Janco Industries, Inc VS Williams

The party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law. (Aguilar, supra, 25 Cal.4th at p. 850; Evid. Code, § 500.) A triable issue of material fact exists if the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the nonmoving party. (Aguilar, supra, 25 Cal.4th at p. 850.) “A party cannot avoid summary judgment by asserting facts based on mere speculation and conjecture, but instead must produce admissible evidence raising a triable issue of fact.” (LaChapelle v. Toyota Motor Credit Corp. (2002) 102 Cal.App.4th 977, 981.)

“The papers are to be construed strictly against the moving party and liberally in favor of the opposing party; any doubts regarding the propriety of summary judgment are to be resolved in favor of the opposing party.” (Kulesa v. Castleberry (1996) 47 Cal.App.4th 103, 112.) RG21108716: Janco Industries, Inc VS Williams 08/14/2026 Hearing on Motion for Summary Judgment filed by LANDRY DESIGN GROUP, INC., a California Corp. (Defendant) CRS# 655267513231 in Department 25

The pleadings play a key role in a summary judgment motion and serve the purpose of delimiting the scope of summary judgment and framing the outer measure of materiality in a summary judgment proceeding. (White v. Smule (2022) 75 Cal.App.5th 346, 354.)

FACTUAL AND PROCEDURAL BACKGROUND At issue in this Motion are Plaintiff Ellen Williams (“Plaintiff”, “Cross-Defendant” or “Williams”)’s claims in the Third Amended Complaint (“TAC”) against Defendants, for Breach of Contract (Eleventh); Fraud (Thirteenth); Negligent Misrepresentation (Fourteenth), and Professional Negligence (Twelfth) as to Mr. Landry only; Defendants’ Cross-Claims in the First Amended Cross-Complaint for the Condition Precedent (Sixth) and Declaratory Relief (Seventh) causes of action; and Defendants’ Affirmative Defenses, for Condition Precedent (Twenty- Sixth); Plaintiff’s Breach (Twenty-Sixth); and Limited Liability (Twenty-Eighth) in their Amended Answer.

In this consolidated construction defect case, Plaintiff sues numerous other defendants, some of whom have also filed dispositive motions, who participated in the design and/or building of Plaintiff’s residence Apart from Professional Negligence, the Twelfth Cause of Action against LDG only, all claims are asserted as against or by both Defendants Landry and LDG.

As relevant to this Motion, on February 4, 2016, Plaintiff engaged Defendants to design a home she and her husband had purchased in Pleasanton, California with the intent to build a custom residence. (UMF 1.) They entered into an agreement for Defendants’ services with Defendant Richard Landry, the owner of Landry Design Group, Inc., signing on behalf of Defendant Landry Design Group, Inc. Mr. Landry is a licensed architect but his associate, Mark Savary, who was heavily involved in the project, was not. (UMF 7; AMF 8.) Plaintiff was dissatisfied with Defendants’ work and filed a lawsuit on October 14, 2022. On the same day, she served a Certificate of Merit, pursuant to section IX of the Contract. (AMFs 10, 15.) The operative complaint is the TAC, filed on May 22, 2025. (Ibid.)

DISCUSSION

Based upon three issues, Defendants seek summary judgment against Plaintiff as to all claims asserted against them in the Third Amended Complaint and summary adjudication as to select affirmative defenses to those claims, as well as select claims in Landry/LDG’s amended crosscomplaint against Williams.

Issue 1: Condition Precedent

This issue affects: (a) TAC: Eleventh through Thirteenth (Breach of Contract/ Professional Negligence/ Fraud/ Negligent Misrepresentation) Causes of Action; (b) FAXC: Sixth (Breach of Contract) and Seventh (Declaratory Relief) Cross- Claims; and

SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA

RG21108716: Janco Industries, Inc VS Williams 08/14/2026 Hearing on Motion for Summary Judgment filed by LANDRY DESIGN GROUP, INC., a California Corp. (Defendant) CRS# 655267513231 in Department 25 (c) Amended Answer: Twenty-Sixth (Condition Precedent) and Twenty-Seventh (Plaintiff’s Breach) Affirmative Defenses.

