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This case was last updated from Los Angeles County Superior Courts on 07/10/2021 at 12:26:27 (UTC).

DAVID TATISHVILI ET AL VS NOESIS GROUP LLC ET AL

Case Summary

On 09/10/2018 DAVID TATISHVILI filed a Contract - Other Contract lawsuit against NOESIS GROUP LLC. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are BARBARA A. MEIERS and GREGORY KEOSIAN. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****0808

  • Filing Date:

    09/10/2018

  • 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

BARBARA A. MEIERS

GREGORY KEOSIAN

 

Party Details

Plaintiffs and Petitioners

TATISHVILI DAVID

NEVELEVA FAINA

Defendants, Respondents and Cross Plaintiffs

SABBAH-AZRAN SYLVAIN

AZRAN DAN

NOESIS LA JOLLA 429 LLC

NOESIS GROUP LLC

DOES 1 TO 50

AZRAN IGAL

VIDAL JUAN A.

N.E. DESIGNS INC. A CALIFORNIA CORPORATION

GISPAN ERAN

GISPAN NATHALIE

SABBAH-MANI SYLVAIN

Cross Defendants

MATILDA DAHAN DBA A&E COVERINGS

H & S CUSTOM INSTALLATIONS INC.

MANI NOBAR

MODERN ONE PLASTERING

REGENCY DESIGN GROUP INC.

C & G REMODELING INC.

LUCAS CONCRETE PUMPING

21 More Parties Available

Attorney/Law Firm Details

Plaintiff and Petitioner Attorney

THE KNEAFSEY FIRM INC.

Defendant and Cross Plaintiff Attorneys

THOMAS MARC W

AVRAHAMY JOSEPH Y

ORLAND JAMES

FISCHBACH JOSEPH

BARMASSE MICHAEL EDWARD

ROBERTS PATRICK

HAMILTON JENNIFER

FISCHBACH JOSEPH S.

WILTON RONALD DAVID

Cross Defendant Attorney

MARANTZ PAMELA JOY

 

Court Documents

Separate Statement

3/4/2021: Separate Statement

Order Appointing Court Approved Reporter as Official Reporter Pro Tempore

3/18/2021: Order Appointing Court Approved Reporter as Official Reporter Pro Tempore

Reply - REPLY TO PLAINTIFFS' OPPOSITION TO DEFENDANTS' MOTION FOR SUMMARY JUDGMENT; DECLARATION OF NATALIE GISPAN

8/11/2020: Reply - REPLY TO PLAINTIFFS' OPPOSITION TO DEFENDANTS' MOTION FOR SUMMARY JUDGMENT; DECLARATION OF NATALIE GISPAN

Minute Order - MINUTE ORDER (HEARING ON MOTION FOR SUMMARY JUDGMENT)

8/18/2020: Minute Order - MINUTE ORDER (HEARING ON MOTION FOR SUMMARY JUDGMENT)

Supplemental Declaration - SUPPLEMENTAL DECLARATION REGARDING SANCTIONS IN OPPOSITION TO PLAINTIFFS

8/3/2020: Supplemental Declaration - SUPPLEMENTAL DECLARATION REGARDING SANCTIONS IN OPPOSITION TO PLAINTIFFS

Declaration - DECLARATION PLAINTIFFS' EXHIBITS; DECLARATION OF KURT A. DREIBHOLZ IN SUPPORT OF OPPOSITION TO MOTION FOR SUMMARY JUDGMENT

8/4/2020: Declaration - DECLARATION PLAINTIFFS' EXHIBITS; DECLARATION OF KURT A. DREIBHOLZ IN SUPPORT OF OPPOSITION TO MOTION FOR SUMMARY JUDGMENT

Separate Statement

8/4/2020: Separate Statement

Notice - NOTICE OF CONTINUANCE OF MOTION OF DEFENDANTS N.E. DESIGNS, INC., NATHALIE GISPAN AND ERAN GISPAN FOR SUMMARY JUDGMENT

6/24/2020: Notice - NOTICE OF CONTINUANCE OF MOTION OF DEFENDANTS N.E. DESIGNS, INC., NATHALIE GISPAN AND ERAN GISPAN FOR SUMMARY JUDGMENT

