Case Number: 18STCV01615 Hearing Date: March 09, 2020 Dept: 78

Superior Court of California
County of Los Angeles
Department 78

MARC SMITH, et al.;

Plaintiffs,

vs.

PAUL BRANT WILLIGER, et al.;

Defendants.

AND RELATED CROSS-ACTIONS

Case No.:

18STCV01615

Hearing Date:

March 9, 2020

[TENTATIVE] RULING RE:

defendant/cross-complainant paul brant williger, architect, inc’s motion for summary adjudication

Defendant/Cross-Complainant Paul Brant Williger, Architect, Inc.’s Motion for Summary Adjudication as to the Eighth Cause of Action in the Cross-Complaint is DENIED.

Factual Background

This is an action for negligence and fraud. The Complaint alleges as follows. Plaintiffs Marc Smith and Nan Rochelle Smith (“Plaintiffs”) purchased residential property on Stradella Road in Los Angeles in January 2016 in order to remodel the residence and use it for themselves. (Complaint ¶ 9.) In May 2016, Plaintiffs met Defendant Paul Brant Williger (“Paul”), owner of Defendant Paul Brant Williger, Inc. (“PBWI,” and collectively with Paul, “Williger”), to discuss using Williger’s services as an architect to design the remodel. (Complaint ¶ 11.) Williger told Plaintiffs that he had experience designing and remodeling high-end homes in the Bel Air hillside and that he was familiar with the CC&Rs and other rules applicable to the property. (Complaint ¶ 24.) Plaintiffs believed Williger and retained him to design the remodel in exchange for a $250,000 flat fee. (Complaint ¶ 13.) However, Williger performed his work in a negligent and unworkmanlike manner, which revealed his prior representations of expertise to be false. (Complaint ¶¶ 16–17, 25–26.)

Williger’s Cross-Complaint (or “XC”) alleges that Plaintiffs have not paid amounts owed for services rendered. (XC ¶¶ 6–14.)

procedural history

Plaintiffs filed the Complaint on October 18, 2018, alleging seven causes of action:

Negligence

Intentional Misrepresentation

Negligent Misrepresentation

Breach of Fiduciary Duty

Unjust Enrichment

Accounting

Unfair Competition

This Court on January 28, 2019, overruled Williger’s Demurrer to the Complaint.

Williger filed a Cross-Complaint (“XC”) on February 20, 2019, alleging eight causes of action:

Open Book Account

Account Stated

Quantum Meruit

Breach of Contract

Equitable Indemnity

Apportionment/Contribution

Declaratory Relief

Declaratory Relief — Limitation of Liability

Plaintiffs (and Cross-Defendants) filed a Demurrer to the Cross-Complaint and Motion to Strike on March 26, 2019, which the Court overruled. The Court granted the Motion to Strike with leave to amend as to the seventh and eighth causes of action and denied as the fifth and sixth causes of action.

On December 18, 2019, Williger filed the instant Motion for Summary Adjudication.

On February 24, 2020, Plaintiffs filed an Opposition.

On March 4, 2020 Williger filed a Reply.

Discussion

OBJECTIONS

PBWI subjects objections to the evidence Smith has submitted in Opposition to the Motion for Summary Judgment. Objections Nos. 3, 5, 6, 7, 9, 10, 11, 12 (except as to the first sentence), 16 (except as to the first sentence), and 19 are SUSTAINED. The remainder are OVERRULED.

The Smiths submit an objection to PBWI’s evidence submitted in support of its Motion. Objections No. 1 is SUSTAINED as to the first sentence.

MOTION FOR SUMMARY ADJUDICATION

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).) 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.)

Neither a moving or responding party may rely on the mere allegations or denials of its pleadings. A moving party must submit specific admissible evidence showing that the responding party cannot establish at least one element of his, her or its cause of action or defense. The responding party, to defeat the motion, must submit specific admissible evidence showing that a triable issue of material fact does exist as to that element of the cause of action or defense. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.)

The “Golden Rule” on a motion for summary judgment or summary adjudication is that “if [a fact] is not set forth in the separate statement, it does not exist.” (Zimmerman, Rosenfeld, Gersh & Leeds LLP v. Larson (2005) 131 Cal.App.4th 1466, 1477, citing United Community Church v. Garcin (1991) 231 Cal.App.3d 327, 337.).

Here, PBWI moves for summary adjudication as to the eighth cause of action in its Cross-Complaint.

Eighth Cause of Action – Declaratory Relief re: Limitation of Liability

“Declaratory relief operates prospectively, serving to set controversies at rest before obligations are repudiated, rights are invaded or wrongs are committed. Thus the remedy is to be used to advance preventive justice, to declare rather than execute rights. [Citation.]” (California Public Records Research, Inc. v. County of Yolo (2016) 4 Cal.App.5th 150, 185 citing Kirkwood v. California State Auto. Assn. Inter–Insurance Bureau (2011) 193 Cal.App.4th 49, 59.)

“Summary judgment is appropriate in a declaratory relief action when only legal issues are presented for the court’s determination.” (Id. citing Gafcon, Inc. v. Ponsor & Associates (2002) 98 Cal.App.4th 1388, 1401–1402.)

The Eighth Cause of Action in the Cross-Complaint alleges that there is a dispute and “actual controversy” between the parties as to the meaning of paragraph 3, page 2, of the May 18, 2016 Agreement. (XC ¶ 27.) The paragraph states:

“In this and any subsequent agreements, you agree, to the fullest extent permitted by law, to limit the liability of Paul Brant Williger, Architect Inc. and that of any sub consultants, to you and to all construction contractors and subcontractors on the project for any and all claims, losses, costs, damages of any nature whatsoever, or claims expenses from any cause or causes, so that our total aggregate liability, including our sub consultants, to all those named shall not exceed $100,000.00.” (XC ¶ 27.)

