinforcing’s work on the Project is conclusory and not supported by facts. (FACC ¶9; Opposition, pg. 9.) Rather, even as alleged by Reinforcing, JWSE’s duties to review specifications prepared by others which would have been used to create building manuals, which Reinforcing may have used to perform its duties suggest JWSE’s work was primarily intended to benefit and affect the party that retained it, not a subcontractor on the Project. Moreover, absent an intended beneficiary clause in any contract relating to the structural design, the first factor has little weight. (Reply, pg. 5; See Weseloh Family Ltd. Partnership v. K.L. Wessel Construction Co., Inc. (2004) 125 Cal.App.4th 152, 167.) As to the second factor, Reinforcing alleges it was very foreseeable JWSE’s negligent review of specifications could result in harm to Reinforcing’s work and the work of others. (FACC ¶9.) However, in addition to foreseeability not being a determining factor, this allegation runs counter to CW Driver’s theory of liability against Reinforcing, which is based on Reinforcing’s failure to follow the plan specifications. (RJN, Exh. A, ¶5; See Bily v. Arthur Young & Co., supra, 3 Cal.4th at 398-399.) Given CW Driver’s allegations, Reinforcing must also allege facts suggesting it would be foreseeable to JWSE that Reinforcing would fail to follow plan specifications; which Reinforcing has not done. Similarly, Reinforcing does not allege facts supporting the fourth factor, the degree of certainty Petitioner suffered injury, since the FACC does not allege JWSE knew or should have known Reinforcing did not follow specifications. (Reply, pgs. 6-7; See State Ready Mix, Inc. v. Moffatt & Nicol (2015) 232 Cal.App.4th 1227, 1234 [third factor weighs against imposition of duty of care where there are no facts alleged that engineer knew or should have known that third party, seeking equitable indemnification, deviated from the approved design].) As to the fourth factor, Reinforcing’s allegations suggest JWSE’s role in reviewing and approving the specifications was attenuated from the injury suffered, especially given language in the allegations that the plans may have been used to prepare a building manual which then may have been used by Reinforcing. (FACC ¶¶7, 9.) Reinforcing’s assertion that the approval function performed by JWSE was closely connected with Reinforcing’s installation is conclusory. (Opposition, pg. 7.) Reinforcing also alleges no facts supporting the fifth factor, that JWSE has moral blame for Reinforcing’s wrongful conduct, especially given no facts are alleged suggesting JWSE controlled Reinforcing’s performance or the relationship between Reinforcing and Legendary, the concrete subcontractor. Finally, Reinforcing does not allege facts in support of the sixth factor, which considers whether a duty should attach to serve the policy of preventing future harm. (Reply, pg. 8.) As such, Reinforcing has not alleged facts suggesting the Biakanja factors support imposing a duty of care on JWSE.

Reinforcing alleges to the extent CW Driver is damaged by Reinforcing wrongful conduct, JWSE’s negligent review of the Weitzman plans contributed to such damage; however, CW Driver’s claim against Reinforcing is based on Reinforcing’s failure to follow the plans and specifications. As such, if it is found Reinforcing did follow the plans and specifications, it would not be liable to CW Driver for damages, even if those plans were negligently prepared. Reinforcing has not alleged a special relationship between itself and JWSE to establish a duty.

Based on the foregoing, JWSE’s demurrer to the 1st cause of action is sustained without leave to amend.

Declaratory Relief (2nd COA)

Under Civil Code §2778, “In the interpretation of a contract of indemnity, the following rules are to be applied, unless a contrary intention appears ... (4) The person indemnifying is bound, on request of the person indemnified, to defend actions or proceedings brought against the latter in respect to the matters embraced by the indemnity, but the person indemnified has the right to conduct such defenses, if he chooses to do so.” (Civil Code §2778(4).) “[I]n the absence of any contrary intention, the scope of the duty to defend which is implied in an indemnification clause has the same scope as the duty to indemnify. Conversely, if an action is brought against the indemnitee which is not ‘embraced by the indemnity’ duty, there is no duty to defend. (City of Bell v. Superior Court (2013) 220 Cal.App.4th 236, 249.)

As discussed above, Reinforcing has failed to sufficiently allege a cause of action for equitable indemnity against JWSE. Therefore, pursuant to Civil Code §2778, the cross-complaint also does not state a cause of action for duty to defend.

Based on the foregoing, JWSE’s demurrer to the 3rd cause of action is sustained without leave to amend.

  1. Reinforcing’s Demurrer

    Reinforcing demurs to the 2nd (express contractual indemnity) cause of action in the cross-complaint of JWSE. (Notice of Demurrer, pgs. 1-2.) Reinforcing demurs on the grounds JWSE fails to allege facts sufficient to constitute the cause of action. (Notice of Demurrer, pg. 2.)

    JWSE’s 4/14/20 request for judicial notice is granted. However, the Court will not take judicial notice of the truth of the matters asserted within the documents.

    On December 12, 2018, JWSE filed a cross-complaint against Reinforcing, Legendary, LME, and Peri alleging causes of action for (1) equitable indemnity, (2) express contractual indemnity, and (3) declaratory relief – duty to defend. In support of its express indemnity cause of action against Reinforcing, JWSE alleges that, pursuant to the subcontractor agreement entered into between Reinforcing and CW Driver and/or Legendary, Reinforcing has an obligation to JWSE to indemnify, defend and hold harmless JWSE from all claims arising out of or resulting from the performance of Reinforcing’s work. (Cross-Complaint ¶14.) JWSE alleges Owners’ damages asserte4d against IDG and subsequently against JWSE arise out of the services performed by Reinforcing and other subcontractors, triggering the indemnification provision. (Cross-Complaint ¶15.)

    Express Indemnity (2nd COA)

    “Indemnity may be defined as the obligation resting on one party to make good a loss or damage another party has incurred. This obligation may be expressly provided for by contract, it may be implied from a contract not specifically mentioning indemnity, or it may arise from the equities of particular circumstances. Where… the parties have expressly contracted with respect to the duty to indemnify, the extent of that duty must be determined from the contract and not by reliance on the independent doctrine of equitable indemnity. (McCrary Construction Co. v. Metal Deck Specialists, Inc. (2005) 133 Cal.App.4th 1528, 1536 (Citations Omitted).)

    JWSE did not allege sufficient facts to state a cause of action for express indemnity against Reinforcing. JWSE’s express indemnity cause of action is based on allegations Reinforcing agreed to indemnify “Contractor, General Contractor, Owner, Architect, Architect’s Consultants and the officers, director, shareholders, partners, representatives, agents and employees of each of them…, from and against all claims… arising out of or resulting from the performance of the Work, breach of the Contract by [Reinforcing], or the acts or omissions of [Reinforcing]…” (Cross-Complaint ¶14c; Exh. C §5.6.1 (Emphasis added).) JWSE alleges Owners’ damages asserted against IDG and subsequently against JWSE arise out of the services performed by Reinforcing, and as a consequence thereof, Reinforcing’s indemnification obligations have been triggered. (Cross-Complaint ¶15.) However, based on the four corners of the cross-complaint, JWSE has not alleged facts suggesting it was retained by IDG as its Architect’s Consultant such that the indemnity provision of Section 5.6.1 applies to it. The cross-complaint incorporates by reference Owners’ July 27, 2017 Amended Cross-Complaint against IDG and IDG’s Cross-Complaint and Amended Cross-Complaint against JWSE filed on September 15, 2015 and January 16, 2018, respectively. (Cross-Complaint ¶¶6-7.) However, JWSE does not set forth the allegations of the cross-complaints it incorporates by reference and does not attach the cross-complaints to its pleading, and as such, their allegations go beyond the four corners of the cross-complaint. The cross-complaint’s allegations do not demonstrate JWSE is entitled to indemnification from Reinforcing based on Section 5.6.1.

    Reinforcing also argues JWSE cannot qualify as an “Architect’s Consultant” because JWSE is a structural engineer, which is a separate and distinguishable term from a consultant as demonstrated by the language of the subcontract itself. (Demurrer, pgs. 1-2; Cross-Complaint, Exh. C: Exh. A.) Reinforcing argues the fact the subcontract agreement distinguishes between “Contractor’s architects, engineers, contractor’s suppliers, consultants…” suggests engineers and consultants are different. (Demurrer, pgs. 1-2.) Reinforcing argues, as a structural engineer, JWSE is not an Architect’s Consultant, and is therefore not included in the indemnity provision. However, the terms of the subcontract agreement do not suggest a consultant and an engineer are mutually exclusive and cannot be terms that refer to the same party. While not properly alleged in the cross-complaint, JWSE argues it was retained by IDG, the Architect, as a structural engineer on the Project, and as such, it would qualify as a consultant to the Architect, IDG. (Opposition, pgs. 4-5.) The contract language is not reasonably susceptible to Reinforcing’s assertion that the term “Architect’s Consultant” specifically excludes all engineers, even when those engineers were hired by the Project’s architect. Reinforcing does not cite to language of the subcontract agreement suggesting the drafters intended to exclude a structural engineer retained by the project architect from the term “Architect’s Consultant.” The language Reinforcing references in Exhibit B as suggesting “engineers and consultants are different” merely relates to how subcontractor will coordinate with the various listed entities the contractor has retained, without indicating that in so listing, the subcontract is limiting the scope or definition of any of those entities. (Demurrer, pg. 1; Exh. B to Subcontract Agreement.) As such, the Court will not sustain Reinforcing’s demurrer on the ground that the term “Architect’s Consultant” excludes a structural engineer hired by the Project’s Architect. However, as discussed above, the cross-complaint does not include or attach allegations relating to JWSE’s retention by IDG on the project.

Based on the foregoing, Reinforcing’s demurrer to the 2nd cause of action is sustained with leave to amend.

Dated: September _____, 2020

Hon. Monica Bachner

Judge of the Superior Court

Tentative Ruling # 2:

Cross-Complainant Jessen-Wright Structural Engineers’ motion for summary adjudication is granted.

Cross-Complainant Jessen-Wright Structural Engineers (“JWSE”) moves for summary adjudication of its 3rd (declaratory relief – duty to defend) cause of action against Cross-Defendant Land Mark Electric (“LME”) on JWSE’s cross-complaint [Issue No. 1]. (Notice of Motion, pg. 2; C.C.P. §437c(f).) JWSE moves for summary adjudication on the grounds that there is no disputed material fact that LME has and had a duty to defend JWSE in the present action based upon the express terms of LME’s Master Subcontract Agreement. (Notice of Motion, pg. 2; Motion, pg. 15.)

Requests for Judicial Notice

JWSE’s 5/4/20 request for judicial notice is granted. However, the Court will not take judicial notice of the truth of the matters asserted within the 7/5/16 Complaint of CW Driver, the 7/27/17 Amended Cross-Complaint of Owners, the 1/16/18 Corrected First Amended Cross-Complaint of IDG, the 11/15/18 Fourth Amended Cross-Complaint of Owners, the 12/12/18 Cross-Complaint of JWSE, the 8/7/18 Moe Amendment to IDGP’s First Amended Cross-Complaint, or the 11/1/19 Ruling on LME’s Demurrer to JWSE’s Cross-Complaint. (J-RJN, Nos. 1-7, J-COE, Exhs. H, A, E, B, J, P, & R.)

LME’s 7/21/20 request for judicial notice is granted. However, the Court will not take judicial notice of the truth of the matters asserted within JWSE’s 3/3/20 Opposition to LME’s Motion for Summary Judgment or the Court’s 1/21/20 Ruling on JWSE’s Demurrer to JD Reinforcing’s Cross-Complaint. (L-RJN, Nos. 1, 2; L-COE, Exhs 3, 4.)

JWSE’s 7/30/20 supplemental request for judicial notice is granted. However, the Court will not take judicial notice of the truth of the matters asserted in its 7/16/20 Ruling on LME’s MSJ/MSA or of LME’s 1/14/19 Designation of Expert Witness. (Reply-RJN, Exhs. A, B.)