Proof of Personal Service

6/12/2020: Proof of Personal Service

Notice - NOTICE OF ORDER CONTINUING PLAINTIFF'S MOTIONS TO COMPEL FILED ON MAY 11, 2020

6/1/2020: Notice - NOTICE OF ORDER CONTINUING PLAINTIFF'S MOTIONS TO COMPEL FILED ON MAY 11, 2020

Answer

12/12/2019: Answer

Request for Entry of Default / Judgment

10/8/2019: Request for Entry of Default / Judgment

Demurrer - without Motion to Strike

9/3/2019: Demurrer - without Motion to Strike

Proof of Personal Service

9/4/2019: Proof of Personal Service

Summons - SUMMONS ON COMPLAINT

7/3/2019: Summons - SUMMONS ON COMPLAINT

Proof of Service by Substituted Service

8/7/2019: Proof of Service by Substituted Service

Minute Order - Minute Order (Case Management Conference)

12/10/2018: Minute Order - Minute Order (Case Management Conference)

Minute Order -

9/13/2018: Minute Order -

170 More Documents Available

 

Docket Entries

  • 04/04/2023
  • Hearing04/04/2023 at 09:00 AM in Department 61 at 111 North Hill Street, Los Angeles, CA 90012; Jury Trial

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  • 03/27/2023
  • Hearing03/27/2023 at 09:00 AM in Department 61 at 111 North Hill Street, Los Angeles, CA 90012; Final Status Conference

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  • 01/27/2023
  • Hearing01/27/2023 at 09:00 AM in Department 61 at 111 North Hill Street, Los Angeles, CA 90012; Post-Mediation Status Conference

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  • 06/23/2021
  • Docketat 08:30 AM in Department 61, Gregory Keosian, Presiding; Hearing on Ex Parte Application (TO CONTINUE TRIAL) - Held

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  • 06/23/2021
  • DocketMinute Order ( (Hearing on Ex Parte Application TO CONTINUE TRIAL)); Filed by Clerk

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  • 06/23/2021
  • DocketNotice of Ruling; Filed by Noesis Group, LLC (Defendant)

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  • 06/23/2021
  • DocketOrder (Proposed Case Management Order); Filed by Noesis Group, LLC (Defendant)

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  • 06/23/2021
  • DocketStipulation and Order (STIPULATION FOR ENTRY OF CASE MANAGEMENT ORDER); Filed by Noesis Group, LLC (Defendant)

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  • 06/21/2021
  • DocketEx Parte Application (UNOPPOSED EX-PARTE APPLICATION TO CONTINUE TRIAL); Filed by Noesis Group, LLC (Defendant)

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  • 05/18/2021
  • DocketNotice of Change of Address or Other Contact Information; Filed by Joseph Fischbach (Attorney)

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201 More Docket Entries
  • 09/18/2018
  • DocketProof-Service/Summons; Filed by David Tatishvili (Plaintiff)

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  • 09/13/2018
  • Docketat 00:00 AM in Department 12; (Affidavit of Prejudice; Transferred to different departmnt) -

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  • 09/13/2018
  • DocketMinute order entered: 2018-09-13 00:00:00; Filed by Clerk

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  • 09/13/2018
  • DocketMinute Order

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  • 09/12/2018
  • DocketChallenge To Judicial Officer - Peremptory (170.6); Filed by Faina Neveleva (Plaintiff); David Tatishvili (Plaintiff)

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  • 09/12/2018
  • DocketPEREMPTORY CHALLENGE TO JUDICIAL OFFICER

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  • 09/10/2018
  • DocketSUMMONS

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  • 09/10/2018
  • DocketCOMPLAINT

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  • 09/10/2018
  • DocketComplaint; Filed by Faina Neveleva (Plaintiff); David Tatishvili (Plaintiff)

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  • 09/10/2018
  • DocketNOTICE OF CASE ASSIGNMENT

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Tentative Rulings

Case Number: BC720808    Hearing Date: March 18, 2021    Dept: 61

Defendant Nathalie Gispan’s Motion for Summary Judgment is GRANTED.

I. OBJECTIONS

Plaintiffs submit objections to the evidence submitted in support of Nathalie Gispan’s motion for summary judgment. The motion is effectively resolved by the absence of triable issues of fact as to whether Nathalie had any involvement with the project at issue, and since the objections target none of the evidence that establish that fact, it is unnecessary to rule on them. (See Code Civ. Proc. § 437c, subd. (q) [“the court need rule only on those objections to evidence that it deems material to its disposition of the motion”].)

