1 SAMUEL J. MUIR (SBN 89883) STEPHEN B. LITCHFIELD (SBN ...

[Pages:13]1 SAMUEL J. MUIR (SBN 89883) STEPHEN B. LITCHFIELD (SBN 284951)

2 COLLINS COLLINS MUIR + STEWART LLP 3 1999 Harrison Street, Suite 1700

Oakland, CA 94612 4 (510) 844-5100 ? FAX (510) 844-5101

E-FILED Jun 18, 2015 5:00 PM David H. Yamasaki Chief Executive Officer/Clerk

Superior Court of CA, County of Santa Clara Case #1-13-CV-258281 Filing #G-73804 By C. Pinacate, Deputy

5 Attorneys for Defendants McLARAND VASQUEZ & PARTNERS, INC., McLARAND VASQUEZ EMSIEK & PARTNERS, INC., MVE & PARTNERS INC., MVE + PARTNERS,

6 INC.

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SUPERIOR COURT OF THE STATE OF CALIFORNIA

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COUNTY OF SANTA CLARA --DOWNTOWN DISTRICT

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Collins Collins Muir + Stewart LLP

1999 Harrison Street Suite 1700 Oakland, CA 94612 Phone (510) 844-5100 Fax (510) 844-5101

CILKER APARTMENTS, LLC,

)

)

Plaintiffs,

)

)

vs.

)

)

WESTERN NATIONAL CONSTRUCTION, )

MCLARLAND, VARQUEZ & PARTNERS, )

INC., GROUP M ENGINEERS, GENTRY )

ASSOCIATES CONSTRUCTION

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CONSULTANTS, LARCO INDUSTRIES, )

FITCH PLASTERING, COURTNEY

)

WATERPROOFING, CELL CRETE, LOS )

NIETOS CONSTRUCTION, MADERA )

FRAMING, KELLY DOOR, TARA

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COATNGS, LDI, ADM PAINTING,

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ALLIANCE BUILDING PRODUCT, JOS. J. )

ALBANESE, ANDERSON TRUSS,

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CALIFORNIA CLASSIC PAVERS, CASEY-)

FOGIL CONCRETE CONTRACTORS, )

CENTRAL COAST STAIRS,

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COMMERCIAL ROOF MANAGEMENT, )

DAVEY ROOFING, INC., DEMETRIS )

PAINTING II, INC., DOORWAY MFG., )

LANDSCAPE PROS, MULTI-BUILDING )

STRUCTURES, PARK WEST, PYRAMID )

BUILDERS, ROBECKS WELDING &

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FABRICATION, RYLOCK COMPANY, )

SUMMIT WINDOW & PATIO DOOR, )

VANGUARD and DOES 1-100, inclusive, )

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Defendants.

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_____________________________________ )

CASE NO. 1-13-CV-258281 Complex [Assigned to Hon. Peter H. Kirwan; Dept. 1]

NOTICE OF DEMURRER AND DEMURRER TO FIRST AMENDED COMPLAINT OF PLAINTIFF CILKER APARTMENTS, LLC

Date: Time: Dept:

September 11, 2015 9:00 a.m. 1

Complaint Filed: 12/26/13

FAC Filed:

03/20/14

Trial Date:

02/01/16

19010 ? DEMURRER TO FAC OF MVE ENTITIES (06-18-15)

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MVE'S DEMURRER TO PLAINTIFF'S FIRST AMENDED COMPLAINT

E-FILED: Jun 18, 2015 5:00 PM, Superior Court of CA, County of Santa Clara, Case #1-13-CV-258281 Filing #G-73804

1 WESTERN NATIONAL CONSTRUCTION, )

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Cross-Complainant,

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vs.

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ROES 1 ? 500, inclusive,

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Cross-Defendants.

