Case Name: Stratton, et al. v. Ruffo Tile & Stone, LLC

Case No.: 2015-1-CV-287717

According to the allegations of the Third Amended Complaint (“TAC”), plaintiffs Vasili Stratton, as trustee of the Vasili Stratton Separate Property Trust, Katherine Stratton, as trustee of the Stratton Survivor’s Trust, and Golden Eagle Development Company, LLC (collectively, “Plaintiffs”) owned certain real property at 15455 Via Caballero Way in Monte Sereno. (See TAC, ¶ 1.) On March 5, 2014, Plaintiffs entered into a written agreement with defendants Ruffo Tile & Stone, LLC and Ruffo Tile & Stone (collectively, “Ruffo”) to install a specific type of high-end tile, known as Porcelain Euro West in accordance with all specifications and standards established by the Tile Council of North America or Marble Institute of American, utilizing all appropriate tools, equipment and mortar. (See TAC, ¶¶ 12-15.) Ruffo was also contracted to install a vertical, monolithic wall throughout the interior and exterior of the property. (See TAC, ¶¶ 21-23.) However, Ruffo failed to comply with industry standards and meet the applicable standard of care in the performance of their work, resulting in property damage in an amount not less than $1.7 million. (See TAC, ¶¶ 16-20, 25-31.) Additionally, Plaintiffs entered into an agreement with defendant Porven, Ltd., erroneously sued as Porcelanosa San Francisco, Inc. (“Porven”), the manufacturer, distributor and designer of the stone tiles, to supply the stone tiles from which the monolithic wall was to be built. (See TAC, ¶¶ 23, 42.) Porven was on-site during the installation of the monolithic wall, and provided supervision and guidance to the trade installing the wall of tiles. (See TAC, ¶ 24.) However, Porven breached its agreement by providing inadequate supervision and guidance to Ruffo in its installation of the wall, providing a substandard, defective and deficient product, and failing to comply with minimum trade standards. (See TAC, ¶ 44.) Due to Porven’s breach of the agreement, Plaintiffs suffered damages to the property. (See TAC, ¶¶ 45-47.) On June 26, 2018, Plaintiffs filed the TAC against defendants Ruffo and Porven, asserting causes of action for:

1) Breach of contract (against all defendants);
2)
3) Negligence (against all defendants); and,
4)
5) Negligent misrepresentation (against Ruffo).
6)

Porven moves for summary judgment, or, in the alternative, for summary adjudication of the first two causes of action.

PORVEN’S MOTION FOR SUMMARY JUDGMENT

Defendants’ burden on summary judgment

“A defendant seeking summary judgment must show that at least one element of the plaintiff’s cause of action cannot be established, or that there is a complete defense to the cause of action. … The burden then shifts to the plaintiff to show there is a triable issue of material fact on that issue.” (Alex R. Thomas & Co. v. Mutual Service Casualty Ins. Co. (2002) 98 Cal.App.4th 66, 72; internal citations omitted; emphasis added.)

“The ‘tried and true’ way for defendants to meet their burden of proof on summary judgment motions is to present affirmative evidence (declarations, etc.) negating, as a matter of law, an essential element of plaintiff’s claim.” (Weil et al., Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2007) ¶ 10:241, p.10-91, citing Guz v. Bechtel National Inc. (2000) 24 Cal.4th 317, 334; emphasis original.) “The moving party’s declarations and evidence will be strictly construed in determining whether they negate (disprove) an essential element of plaintiff’s claim ‘in order to avoid unjustly depriving the plaintiff of a trial.’” (Id. at § 10:241.20, p.10-91, citing Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1107.)

“Another way for a defendant to obtain summary judgment is to ‘show’ that an essential element of plaintiff’s claim cannot be established. Defendant does so by presenting evidence that plaintiff ‘does not possess and cannot reasonably obtain, needed evidence’ (because plaintiff must be allowed a reasonable opportunity to oppose the motion.) Such evidence usually consists of admissions by plaintiff following extensive discovery to the effect that he or she has discovered nothing to support an essential element of the cause of action.” (Id. at ¶ 10:242, p.10-92, citing Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854-855.)

First cause of action for breach of contract

Porven argues that the first cause of action for breach of contract is without merit because the alleged oral contract is unenforceable because its terms are uncertain and indefinite, and Plaintiff offered no consideration in exchange for Porven’s alleged promise to supervise and guide installation of the monolithic wall.

Porven fails to meet its initial burden as to whether the alleged contract is unenforceable due to uncertainty and indefiniteness

As to Porven’s assertion that the alleged contract is unenforceable because the terms were uncertain and indefinite, Porven presents a portion of Vasili Stratton’s deposition testimony in which he describes the conversation that formed the oral agreement:

As I was executing the documents to say “ Yes, this is how you’re going to design and produce this monolithic wall, you have to make sure you supervise it and make sure it gets built properly.” And she said—and Ruhamah said, “Yes, of course.”