Evidentiary Objections

C.C.P. §437c(q) provides as follows: “In granting or denying a motion for… summary adjudication, the court need rule only on those objections to evidence that it deems material to its disposition of the motion. Objections to evidence that are not ruled on for purposes of the motion shall be preserved for appellate review.”

LME’s 7/21/20 evidentiary objections to the Declaration of Kent Jessen (“Jessen”) are overruled as to Nos. 1 [¶3] and 2 [¶8].

LME’s 7/21/20 evidentiary objections to the 7/5/16 Complaint of CW Driver [J-COE, Exh. H] are overruled as to Nos. 3 [¶13], 4 [¶23], 5 [¶4], and 6 [¶¶17-18, 24]. The Court notes LME raises the same evidentiary objection to cited allegations of various cross-complaints underlying the instant motion as improperly submitted because allegations are not evidence and because the allegations are irrelevant. However, the Court does not consider the allegations evidence; rather, to determine whether LME’s duty to defend has been triggered, the Court must consider the allegations in combination with submitted evidence of the applicable agreements between the parties pursuant to which LME purportedly agreed to indemnify and defend. As such, LME’s objections lack merit.

LME’s 7/21/20 evidentiary objections to allegations contained in both the 7/27/17 Amended Cross-Complaint of Owners [J-COE, Exh. A] and the 11/15/18 Fourth Amended Cross-Complaint of Owners [J-COE, Exh. B] are overruled as to Nos. 7 [ACC ¶¶44, 52-55, 109, 123-125; 4ACC ¶¶58, 61-69, 123, 150-152], and 8 [ACC ¶47; 4ACC ¶61]. The Court took judicial notice of the existence of the pleadings, not of the truth of the matters asserted therein.

LME’s 7/21/20 evidentiary objections to allegations contained in the 7/27/17 Corrected First Amended Cross-Complaint of IDG [J-COE, Exh. E] are overruled as to Nos. 9 [CFACC ¶6], 10 [CFACC ¶¶11, 20], 11 [CFACC ¶¶37-38], and 12 [CFACC ¶¶39, 49]. The Court took judicial notice of the existence of the pleading, not of the truth of the matters asserted therein.

LME’s 7/21/20 evidentiary objection to allegations contained in the 12/12/18 Cross-Complaint of JWSE [J-COE, Exh. J] is overruled as to No. 13 [CC ¶14, 22]. The Court took judicial notice of the existence of the pleading, not of the truth of the matters asserted therein.

LME’s 7/21/20 evidentiary objection to the Court’s 11/1/19 Ruling is overruled as to No. 14. The Court took judicial notice of the existence of the ruling, not of the truth of the matters asserted therein.

LME’s 7/21/20 evidentiary objections to the 12/31/18 Expert Report of Ficcadenti [J-COE, Exh. T] are overruled as to Nos. 15 [pg. 9] and 16 [pgs. 1-2].

JWSE’s 7/30/20 evidentiary objections to the declaration of Matthew J. Nardella (“Nardella”) are overruled as to Nos. 1 [¶8], 2 [¶9], 3 [¶10], 4 [¶11], 13 [¶20], 21 [¶28], and 22 [¶29] and sustained as to Nos. 5 [¶12], 6 [¶13], 7 [¶14], 8 [¶15], 9 [¶16], 10 [¶17], 11 [¶18], 12 [¶19], 14 [¶21], 15 [¶22], 16 [¶23], 17 [¶24], 18 [¶25], 19 [¶26], 20 [¶27], 23 [¶30], and 24 [¶31] (improper legal conclusion beyond the scope of the expert designation).

LME’s 7/30/20 evidentiary objection to the Reply of Owners and the supplemental evidence contained therein is sustained.

LME’s 7/30/20 evidentiary objection to Reply Declaration of Charles K. Stec (“Stec”) is overruled. While a reply cannot contain new evidence since it violates the opposing party’s right to due process, rebuttal evidence is permitted in reply and the Declaration of Stec addresses issues raised for the first time in LME’s opposition [Expert Designation] and/or rulings issued after the motion was filed [Ruling on LME’s MSJ/MSA]. (See San Diego Watercrafts, Inc. v. Wells Fargo Bank (2002) 102 Cal.App.4th 308, 316; see also Weiss v. Chevron, U.S.A., Inc. (1988) 204 Cal.App.3d 1094, 1098–1099.)

CRC Violations & Issues

LME’s Response to JWSE’s Separate Statement misstates Nos. 2 and 3. For the purposes of this motion, the Court considers SSF Nos. 2 and 3 undisputed.

Background of Action, Cross-Complaints, & Procedural Background

This action arises out of the construction of a medical office building and parking garage structure located at 18131 Ventura Boulevard, Tarzana, California (the “Project”). (USSF No. 1 (“USSF” refers to undisputed fact in JWSE’s Separate Statement of Facts).) The Project’s owners, 18131 Ventura Boulevard, LLC, Ventana Medical Center, LP, and TriStar Realty Group, LLC (“TriStar”) (collectively, “Owners”) hired C.W. Driver, Inc. (“CW Driver”) as the Project’s general contractor. (USSF No. 13.) CW Driver retained LME as the electrical subcontractor for the Project’s parking garage. (USSF No. 14.) In addition to LME, CW Driver entered into subcontracts with Legendary Structures, Inc. (“Legendary”), Peri Formwork Systems, Inc. (“Peri”), and JD Reinforcing Company (“JD Reinforcing”) (collectively, “Subcontractors”). IDG Parkitects, Inc. (“IDG”) was retained by Owners as the architectural design consultant pursuant to the 4/20/11 Professional Services Agreement (“PSA”) whereby IDG agreed to provide certain planning, design, and contract administration services for the Project’s parking garage. (USSF No. 4.) JWSE served as a sub-consultant to IDG to provide certain structural design and construction administration services on the Project pursuant to the terms of the 5/31/12 Proposal. (USSF Nos. 6-7.)

During the Project, a dispute arose between the Owners and CW Driver related to concrete work and beam clearance issues, which had been carried out by Subcontractors.

On July 5, 2016, CW Driver filed a complaint against Subcontractors in connection with the dispute. On March 24, 2017, CW Driver filed a separate complaint against Owners, which the Court consolidated with the instant action. On May 22, 2017, Owners filed a cross-complaint against CW Driver and Subcontractors, the operative version of which, the fourth amended cross-complaint (“4ACC”), includes breach of contract, express indemnity, implied indemnity, and declaratory relief causes of action against IDG. (USSF No. 34; See JWSE’s Compendium of Evidence (“J-COE”), Exh. B: 4ACC.) Owners alleged IDG breached its duty of care by failing to perform services for Owner in a reasonable and professional manner. (USSF No. 35, 4ACC ¶154.) Owners’ 4ACC also includes causes of action against LME for breach of contract, breach of warranty, negligence, express indemnity, implied indemnity, and declaratory relief. (USSF No. 32.) As to LME, Owners alleged that during the level-one concrete pour, LME routed electrical conduits through a five-inch slab rather than through the eight-inch slab in accordance with the plans and submittals provided by LME, which resulted in the five-inch slab becoming thicker and/or leaving features with inadequate cover. (USSF No. 33; 4ACC ¶61.) Owners allege LME possessed the plans indicating where to route electrical conduits, but negligently failed to comply with those plans, and LME’s defective work caused damages to work performed by other contractor-defendants. (USSF No. 33; 4ACC ¶61.) Owners allege LME and other contractor defendants refuse to accept responsibility for the defective construction by asserting that the design services provided by IDG were negligent and deficient. (4ACC ¶¶150, 154.)

On January 16, 2018, IDG filed its First Amended Cross-Complaint (“FACC”) against JWSE and Tristar [Corrected First Amended Cross-Complaint (“CFACC”) filed on March 5, 2018], in which the 1st (express contractual indemnity), 2nd (declaratory relief—duty to defend), 3rd (implied equitable indemnity), and 4th (contribution) causes of action are asserted against JWSE. (USSF Nos. 36-37; See J-COE, Exh. E: CFACC.) IDG seeks indemnity and defense from JWSE for the claims asserted by Owners. (USSF No. 38; CFACC ¶¶6-8.) On August 7, 2018, IDG named LME as a cross-defendant to its CFACC in place of MOE 21 and IDG alleges LME agreed to defend, indemnify, and hold harmless IDG pursuant to the Master Subcontract Agreement and that IDG is a third-party beneficiary to that agreement. (USSF Nos. 39-40; See J-COE, Exh. E CFACC ¶¶37-38; Exh. P, MOE Amendment.) IDG seeks indemnity and defense from LME for the claims asserted by Owners. (CFACC ¶¶39, 44.)

On December 12, 2018, JWSE filed its cross-complaint alleging causes of action for express contractual indemnity and declaratory relief – duty to defend against LME. (USSF Nos. 42-43; J-COE, Exh. J: JWSE Cross-Complaint (“J-CC”).) JWSE alleged, pursuant to the Master Subcontract Agreement between LME and CW Driver, LME has an obligation to JWSE to indemnify, defend, and hold harmless JWSE from all claims arising out of or resulting from the performance of LME’s subcontract work. (USSF No. 44; J-CC ¶¶14, 22.) JWSE demands LME defend JWSE against the claims alleged by Owners and IDG. (USSF No. 45; J-CC ¶8.) JWSE alleged Owners’ alleged damages against IDG and subsequently against JWSE arise out of services performed by LME such that LME’s obligations to indemnify, defend, and hold harmless JWSE have been triggered. (J-CC ¶15.) In support of its declaratory relief – duty to defend cause of action, JWSE alleged a dispute has arisen between JWSE and LME with respect to the right to receive indemnification, JWSE is entitled to be indemnified by LME if it suffers a judgment in the action, and LME disputes its duty to defend JWSE. (J-CC ¶21.) On July 30, 2018, JWSE tendered its defense in this matter to LME demanding LME defend JWSE against Owners’ claims; however, LME has not accepted JWSE’s tender and is not defending JWSE from Owners’ claims. (USSF Nos. 46-47.)

On November 1, 2019, the Court overruled LME’s demurrer to the express contractual indemnity and declaratory relief – duty to defend causes of action in JWSE’s cross-complaint. (11/1/19 Ruling on Submitted Matter.) On May 4, 2020, JWSE filed the instant motion. On July 21, 2020, LME filed its opposition and supporting documents. On July 30, 2020, JWSE filed its reply and supporting documents. On July 30, 2020, Owners also filed a reply to LME’s opposition to address LME’s characterization of Owners’ allegations or claims Owners claim to be inconsistent with their FACC or the evidence. On July 30, 2020, LME filed evidentiary objections to JWSE’s evidence in support of reply and to Owners’ reply.

JWSE’s Burden on Summary Adjudication

C.C.P. §437c(f)(1) provides that, “A party may move for summary adjudication as to one or more causes of action within an action…, or one or more issues of duty, if the party contends that the cause of action has no merit…, or that one or more defendants either owed or did not owe a duty to the plaintiff… 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.”

JWSE moves for summary adjudication of its own cause of action against LME in its cross-complaint on the issue of LME’s duty to defend. (Motion, pgs. 14-15.) As such, JWSE has the burden of submitting evidence demonstrating LME owes it a duty to defend, upon which, the burden shifts to LME to create a triable issue of material fact as to any of the evidence in order defeat summary adjudication of the issue of duty.

Declaratory Relief – Duty to Defend (3rd COA)

A cause of action for declaratory relief requires the following elements: (1) person interested under a written instrument or a contract; or (2) a declaration of his or her rights or duties (a) with respect to another or (b) in respect to, in, over or upon property; and (3) an actual controversy. (C.C.P. §1060.)