II. SUMMARY JUDGMENT

A party may move for summary judgment “if it is contended that the action has no merit or that there is no defense to the action or proceeding.” (Code Civ. Proc. § 437c, subd. (a).) “[I]f all the evidence submitted, and all inferences reasonably deducible from the evidence and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law,” the moving party will be entitled to summary judgment. (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.) A motion for summary adjudication may be made by itself or as an alternative to a motion for summary judgment and shall proceed in all procedural respects as a motion for summary judgment. (Code Civ. Proc. § 437c, subd. (f)(2).)

The moving party bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact, and if he does so, the burden shifts to the opposing party to make a prima facie showing of the existence of a triable issue of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850; accord Code Civ. Proc. § 437c, subd. (p)(2).)

Once the defendant has met that burden, the burden shifts to the plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. (Aguilar, supra, 25 Cal.4th at 850.) The plaintiff may not rely upon the mere allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to that cause of action or a defense thereto. (Ibid.) To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.)

Nathalie Gispan (Nathalie) moves for summary judgment on the grounds that she did not proximately cause any injury to Plaintiffs. (Motion at p. 4.) Specifically, Nathalie argues that she is an interior designer who performed no work on the project. (Motion at p. 4; Nathalie Decl. ¶¶ 4–5.)

“The elements of any negligence cause of action are duty, breach of duty, proximate cause, and damages. (Peredia v. HR Mobile Services, Inc. (2018) 25 Cal.App.5th 680, 687.) The issue of duty is a question of law. (Weseloh, supra, 125 Cal.App.4th at p. 163.)

Plaintiffs oppose the motion on the grounds that this is an improper motion for reconsideration, since the court denied Defendants’ prior motion for summary judgment, which related to the issue of duty and did not advance any argument as to Nathalie specifically. (Opposition at pp. 7–9.) "

“A party shall not move for summary judgment 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.” (Code Civ. Proc., § 437c, subd. (f)(2).) Here, this motion is not properly construed as a motion for reconsideration, since the previous motion did not raise the issue of Nathalie’s independent lack of role in the construction projects that form the basis of this motion. Although Nathalie filed a separate reply seeking adjudication on that basis (See 8/11/2020 Reply), the court denied Nathalie’s request because the operative motion for summary judgment (filed jointly with Eran Gispan and N.E. Designs) sought no adjudication on that basis. And although Plaintiffs note many similarities between this motion and the previous one, they concede that the motion relies on different evidence and a different legal issue. (Opposition at pp. 10–11; Liberty Mutual Ins. Co. v. Superior Court (1997) 58 Cal.App.4th 617, 623 [“In the present instance, Liberty Mutual presented an argument about trigger of coverage on the earlier motion. On the present motion, Liberty Mutual does not ask for reconsideration of the court's ruling on trigger of coverage, but instead contends that New York law applies and that there can be no duty to indemnify under New York law. Hence no motion to reconsider is involved here.”].) Because this motion is brought on an entirely different issue, it is not properly construed as one for reconsideration.

That issue is a simple one: could Nathalie have caused any of Plaintiffs’ damages without contributing to the project? The motion approaches this in a straightforward way, presenting the declarations of Eran and Nathalie Gispan, both of which state that Nathalie had no involvement in the project. (Eran Decl. ¶ 4; Nathalie Decl. ¶¶ 4–5.) This is sufficient to satisfy Nathalie’s intial burden on summary judgment to show no triable issues of fact as to whether she caused any of Plaintiffs’ damages.

Plaintiffs present no substantial responsive evidence to counter this showing. They present the architectural plans for the project, which indicate that N.E. Designs, Inc. was the author. (Opposition Exh. 3.) But this does little to rebut the fact that Eran, rather than Nathalie, contributed these designs. Plaintiffs also point to statements from the prior motion indicating moving parties “responsibilities [on the project] were limited to designing the home’s exterior,” by which they attempt to lump in Nathalie with “moving parties.” (Separate Statement No. 2.) But it is not reasonable to interpret that statement as an admission that Nathalie performed the work identified, particularly when it was advanced in the context of a joint motion for summary judgment and where Eran has already testified that it was she who performed the exterior design work. (Eran Decl. ¶ 7.) There is, in short, simply no evidence that Nathalie had any role in causing Plaintiffs’ damages.

The motion for summary judgment is therefore GRANTED.

Plaintiffs to provide notice.

