DANIEL TEMIANKA, ET AL. VS. WILLIAM ROBERT HEFNER, ET AL.

Tentative Rulings

Case Number: EC063852    Hearing Date: December 18, 2020    Dept: D

TENTATIVE RULING

Calendar: 15

Date: 12/18/2020 Trial date: None Set

Case Number: EC063852

Case Name: Temianka, et al v. Hefner, et al.

MOTION FOR SUMMARY ADJUDICATION

[CCP § 437c; CRC 3.1350 et seq.]

Relief Requested:

Summary adjudication in favor of Defendants William Hefner Architect, Inc. dba Studio William Hefner and William Hefner, on the first, sixth and eighth causes of action and as to the applicability of limitations of remedies provision

Moving Party: Defendants William Hefner Architect, Inc. dba Studio William Hefner and

William Hefner

Responding Party: Plaintiffs Daniel Temianka and Zeinab Dabbah, individually and as Trustees

CAUSES OF ACTION: from Third Amended Complaint

1) Rescission (SWH Contracts)

2) Rescission (BCG Contract)

3) Fraud (SWH Contracts)

4) Fraud (BCG Contract)

5) Breach of Fiduciary Duty

6) Professional Negligence

7) Violation of Business and Professions Codes

8) Breach of Contract (SWH Contracts)

9) Breach of Contract (BCG Contract)

10) Breach of Third Party Beneficiary Contracts

11) Negligence

12) Intentional Misrepresentation

13) Negligent Misrepresentation

14) Conversion

15) Trespass to Chattels

SUMMARY OF COMPLAINT:

These consolidated actions arise out of a remodeling project entered into for improvements to a residence in La Canada owned by Daniel Temianka and Zeinab Dabbah, individually and as trustees of the Daniel Temianka and Zeinab Dabbah Family Trust.

The complaints in the related actions have been deemed the cross-complaints. In those cross-complaint, defendants and cross-complainants Building Inc. Construction and other parties, including William Hefner Architect, Inc. allege that they provided services on the project for which they have not been paid.

RULING:

CCP 437c(g): Material facts which do or do not create a triable issue of controversy:

Defendant William Hefner Architect, Inc. dba Studio William Hefner and William Hefner’s Motion for Summary Adjudication of Causes of Action and Issue of Damages is DENIED.

Issue No. 1: Summary Adjudication as to the First Cause of Action for Rescission as to Hefner and SWH

Motion is DENIED.

The parties agree this cause of action is based on Civil Code §1689, which provides, in pertinent part:

“(b) A party to a contract may rescind the contract in the following cases:

(1) If the consent of the party rescinding, or of any party jointly contracting with him, was given by mistake, or obtained through duress, menace, fraud, or undue influence, exercised by or with the connivance of the party as to whom he rescinds, or of any other party to the contract jointly interested with such party.”

Defendants argue that plaintiffs cannot establish that at the time the parties entered into the Architectural Agreement with SWH, consent to that contract was given by mistake or obtained through fraud, but that the purported irregularity here, the alleged failure to disclose that defendant William Hefner had an interest in BCG, was not material to the Architectural Agreement. The argument is that the Architectural Agreement was only for architectural services to be provided by defendants and does not include any construction work or general contracting services, or make any reference to BCG, and that plaintiff’s BCG contract was not signed until almost three weeks after the Architectural Agreement was executed, so that at the time of the execution of the Architectural Agreement, there was no reason for defendants to include Hefner’s ownership interest in BCG within the Architectural Agreement. The showing submitted fails to meet defendants’ initial burden of establishing the argument made, as the documents relied upon are not properly authenticated, and have been objected to on that ground, and, in any case, the showing would support a competing reasonable inference that the failure to disclose an interest in the construction company defendants then intended to recommend to do construction work constituted the omission of a material fact with respect to what appropriate contract terms for the architectural services would be. See CCP § 437c(c) (“summary judgment shall not be granted by the court based on inferences reasonably deducible from the evidence if contradicted by other inferences or evidence that raise a triable issue as to any material fact.”); see also Hepp v. Lockheed-California Co. (1978) 86 Cal.App.3d 714, 718.

In any case, even if the burden had shifted to plaintiffs to raise triable issues of material fact, plaintiffs in opposition argue that this argument fails to dispose of the entire cause of action for rescission, which seeks to rescind not only the Architectural Agreement, but the Design Services Agreement entered into on May 21, 2013, after plaintiffs, at the recommendation of defendants, had entered into the BCG Agreement in December of 2012. [See Third Amended Complaint, paras. 27-31, 83, 84; UMF Nos. 10, 11]. The motion does not address this agreement, and defendants have failed to meet their initial burden on this ground as well.

Plaintiffs in opposition have also submitted evidence supporting a reasonable inference that the failure to disclose the interest in BCG was a material omission, and that based on the potential conflict of interest, plaintiffs would not have entered into the Architectural Agreement in the first instance, as well as that defendants independently engaged in fraud by false promises, in effect, promising the provision of services defendants did not at the time intend to provide, and were, in fact, not provided. [Response to UMF Nos. 3, 9, 10, and evidence cited]. Triable issues of fact have accordingly been raised.

Issue No. 2: Summary Adjudication as to the Sixth Cause of Action for Professional Negligence as against Hefner and SWH

Motion is DENIED.