Under Civil Code §2778, “In the interpretation of a contract of indemnity, the following rules are to be applied, unless a contrary intention appears ... (4) The person indemnifying is bound, on request of the person indemnified, to defend actions or proceedings brought against the latter in respect to the matters embraced by the indemnity, but the person indemnified has the right to conduct such defenses, if he chooses to do so.” (Civil Code §2778(4).) “[I]n the absence of any contrary intention, the scope of the duty to defend which is implied in an indemnification clause has the same scope as the duty to indemnify. Conversely, if an action is brought against the indemnitee which is not ‘embraced by the indemnity’ duty, there is no duty to defend.” (City of Bell v. Superior Court (2013) 220 Cal.App.4th 236, 249.)

JWSE submitted evidence suggesting no triable issue of material fact exists as to LME’s duty to defend JWSE in the instant action based upon the express terms of LME’s Master Subcontract Agreement with CW Driver. Specifically, JWSE submitted evidence of the operative underlying contracts between the parties and the indemnification provisions contained therein and evidence Owners’ claims fall within the indemnity provision. JWSE submitted evidence the Master Subcontract Agreement between LME and CW Driver provided as follows: “[LME] shall defend, indemnify and hold harmless the Owner, Contractor, Architect or Design Consultant, or any of their respective consultants, agents, officers, directors and employees of any of them from and against claims, damages losses and expenses… arising out of, relating to, or resulting from performance of the Subcontract Work by [LME]…” (USSF No. 15 [J-COE, Exh. J (J-CC), Exh. A (LME Master Subcontract Agreement) §4.6.1.) JWSE submitted evidence it was retained as a sub-consultant by IDG, the Project’s Design Consultant. (USSF Nos. 4, 6.)

JWSE submitted evidence Owners’ claims against IDG, and accordingly JWSE, are embraced by the indemnity provision since experts retained by Owners (Seb Ficcadenti) and LME (Don Gifford) have articulated theories of liability whereby JWSE could incur liability arising from LME’s performance of its subcontract work on the Project. JWSE submitted evidence Owners sued LME and IDG for negligence arising from the alleged insufficient overhead clearances in the parking structure and are seeking to recover the same economic damages and losses from both LME and IDG resulting from that issue. ([Disputed Separate Statement of Fact (“D-SSF”) No. 48] J-COE, Exh. A [Owners’ ACC] ¶¶44, 52-55, 109, 123-125, Exh. B [Owners’ 4ACC] ¶¶58, 66-69, 123, 150-152.) In addition, IDG can be held jointly liable for the damages assessed against LME insofar as those damages were caused by LME’s work on the parking structure, if such is ultimately proven. (Motion, pg. 19, See Aluma Systems Concrete Construction of California v. Nibbi Bros. Inc. (2016) 2 Cal.App.5th 620, 626.) In overruling LME’s demurrer to JWSE’s express indemnity cause of action, the Court found LME may be liable for contractual indemnity to JWSE, if liability is proven. (11/1/19 Ruling on Demurrer.)

In addition, JWSE submitted evidence IDG’s allegations against JWSE in IDG’s CFACC incorporate Owners’ allegations against JWSE, they also trigger LME’s obligation to defend JWSE. Specifically, IDG’s CFACC incorporates by reference Owners’ claims arising from construction of the parking garage, which IDG contend trigger the obligations of LME to indemnify IDG, and accordingly, JWSE. (USSF Nos. 64, 66.) The Court notes it references the pleadings of Owners and IDG not as evidence of the facts stated within the pleadings, but as evidence of the claims the parties are asserting against each other to determine whether the claims fall within the indemnity provisions of the underlying agreement, and therefore, the duty to defend pursuant to such an indemnity provision. Based on: (1) LME’s agreement to indemnify JWSE for any claim resulting from LME’s subcontract work, (2) Owners causes of action against IDG for damages resulting from LME’s subcontract work for which IDG can be found liable, and (3) IDG seeks indemnity from JWSE based on Owners’ claim against LME and IDG, JWSE has met its burden of demonstrating LME owes it a duty to defend against those claims, since they fall within the indemnity provision.

In addition, JWSE submitted evidence suggesting JWSE, in undertaking contract administration services on the Project, could be found liable for damages arising from LME’s performance of its subcontract work on the Project. JWSE submitted evidence LME’s drawings were not consistent with IDG’s architectural plans ([D-SSF Nos. 51-52] J-COE, Exh. O: Deposition of Seb Ficcadenti (“Ficcadenti Depo”, Vols. I & IV, pp. 128:14-129:19; 508:13-511:4; Exh. L: Deposition of Don Gifford (“Gifford Depo”), Vol II, p. 424:9-16.) JWSE submitted evidence JWSE, in the course of its contract administration duties, reviewed LME’s drawings without noting discrepancies or non-feasibility. (USSF No. 53; [D-SSF Nos. 53-54] J-COE, Exh. L: Gifford Depo, Vols 1 & Il, pp. 210:16-214:9; 421:20-424:16.) JWSE submitted testimony and the report from Owners’ expert witness that JWSE may have anticipated the conduit issues if it had requested revised shop drawings. ([D-SSF No. 56] J-COE, Exh. O: Ficcadenti Depo, Vol. II, p. 195:14-21; Exh. S: December 31, 2018 Ficcadenti Expert Report, p. 9; Exh. T: 3/8/19 Ficcadenti Expert Report, pp. 1-2.) JWSE also submitted testimony from LME’s expert that JWSE should have been aware LME was changing the conduit routing. ([D-SSF No. 55] J-COE, Exh. L: Gifford Depo, Vol I, pp. 212:23-214:9.)

JWSE submitted Mr. Ficcadenti’s testimony that LME did not install conduit according to its own shop drawings which were submitted to JWSE, and when JWSE observed construction of conduit routing by LME, it should have noted it did not conform with LME’s shop drawings. ([D-SSF Nos. 57-58] J-COE, Exh. O: Ficcadenti Depo, Vols. I, II, & III, pp. 128:14-129:6; 191:8-24; 393:14-25; 190:23-191:24; 547:24-549:9; Exh. T: 3/8/19 Ficcadenti Expert Report, pgs. 1, 2.) Mr. Ficcadenti testified LME’s routing choice required the slab to be thicker, which contributed to reduced vertical clearances. ([D-SSF No. 59] J-COE, Exh. T: 3/8/19 Ficcadenti Expert Report, pgs. 1, 2.) In addition, Mr. Ficcadenti testified LME did not install conduit according to IDG/JWSE’s project plans and specifications and opines JWSE observed construction including LME’s improper placement of conduit, which JWSE noted. ([D-SSF Nos. 60-61] J-COE, Exh. S: 12/31/18 Ficcadenti Report, pg. 9.) Mr. Ficcadenti opined that LME’s poor conduit placement contributed to increased slab thickness, which contributed to reduced vertical clearances. ([D-SSF No. 62] J-COE, Exh. S: 12/31/18 Ficcadenti Report, pg. 9.)

Based on the foregoing, JWSE met its burden on summary adjudication. Therefore, the burden shifts to LME to create a triable issue of material fact as to whether it owed JWSE a duty to defend. As discussed below, LME failed to meet its burden.

LME failed to submit evidence creating a triable issue of fact as to whether it owes JWSE a duty to defend. In opposition, LME argues the Owners’ claims, and LME’s alleged duty to defend associated therewith, are not embraced by the indemnity provision because JWSE’s potential liability falls within the indemnity provision’s exclusionary language in Section 4.6.2 of LME’s subcontract with C.W. Driver. (Opposition, pgs. 2-3.) LME submitted evidence Section 4.6.2 of the Master Subcontract Agreement provides that, “[t]he obligations of [LME] under this Paragraph shall not extend to the liability of… [JWSE]… arising out of: (1) their preparation or approval of maps, drawings, opinions, reports, surveys, change orders, designs or specifications; or (2) the giving of or failure to give directions or instructions by [JWSE], provided such giving or failure is the primary cause of the damage.” (USSF No. 15 [J-COE, Exh. J (J-CC), Exh. A (LME Master Subcontract Agreement) §4.6.2 (Emphasis added.).) The Court notes Sections 4.6.1, 4.6.2, and 4.6.3 are all subparagraphs of Paragraph 4.6 “Indemnification,” in which LME’s duty to defend is set forth in Section 4.6.1. LME argues this carve-out precludes LME’s “obligations,” including its duty to defend, given it excludes the claims upon which JWSE bases its indemnification rights against LME, namely, JWSE’s contract administration services, and as such, JWSE can suffer no loss due to LME’s work for which it seeks indemnification. (Opposition, pgs. 2-3, fn. 1.) However, as discussed below, the exclusionary language does not create a triable issue of material fact as to whether LME owes JWSE a duty to defend.

First, the plain language of Section 4.6.2 excludes those “obligations” of LME that extend to JWSE’s “liability” arising out of JWSE’s performance or non-performance of specified tasks. While a duty to defend could qualify as one of LME’s obligations under the Paragraph, it appears to not qualify as such an obligation for the purposes of Section 4.6.2, which involves those obligations that extend to JWSE’s liability. A duty to defend is separate and apart from a duty to indemnify. (Crawford, v. Weather Shield Mfg., Inc. (2008) 44 Cal.4th 541, 554.) LME’s obligations that extend to JWSE’s liability are necessarily those that involve indemnification, not a duty to defend, which is triggered at the outset of the action. [The Court notes LME’s argument that Crawford has not application to this case because the underlying indemnity provision does not include an exclusion; however, this argument is without merit. Crawford is not limited to cases in which indemnity provisions have no exclusions especially given that Crawford contemplates that parties “may define their duties toward one another in the event of a third party claim.” (Opposition, pgs. 4-5; Reply, pg. 9; Crawford, v. Weather Shield Mfg., Inc., supra, 44 Cal.4th at 552.)

Second, even assuming arguendo LME’s duty to defend is an excluded obligation under Section 4.6.2, the exclusion would only apply if the specified theories of liability fully embrace the claims giving rise to LME’s duty to defend. (Reply, pg. 5.) As such, to create a triable issue of material fact that a duty does not exist, LME must submit evidence suggesting its alleged duty to defend is fully embraced by JWSE’s liability arising out of JWSE’s (1) preparation or approval of maps, drawings, opinions, reports, surveys, change orders, designs, or specifications; and/or (2) JWSE’s giving of or failure to give directions or instructions, provided such giving or failure is the primary cause of the damage. As discussed below, LME does not meet this burden in opposition.

LME argues the evidence submitted suggests the theories of liability against JWSE are the exact activities set forth in the indemnity paragraph. (Opposition, pg. 8.) Specifically, LME submitted Ficcadenti’s expert testimony that Kent Jessen (“Jessen”) fell below the standard of care by (1) not instructing LME to resubmit its shop drawings; (2) failing to observe the conduit was routed inconsistently with the original drawings; and (3) failing to report his observations to the inspector. (Opposition, pg. 8; [LME’s Additional Material Fact (“AMF”) Nos. 1-2] LME’s Compendium of Evidence (“L-COE”) Exh. 9: Ficcadenti Depo 188:16-195:6, 193:24-195:6.) LME argues Jessen’s acts and omissions constitute “preparation… of reports” and “failure to give directions…” contemplated by the carveout. (Opposition, pg. 8.) However, LME misrepresents that Ficcadenti testified Jessen’s conduct fell below the standard of care, and rather, Ficcadenti only testifies as to what Jessen should have done. Ficcadenti testified Jessen “commented on the inadequacy of the conduit” without listing such issues in his structural reports and that JWSE reviewed shop drawings without noting discrepancies and without requiring LME to resubmit drawings. (L-COE Exh. 9: Ficcadenti Depo 189:24-190:7, 191:8-10, 191:18-25, 194:23-195:6.) Ficcadenti testifies what Jessen should have done, and that Jessen should have “requested the shop drawings be resubmitted with the changes,” however, this obligation is not included in the Section 4.6.2 carve out. Feccidenti does not testify that a failure to request shop drawings be resubmitted was a “primary cause of the damage” and LME submits no evidence suggesting as much. In addition, even if LME would not owe a duty to defend for liability arising out of JWSE’s “preparation of reports” based on JWSE’s alleged failure to note discrepancies in his structural reports, the duty to defend for other theories of liability remains, specifically, the theory that JWSE did not properly review the shop drawings. To the extent JWSE may be held liable for its failure to review shop drawings, this obligation does not fall within the carve-out, and LME’s duty to defend therefore remains triggered.