Case Number: BC720808    Hearing Date: September 24, 2020    Dept: 61

Defendants Nathalie Gispan, Eran Gispan, and N.E. Designs, Inc.’s Motion for Summary Judgment is DENIED.

  1. OBJECTIONS

Plaintiffs’ Objections No. 4 and 5 to the declaration of Eran Gispan are SUSTAINED as they are legal conclusions, and Objections No. 8, 9, 11, 13–15 are SUSTAINED, as Gispan’s statements concerning the origins of the damages alleged in the Complaint are without foundation. All other objections are OVERRULED.

Nathalie Gispan’s objection to the Tatishivili declaration are OVERRULED. Her objections to the declaration of Dilip Khatri are also OVERRULED, save for Objection No. 8 concerning Khatri’s characterization of Defendants’ conduct as negligence per se.

Eran Gispan and N.E. Design’s objections to the Khatri declaration are OVERRULED, save for Objection No. 7 concerning Khatri’s characterization of Defendants’ conduct as negligence per se. Their objections to the Tatishvili declaration are likewise OVERRULED, as are their objections to the Dreibholz declaration.

  1. SUMMARY JUDGMENT

A party may move for summary judgment “if it is contended that the action has no merit or that there is no defense to the action or proceeding.” (Code Civ. Proc. § 437c, subd. (a).) “[I]f all the evidence submitted, and all inferences reasonably deducible from the evidence and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law,” the moving party will be entitled to summary judgment. (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.) A motion for summary adjudication may be made by itself or as an alternative to a motion for summary judgment and shall proceed in all procedural respects as a motion for summary judgment. (Code Civ. Proc. § 437c, subd. (f)(2).)

The moving party bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact, and if he does so, the burden shifts to the opposing party to make a prima facie showing of the existence of a triable issue of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850; accord Code Civ. Proc. § 437c, subd. (p)(2).)

Once the defendant has met that burden, the burden shifts to the plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. (Aguilar, supra, 25 Cal.4th at 850.) The plaintiff may not rely upon the mere allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to that cause of action or a defense thereto. (Ibid.) To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.)

Defendants move for summary judgment on a single ground: Their involvement in the construction process is alleged to be as design professionals, who lacked a contractual relationship with Plaintiffs. (Motion at pp. 6–7.) They rely on the case Weseloh Family Ltd. Partnership v. K.L. Wessel Construction Co., Inc. (2004) 125 Cal.App.4th 152, 168, a case in which the court held that a construction designer who only provided services requested by a subcontractor, and thus lacked contractual privity with the contractor or property owner, had no duty of care to the property owner. (Motion at pp. 6–7.) Defendants argue that their services were to provide plans and specifications for the home’s exterior design and submit them to the structural engineer for approval and then submission to the Los Angeles Department of Building and Safety. (Defendants’ Separate Statement No. 5.)

“The elements of any negligence cause of action are duty, breach of duty, proximate cause, and damages. (Peredia v. HR Mobile Services, Inc. (2018) 25 Cal.App.5th 680, 687.) The issue of duty is a question of law. (Weseloh, supra, 125 Cal.App.4th at p. 163.)

The factors to be considered when determining whether a duty of care exists are as follows: “[T]he extent to which the transaction was intended to affect the plaintiff, the foreseeability of harm to him, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant's conduct and the injury suffered, the moral blame attached to the defendant's conduct, and the policy of preventing future harm.” (Biakanja v. Irving (1958) 49 Cal.2d 647, 650.)

In Wesoloh, the court held no duty to exist on the part of a design engineers hired by a subcontractor because the engineer’s work was to primarily benefit the subcontractors own calculations, not the plaintiff. (Wesoloh, supra, 125 Cal.App.4th at p. 167.) The court also found that the damages resulting from the engineer’s work was not foreseeable because the plaintiff had not produced evidence showing that it was the design that was responsible for the damages that it suffered. (Id. at p. 168.) For similar reasons, the court found that the factors regarding the certainty of plaintiff’s damages and the closeness of the connection between the engineer’s conduct and the plaintiff’s injury weighed against finding a duty. (Id. at pp. 168–69.) Finally, the court found that there was little evidence to tarnish the defendant’s conduct with moral blame. (Id. at p. 169.)