Claims Article IX of the Contract between Landry and Plaintiff provides: “The Client [Plaintiff] shall make no claim for professional negligence, either directly or by way of a cross complaint against the Architect unless the Client has first provided the Architect [LDG] with a written certification executed by an independent Architect currently practicing in the same discipline as the Architect and licensed in the State of California. . . . . This Certificate shall be provided to the Architect not less than thirty (30) calendar days prior to the presentation of any claim or the institution of any arbitration or judicial proceeding. This Certificate of Merit clause will take precedent over any existing State law in force at the time of the claim.” (TAC, Ex. A, pp. 6-7, Art. IX (emphasis added).)

Initially, the parties dispute whether this provision covers only the claim for professional negligence or additional related claims, e.g., contractual and misrepresentation claims. By its terms, Section IX only bars claims “for professional negligence” (emphasis added.)

Comparatively, the statutory certificate of merit requirement that the parties elected to jettison in favor of their own contractual condition, applies more broadly, to “every action arising out of the professional negligence of a person holding a valid architect’s certificate.” (Code Civ. Proc., § 435.11, emphasis added.) In addition, while Section IX required service of the certificate 30 days before filing any complaint, the statute only requires the filing and service of the certificate “on or before the date of service of the complaint.” (Id.)

The Court presumes that these deviations from the statute were deliberate and should be given effect. Further, “contractual clauses seeking to limit liability will be strictly construed and any ambiguities resolved against the party seeking to limit its liability.” (Epochal Enters., Inc. v. LF Encinitas Props., LLC (2024) 99 Cal.App.5th 44, 60; Queen Villas Homeowners Ass’n v. TCB Prop. Mgmt. (2007) 149 Cal.App.4th 1, 6 [“exculpatory clauses are construed against the released party”].)

The Court concludes that Section IX only operates to precludes a noncompliant claimant from bringing a claim “for professional negligence.” Thus, the failure to timely present a Certificate of Merit can only bar the Twelfth cause of action against LDG.

Next, the parties dispute whether Plaintiff in fact complied with this condition precedent. Preliminarily, Plaintiff opposes the Motion on the grounds that the Contract, including Section IX, is not enforceable because she was fraudulently induced to enter into it. However, Plaintiff conceded that the Contract is enforceable in her response to FROG 50.1, which Defendant demonstrates on Reply was, in fact, verified. (UMF 1; Reply, Ex. 1.) Evidence contradicting sworn admissions in discovery may not be offered in opposition to summary judgment/ adjudication. (D'Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 21-22; Turley v. Familian Corp. (2017) 18 Cal.App.5th 969, 981 [recognizing the D’Amico rule “bars a party opposing summary judgment from filing a declaration that purports to impeach his or her own

SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA

RG21108716: Janco Industries, Inc VS Williams 08/14/2026 Hearing on Motion for Summary Judgment filed by LANDRY DESIGN GROUP, INC., a California Corp. (Defendant) CRS# 655267513231 in Department 25 prior sworn testimony,” but declining to find it applicable in that case].) Thus, there is no triable issue as to the enforceability of the Contract.

Defendants argue that there is no dispute that Plaintiff presented a certificate of merit on the same day as filing her complaint; thus, Plaintiff did not present a Certificate of Merit to LDG at least 30 days before filing suit. (UMF 3.) Plaintiff responds that she “substantially performed” by putting LDG on notice of her claims multiple times over the course of at least a year prior to initiating this case. (Oppo., pp. 19:1-20:26; AMF 9.) Plaintiff’s argument is unavailing: While the substantial performance doctrine may excuse a failure to strictly comply with a contractual covenant, it does not mitigate strict compliance with conditions precedent. (Roseleaf Corp. v. Radis (1953) 122 Cal.App.2d 196, 207.)