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8 TO ALL PARTIES AND TO THEIR ATTORNEYS OF RECORD HEREIN:

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PLEASE TAKE NOTICE that on September 11, 2015, at 9:00 a.m., or as soon thereafter

10 as this matter may be heard in Department "1" of the above-entitled court, located at 191 North

11 First Street, San Jose, California 95113, McLARAND VASQUEZ EMSIEK & PARTNERS, INC.,

12 MVE & PARTNERS INC., and MVE + PARTNERS, INC., ("MVE" or "MVE entities") will and

13 hereby do demur to the First Amended Complaint of Plaintiff CILKER APARTMENTS, LLC

14 ("Plaintiff"). The MVE entities demur separately and severally on the following grounds:

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FIRST CAUSE OF ACTION ? BREACH OF CONTRACT

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1. Plaintiff's first cause of action for breach of contract fails to state facts sufficient to

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constitute a cause of action pursuant to Code of Civil Procedure section 430.10(e)

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because Plaintiff has not set out the terms of such contract, nor has any contract been

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attached that demonstrates a contractual relationship between Plaintiff and any of the

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MVE entities.

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SECOND CAUSE OF ACTION ? BREACH OF IMPLIED WARRANTY

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2. Plaintiff's second cause of action for breach of implied warranty fails to state facts

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sufficient to constitute a cause of action pursuant to Code of Civil Procedure section

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430.10(e) because the MVE entities are design professionals and, under well-settled

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California law, a design professional's work, absent some agreement to the contrary,

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does not contain any warranty whatsoever. (Allied Properties v. John A. Blume &

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Assoc. (1972) 25 Cal.App.3d 848.)

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Collins Collins Muir + Stewart LLP

1999 Harrison Street Suite 1700 Oakland, CA 94612 Phone (510) 844-5100 Fax (510) 844-5101

19010 ? DEMURRER TO FAC OF MVE ENTITIES (06-18-15)

2 MVE'S DEMURRER TO PLAINTIFF'S FIRST AMENDED COMPLAINT

E-FILED: Jun 18, 2015 5:00 PM, Superior Court of CA, County of Santa Clara, Case #1-13-CV-258281 Filing #G-73804

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THIRD CAUSE OF ACTION ? BREACH OF EXPRESS WARRANTY

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3. Plaintiff's third cause of action for breach of express warranty fails to state facts

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sufficient to constitute a cause of action pursuant to Code of Civil Procedure section

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430.10(e) because Plaintiff fails to adequately allege a contract between Plaintiff and the

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MVE entities. Absent the pleading of such a contract, no express warranty is possible,

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as a matter of law.

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FOURTH CAUSE OF ACTION ? NEGLIGENCE

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4. Plaintiff's fourth cause of action for negligence fails to state facts sufficient to constitute

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a cause of action pursuant to Code of Civil Procedure section 430.10(e) because

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Plaintiff failed to file a valid Certificate of Merit pursuant to Code of Civil Procedure

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section 411.35. Failure to file a Certificate of Merit is challengeable on Demurrer

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pursuant to Code of Civil Procedure section 411.35(g).

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FIFTH CAUSE OF ACTION ? STRICT LIABILITY

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5. Plaintiff's fifth cause of action for strict liability fails to state facts sufficient to

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constitute a cause of action pursuant to Code of Civil Procedure section 430.10(e)

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because the MVE entities are design professionals, and under well-settled California

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law, a design professional's work, absent some agreement to the contrary, are not

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strictly liable for design services provided. (Allied Properties v. John A. Blume &

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Assoc. (1972) 25 Cal.App.3d 848.)

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SIXTH CAUSE OF ACTION ? EXPRESS CONTRACTUAL INDEMNITY

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6. Plaintiff's sixth cause of action for express contractual indemnity fails to state facts

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sufficient to constitute a cause of action pursuant to Code of Civil Procedure section

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430.10(e) because Plaintiff fails to adequately allege a contract between Plaintiff and the

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MVE entities. Absent the pleading of such a contract, no express contractual indemnity

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is possible, as a matter of law.