In further support of its position that the Section 4.6.2 exclusion applies, LME submitted the expert declaration of Matthew J. Nardella (“Nardella”). Specifically, LME argues Nardella explains what constitutes contract administration services in the industry, and that a duty of observation includes an inherent duty to take action if what is observed is not being built. (Opposition, pg. 9.) However, the Court sustained JWSE’s evidentiary objections to Nardella’s declaration to the extent Nardella opines beyond the scope of his expert designation. Nardella was designated by LME to provide opinions related to “liability and causation of defective workmanship claimed in this case…” not contract interpretation or the obligations of a structural engineer pursuant to its contract. (Supp-RJN, Exh. B.) As such, Nardella’s opinions as to what constitutes a structural engineer’s “observation” duties pursuant to the underlying contract and whether JWSE’s contract administration duties under its agreements are included in the Section 4.6.2 carve out are inadmissible. (Opposition, pgs. 9-10.)

It is undisputed JWSE was retained to provide services including “Submittal Review” which was limited in content to “Submittals pertaining to items designed by [JWSE]” and in scope to “general conformance with the information given and design concept expressed in the Structural Contract Documents.” (USSF Nos. 7-8.) It is also undisputed the Project Specifications provided that “Architect’s review of shop drawings shall not construe approval of any departure from contract requirements or as acceptance of any responsibility by Owner or Architect for any errors, omissions, or discrepancies shown thereon.” (USSF No. 9.) It is undisputed the Project specifications did not require LME to prepare conduit layout drawings; however, LME submitted conduit layout drawings incidental to its Main Electrical Room layout and for the benefit of LME field personnel. (USSF No. 17.) It is undisputed Owners allege LME: (1) improperly routed electrical conduits, which resulted in the slab becoming thicker and/or leaving features with inadequate cover; and (2) possessed the plans indicating where to route electrical conduits, but negligently failed to comply with those plans. (USSF No. 33; 4ACC ¶61.)

In addition, as discussed above, JWSE submitted evidence of the theories of liability pursuant to which JWSE can be found liable for LME’s performance of its duties including evidence of the following: (1) LME’s drawings were not consistent with IDG’s plans, (2) JWSE reviewed LME’s drawings without noting discrepancies, (3) JWSE may have anticipated the conduit issues if it had requested revised shop drawings, (4) JWSE should have been aware LME changed the routing, (5) LME did not install the conduit according to its submitted shop drawings, and when JWSE observed LME’s construction it should have noted its nonconformance with LME’s shop drawings, (6) LME’s routing required a thicker slab, and in turn reduced clearance, (7) LME did not install the conduit according to IDG/JWSE’s plans, which JWSE observed and noted, (8) LME’s conduit placement contributed to increased slab thickness and reduced vertical clearances. (D-SSF Nos. 51-62.) Moreover, JWSE submitted evidence it did not notate any Project submittals that it reviewed as “approved.” ([D-SSF No. 68] Decl. of Jessen ¶3.) LME’s dispute that JWSE did not “approve” shop drawings based on Gifford’s testimony does not create a triable issue of material fact as to whether JWSE actually approved shop drawings. (R-SSF No. 68: L-COE, Exh. 6, Gifford Depo 421:2-6.) Given Nardella has not been designated to testify as to contract interpretation, LME did not submit evidence address whether all of the theories of liability against JWSE’s discussed above, including its duty to review, duty to be aware LME changed the routing, and other duties, fall within the exclusion of Section 4.6.2. As such, LME did not submit evidence creating a triable issue of material fact as to whether Owners’ allegations against IDG, and in turn JWSE, based on LME’s performance of its work triggered LME’s duty to defend, regardless of whether LME’s liability is in fact established. Finally, LME’s arguments regarding the economic loss rule does not change the court’s conclusion.

Based on the foregoing, JWSE’s motion for summary adjudication is granted.

Dated: September _____, 2020

Hon. Monica Bachner

Judge of the Superior Court

Case Number: BC625934    Hearing Date: August 06, 2020    Dept: 71

Superior Court of California

County of Los Angeles

DEPARTMENT 71

TENTATIVE RULING

C.W. DRIVER, INC., a corporation,

vs.

LEGENDARY STRUCTURES, INC., a corporation, et al.

Case No.: BC625934

Hearing Date: August 6, 2020

Cross-Defendant Peri Formwork Systems, Inc.’s motion for summary adjudication against the 2nd, 3rd, and 8th causes of action in Cross-Complainants’ fourth amended cross-complaint is denied.

Cross-Defendant Peri Formwork Systems, Inc. (“Peri”) moves for summary adjudication of the 2nd (breach of contract – subcontracts), 3rd (breach of warranty), and 8th (express indemnity) causes of action in the fourth amended cross-complaint (“operative cross-complaint” or “4ACC”) filed by Cross-Complainants 18131 Ventura Boulevard, LLC, Ventana Medical Center, LP, and TriStar Realty Group, LLC (“Tristar”) (collectively, “Owners”), on the grounds that the causes of action have no merit. (Notice of Motion, pg. 2.)

Filings Considered

The Court has considered the following filings: (1) Peri’s January 10, 2020 Notice of Motion, Motion, Request for Judicial Notice, Separate Statement, Compendiums of Evidence (Parts 1, 2a, 2b, 3, 4, 5), and Declarations of Murphy, Harrison, and Cruz; (2) Owners’ March 12, 2020 Opposition, Response Separate Statement, Compendium of Exhibits, Declarations of Kashani and Morales, and Evidentiary Objections to Request for Judicial Notice and Peri’s Declarations of Harrison, Cruz, and Murphy; and (3) Peri’s July 27, 2020 Reply, Supplemental Declaration of Murphy, Supplemental Compendium of Evidence, Response to the Separate Statement, Evidentiary Objections to the Declarations of Ficcadenti, Morales, and Kashani, and Responses to Evidentiary Objections to the Request for Judicial Notice and the Declarations of Cruz and Harrison.

CRC Violations

Peri’s Memorandum of Points and authorities is 21 pages in violation of the 20-page limit set forth in CRC Rule 3.1113(d).

Peri’s evidentiary objections violate CRC Rule 3.1354(b)’s requirement that objections must be numbered consecutively.

Request for Judicial Notice

Peri’s 1/10/20 request for judicial notice is granted. However, the Court will not take judicial notice of the truth of the matters asserted in the Declarations of Daniel Kashani filed in support of Owners’ oppositions to CW Driver’s MSA (filed 2/4/19) and Peri’s MSJ (filed 8/7/18), Owners’ Second Amended Cross Complaint (“SACC”), Peri’s 3/8/18 MSJ/MSA to Owners’ SACC, (P-RJN Nos. 1-17.)

Evidentiary Objections

C.C.P. §437c(q) provides as follows: “In granting or denying a motion for summary judgment or summary adjudication, the court need rule only on those objections to evidence that it deems material to its disposition of the motion. Objections to evidence that are not ruled on for purposes of the motion shall be preserved for appellate review.”

Owners’ 3/12/20 evidentiary objections to Peri’s Request for Judicial Notice are sustained as to RJN No. 9 and moot as to RJN Nos. 10, 11, 12, 13, 14, 15, 16, 17 in light of the Court’s ruling on the request for judicial notice.

Owners’ 3/12/20 evidentiary objections to the Declaration of Colin T. Murphy, which are made as to paragraphs in the Murphy Declaration, appear to in fact be made as to the Exhibits referenced in those paragraphs and included in Peri’s Compendium of Evidence. (P-COE, Exhs. B, C, F, I, J, N, O, P, Q, R, S, T, U, V, W, X, Y, and Z.) The Court declines to rule on evidentiary objections Nos. 1-18 as the evidence immaterial to its ruling on the instant motion pursuant to C.C.P. §437c(q).

Owners’ 3/12/20 evidentiary objections to the Declaration of Timothy Cruz are overruled as to No. 1 and sustained as to No. 2.

Owners’ 3/12/20 evidentiary objection to the Declaration of Mark Harrison is sustained as to No. 1.

Peri’s 7/27/20 evidentiary objections to the Declaration of Seb Ficcadenti [Exhibit 47 to the Declaration of Morales ¶41] are overruled as to Nos. 1-24.

Peri’s thirty-nine 7/27/20 evidentiary objections to the Declaration of Edward O. Morales are unnumbered, as such, the Court assumes standard numeration. In addition, while Objections Nos. 1-37 are made as to the declaration, it appears Peri in fact objects to the Exhibits in the Compendium of Evidence referenced in the declaration, and not statements made in the Morales declaration itself. The objections are sustained as to Nos. 1 (Exh. 2), 2 (Exh. 6), 3 (Exh. 7), 5 (Exh. 10), 6 (Exh. 12), 8 (Exh. 15), 24 (Exh. 31), 26 (Exh. 33), 30 (Exh. 37), 31 (Exh. 38), and sustained as to No. 38 [¶42], No. 39 [¶48].They are overruled as to Nos. 4 (Exh. 8), 7 (Exh. 13), 9 (Exh. 16), 10( Exh. 17), 11 (Exh. 18), 12 (Exh. 19), 13(Exh. 20), 14 (Exh. 21), 15, (Exh. 22), 16, Exh 23), 17 (Exh. 24), 18 (Exh. 25), 19 (Exh. 26), 20 (Exh. 27), 21 (Exh. 28), 22 (Exh. 29), 23 (Exh. 30), 25 (Exh. 32), 27 (Exh. 34), 28 (Exh. 35), 29 (Exh. 36), 32 (Exh. 42), 33 (Exh. 43), 34 (Exh. 44), 35 (Exh. 45), 36 (Exh. 46), 37 (Exh. 47).

Peri’s thirteen 7/27/20 evidentiary objections to the Declaration of Daniel Kashani are improperly numbered starting with the first objection as No. 5 and then are unnumbered after No. 14. The Court will refer to the numbered objections as numbered, and the remaining objections as Nos. 15 - 18. The objections are overruled as to Nos. 5-13 and 15-18 and sustained as to No. 14.

Background of Action & Operative Fourth Amended Cross-Complaint

This action arises out of the construction of a medical office building and parking garage structure located at 18131 Ventura Boulevard, Tarzana, California (the “Project”). The Project’s Owners entered into a Prime Contract with C.W. Driver, Inc. (“CW Driver”) on August 26, 2014, hiring CW Driver as the general contractor for the Project. (USSF No. 12 (“USSF” refers to undisputed facts from Peri’s Separate Statement of Facts).) On April 24, 2014, CW Driver entered into a Master Subcontract with Legendary Structures, Inc. (“LSI”). (USSF No. 13.) On February 4, 2015, CW Driver issued a work order to LSI to perform the concrete work at the Project (“Concrete Work Order”). (USSF No. 19.) On April 23, 2015, LSI entered into a purchase order with Peri to supply formwork materials to the Project. (Disputed SSF (“D-SSF”) No. 24 [Disputed for reasons immaterial to use here].) During the Project, a dispute arose between the Owners and CW Driver related to concrete work and beam clearance issues, which had been carried out by Subcontractors.