Porven argues that the alleged agreement to supervise and guide the installation of the monolithic wall is too indefinite and uncertain to serve as a binding contract. In further support of this assertion is Stratton’s testimony in which he states that the terms “supervise” and “guide” were not explicitly defined. However, “[o]rdinarily a contract should receive an interpretation that, among other things, renders it reasonable and capable of being put into effect.” (Marathon Steel Co. v. Tilley Steel, Inc. (1977) 66 Cal.App.3d 413, 417; see also Civ. Code § 1643 (stating that “[a] contract must receive such an interpretation as will make it lawful, operative, definite, reasonable, and capable of being carried into effect, if it can be done without violating the intention of the parties”); see also Jacobs v. Freeman (1980) 104 Cal.App.3d 177, 188 (stating same); see also Advance Medical Diagnostic Laboratories v. County of Los Angeles (1976) 58 Cal.App.3d 263, 269-270 (stating that “[w]e are further mindful of the principle that a contract should be construed in such a manner as will render it lawful, reasonable and operative if it can be done without violating the intention of the parties”); see also Wilson v. Wilson (1950) 96 Cal.App.2d 589, 593 (stating that “[t]he law does not favor, but leans against, the destruction of contracts because of uncertainty; and it will, if feasible, so construe agreements as to carry into effect the reasonable intentions of the parties if that can be ascertained”); see also Addiego v. Hill (1965) 238 Cal.App.2d 842, 846 (stating that “[n]either law nor equity requires that every term and condition be set forth in a contract… [t]he usual and reasonable terms found in similar contracts may be considered, unexpressed provisions of the contract may be inferred from the writing, external facts may be relied upon, and custom and usage may be resorted to in an effort to supply a deficiency if it does not deter or vary the terms of the agreement”).) Porven nevertheless argues that there could be no standard by which a jury could determine whether Porven failed to meet its obligations. Here, the alleged damage is that the tiles are cracked and the installation was so poor such that a complete removal and replacement of the monolithic wall is required. By any reasonable standard, if Porven adequately supervised and guided the installation of the wall, it would not likely require a removal and replacement of it. This is not like Robinson & Wilson, Inc. v. Stone (1973) 35 Cal.App.3d 396, cited by Porven, where the agreement was to complete “standard” or “minimal” medical suites, and “[t]here was no uniform standard in the medical suites in the designed area to which those to be constructed in the undesigned area could be compared; specifications for suites in the designed area varied from doctor to doctor.” (Id. at p. 408.) Here, reasonable supervision and guidance in the installation of the monolithic wall would be in accordance with industry standards, as alleged in the TAC. (See TAC, ¶¶ 26-29.) Porven fails to meet its initial burden to demonstrate that the alleged oral contract is unenforceable because the terms are uncertain and indefinite.

Porven also fails to meet its initial burden with respect to a failure for consideration.

Porven also asserts that the agreement to provide supervision and guidance of the installation of the monolithic wall lacks consideration. As Porven states, “[c]onsideration is an essential element of a contract.” (Orcilla v. Big Sur, Inc. (2016) 244 Cal.App.4th 982, 1006; see also Civ. Code § 1550.) In support of its assertion, Porven provides Stratton’s deposition testimony in which he states that “supervision and guidance… was part of the purchase of the wall… [that] the purchase price for the materials [did not] change based on Porcelanosa’s offer to supervise and guide the installation….” (See Def.’s memorandum of points and authorities in support of motion for summary judgment (“Def.’s memo”), p.10:15-28, citing to Stratton depo, p.144:7-20; see also Def.’s separate statement of undisputed material facts, no. (“UMF”) 9, citing to Stratton depo, pp.140:1-18, 144:1-6, 153:9-16.) Here, the provided evidence suggests that the agreement to provide supervision and guidance was “a part of” the contract to “purchase of the wall,” and thus does not demonstrate that the agreement lacked consideration. Porven thus fails to meet its initial burden to demonstrate that the contract fails for lack of consideration, and the motion for summary judgment, and the alternate motion for summary adjudication of the first cause of action is DENIED.

Second cause of action for negligence

Porven argues that “Porcelanosa’s alleged duty of care to Plaintiffs arises out of the alleged oral contract to provide ‘supervision’ and ‘guidance’ to Ruffo Tile… [and, a]s provided above, Plaintiffs have failed to prove an alleged oral agreement between themselves and Porcelanosa.” (Def.’s memo, p.11:17-20.) Here, it is Porven who carries the initial burden to demonstrate that the cause of action lacks merit. Moreover, as previously stated, Porven has failed to meet its initial burden to demonstrate the lack of such an agreement.

Porven also argues that “Plaintiffs were asked by identical interrogatories to state the facts giving rise to an alleged duty to supervise Ruffo Tile… Plaintiffs again uniformly responded by stating ‘Responding Party is unable to formulate a response’… [and thus] Plaintiffs’ factually devoid discovery responses on the essential terms of the alleged oral contract render summary judgment appropriate.” (Def.’s memo, p.11:22-28, 12:1.) However, Porven’s argument is misleading. Plaintiffs’ response to special interrogatory 22 contains objects, and states, in part: “Responding Party objects to this Interrogatory on the basis that it is overbroad, vague, and ambiguous to the extent that Responding Party is unable to formulate a response.” (Def.’s evidence in support of motion for summary judgment, exhs. B, C, responses to special interrogatory 22.) Porven’s counsel is admonished for taking the actual response to SI 22 out of context and misrepresenting that phrase as the whole of Plaintiffs’ response, as such tactics violate the Santa Clara County Bar Association Code of Professionalism, adopted by this Court. (See Santa Clara County Bar Association Code of Professionalism, § 7 (stating “[w]ritten materials submitted to the court should always be factual, concise, accurately state current law, and fairly represent the parties’ positions”).) As Porven’s proffered evidence does not support its assertion, Porven also fails to meet its initial burden on this basis as well. Porven thus fails to meet its initial burden to demonstrate that the second cause of action lacks merit, and the alternate motion for summary adjudication of the second cause of action is DENIED.