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SEVENTH CAUSE OF ACTION ? BREACH OF TPB CONTRACT

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7. Plaintiff's seventh cause of action for breach of third party beneficiary contract fails to

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Collins Collins Muir + Stewart LLP

1999 Harrison Street Suite 1700 Oakland, CA 94612 Phone (510) 844-5100 Fax (510) 844-5101

state facts sufficient to constitute a cause of action pursuant to Code of Civil Procedure

19010 ? DEMURRER TO FAC OF MVE ENTITIES (06-18-15)

3 MVE'S DEMURRER TO PLAINTIFF'S FIRST AMENDED COMPLAINT

E-FILED: Jun 18, 2015 5:00 PM, Superior Court of CA, County of Santa Clara, Case #1-13-CV-258281 Filing #G-73804

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section 430.10(e) because Plaintiff fails to adequately allege a contract between Plaintiff

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and the MVE entities, or any other contract that could be the basis of liability for the

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MVE entities. Absent the pleading of such a contract, no breach of third party

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beneficiary contract is possible, as a matter of law.

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This demurrer is made and based upon this Notice, the attached Memorandum of Points and

6 Authorities, the documents and pleadings on file with this Court, as well as any other matters that 7 may be received by the Court at the hearing on this matter. 8

9 DATED: June 18, 2015

COLLINS COLLINS MUIR + STEWART LLP

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11 By: ________________________________

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SAMUEL J. MUIR

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Attorneys for McLARAND VASQUEZ &

PARTNERS, INC., MCLARAND VASQUEZ

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EMSIEK & PARTNERS, INC., MVE &

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PARTNERS INC., MVE + PARTNERS, INC.

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Collins Collins Muir + Stewart LLP

1999 Harrison Street Suite 1700 Oakland, CA 94612 Phone (510) 844-5100 Fax (510) 844-5101

19010 ? DEMURRER TO FAC OF MVE ENTITIES (06-18-15)

4 MVE'S DEMURRER TO PLAINTIFF'S FIRST AMENDED COMPLAINT

E-FILED: Jun 18, 2015 5:00 PM, Superior Court of CA, County of Santa Clara, Case #1-13-CV-258281 Filing #G-73804

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MEMORANDUM OF POINTS & AUTHORITIES

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I.

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INTRODUCTION

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This Demurrer is necessary due in large part to the lack of a precise method for naming Doe

6 defendants. However, it is also necessary to demonstrate Plaintiff's lack of ability to plead facts

7 demonstrating the existence of a contractual relationship--or any relationship--between Plaintiff

8 and the MVE entities. Plaintiff's attempt at a scattershot of allegations against every conceivable

9 MVE entity cannot withstand the pleading standards upheld by well-settled law. Plaintiff must

10 plead the existence of a contract--which it cannot, in good faith, do--or it must attach the contract

11 supposedly in existence between Plaintiff and the MVE entities. As to the causes of action for

12 warranty, strict liability, and third party beneficiary, the MVE entities expect that Plaintiff will

13 dismiss those causes of action without argument, however, in order to preserve its rights, and out of

14 an abundance of caution, the MVE entities have filed this Demurrer as to all causes of action.

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II.

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AUTHORITY FOR DEMURRER

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The function of a demurrer is to present to the court an issue of law regarding the

18 sufficiency of the plaintiff's allegations. (James v. Superior Court of San Francisco (1968) 261

19 Cal.App.2d 415, 416.) To this end, Code of Civil Procedure section 430.10 states in pertinent part:

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"The party against whom a complaint or cross-complaint has been

filed may object by demurrer or answer as provided in ? 430.30 to the

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pleading on any one or more of the following grounds [...]:

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(e) the pleading does not state facts sufficient to constitute a

cause of action [...]."