On July 5, 2016, CW Driver filed a complaint against Subcontractors Peri, LSI, Land Mark Electric, Inc. (“LME”) and JD Reinforcing Company (“JD Reinforcing”) (collectively, “Subcontractors”) in connection with the dispute. On March 24, 2017, CW Driver filed a separate complaint against Owners, which the Court consolidated with the instant action. On May 22, 2017, Owners filed a cross-complaint against CW Driver and Subcontractors, and in the operative cross-complaint, the 2nd (breach of contract-subcontracts), 3rd (breach of warranty), 4th (negligence), 8th (express indemnity), 12th (implied indemnity) and 13th (declaratory relief) causes of action are asserted against Peri. The Court notes that Peri does not move for summary adjudication as to the negligence, implied indemnity, and declaratory relief causes of action.

Owners allege on September 10, 2014, Peri and LSI met with Owners and CW Driver to persuade Owners to not object to LSI and Peri performing concrete work for the Project via a joint presentation. (4ACC ¶21.) Owners allege Peri and LSI’s representatives discussed that LSI’s use of Peri’s “Garagedeck formwork system” would achieve a smooth finish with minimal need for patching and that Peri represented that it was a partner of LSI. (4ACC ¶22.) Owners allege Peri gave Owners a brochure detailing the benefits of its formwork system, its sales engineers are “formwork experts,” and Peri partners with contractors who use Peri’s formwork, such as LSI. (4ACC ¶22.) Owners allege, based on the joint representations of LSI and Peri, Owners believed them to be partners or joint venturers and LSI would not be working on the Project unless it were allowed to use Peri’s formwork system, and, in reliance on Peri/Legendary’s representations, Owners agreed to award Peri/Legendary the concrete work for the Project. (4ACC ¶23.)

Owners’ 2nd (breach of contract – subcontracts) cause of action is based on allegations that Owners are an intended express third-party beneficiary of the subcontracts between and among CW Driver, LSI, and Peri, who were retained to perform construction work for the Project and knew that such work was for the sole and exclusive benefit of Owners. (4ACC ¶105.) Owners allege the subcontracts expressly incorporated the terms of the Prime Contract and/or CW Driver, LSI, and/or Peri separately agreed in writing, orally, or by conduct that the subcontracts incorporated the express terms of the Prime Contract. (4ACC ¶106.) Owners allege the subcontract between LSI and Peri provides that Peri would indemnify and hold harmless LSI, the Owner, and any of LSI’s representatives against all claims arising from the undertaking of Peri or any defects in the goods supplied. (4ACC ¶107.) Owners allege Peri breached the subcontracts and the Prime Contract by, among other things, failing to perform construction of the improvements in a good and workmanlike manner and performing defective work. (4ACC ¶110.)

Owners’ 3rd (breach of warranty) cause of action is based on allegations that the subcontracts expressly incorporated the terms of the Prime Contract and/or that LSI and PERI separately agreed in writing, orally, or by conduct that the subcontracts incorporated the Prime contract and/or the subcontracts identified Owners as intended third party beneficiaries of the subcontracts. (4ACC ¶115.) Owners allege, pursuant to the subcontracts, Peri expressly warranted it would perform construction work in a good and workmanlike manner and Peri breached its express and implied warranty to Owners because the work performed was not free from defects. (4ACC ¶¶116-117.)

Owners’ 8th (express indemnity) cause of action is based on allegations that pursuant to Peri’s subcontract, it agreed to and is obligated to indemnify Owners from any and all claims from subcontractors and other third parties and/or any and all claims arising from goods or work provided by Peri. (4ACC ¶145.)

Procedural Background

On November 5, 2018, the Court denied Peri’s 3/8/18 motion for summary judgment/adjudication (“MSJ/MSA”) as to Owners’ Second Amended Cross-Complaint (“SACC”) and/or the same causes of action asserted in Owners’ Third Amended Cross-Complaint (“TACC”) that were addressed on the merits. (Peri’s Compendium of Evidence (“P-COE”), Exh. GG [11/5/18 Ruling].) The Court denied the MSA as to Issues Nos. 1, 2, and 4 without prejudice and denied the MSA as to Issues Nos. 3, 5, 6, and 7. (P-COE, Exh. GG.) On Issue No. 1, Peri moved for summary adjudication as to whether Owners’ 2nd (breach of contract) cause of action had merit for lack of privity between Peri and Owners and/or since Owners are not third-party beneficiaries of the subcontract between LSI and Peri. The Court ruled that given the terms of the Purchase Order, it was questionable whether Owners were intended third-party beneficiaries of it; however, the Court found that Owners presented evidence suggesting Peri held itself out as a partner of LSI and that Peri could therefore be held liable on a partnership theory of liability, and that a triable issue of fact existed as to whether LSI and Peri presented themselves as partners. (P-COE, Exh. GG, pgs. 9-10.) Given that Owners’ SACC/TACC had not yet alleged facts supporting partnership by estoppel theory of liability, the Court denied as to this issue without prejudice, giving Owners’ leave to amend their pleading to allege facts, that Owners had introduced evidence of, supporting the theory. (P-COE, Exh. GG, pgs. 10-11, 13.)

Peri also moved for summary adjudication as to Issue No. 2, whether the 3rd (breach of warranty) cause of action had merit given a lack of contractual privity between Peri and Owners and given that Owners are not third-party beneficiaries of the Purchase Order. The Court ruled that for the reasons discussed in connection with Issue No. 1, Owners presented a triable issue as to whether Peri was a partner of LSI, thereby binding it to the terms of the Prime Contract between Owners and Driver. (P-COE, Exh. GG, pg. 13.)

The Court similarly denied without prejudice Peri’s MSA as to Issue No. 4, which asserted that the 8th (express indemnity) cause of action had no merit given the lack of contractual indemnification obligation running from Peri to Owners for the same grounds as Issue No. 1 and granted leave to amend to allege facts supporting their partnership by estoppel theory of liability. (P-COE, Exh. GG, pg. 17.)

On January 18, 2019, the Court overruled Peri’s demurrer to the 2nd, 3rd, and 8th causes of action in the operative cross-complaint on the grounds that Owners alleged sufficient facts to support the causes of action on the basis of a partnership by estoppel between Peri and LSI. (Court’s 1/18/19 Ruling on Submitted Matter.)

Renewal Motion

As a preliminary matter, Owners argue the instant motion is an improper renewal of Peri’s 3/8/18 MSJ/MSA given that it seeks summary adjudication of the same causes of action sought previously, and the motion should be denied for Peri’s failure to provide an affidavit as required by C.C.P. §1008(b). (Opposition, pgs. 7, 18-19.)

C.C.P. §473c(f)(2) provides that, “A party shall not move for summary judgment [or adjudication] based on issues asserted in a prior motion for summary adjudication and denied by the court unless that party establishes, to the satisfaction of the court, newly discovered facts or circumstances or a change of law supporting the issues reasserted in the summary judgment motion.”

C.C.P. §1008(b) provides that, “A party who originally made an application for an order which was refused in whole or part, or granted conditionally or on terms, may make a subsequent application for the same order upon new or different facts, circumstances, or law, in which case it shall be shown by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown.”

As discussed above, Peri previously moved for summary adjudication of the 2nd, 3rd, and 8th causes of action. While Owners presented similar evidence in opposition to Peri’s previous motion, Peri’s previous motion was not made on the same grounds as the instant motion since Owners had not sufficiently alleged an estoppel theory of partnership liability. In addition, the operative complaint was amended to address the issues raised in the Court’s ruling, and Peri moves for summary adjudication as to the theory of liability asserted in the amended pleading. The instant motion does not reassert the argument that the causes of action fail for lack of contractual privity or because Owners are not third-party beneficiaries to the agreement between Peri and LSI. As such, the instant motion is not a renewal of Peri’s previous motion and the Court considers it on its merits.

Breach of Contract – Subcontract, Breach of Warranty, & Express Contractual Indemnity (2nd, 3rd, and 8th COAs)

Peri argues that Owners’ causes of action for breach of contract, breach of warranty, and express contractual indemnity all fail because the evidence does not support Owners’ partner by estoppel theory of liability. Specifically, Peri argues that the evidence shows that Owners’ belief in the partnership and reliance on the representation of partnership were not reasonable and that any such reliance occurred after CW Driver and LSI entered their Master Subcontract. (Motion, pgs. 10-13.)

Cal. Corp. Code §16308(a) provides that, “If a person, by words or conduct, purports to be a partner, or consents to being represented by another as a partner, in a partnership or with one or more persons not partners, the purported partner is liable to a person to whom the representation is made, if that person, relying on the representation, enters into a transaction with the actual or purported partnership. If the representation… is made in a public manner, the purported partner is liable to a person who relies upon the purported partnership even if the purported partner is not aware of being held out as a partner to the claimant. If partnership liability results, the purported partner is liable with respect to that liability as if the purported partner were a partner. If no partnership liability results, the purported partner is liable with respect to that liability jointly and severally with any other person consenting to the representation.”

To meet its burden on summary adjudication, Peri must submit evidence demonstrating Owners are unable to establish the necessary elements of partnership by estoppel: (1) that Peri represented to Owners that it was partners with LSI and (2) that Owners, in reliance on such representation, entered into a transaction with the purported Peri/LSI partnership. (C.C.P. §16308(a).) However, Peri’s evidence focuses on whether a legal partnership actually existed between LSI and Peri, not whether Peri and LSI held themselves out as partners for the purposes of establishing partnership liability by estoppel. As such, Peri has not met its burden. (See Motion, pgs. 14-15.)

Peri submitted deposition testimony from Owners’ representative Daniel Kashani (“Kashani”) regarding the September 2014 meeting involving representatives of Peri, LSI, and Owners. The testimony demonstrates that when Kashani was asked whether, during the 2014 meeting, Peri, LSI, or their representatives, stated that Peri and LSI: (1) were in a legal partnership; (2) would be responsible for each other’s liabilities; or (3) had formed a joint enterprise or company, Kashani responded that he did not recall, or that such a representation (regarding joint enterprise) would have been made to CW Driver, if it were made. ([D-SSF Nos. 28-31] P-COE, Exh. A, Kashani Depo 126:7-9; 126:10-13; 126:14-24; 127:6-14.) Peri asserts Kashani’s testimony demonstrates that he only recalled Peri colloquially representing that it would work as a partner with LSI on the Project. (Motion, pg. 11; P-COE, Exh. A, Kashani Depo 133:1-5.) However, this is a mischaracterization of Kashani’s deposition testimony by Peri. Indeed, Kashani recalled Peri and LSI represented that they would be “working as partners” without suggesting his understanding was somehow “colloquial.”

Peri argues the September 2014 representation that LSI and Peri would work together on the project as partners is not the same as representing that the two entities had formed an entity that would be liable on the Master Subcontract (between CW Driver and LSI), especially given that the Master Subcontract was executed months before the September 2014 meeting and not in the name of or by the alleged partnership. (Motion, pg. 11.) It is undisputed that: (1) the Master Subcontract between CW Driver and LSI was executed on April 24, 2014; (2) the meeting between LSI, Peri, Owners, and CW Driver occurred in September 2014 (3) CW Driver issued LSI the Concrete Work Order February 4, 2015; and (4) LSI and Peri thereafter entered into a purchase order on April 23, 2015. (USSF Nos. 13, 19; D-SSF No. 24.) However, Peri’s argument that Owners’ partnership by estoppel theory of liability fails since any potential representations of partnership occurred after execution of the Master Subcontract is without merit. Owners’ theory is based on representations of partnership made during the September 2014 meeting that caused Owners to not object to LSI’s use of materials from Peri and CW Driver’s use of LSI and Peri for the concrete work at the Project. (4ACC ¶¶21-23.) As such, CW Driver and LSI’s entering into the Master Subcontract prior to September 2014 is irrelevant to determining whether Owners’ alleged reliance on representations of partnership by Peri and/or LSI in September 2014 caused them to not object and therefore approve CW Driver’s hiring of LSI, to be supplied by Peri, as a subcontractor on the Project. (See 4ACC, Exh. 1 [Prime Contract, AIA A201 – 2007] §§5.2.1-5.2.2, pg. 25.)