The holding of Wesoloh has since been limited by the California Supreme Court, which characterized its holding as “merely suggest[ing] that an architect's role in a project can be so minor and so subordinate to the role or judgment of other design professionals as to foreclose the architect's liability in negligence to third parties.” (Beacon Residential Community Assn. v. Skidmore, Owings & Merrill LLP (2014) 59 Cal.4th 568, 587.) The court in Beacon applied the same factors to the work of an architect in a suit brought by subsequent home-purchasers, and found that said architect could be liable:

Defendants' work was intended to benefit the homeowners living in the residential units that defendants designed and helped to construct. (2) It was foreseeable that these homeowners would be among the limited class of persons harmed by the negligently designed units. (3) Plaintiff's members have suffered injury; the design defects have made their homes unsafe and uninhabitable during certain periods. (4) In light of the nature and extent of defendants' role as the sole architects on the Project, there is a close connection between defendants' conduct and the injury suffered. (5) Because of defendants' unique and well-compensated role in the Project as well as their awareness that future homeowners would rely on their specialized expertise in designing safe and habitable homes, significant moral blame attaches to defendants' conduct. (6) The policy of preventing future harm to homeowners reliant on architects' specialized skills supports recognition of a duty of care.

(Beacon, supra, 59 Cal.4th at p. 586.)

This holding is consistent with other cases regarding the determination of issues of duty in negligence cases. In such cases, “the court's task—in determining ‘duty’—is not to decide whether a particular plaintiff's injury was reasonably foreseeable in light of a particular defendant's conduct, but rather to evaluate more generally whether the category of negligent conduct at issue is sufficiently likely to result in the kind of harm experienced that liability may appropriately be imposed on the negligent party.” (Scott v. Chevron U.S.A. (1992) 5 Cal.App.4th 510, 516.) The question before the court is thus not whether Plaintiffs have raised triable issues concerning causation or breach specific to Defendants (which are issues of fact not raised in the present motion) but whether Defendants, by the services they provided in relation to the project, occupied a position relative to Plaintiffs such that Plaintiffs might hold them liable for the harm caused by the negligent provision of those services. (See Laabs v. Southern California Edison Co. (2009) 175 Cal.App.4th 1260, 1272–73; Cabral v. Ralph’s Grocery Co. (2011) 51 Cal.4th 764, 772 [“[W]e have asked not whether [the ‘duty’ factors] support an exception to the general duty of reasonable care on the facts of the particular case before us, but whether carving out an entire category of cases from that general duty rule is justified by clear considerations of policy.”].)

Here, as in Beacon, the factors favor a finding of duty. Unlike in Wesoloh, Defendants’ contract was with then-property-owner Noesis Group, LLC “to prepare the building plans and specifications for the home's exterior design.” (Separate Statement Nos. 3, 5.) Defendants’ design work, used for the construction of a residential home, was intended to benefit the homeowners that would live there, far more so than any intermediate subcontractor. Likewise, it is generally foreseeable that the following homeowners would be among the limited class of persons harmed by a negligently designed building. Moreover, there is a high degree of certainty that a negligently designed home can cause injury to homeowners like plaintiffs. (Beacon, supra, 59 Cal.4th 586.) The blameworthiness identified is much as that identified in Beacon, and the policy of preventing future harm likewise favors allowing homeowners like Plaintiffs to hold designers liable for the defects caused by their breaches.

In reply, Defendants argue that no triable issues of fact exist as to whether Nathalie Gispan separately had any involvement with the project. (Reply at p. 2.) The court agrees that Plaintiffs make no point against this in opposition — because Defendants made no separate argument as to Nathalie in their original motion. The memorandum of points and authorities accompanying the motion makes no separate argument as to Nathalie that is not made as to Defendants as a whole, and the sole independent mention of Nathalie occurs in one item of Defendants’ separate statement. Accordingly, the court will not grant summary judgment for Nathalie on grounds not framed in Defendants’ initial motion.

Defendants in their reply argue for the first time that summary judgment is appropriate because Plaintiffs cannot establish the element of causation. (Reply at pp. 6–7.) But it was not Plaintiffs’ burden to establish the element of causation here, because Defendant in their motion articulated no argument on that point, but focused fire on the issue of duty, as framed in the Wesoloh decision. Once more, it would be inappropriate and unfair to grant dispositive relief in Defendants’ favor based on an argument raised for the first time in reply. (See San Diego Watercrafts, Inc. v. Wells Fargo Bank, N.A. (2002) 102 Cal.App.4th 308, 316.)

The Motion for Summary Judgment is therefore DENIED.

Defendant to provide notice.