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In considering the sufficiency of the allegations, courts consider the demurrer as admitting 24

all properly pleaded material facts, "[...] but not contentions, deductions or conclusions of fact or 25

law." (Align Technology, Inc. v. Tran. (2009) 179 Cal.App. 4th 949, 958.) A trial court does not 26

abuse its discretion by sustaining a general demurrer without leave to amend if it appears from the 27

complaint that under applicable substantive law there is no reasonable possibility that an 28

Collins Collins

Muir + Stewart LLP

1999 Harrison Street Suite 1700 Oakland, CA 94612 Phone (510) 844-5100 Fax (510) 844-5101

19010 ? DEMURRER TO FAC OF MVE ENTITIES (06-18-15)

5 MVE'S DEMURRER TO PLAINTIFF'S FIRST AMENDED COMPLAINT

E-FILED: Jun 18, 2015 5:00 PM, Superior Court of CA, County of Santa Clara, Case #1-13-CV-258281 Filing #G-73804

1 amendment could cure the complaint's defect." (Heckendorn v. City of San Marino (1986) 42

2 Cal.3d 481, 486.)

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Additionally, if the complaint is successfully challenged on demurrer the burden is shifted

4 to the plaintiffs to demonstrate how the complaint might be amended to cure it of the defect.

5 (Assoc. of Community Organizations for Reform Now v. Dept. of Indust'l Relations (1995) 41

6 Cal.App.4th 298, 302.) Where the plaintiff fails to demonstrate possible amendments to a defective

7 complaint, the court should sustain the demurrer without leave to amend. (Campbell v. Regents of

8 University of California (2005) 35 Cal.4th 311, 320.)

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III.

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PLAINTIFF DOES NOT PLEAD THE EXISTENCE OF A

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CONTRACT BETWEEN ITSELF AND THE MVE ENTITIES

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In order to properly plead a cause of action for breach of contract, Plaintiff must allege the

13 existence of a valid contract, or attach the contract in question to its pleading. (Harris v. Rudin,

14 Richman & Appel (1999) 74 Cal.App.4th 299, 307). Plaintiff's First Amended Complaint discusses

15 its contract with McLarand Vasquez & Partners, Inc. ("MVP")--the Architect of Record for the

16 One Pearl Place apartment complex at issue in this litigation. However, Plaintiff does not

17 demonstrate or plead any facts supporting the existence of a contract between the MVE entities

18 named as Does to the First Amended Complaint.

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A written contract may be pleaded either by its terms--set out verbatim in the complaint or

20 a copy of the contract attached to the complaint and incorporated therein by reference--or by its

21 legal effect. (Id.) In order to plead a contract by its legal effect, plaintiff must "allege the substance

22 of its relevant terms. This is more difficult, for it requires a careful analysis of the instrument,

23 comprehensiveness in statement, and avoidance of legal conclusions." (McKell v. Washington

24 Mutual, Inc. (2006) 142 Cal.App4th 1457, 1489 quoting 4 Witkin Cal. Proc. Pleading ? 480 (4th ed., 1997.)

25 Here, Plaintiff does not allege the existence of a contract between itself and the MVE

26 entities. If Plaintiff can plead, in good faith, the existence of such a contract, or demonstrate its

27 existence through attaching such contract to its Complaint, then the MVE entities would have no

28

Collins Collins

Muir + Stewart LLP

1999 Harrison Street Suite 1700 Oakland, CA 94612 Phone (510) 844-5100 Fax (510) 844-5101

19010 ? DEMURRER TO FAC OF MVE ENTITIES (06-18-15)

6 MVE'S DEMURRER TO PLAINTIFF'S FIRST AMENDED COMPLAINT

E-FILED: Jun 18, 2015 5:00 PM, Superior Court of CA, County of Santa Clara, Case #1-13-CV-258281 Filing #G-73804

1 recourse but to accept the Plaintiff's assertion. However, Plaintiff and the MVE entities alike know

2 that no such contractual relationship exists. As a result, the cause of action for breach of contract

3 should be dismissed without leave to amend.

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IV.

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PLAINTIFF FAILED TO FILE A CERTIFICATE OF MERIT AGAINST THE MVE

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ENTITIES AS REQUIRED BY CODE OF CIVIL PROCEDURE SECTION 411.35

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Plaintiff's failure to file a Certificate of Merit against the MVE entities is challengeable on

8 Demurrer. (Code Civ. Proc. ? 411.35(g).) The relevant portion of the statute provides as follows:

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(a) In every action, including a cross-complaint for damages or

indemnity, arising out of the professional negligence of a person

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holding a valid architect's certificate ... the attorney for the plaintiff

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or cross-complainant shall file and serve the certificate specified by

subdivision (b). 12

13 (Code Civ. Proc. ? 411.35(a).)