In addition, Peri’s motion does not address the alternative theory of liability based on allegations Owners were third-party beneficiaries to the purchase order between LSI and Peri. (4ACC ¶¶105-107, 115, 145.) As such, Peri does not meet its burden of demonstrating Owners cannot prevail on all theories of liability alleged. The Court notes its ruling on the previous MSJ/MSA, which was made as to Owners’ third-party beneficiary theory of liability, found it was, “questionable whether Owner Parties are intended third-party beneficiaries of the Purchase Order” given the Purchase Order expressly states that the terms “Purchaser” and “Owner” are interchangeable and given the Purchase Order defines “Owner” as LSI, not the Owner Parties. (See Court’s 11/5/18 Ruling, pgs. 9-10.) However, the Court’s ruling does not address whether Owners would be unable to establish Peri’s liability to Owners by a theory of third-party beneficiary liability given Owners presented evidence Peri held itself out as LSI’s partner, such that Peri could be held liable on an alternative theory of liability, “notwithstanding that the names of the Owner Parties are not stated on the Purchase Order between [LSI] and Peri.” (See Court’s 11/5/18 Ruling, pg. 10.) In addition, after Owners amended their cross-complaint, Peri moved to strike allegations relating to the theory of third-party beneficiary liability in the operative cross-complaint on the grounds that Owners failed to allege facts establishing that Owners were third-party beneficiaries of the purchase order, which the Court denied in its entirety. (Court’s 1/18/19 Ruling.) The Court denied the motion to strike on the grounds that the allegations were triable issues of fact and relevant to Owners’ theory of liability. (Court’s 1/18/19 Ruling, pg. 1.) As such, the third-party beneficiary theory of liability is still alleged in the operative cross-complaint, and Peri did not meet its burden of addressing whether Owners would be unable to establish liability on that theory.

Based on the foregoing, Peri did not meet its burden on summary adjudication. Even assuming, arguendo, Peri met its burden, Owners submitted evidence creating a triable issue of material fact as to whether Peri can be held liable via partnership by estoppel theory of liability.

Owners submitted evidence they relied on Peri’s representation of partnership with LSI in approving the subcontract. Owners submitted evidence that they had the right to object to CW Driver’s subcontractors and material suppliers, including LSI and Peri. (Owner’s Additional Material Fact (“AMF”) No. 44] Decl. of Kashani ¶5, Owner’s Compendium of Evidence (“O-COE”) Exh. 1 §§5.2.1, 5.2.2.) Owners submitted evidence that CW Driver proposed retaining LSI to construct the post-tensioned long span concrete parking structure, which Owners understood to commonly and traditionally be constructed using steel formwork systems. ([AMF Nos. 45-46] Decl. of Kashani ¶¶6, 2, 8; O-COE Exh. 45 122:6-13.) Owners submitted evidence that LSI proposed using Peri’s wooden formwork system to construct the parking structure. ([AMF No. 47] Decl. of Kashani ¶¶7-9.) Owners submitted evidence that on September 10, 2014, they attended a meeting organized by CW Driver’s then-Project Director with Peri’s Sales Engineer Mark Harrison (“Harrison”) and LSI’s Vice President John Stich (“Stich”). ([AMF No. 49] Decl. of Kashani ¶6.) Owners submitted evidence that during this meeting, Owners explained to Peri and LSI that they had retained CW Driver pursuant to the Prime Contract and informed Peri and LSI that the purpose of the meeting was to consider whether or not to approve Peri and LSI for construction of the parking structure for the Project. ([AMF Nos. 50-51] Decl. of Kashini ¶7.) Owners submitted evidence that Peri and LSI prepared and presented a joint presentation to convince Owners to approve Peri and LSI for construction of the parking structure. ([AMF No. 52] Decl. of Kashani ¶¶7-12.) Owners submitted evidence that during the meeting, Peri and LSI represented that the use of Peri’s wooden formwork system would achieve the level of finish required under the plans and that Harrison represented that the wood formwork system would have the benefit of a smooth finish. ([AMF No. 53] Decl. of Kashani ¶¶7-9.) Owners submitted evidence that Peri provided a brochure detailing the benefits of its formwork system, which suggested Peri’s role exceeded that of a mere supplier of materials. ([AMF No. 55] Decl. of Kashani ¶¶9-11; O-COE, Exh. 3.) Owners submitted evidence that Peri, through Harrison, represented to Owners that Peri was LSI’s partner on the project. ([AMF No. 64] Decl. of Kashani ¶¶9, 10; O-COE, Exh. 54, Kashani Depo V2 170:18-171:5.) Owners submitted evidence that based on Peri’s representations, Owners understood Peri would take an active role in construction of the Project through its pre-assembly of the formwork, supervision, guidance, and instruction of LSI. ([AMF No. 65] Decl. of Kashani ¶¶9, 10.) Owners submitted evidence they relied on Peri’s representation that it was LSI’s partner in not objecting to awarding the concrete work to Peri and LSI, despite Owners’ initial concern about using a wooden formwork system. ([AMF No. 68] Decl. of Kashani ¶13.)

Owners submitted evidence creating a triable issue of fact as to whether their reliance on Peri’s representation was reasonable. Specifically, Owners submitted evidence that after the September 10, 2014 meeting, Peri and LSI suggested Owners visit a project site where LSI was using Peri’s formwork system and that during that September 18, 2014 site visit, Owners were impressed with the level of finish and Owners were informed that the “Garagedeck” system would provide the same degree of finish. ([AMF Nos. 66-67] Decl. of Kashani ¶12.) Owners submitted evidence that shortly after they did not object to Peri and LSI performing the concrete construction work on the project, CW Driver issued a Work Order to LSI and LSI issued a purchase order to Peri. ([AMF No. 72] O-COE, Exhs. 11, 14.) Owners submitted evidence that their reliance on Harrison’s representation was reasonable given that the representation was unequivocal and not ambiguous. ([AMF No. 64] Decl. of Kashani ¶¶9, 10; O-COE, Exh. 54, Kashani Depo V2 170:18-171:5.) In addition, while Peri argues Owners’ reliance was unreasonable because Kashani was an attorney and a sophisticated party, Owners submitted evidence that Kashani is in fact a real estate developer and not a practicing attorney, creating a triable issue of fact as to whether his reliance was reasonable. ([AMF No. 120] Decl. of Kashani ¶2.)

Owners also argue they submitted evidence creating a triable issue of fact as to whether Peri’s conduct following Owners’ reliance on Peri’s representations was sufficient to establish a partnership by estoppel between Peri and LSI. Owners submitted admissible evidence that Peri performed preassembly at its yard ([AMF No. 75] Decl. of Cruz, O-COE, Exh. 8) and sent its foremen to install the formwork on site ([AMF 86] O-COE, Exh. 22.) As such, Peri’s conduct is sufficient to raise a triable issue of material fact as to the existence of a partnership by estoppel between Peri and LSI.

Based on the foregoing, Peri’s motion for summary adjudication is denied.

Case Number: BC625934    Hearing Date: July 16, 2020    Dept: 71

Superior Court of California

County of Los Angeles

DEPARTMENT 71

TENTATIVE RULING

C.W. DRIVER, INC., a corporation,

vs.

LEGENDARY STRUCTURES, INC., a corporation, et al.

Case No.: BC625934

Hearing Date: July 16, 2020

Land Mark Electric, Inc.’s motion for summary judgment against IDG Parkitects, Inc. is denied. Land Mark’s motion for summary adjudication is denied.

Land Mark Electric, Inc.’s motion for summary judgment against Jessen-Wright Structural Engineers is denied. Land Mark Electric’s motion for summary adjudication is denied.

  1. Land Mark Electric Inc.’s MSJ/MSA Against IDG Parkitects, Inc.

    Cross-Defendant Land Mark Electric Inc. (“LME”) moves for summary judgment against Cross-Complainant IDG Parkitects, Inc. (“IDG”) on the Corrected First Amended Cross-Complaint (“CFACC”). In the alternative, LME moves for summary adjudication of issues on the 6th (express contractual indemnity) and 7th (declaratory relief – duty to defend) causes of action of the FACC, on the grounds that there is no issue of material fact to dispute that IDG is not entitled to indemnification from LME. (Notice of Motion, pg. 2.)

    The Court notes IDG’s FACC also asserts the 3rd (implied equitable indemnity) and 4th (contribution) causes of action against LME; however, LME has not moved for summary adjudication as to these causes of action and does not address these causes of action in its motion. As such, LME’s motion for summary judgment is procedurally improper for failing to address and dispose of all causes of action asserted against LME. As such, the Court will consider LME’s motion a motion for summary adjudication only.

    Evidentiary Objections & Requests for Judicial Notice

    IDG’s 3/5/20 evidentiary objections to the evidence submitted in support of LME’s motion for summary judgment are overruled as to Nos. 1, 2, and 3 and sustained as to Nos. 4 and 5.

    IDG’s 3/5/20 request for judicial notice is granted. However, the Court will not take judicial notice of the truth of the maters asserted in the Ruling on LME’s Demurrer to IDG’s FACC. (RJN, Exh. 8.)

    Background of Action and Relevant Cross-Complaints

    This action arises out of the construction of a medical office building and parking garage structure located at 18131 Ventura Boulevard, Tarzana, California (the “Project”). The Project’s owners, 18131 Ventura Boulevard, LLC, Ventana Medical Center, LP, and TriStar Realty Group, LLC (“TriStar”) (collectively, “Owners”) hired C.W. Driver, Inc. (“CW Driver”) as the Project’s general contractor. (USSF No. 3 (“USSF” refers to undisputed separate statement of fact).) CW Driver entered into a subcontract with LME as the Project’s electrical subcontractor. (USSF No. 3.) In addition to LME, CW Driver entered into subcontracts with Legendary Structures, Inc. (“Legendary”), Peri Formwork Systems, Inc. (“Peri”), and JD Reinforcing Company (“JD Reinforcing”) (collectively, “Subcontractors”). IDG contracted with TriStar to serve as the Project’s architect. (See Disputed Separate Statement of Facts (“D-SSF”) No. 1; IDG’s Response to D-SSF (“R-SSF”) No. 1.) IDG subcontracted to Jessen-Wright Structural Engineers (“JWSE”) a portion of its scope of work on the Project. (USSF No. 2.) During the Project, a dispute arose between the Owners and CW Driver related to concrete work and beam clearance issues, which had been carried out by Subcontractors.

    On July 5, 2016, CW Driver filed a complaint against Subcontractors in connection with the dispute. On March 24, 2017, CW Driver filed a separate complaint against Owners, which the Court consolidated with the instant action. (USSF No. 4.) On May 22, 2017, Owners filed a cross-complaint against CW Driver and Subcontractors, the operative version of which, the fourth amended cross-complaint (“4ACC”), includes breach of contract, express indemnity, implied indemnity, and declaratory relief causes of action against IDG. (USSF No. 6; See 4ACC.) Owners alleged that IDG breached their duty of care by failing to perform services for Owner in a reasonable and professional manner. (4ACC ¶154.) Owners’ 4ACC also includes causes of action against LME for breach of contract, breach of warranty, negligence, express indemnity, implied indemnity, and declaratory relief. As to LME, Owners alleged that during the level-one concrete pour, LME routed electrical conduits through a five-inch slab rather than through the eight-inch slab in accordance with the plans and submittals provided by LME, which resulted in the five-inch slab becoming thicker and/or leaving features with inadequate cover. (4ACC ¶61.) Owners allege that LME had the plans indicating where to route electrical conduits but negligently failed to comply with those plans, and that LME’s defective work caused damages to work performed by other contractor-defendants. (4ACC ¶61.) Owners alleged that LME and other contractor defendants refuse to accept responsibility for the defective construction by asserting that the design services provided by IDG were negligent and deficient. (4ACC ¶¶150, 154.)

