LENNOX UNIFIED SCHOOL VS. PERKINS & WILL, INC.

Tentative Rulings

Case Number: YC071654    Hearing Date: September 02, 2020    Dept: B

LOS ANGELES SUPERIOR COURT – SOUTHWEST DISTRICT

Honorable Gary Y. Tanaka Wednesday, September 2, 2020

Department B Calendar No. 6

PROCEEDINGS

Lennox School District v. Perkins & Will, Inc., et al.

YC071654

1. Perkins & Will, Inc., Seth Shuji Sakamoto, Randolph Carl Larsen, and Wendell Lee Vaugh, Jr.’s (“Defendants”) Motion in Limine No. 4 to Exclude Consequential Damages

TENTATIVE RULING

Defendants’ Motion in Limine No. 4 to Exclude Consequential Damages is denied.

Defendants moves in limine for an order excluding any and all evidence, reference to evidence, testimony or argument regarding consequential damages incurred by Plaintiff on the grounds that the contract contained a specific waiver of Plaintiff’s right to recover consequential damages. Specifically, MIL No. 4 provides a chart at pages 13 to 14 setting forth various types of damages sought to be excluded in the combined sum of $2,603,470.00, damages purportedly incurred due to delays caused by Defendant’s alleged breach.

Section 1.3.6 of the Agreement states: “The Architect and the Owner waive consequential damages for claims, disputes, or other matters in question arising out of or relating to this Agreement. This mutual waiver is applicable, without limitation, to all consequential damages due to either party’s termination in accordance with Section 1.3.8.” Section 1.3.8 is a lengthy section that deals with Termination of the Agreement. Nothing in Section 1.3.6 or 1.3.8 provides a specific definition of the type of damages that are deemed waived under Section 1.3.6. However, Section 1.3.8.1 does state the following: “In the event of a suspension of services [by the Architect], the Architect shall have no liability to the Owner for delay or damages caused the Owner because of such suspension of services.” This exculpatory language would seem to indicate that “delay damages” may have been a contemplated damage in the contract.

Section 1.3.7.2 states: “Terms in this Agreement shall have the same meaning as those in the edition of AIA Document A201 General Conditions of the Contract for Construction, current as of the date of this Agreement.”

Section 4.3.10 of the AIA Document A201 states: “Claims for Consequential Damages. The Contractor and Owner waive Claims against each other for consequential damages arising out of or relating to this Contract. This mutual waiver includes: 1. damages incurred by the Owner for rental expenses, for losses of use, income, profit, financing, business and reputation, and for loss of management or employee productivity or of the services of such persons; and 2. damages incurred by the Contractor for principal office expenses including the compensation of personnel stationed there, for losses of financing, business and reputation, and for loss of profit except anticipated profit arising directly from the Work.”

Thus, nothing in Section 4.3.10 of the AIA Document includes a specific waiver of damages based on delay.

Civ. Code, § 3300 states: “For the breach of an obligation arising from contract, the measure of damages, except where otherwise expressly provided by this Code, is the amount which will compensate the party aggrieved for all the detriment proximately caused thereby, or which, in the ordinary course of things, would be likely to result therefrom.” “Contract damages are generally limited to those within the contemplation of the parties when the contract was entered into or at least reasonably foreseeable by them at that time; consequential damages beyond the expectations of the parties are not recoverable.” Applied Equipment Corp. v. Litton Saudi Arabia Ltd. (1994) 7 Cal.4th 503, 515. “[U]nless it can be ruled on as a matter of law, the question whether the buyer's consequential damages were foreseeable by the seller is one of fact to be determined by the trier of fact.” Sun-Maid Raisin Growers v. Victor Packing Co. (1983) 146 Cal.App.3d 787, 790

Here, for purposes of the instant motion in limine, Defendants have failed to establish with admissible competent evidence that the damages asserted by Plaintiff which Defendants seeks to preclude were not within the contemplation of the parties or not reasonably foreseeable at the time that the contract was entered into. The Court notes that, with the initial motion, Defendants failed to provide any competent evidence to demonstrate the intent of the parties. The Court further notes that while some evidence was belatedly presented with the Reply, this evidence would merely support a factual issue best reserved for the trier of fact. The evidence does not support the conclusion that, as a matter of law, the damages sought by Plaintiff are precluded within the contract.

Accordingly, Defendants’ MIL No. 4 is denied/overruled.