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The MVE entities, as evidenced by Plaintiff's admissions in paragraphs 3 and

15 25 of the First Amended Complaint regarding MVP, are design professional entities

16 within the meaning of the statute. (Plaintiff's FAC at ??3, 25.) Absent a valid

17 Certificate of Merit against the MVE entities, Plaintiff cannot maintain its cause of

18 action for negligence, and the MVE entities' Demurrer as to the fourth cause of

19 action should be sustained.

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V.

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PLAINTIFF'S CAUSES OF ACTION FOR WARRANTY

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AND STRICT LIABILITY ARE INAPPROPRIATE AS ALLEGED

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AGAINST THE DESIGN PROFESSIONAL MVE ENTITIES

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"The well settled rule in California is that where the primary objective of a transaction is to

25 obtain services, the doctrines of implied warranty and strict liability do not apply." (Applied

26 Properties v. John A. Blume & Assoc., Engineers (1972) 25 Cal.App.3d 848, 855.) It cannot be

27 seriously disputed that design professionals, and in particular architects, provide services. (See,

28 e.g., Pancoast v. Russell (1957) 148 Cal.App.2d 909, 912; Civ. Code ? 2782.8(c)(2).)

Collins Collins

Muir + Stewart LLP

1999 Harrison Street Suite 1700 Oakland, CA 94612 Phone (510) 844-5100 Fax (510) 844-5101

19010 ? DEMURRER TO FAC OF MVE ENTITIES (06-18-15)

7 MVE'S DEMURRER TO PLAINTIFF'S FIRST AMENDED COMPLAINT

E-FILED: Jun 18, 2015 5:00 PM, Superior Court of CA, County of Santa Clara, Case #1-13-CV-258281 Filing #G-73804

1

In Applied Properties, the court was addressing whether the following jury instruction was

2 proper under California law:

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"When the defendant agreed to determine the feasibility of the pier

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and landing floats, and then agreed to design the pier and landing

floats, there was an implied warranty that the pier and landing floats

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would be reasonably suitable for the purpose for which such pier or

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landing floats are ordinarily used."

7 Id. (FN16) (emphasis added).

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As discussed above, the court held that "[t]he well settled rule in California is that where the

9 primary objective of a transaction is to obtain services, the doctrines of implied warranty and strict

10 liability do not apply." The court then quoted Gagne v. Bertran (1954) 43 Cal.2d 481, 489-90 to

11 drive home its point:

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"The services of experts are sought because of their special skill.

They have a duty to exercise the ordinary skill and competence of

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members of their profession, and a failure to discharge that duty will

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subject them to liability for negligence. Those who hire such persons

are not justified in expecting infallibility, but can expect only

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reasonable care and competence. They purchase service, not

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insurance."

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Here, it cannot be reasonably disputed that the MVE entities are design professionals who,

18 if alleged appropriately by Plaintiff, would have provided architectural design services for the One

19 Pearl Place project. Whether such services were actually provided by the MVE entities remains in

20 dispute, but that does not change the fact that Plaintiff's second, third, and fourth causes of action

21 are all barred, as a matter of law.

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VI.

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CONCLUSION

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The MVE entities had no role in the planning, design, construction, or maintenance of the

25 One Pearl Place complex at issue in this litigation. Plaintiff's attempt to cast an overly broad net by

26 naming multiple entities with no relationship to the project is clearly improper, and as discussed 27 above, is appropriate for Demurrer. The MVE entities request that the Court sustain this Demurrer

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Collins Collins Muir + Stewart LLP

1999 Harrison Street Suite 1700 Oakland, CA 94612 Phone (510) 844-5100 Fax (510) 844-5101

19010 ? DEMURRER TO FAC OF MVE ENTITIES (06-18-15)

8 MVE'S DEMURRER TO PLAINTIFF'S FIRST AMENDED COMPLAINT

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