    On January 16, 2018, IDG filed its FACC against JWSE and Tristar [CFACC filed on March 5, 2018], in which the 1st (express contractual indemnity), 2nd (declaratory relief—duty to defend), 3rd (implied equitable indemnity), and 4th (contribution) causes of action are asserted against JWSE. (USSF No. 7.) On August 7, 2018, IDG filed a MOE amendment to its CFACC naming LME as MOE Number 21, resulting in LME being a cross-defendant on the 3rd, 4th, 6th (express contractual indemnity), and 7th (declaratory relief – duty to defend) causes of action. (See CFACC.)

    In support of its 6th (express contractual indemnity) cause of action, IDG alleged that in CW Driver and LME entered into a subcontract agreement for the Project, whereby LME agreed to defend, indemnify, and hold harmless IDG against claims arising out of performance of LME’s subcontract work. (CFACC ¶37.) IDG alleged that it is a third-party beneficiary of the subcontract agreement and that Owners’ causes of action against IDG triggered LME’s obligations to indemnify IDG. (CFACC ¶¶38-39.) IDG alleged it performed all conditions required of it, that that it is entitled to a defense by LME, that it tendered its defense and demand to LME; however, LME has breached its agreement by failing to defend and hold harmless IDG from the causes of action alleged by Owners. (CFACC ¶¶40-44.)

    In support of its 7th (declaratory relief – duty to defend) cause of action, IDG alleged that pursuant to LME’s subcontractor agreements with CW Driver, LME has a duty to defend IDG for claims arising out of LME’s performance of the subcontract work. (CFACC ¶47.) IDG alleged it is a third-party beneficiary of LME’s subcontract agreement, that a claim or loss has been made by Owners against IDG, triggering LME’s defense obligation, that IDG has the right to receive a defense from LME, that it has requested such a defense, and that LME has failed to defend. (CFACC ¶48-51.)

    Procedural Background

    On October 1, 2018, the Court overruled LME’s demurrer to IDG’s CFACC. LME demurred on the grounds that indemnity provisions for defects in design are against public policy and therefore unenforceable under Civil Code §2782(a). The Court found that the allegations in the underlying pleading do not have to be referenced to determine whether IDG sufficiently pled entitlement to indemnity from LME. (10/1/18 Ruling, pg. 6, citing Aluma Systems Concrete Construction of California v. Nibbi Bros. Inc. (2016) 2 Cal.App.5th 620 (“Aluma”).) The Court also found, in the alternative, that the Owners’ action reveals its claims against IDG are not only for design defects, but also for “contract administration services” IDG provided, for which Civil Code §2782(a) does not apply to bar indemnity provisions. (10/1/18 Ruling, pg. 7.)

    Express Contractual Indemnity & Declaratory Relief - Duty to Defend (6th & 7th COAs)

    LME argues that IDG’s causes of action for express contractual indemnity and declaratory relief fail for the following two reasons: (1) an agreement to indemnify for “design services” is void and unenforceable pursuant to Civil Code §2782(a), and LME was hired to perform construction work that does not include design services; and (2) LME does not owe IDG indemnity because the Owners asserted claims against IDG only for “design related deficiencies” in the performance of IDG’s design-related scope of work, not for construction work. (Motion pgs. 8, 9-15.) In its separate statement, LME asserts that both causes of action are barred because the Owners’ claims against IDG are solely for alleged design-related deficiencies. (See Separate Statement.)

    “Indemnity may be defined as the obligation resting on one party to make good a loss or damage another party has incurred. This obligation may be expressly provided for by contract, it may be implied from a contract not specifically mentioning indemnity, or it may arise from the equities of particular circumstances. Where… the parties have expressly contracted with respect to the duty to indemnify, the extent of that duty must be determined from the contract and not by reliance on the independent doctrine of equitable indemnity. (McCrary Construction Co. v. Metal Deck Specialists, Inc. (2005) 133 Cal.App.4th 1528, 1536 (Citations Omitted).)

    Civil Code §2782 provides that, “[P]rovisions… contained in… any construction contract and that purport to indemnify the promisee against liability for damages for… damage or expense arising from the sole negligence or willful misconduct of the promisee or the promisee’s agents, servants, or independent contractors who are directly responsible to the promisee, or for defects in design furnished by those persons, are against public policy and are void and unenforceable…” (Emphasis Added.)

    Civil Code §2784 provides that, “As used in [Civil Code §§2782 and 2782.5], a ‘design defect’ is defined as a condition arising out of its design which renders a structure… when constructed substantially in accordance with its design, inherently unfit, either wholly or in part, for its intended use or which impairs or renders the use of such structure, equipment, machinery or property dangerous.”

    The Court notes that LME cites Business & Professions Code §5500.1 (“Section 5500.1”) for defining the scope of a design professional’s services to demonstrate that IDG was responsible for contract administration and construction observation. (Motion, pgs. 11-13.) LME argues that “any service listed in [Section 5500.1] must be considered a ‘design’ as contemplated by [Civil Code §2782(a)].” (Motion, pg. 13.) However, LME cites to no authority suggesting Section 5500.1 applies to the types of design defects contemplated in Civil Code §2782(a). Rather, by its terms, Section 5500.1 is limited to interpretation of the California Architects Practices Act, which sets forth the licensing requirements for architects and activities that qualify as the practice of architecture, suggesting it does not apply to defects in design in Civil Code §2782(a). (Section 5500.1(b)(2), (b)(6), & (b)(7).)

    The professional services agreement between IDG and Tristar provides that IDG will indemnify Tristar from all liability arising out of the acts or omissions or willful misconduct of IDG or its officers, agents, employees or contractors in the performance of the agreement and that IDG shall indemnify Tristar from and against any losses to the extent they are caused by the negligence or willful misconduct of IDG or any of IDG’s officials, officers, agents, employees, or volunteers, in the performance of professional services pursuant to the agreement. (LME’s Statement of Evidence (“L-SOE”) Exh. 1, ¶ 3.1.)

    The Master Subcontract Agreement between CW Driver and LME provides that LME shall indemnify CW Driver, “Owner”, “Architect”, or “Design Consultant”, or any of their respective consultants, agents, officers, directors, and employees from and against any claims arising out of performance of the Subcontract Work by LME, regardless of whether or not such claim is caused in part by a party indemnified hereunder. The Master Subcontract Agreement further provides that LME’s indemnification obligations shall not extend to the liability of the Architect or other Design Consultant arising out of their preparation or approval of maps, drawings, opinions, reports, surveys, change orders, designs or specifications; or the giving of or failure to give directions or instructions by the Architect or other Design Consultant, provided such giving or failure is the primary cause of the damage. (D-SOE, Exh. 3, pgs. 6-8, ¶¶ 4.61-4.62.)

    LME did not meet its burden of demonstrating that the “defect in design” defense bars IDG’s express indemnity and declaratory relief claims. Specifically, LME did not submit evidence suggesting IDG is seeking indemnification for a “defect in design” as defined for purposes of Civil Code §2782(a). To meet its burden, LME must submit evidence suggesting IDG is seeking indemnity for a condition of a structure which LME constructed substantially in accordance with its design, and that, nonetheless, was inherently unfit for its intended use. (Civil Code §2784.) Rather, LME argues that defects in design contemplated in Civil Code §2782(a), “must be interpreted to include contract administration services because those services arise out of a design professional’s licensed work, calling for the design professional to assure that work is done in accordance with the design.” (Motion, pg. 9.) However, contract administration services are not encompassed in Civil Code §2782(a)’s design defect defense, and LME cites to no authority suggesting that “defects in design” in Civil Code §2782(a) should be expanded beyond the definition set forth in Civil Code §2784. LME submits no evidence showing that a condition of a structure built by LME was constructed in accordance with its design or that IDG is seeking indemnification for that condition.

    LME also argues that IDG’s claims are barred because Owners’ pleadings and evidence against IDG are limited to design-related deficiencies, not construction work, and that LME cannot be compelled to indemnify for design-related deficiencies when it only performed construction work on the project. (Motion, pgs. 13-15.) As the Court previously ruled, allegations in the underlying pleading do not have to be referenced to determine whether IDG sufficiently pled entitlement to indemnity from LME, and even if the underlying allegations are referenced, IDG’s claims include claims for “contract administration services,” to which Civil Code §2782(a) does not apply. (10/1/18 Ruling, pg. 7; citing Aluma.)

    In support of its argument that the evidence demonstrates that Owners’ claims against IDG are solely for alleged design-related deficiencies and not construction work, LME cites to Owners’ response to an interrogatory seeking facts in support of Owners’ claim that IDG breached its contract in which Owners. In response, Owners stated, (1) CW Driver and its subcontractors filed claims against the Project alleging the construction documents prepared by IDG and JWSE were deficient and defective; (2) CW Driver and its subcontractors provided statements that IDG and JWSE were negligent in not accommodating for potential deflection in the concrete; and (3) construction documents caused or contributed to the Project’s problems. (Motion, pg. 14; [D-SSF No. 10] L-SOE, Exh. 11.) LME submitted evidence that, in support of these responses, Owners cite to discovery items containing the design related claims and third-party analyses referencing claimed/potential deficiencies in the design. (Motion, pg. 15; [D-SSF No. 10] L-SOE, Exhs. 11-16.) However, LME does not meet its burden of addressing how this evidence demonstrates that the Owners’ claims against IDG are only limited to design-related deficiencies and unrelated to any underlying construction work performed by LME on the project. LME cites to Exhibits 12, 13, 14, 15, and 16 without addressing what these exhibits discuss and how they demonstrate that Owners’ claims are only related to deficiencies in the design for which LME cannot be held liable. LME argues that the scope of Owners’ claims against IDG are only related to “duties IDG expressly agreed to undertake as a design professional” and there is no evidence to demonstrate IDG can be held liable for work LME completed under the electrical subcontract. (Motion, pg. 15.) However, LME does not address how the evidence demonstrates Owners’ claims are limited to IDG’s role as a design professional. To the extent IDG sustains damages or losses from LME’s work, even if such damage or loss was caused in part by IDG, LME has agreed to indemnify IDG for such losses. (D-SOE, Exh. 3, pgs. 7.)

    LME argues that IDG cannot claim a duty to defend since IDG’s action against LME is not “embraced by the indemnity” duty, and, as such, there is no duty to defend. (Motion, pg. 14, citing City of Bell v. Superior Court (2013) 220 Cal.App.4th 236, 249.) However, this argument relies on LME’s assertion that the Owners’ claims against IDG involve only design related services and not construction related services, and that LME can therefore cannot be required to indemnify IDG for its construction services. As discussed above, LME did not submit evidence suggesting it cannot be required to indemnify IDG, and as such, this argument fails.

    Based on the foregoing, LME did not meet its burden on summary adjudication. Even assuming, arguendo, LME met its burden, IDG submitted evidence creating a triable issue of material fact as to whether Owners’ underlying claims against IDG include claims for construction services, for which LME may be liable. Specifically, IDG submitted evidence from Owners’ only designated expert, Seb Ficcadenti (“Ficcadenti”), in which Ficcadenti notes that the plans were clear and provided adequate information and details to construct the structure with required vertical clearances and criticizes IDG and JWS for contract administration/construction observation services performed by JWSE in connection with construction work performed by LME and other subcontractors. (IDG’s Evidence in Opposition (“EIO”) Exh. 6 [Report, pgs. 4, 9].) IDG submits Ficcadenti’s expert opinion that LME did not install the conduit per the plans, that Mr. Jessen should have reported the conduit installation did not conform with the plans, and that the resulting nonconforming conduit layout contributed to the thickened slab and lack of vertical clearance. (EIO, Exh. 7 [Report, pgs. 1-2].) IDG submitted evidence that LME agreed to defend Architect [IDG] or Design Consultant [JWSE] from and against claims arising out of performance of the Subcontract work by Subcontractor [LME] regardless of whether such claim is caused in part by an indemnified party [IDG or JWSE]. (EIO, Exh. 3, Higham Depo 214:10-216:9, Exh. 4 ¶4.6.1.) IDG argues that Owners’ claims against it arise out of LME’s performance of electrical work on the subcontract. (Opposition, pg. 17.) While IDG may be partly responsible for Mr. Jessen’s failure to report, there is a triable issue of fact as to whether LME should indemnify IDG’s failure in its contract administration services if LME was responsible.