Case Number: BC720808    Hearing Date: August 18, 2020    Dept: 61

Defendants Nathalie Gispan, Eran Gispan, and N.E. Designs, Inc.’s Motion for Summary Judgment is DENIED.

  1. OBJECTIONS

Plaintiffs’ Objections No. 4 and 5 to the declaration of Eran Gispan are SUSTAINED as they are legal conclusions, and Objections No. 8, 9, 11, 13–15 are SUSTAINED, as Gispan’s statements concerning the origins of the damages alleged in the Complaint are without foundation. All other objections are OVERRULED.

Nathalie Gispan’s objection to the Tatishivili declaration are OVERRULED. Her objections to the declaration of Dilip Khatri are also OVERRULED, save for Objection No. 8 concerning Khatri’s characterization of Defendants’ conduct as negligence per se.

Eran Gispan and N.E. Design’s objections to the Khatri declaration are OVERRULED, save for Objection No. 7 concerning Khatri’s characterization of Defendants’ conduct as negligence per se. Their objections to the Tatishvili declaration are likewise OVERRULED, as are their objections to the Dreibholz declaration.

  1. SUMMARY JUDGMENT

A party may move for summary judgment “if it is contended that the action has no merit or that there is no defense to the action or proceeding.” (Code Civ. Proc. § 437c, subd. (a).) “[I]f all the evidence submitted, and all inferences reasonably deducible from the evidence and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law,” the moving party will be entitled to summary judgment. (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.) A motion for summary adjudication may be made by itself or as an alternative to a motion for summary judgment and shall proceed in all procedural respects as a motion for summary judgment. (Code Civ. Proc. § 437c, subd. (f)(2).)

The moving party bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact, and if he does so, the burden shifts to the opposing party to make a prima facie showing of the existence of a triable issue of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850; accord Code Civ. Proc. § 437c, subd. (p)(2).)

Once the defendant has met that burden, the burden shifts to the plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. (Aguilar, supra, 25 Cal.4th at 850.) The plaintiff may not rely upon the mere allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to that cause of action or a defense thereto. (Ibid.) To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.)

Defendants move for summary judgment on a single ground: Their involvement in the construction process is alleged to be as design professionals, who lacked a contractual relationship with Plaintiffs. (Motion at pp. 6–7.) They rely on the case Weseloh Family Ltd. Partnership v. K.L. Wessel Construction Co., Inc. (2004) 125 Cal.App.4th 152, 168, a case in which the court held that a construction designer who only provided services requested by a subcontractor, and thus lacked contractual privity with the contractor or property owner, had no duty of care to the property owner. (Motion at pp. 6–7.) Defendants argue that their services were to provide of plans and specifications for the home’s exterior design and submit them to the structural engineer for approval and then submission to the Los Angeles Department of Building and Safety. (Defendants’ Separate Statement No. 5.)

“The elements of any negligence cause of action are duty, breach of duty, proximate cause, and damages. (Peredia v. HR Mobile Services, Inc. (2018) 25 Cal.App.5th 680, 687.) The issue of duty is a question of law. (Weseloh, supra, 125 Cal.App.4th at p. 163.)

The factors to be considered when determining whether a duty of care exists are as follows: “[T]he extent to which the transaction was intended to affect the plaintiff, the foreseeability of harm to him, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant's conduct and the injury suffered, the moral blame attached to the defendant's conduct, and the policy of preventing future harm.” (Biakanja v. Irving (1958) 49 Cal.2d 647, 650.)

In Wesoloh, the court held no duty to exist on the part of a design engineers hired by a subcontractor because the engineer’s work was to primarily benefit the subcontractors own calculations, not the plaintiff. (Wesoloh, supra, 125 Cal.App.4th at p. 167.) The court also found that the damages resulting from the engineer’s work was not foreseeable because the plaintiff had not produced evidence showing that it was the design that was responsible for the damages that it suffered. (Id. at p. 168.) For similar reasons, the court found that the factors regarding the certainty of plaintiff’s damages and the closeness of the connection between the engineer’s conduct and the plaintiff’s injury weighed against finding a duty. (Id. at pp. 168–69.) Finally, the court found that there was little evidence to tarnish the defendant’s conduct with moral blame. (Id. at p. 169.)