Defendants argue that plaintiff will be unable to establish this cause of action because they cannot establish the essential element of damages to support a professional negligence claim, as they have no evidence to prove actual loss or damage resulting from the allege professional negligence. Specifically, defendants argue that the measure of damages for alleged defective construction is the lesser of (1) the cost to repair the property, or (2) diminution in value of the property under Heninger v. Dunn (1980) 101 Cal.App.3d 858, 862, and that the cost of repair is beyond the competence of a layperson so that expert opinion is required. See Miller v. Los Angeles County Flood Control Dist. (1973) 8 Cal.3d 689, 703-702. Defendants argue that plaintiffs designated three experts, and the only one of which was qualified to opine as to the cost of repair was their general contracting expert, Fowler, who testified at deposition that he did not obtain bids for repair or completion of the project. [UMF No. 27].

Plaintiffs in opposition have submitted further testimony from their recognized expert Mr. Fowler, which shows the expert has since conducted detailed work to prove the cost to repair the property and support a claim of recoverable damages. [Response to UMF No. 27, and evidence cited; Fowler Decl., paras, 4, 6, 9-12, 15]. While the motion and reply argue that this subsequent opinion testimony is improper under Kennemur v. State of California (1982) 133 Cal.App.3d 907, a review of the deposition transcript relied upon in the moving papers fails to show that the expert was asked the critical question of whether he had expressed all opinions intended to be offered at the time of trial. [See Exhibits submitted by defendants, Ex. A7, Fowler Deposition].

In addition, plaintiffs submit evidence on this matter from the construction contractor who performed repairs, charged for them and was paid by plaintiffs for the repairs, was identified as a non-retained expert and who appears to have sufficient experience in such construction matters to qualify as an expert. [Response to UMF Nos. 27, 31, and evidence cited; Fowler Decl., para. 15; Golenberg Depo., pp. 16, 45, 51-61, 75, 76, 81-98, 174]. Triable issues of fact remain.

Issue No. 3: Summary Adjudication as to the Eighth Cause of Action for Breach of Contract as against Hefner and SWH

Motion is DENIED.

Defendants argue that because plaintiffs cannot establish the essential element of damages, they cannot establish each element of their breach of contract claim, based on the same argument asserted as to Issue 2, above. As discussed above, triable issues of fact have been raised with respect to plaintiffs’ ability to prove damages under defendants’ theory. The motion on this issue accordingly also is denied.

Issue No. 4: Summary Adjudication as to the issue of applicability and enforceability of the Limitation of Remedies provision within the contract entered into by and between Plaintiffs and Defendants.

Motion is DENIED.

The motion does not dispose of an entire cause of action, as required under CCP § 437c(f)(1) (“A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.”) To the extent the argument appears to be that the adjudication disposes of an issue of “damages,” under CCP §437c (f)(1) “ a party may move for summary adjudication as to ... one or more claims for damages ... if that party contends ... that there is no merit to a claim for damages as specified in Section 3294 of the Civil Code...”

Section 3294 of the Civil Code specifically addresses only punitive damages:

“(a) In an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant.”

The Second District has accordingly held that this portion of the summary adjudication statute applies only to punitive damage claims and that the statute does not permit summary adjudication of other claims for damages which do not dispose of an entire cause of action. DeCastro West Chodorow & Burns, Inc. v. Superior Court (1996) 47 Cal.App.4th 410. CCP §437c permits summary adjudication of other issues, but only under specified circumstances, including submitting a stipulation and obtaining advance permission of the court, which has not been obtained here.

In addition, the argument by defendants is that the Architect Agreement and Design Services Agreement include an enforceable limitation with respect to damages being limited to the total invoiced dollar value of the services provided and paid by client, not to exceed the amount of defendant SWH’s available insurance policies. Again, no properly authenticated copies of the subject Agreements are submitted with the moving papers to establish the existence of such provisions, and objections have been asserted on this ground, so that defendants have failed to meet their initial burden on this motion.

In addition, plaintiffs have submitted evidence raising triable issues of material fact with respect to the validity of such a provision under circumstances involving alleged intentional tortious/fraudulent conduct. [Response to UMF No. 33, and evidence cited]. See Civil Code section 1668 (“All contracts which have for their object, directly or indirectly, to exempt anyone from responsibility for his own fraud, or willful injury to the person or property of another, or violation of law, whether willful or negligent, are against the policy of the law.”)

Plaintiffs’ Objections to Evidence Submitted by Defendants in Support of Defendants’ Motion for Summary Adjudication are SUSTAINED. The Court notes, however, that plaintiffs in opposition purport to rely on some of the unauthenticated documents, which plaintiffs themselves evidently at least partly authenticate.

Defendants William Hefner Architect, Inc. dba Studio William Hefner’s and William Hefner’s Objections to Plaintiff’s Evidence in Support of Opposition to Motion for Summary Adjudication:

Objections are OVERRULED. The Court notes it has limited consideration of evidence of damages in connection with the professional negligence cause of action to cost to repair or diminution in value.

GIVEN THE CORONAVIRUS CRISIS, AND TO PROMOTE APPROPRIATE SOCIAL DISTANCING, UNTIL FURTHER ORDERED, DEPARTMENT D IS ENCOURAGING AUDIO OR VIDEO APPEARANCES

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