The Cross-Complaint alleges that “A declaration of rights, responsibilities and obligations of Cross-Complainant, the Smith Cross-Defendants, and Cross-Defendants Roes 1 through 10, and each of them, pursuant to the subject contract is essential to determine their respective obligations in connection with the principal action. Cross-Complainant has no true and speedy remedy at law of any kind.” (XC ¶ 28.)

In the instant Motion for Summary Adjudication, PBWI argues that it is entitled to adjudication in its favor because: the limitation of liability provision in the Agreement between PBWI and Cross Defendants is enforceable; the limitation of liability applies to all professional services furnished by PBWI to Cross-Defendants for the Project; and PBWI’s total aggregate liability regarding Cross-Defendants’ negligence, accounting, and unjust enrichment causes of action is therefore cannot exceed $100,000. (Motion at p. 5.)

As the Court stated in Southern Cal. Edison Co. v. Superior Court (1995) 37 Cal.App.4th 839, 846, as modified on denial of reh’g (Sept. 7, 1995)), “The interpretation of a contract is clearly a proper subject of declaratory relief. […] The fact the same issue of contract interpretation is also raised in other causes of action does not in itself bar declaratory relief or summary adjudication of that cause of action.” Accordingly, this issue of declaratory relief based on contract interpretation may be resolved if appropriate on a motion for summary adjudication.

PBWI’s Evidence and Argument

To support its Motion, PBWI presents evidence that on May 18, 2016, Paul sent Cross-Defendants a proposed agreement for services regarding construction and remodel of the Property, which Cross-Defendant Marc Smith accepted. (UMF ¶¶ 8, 10.) The agreement included the paragraph stated above regarding a limitation of liability. (UMF ¶ 110.) The parties also signed Additional Service Agreements on July 26, 2017, August 7, 2017, October 9, 2017, October 13, 2017, and January 8, 2018, although the Separate Statement did not indicate the terms of each additional agreement. (UMF ¶ 13.) Invoices were sent for services, including for the additional service agreements, which Marc Smith paid. (UMF ¶¶ 15-18.)

In the instant Motion, PBWI argues that the limitation of liability clause is enforceable because it was negotiated at arm’s length and the Smiths had the opportunity to accept, reject or modify the agreement and the subsequent agreements. (Motion at p. 12.)

The Court finds that PBWI has established a prima facie case for this cause of action. The burden shifts to the Cross-Defendants.

The Smiths’ Evidence and Argument

In Opposition, the Smiths argue that the agreement in question, which contains the above liability limitation paragraph, is contained within a “pre-design letter” for pre-architectural design services (i.e. “initial services”), which does not apply to the post- pre-design architectural misconduct in this case. (Oppo. at p. 1.)

The Smiths present evidence that the May 18, 2016 agreement was signed prior to the retention of Williger and was only for “initial services.” (SSAF ¶ 4.) The Smith’s further present evidence that the letter was drafted solely by Paul and was sent solely to Marc Smith, and Paul did not mention the existence of PBWI prior to the signing of the agreement. (SSAF ¶¶ 6-8.)

The May 18, 2016 letter, on letterhead from Paul Brand Williger, Architect to Marc Smith at Krane & Smith, opened with: “I am pleased to proceed with the following initial services regarding the 1101 Stradella Road property: Meetings with Expeditor to review and confirm zoning/code requirements and restrictions for the property; Any necessary follow up and/or confirmation with the City of Los Angeles Department of Building and Safety; Develop strategy for layout of proposed remodel and additions on the site.” (Smith Decl., Exh. B, p. 1.) A later paragraph states, “All fees paid under this initial agreement will be credited against any future agreement when the scope and program for the project is more fully developed and defined.” (Smith Decl. Exh. B, p. 1.)

However, the Complaint alleges “intentional and negligent conduct, omission and inattentiveness regarding the remodel of the Stradella residence with resulted in substandard and inadequate architectural designs and construction work. (Compl. ¶ 16.) Based on this language there is therefore a material issue of disputed fact on whether the May 18, 2016 agreement applies to only the tasks provided in the “initial agreement,” or to all of the architectural tasks performed by PBWI and Paul Williger. There is also a material disputed issue of fact of whether PBWI and Nan Smith were parties to the initial and subsequent agreement as the May 18, 2016 was only signed by Paul (not listed as a representative of PBWI) and Marc. (Smith Decl. Exh. B.)

Both parties have presented conflicting factual evidence regarding the application of the May 18, 2016 agreement. The Smiths argue that the May 18, 2016 letter did not apply to any post pre-design work (SSAF ¶ 13) and that on August 17, 2017, Williger sent them a separate “AIA Agreement” containing different liability provisions which they did not sign. (Smith Decl., Exh. C.) PBWI argues that the liability provision in the May 18, 2016 letter applies to all professional services furnished by PBWI for the entire project. (Motion at p. 13.)

Accordingly, there are triable issues of material fact regarding whether the May 18, 2016 agreement applies to only the “initial” work, or whether it applies to “all professional services” by PBWI. Further, there are triable issues of fact as to whether PBWI was party to the May 18, 2016 agreement.

The Motion for Summary Adjudication of the Eighth Cause of Action in the Cross-Complaint is DENIED.

DATED: March 9, 2020

________________________________

Hon. Robert S. Draper

Judge of the Superior Court