    In addition, IDG’s evidence suggests that the Owners’ claims against IDG are embraced by the indemnity given that those claims arise out of the performance of LME’s electrical work within the meaning of the indemnity provision because the construction work that the design team purportedly observed was the layout of the electrical conduit installed by LME. (Opposition, pg. 18.) As such, a triable issue exists as to whether LME has a duty to defend IDG.

    Based on the foregoing, LME’s motion for summary adjudication of the 6th and 7th causes of action is denied.

  1. Land Mark Electric, Inc.’s MSJ/MSA Against JWSE

    LME moves for summary judgment against JWSE on its cross-complaint. In the alternative, LME moves for summary adjudication of issues on the 2nd (express contractual indemnity), and 3rd (declaratory relief – duty to defend) causes of action in JWSE’s cross-complaint on the grounds that there is no issue of material fact to dispute that JWSE is not entitled to indemnification from LME. (Notice of Motion, pg. 2.) Specifically, JWSE moves on the issues that the causes of action for express contractual indemnity and declaratory relief are barred because the claims against JWSE’s indemnitee IDG, are solely for alleged design related deficiencies. (See LME’s Separate Statement.)

    Evidentiary Objections

    JWSE’s 3/2/20 evidentiary objection to the declaration of Michael J. Larin is sustained as to No. 1.

    JWSE’s 3/2/20 evidentiary objections to the declaration of Philip M. Hayes are overruled as to Nos. 1 [Exh. 1], 2 [Exh. 2], 3 [Exh. 4], 4 [Exh. 10], 5 [Exh. 11], 8 [Exh. 19], 9 [Exh. 20], 10 [Exh. 21], and 11 [Exh. 22], and are sustained as to Nos. 6 [Exh. 12], and 7 [Exh. 13].

    JWSE’s 3/3/20 request for judicial notice is granted. However, the Court will not take judicial notice of the truth of the matters asserted in the rulings. (RJN, Exhs. A, B.)

    Background of Action and Relevant Cross-Complaints

    The Court incorporates by reference the discussion of the background of the instant action and relevant cross-complaints in support of its ruling on LME’s motion for summary judgment against IDG.

    The Court notes that the same underlying agreements provide background for JWSE’s cross-complaint against LME. First, IDG and Tristar’s professional services agreement in which IDG agreed to indemnify Tristar from liability arising out of the acts or omissions IDG or its contractors in the performance of the agreement. Here, IDG and JWSE entered into a proposal in which IDG subcontracted to JWSE a portion of its scope of work for design consulting. (USSF No. 2.) That agreement provides that JWSE shall indemnify IDG from any claims to the extent they are caused by the negligence of JWSE in performance of its services or anyone for whose acts JWSE may be liable. (See SOE, Exh. 2, pg. 9.) Second, as discussed above, the agreement between CW Driver and LME provides that LME shall indemnify CW Driver, Owner, Architect (IDG), or Design Consultant (JWSE), or any of their respective consultants, agents, officers, directors, and employees from and against any claims arising out of performance of the Subcontract Work by LME, regardless of whether or not such claim is caused in part by a party indemnified hereunder, namely, CW Driver, IDG, or JWSE. The Agreement further provides that LME’s indemnification obligations shall not extend to the liability of IDG or JWSE, or other Design Consultant, arising out of their preparation or approval of maps, drawings, opinions, reports, surveys, change orders, designs or specifications; or their giving or failure to give directions or instructions, provided such giving or failure is the primary cause of the damage. (See SOE, Exh. 3, pgs. 7-8.)

    On December 11, 2018, JWSE filed its cross-complaint against LME and other subcontractors alleging causes of action for equitable indemnity, express contractual indemnity, and declaratory relief. In support of its express contractual indemnity cause of action, JWSE alleged that pursuant to the subcontractor agreement entered into between LME and CW Driver, LME has an obligation to JWSE to indemnify, defend, and hold harmless JWSE from all claims arising out of or resulting from the performance of LME’s work. (Cross-Complaint ¶14.) JWSE alleged that Owners’ alleged damages asserted against IDG and subsequently against JWSE arise out of the services performed by LME and other subcontractors, triggering LME’s obligations to indemnify, defend, and hold harmless JWSE. (Cross-Complaint ¶15.) Similarly, in support of its declaratory relief – duty to defend cause of action, JWSE alleged that a dispute has arisen between JWSE and LME with respect to the right to receive indemnification, that JWSE is entitled to be indemnified by LME if it suffers a judgment in the action, and that LME disputes its duty to defend JWSE. (Cross-Complaint ¶15.)

    Procedural Background

    On November 1, 2019, the Court ruled on LME’s demurrer to the cross-complaint by overruling the demurrer as to the express contractual indemnity and declaratory relief causes of action and by sustaining without leave to amend as to the equitable indemnity cause of action in light of JWSE’s request that the Court dismiss that cause of action. (11/1/19 Ruling on Submitted Matter.)

    Express Contractual Indemnity & Declaratory Relief – Duty to Defend (2nd & 3rd COAs)

    LME argues that JWSE’s causes of action for express contractual indemnity and declaratory relief fail for the following three reasons: (1) it is against public policy for LME to indemnify JWSE for “design services” pursuant to Civil Code §2782(a) given that LME was hired to perform construction work that does not include design services; (2) the Owners sued IDG, JWSE’s alleged indemnitee, only for defects in the rendering of design-related services, which were not carried out by LME; and (3) IDG sued JWSE for JWSE’s design work and not LME’s underlying construction work. (Motion pg. 8.) In its separate statement, LME asserts that both causes of action are barred because the Owners’ claims against JWSE’s indemnitee, IDG, are solely for alleged design-related deficiencies. (See Separate Statement.)

    Civil Code §2782 provides that, “[P]rovisions… contained in… any construction contract and that purport to indemnify the promisee against liability for damages for… damage or expense arising from the sole negligence or willful misconduct of the promisee or the promisee’s agents, servants, or independent contractors who are directly responsible to the promisee, or for defects in design furnished by those persons, are against public policy and are void and unenforceable…” (Emphasis Added.) Civil Code §2784 provides that, “As used in [Civil Code §§2782 and 2782.5], a ‘design defect’ is defined as a condition arising out of its design which renders a structure… when constructed substantially in accordance with its design, inherently unfit, either wholly or in part, for its intended use or which impairs or renders the use of such structure, equipment, machinery or property dangerous.”

    The Court notes LME’s argument that the listing of services that fall under the engineer’s license in Business & Professions Code §6701 (“Section 6701”) demonstrates that these services are “categorically” considered “design services” for the application of Civil Code §2782 defense. (Motion, pgs. 9-11.) However, LME cites to no authority suggesting Section 6701 applies to the types of “defects in design” contemplated in Civil Code §2782(a), especially given that the Civil Code §2784 defines the terminology used in Civil Code §2782(a), as cited above. As this Court previously held, indemnification arising from contract administration services is not barred by Civil Code §2782(a), which applies to defects in design. (See Court’s 11/1/19 Ruling on Submitted Matter.)

    LME did not meet its burden of demonstrating that the “defect in design” defense of Civil Code §2782(a) bars JWSE’s express indemnity and declaratory relief claims. LME did not submit evidence suggesting JWSE is seeking indemnity for a condition of a structure which LME constructed substantially in accordance with its design, and that, nonetheless, was inherently unfit for its intended use. (Civil Code §2784.) LME’s theory that Civil Code §2782(a) bars JWSE’s claims relies on a broadening of the definition of “defect in design” to include all the services for which JWSE was contracted for, and, as such, LME has not met its burden that this defense applies to the action.

    LME argues it does not owe JWSE indemnity because Owners’ action against IDG, for which JWSE is seeking indemnity, is only for alleged design related deficiencies and not for the underlying construction work. (Motion, pgs. 11-12.) However, this argument is without merit given that a party’s duty to indemnify does not depend on the claims alleged in the third-party complaint, but on whether the indemnitee eventually sustains damages or losses within the meaning of the indemnity provision, regardless of whether the allegations in the underlying complaints are embraced by the indemnity provision. (Aluma at 622-623.) By relying on the allegations asserted by Owners, LME submits no evidence as to whether JWSE will or will not sustain damages or losses to Owners for work performed by LME. Pursuant to its agreement with CW Driver discussed above, LME agreed to indemnify CW Driver, Owners, IDG, and JWSE, to the extent damages result from work LME performed on the Project.

    In support of its assertion that LME does not owe JWSE indemnity because the Owners sued JWSE’s indemnitee (IDG) solely for design related deficiencies, LME sets forth the same argument and evidence as in its motion for summary judgment/adjudication motion of IDG’s Corrected First Amended Cross-Complaint, discussed above. (See Motion, pgs. 11-14 .) However, as with LME’s demurrer to IDG’s cross-complaint, in ruling on LME’s demurrer to JWSE’s cross-complaint, the Court found that the scope of Owners’ allegations do not govern the question of whether the allegations determine the duty to indemnify, rather, the language of the contract should be considered, and here, LME agreed to indemnify consultants and agents for performance of its work on the project such that apportionment of liability has yet to be decided. (11/1/19 Ruling, pg. 5.)

    In support of its argument that the evidence demonstrates that Owners’ claims against IDG, and therefore against JWSE, are solely for alleged design-related deficiencies and not construction work, LME sets forth the same argument and evidence as in its motion for summary judgment against IDG. (See Motion, pgs. 14-15.) However, as discussed above, LME does not meet its burden of addressing how the submitted evidence demonstrates that the Owners’ claims against IDG, and therefore JWSE, are only limited to design-related deficiencies and unrelated to any underlying construction work performed by LME on the project. To the extent JWSE sustains damages or losses from LME’s work, even if such damage or loss was caused in part by JWSE or IDG, LME has agreed to indemnify JWSE for such losses.

    LME argues that JWSE cannot claim a duty to defend since JWSE’s action against LME is not “embraced by the indemnity” duty, and, as such, there is no duty to defend. (Motion, pgs. 13-14, citing City of Bell v. Superior Court (2013) 220 Cal.App.4th 236, 249.) However, this argument relies on LME’s assertion that the Owners’ claims against IDG, and therefore JWSE, involve only design related services and not construction related services, and that LME can therefore cannot be required to indemnify JWSE for damages arising from LME’s performance of its construction services. As discussed above, LME did not submit evidence suggesting it cannot be required to indemnify JWSE, and as such, this argument fails.

    Based on the foregoing, LME did not meet its burden on summary adjudication. Even assuming, arguendo, LME met its burden, JWSE submitted evidence creating a triable issue of material fact for theories of liability unaddressed by LME. Specifically, JWSE submitted evidence suggesting JWSE may be held liable for LME’s insufficient performance of its subcontract work, notwithstanding the fact that JWSE and IDG may also have contributed to the losses or damages that can potentially be suffered by JWSE. (See Motion, pg. 13; JWSE’s Additional Material Fact (“AMF”) Nos. 9-20.) The expert opinions of Ficcadenti and Don Gifford (“Gifford”) submitted by JWSE demonstrate that LME’s performance of its work may have contributed to the theories of liability against IDG, and thereby, JWSE.

    Based on the foregoing, LME’s motion for summary judgment is denied. LME’s motion for summary adjudication of the 2nd and 3rd causes of action is denied.