The holding of Wesoloh has since been limited by the California Supreme Court, which characterized its holding as “merely suggest[ing] that an architect's role in a project can be so minor and so subordinate to the role or judgment of other design professionals as to foreclose the architect's liability in negligence to third parties.” (Beacon Residential Community Assn. v. Skidmore, Owings & Merrill LLP (2014) 59 Cal.4th 568, 587.) The court in Beacon applied the same factors to the work of an architect in a suit brought by subsequent home-purchasers, and found that said architect could be liable:

Defendants' work was intended to benefit the homeowners living in the residential units that defendants designed and helped to construct. (2) It was foreseeable that these homeowners would be among the limited class of persons harmed by the negligently designed units. (3) Plaintiff's members have suffered injury; the design defects have made their homes unsafe and uninhabitable during certain periods. (4) In light of the nature and extent of defendants' role as the sole architects on the Project, there is a close connection between defendants' conduct and the injury suffered. (5) Because of defendants' unique and well-compensated role in the Project as well as their awareness that future homeowners would rely on their specialized expertise in designing safe and habitable homes, significant moral blame attaches to defendants' conduct. (6) The policy of preventing future harm to homeowners reliant on architects' specialized skills supports recognition of a duty of care.

(Beacon, supra, 59 Cal.4th at p. 586.)

This holding is consistent with other cases regarding the determination of issues of duty in negligence cases. In such cases, “the court's task—in determining ‘duty’—is not to decide whether a particular plaintiff's injury was reasonably foreseeable in light of a particular defendant's conduct, but rather to evaluate more generally whether the category of negligent conduct at issue is sufficiently likely to result in the kind of harm experienced that liability may appropriately be imposed on the negligent party.” (Scott v. Chevron U.S.A. (1992) 5 Cal.App.4th 510, 516.) The question before the court is thus not whether Plaintiffs have raised triable issues concerning causation or breach specific to Defendants (which are issues of fact not raised in the present motion) but whether Defendants, by the services they provided in relation to the project, occupied a position relative to Plaintiffs such that Plaintiffs might hold them liable for the harm caused by the negligent provision of those services. (See Laabs v. Southern California Edison Co. (2009) 175 Cal.App.4th 1260, 1272–73; Cabral v. Ralph’s Grocery Co. (2011) 51 Cal.4th 764, 772 [“[W]e have asked not whether [the ‘duty’ factors] support an exception to the general duty of reasonable care on the facts of the particular case before us, but whether carving out an entire category of cases from that general duty rule is justified by clear considerations of policy.”].)

Here, as in Beacon, the factors favor a finding of duty. Unlike in Wesoloh, Defendants’ contract was with then-property-owner Noesis Group, LLC “to prepare the building plans and specifications for the home's exterior design.” (Separate Statement Nos. 3, 5.) Defendants’ design work, used for the construction of a residential home, was intended to benefit the homeowners that would live there, far more so than any intermediate subcontractor. Likewise, it is generally foreseeable that the following homeowners would be among the limited class of persons harmed by negligently a negligently designed building. Moreover, there is a high degree of certainty that a negligently designed home can cause injury to homeowners like plaintiffs. (Beacon, supra, 59 Cal.4th 586.) The blameworthiness identified is much as that identified in Beacon, and the policy of preventing future harm likewise favors allowing homeowners like Plaintiffs to hold designers liable for the defects caused by their breaches.

In reply, Defendants argue that no triable issues of fact exist as to whether Nathalie Gispan separately had any involvement with the project. (Reply at p. 2.) The court agrees that Plaintiffs make no point against this in opposition — because Defendants made no separate argument as to Nathalie in their original motion. The memorandum of points and authorities accompanying the motion makes no separate argument as to Nathalie that is not made as to Defendants as a whole, and the sole independent mention of Nathalie occurs in one item of Defendants’ separate statement. Accordingly, the court will not grant summary judgment for Nathalie on a grounds not framed in Defendants’ initial motion.

Defendants in their reply argue for the first time that summary judgment is appropriate because Plaintiffs cannot establish the element of causation. (Reply at pp. 6–7.) But it was not Plaintiffs’ burden to establish the element of causation here, because Defendant in their motion articulated no argument on that point, but focused fire on the issue of duty, as framed in the Wesoloh decision. Once more, it would be inappropriate and unfair to grant dispositive relief in Defendants’ favor based on an argument raised for the first time in reply. (See San Diego Watercrafts, Inc. v. Wells Fargo Bank, N.A. (2002) 102 Cal.App.4th 308, 316.)

The Motion for Summary Judgment is therefore DENIED

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