Plaintiff also asserts that LDG waived this defense by waiting three years to assert it; however, she cites no authority establishing that mere delay serves as a basis for waiver of a condition precedent. (Oppo., pp. 9:17-19; 20:11-14.)

Thus, LDG has demonstrated that there is no genuine issue of material fact that Plaintiff failed to satisfy the condition precedent to serve a certificate of merit as required by Section IX. LDG’s Motion is therefore GRANTED as to the 12th cause of action.

The Motion is DENIED as to the 11th, 13th, and 14th claims as to both Defendants.

Cross-Claims

When a plaintiff – or cross-complainant – moves for summary judgment, it is the plaintiff’s burden as movant to show admissible evidence on each element of a cause of action entitling him to judgment. (Code Civ. Proc., § 437c, subd. (p)(1); see Hunter v. Pac. Mech. Corp. (1995) 37 Cal.App.4th 1282, 1287; Aguilar, supra, 25 Cal.4th at p.851; Paramount Petroleum Corp. v. Sup.Ct. (2014) 227 Cal.App.4th 226, 241.) If the plaintiff makes a prima facie showing that evidence exists to support all elements of a cause of action, then the burden shifts to the defendant to show that one or more triable issues of material fact exist. (Code Civ. Proc., § 437c, subd. (p)(1).) The plaintiff has no burden to disprove affirmative defenses and crosscomplaints. (Ibid.; Consumer Cause, Inc. v. SmileCare (2001) 91 Cal.App.4th 454, 468.)

To establish triable issues of material fact, the opposing party must “set forth the specific facts showing” that they exist. (Miller v. Fortune Commercial Corporation (2017) 15 Cal.App.4th 214, 220-221.) “A triable issue of material fact may not be created by speculation or a ‘stream of conjecture and surmise.’ Instead, the plaintiff must produce ‘substantial responsive evidence.’” (Ibid., internal citations omitted.) The parties may not rely on the allegations in their pleadings to show that a triable issue of material fact does or does not exist (Code Civ. Proc., § 437c, subd. (p)(1).)

First, although both Cross-Complainants bring the Sixth cause of action for breach of contract,

SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA

RG21108716: Janco Industries, Inc VS Williams 08/14/2026 Hearing on Motion for Summary Judgment filed by LANDRY DESIGN GROUP, INC., a California Corp. (Defendant) CRS# 655267513231 in Department 25 only LDG may do so as signatory to the Contract, especially as Mr. Landry does not assert, or develop any argument or supply supporting authority, that he entered into the Contract in his personal capacity or that he has standing to enforce it as a third-party beneficiary.

As established above, there is no triable issue of material fact that there is an enforceable Contract. However, there appears to be a genuine dispute of material fact as to Plaintiff’s alleged breach. Substantial compliance may not apply to excuse a party from strict compliance with a condition precedent, but may do so with respect to a mere covenant. (Roseleaf, supra, 122 Cal.App.2d 196 at p. 207.)

Here, LDG alleges breach of contract, and seeks damages for a breach of Article IX; thus, for these purposes, Article IX is a contractual covenant and subject to the doctrine of substantial compliance. Cross-Defendant’s opposition evidence discloses triable issues as to whether Cross- Defendant substantially complied with her obligations by engaging LDG in discussions and providing information about her claims, well in advance of filing her complaint effectively providing LDG with substantially equivalent information. (AMFs 9-11.)

Further, as to damages, LDG fails to meet its moving burden, as it presents no evidence of the amount of damages allegedly incurred as a result of Cross-Defendant’s breach. Rather, it only claims, generally, that it was forced to incur the costs of defending the lawsuit and was deprived of the opportunity to resolve the matter informally (UMF 4); this is insufficient. A moving plaintiff must show that there are no triable issues as to each element of a claim, including the element of damages. (Paramount Petroleum Corp., supra, 227 Cal.App.4th at p. 531 [plaintiff cannot obtain summary judgment on a breach of contract cause of action in an amount of damages “to be determined later at trial”].)

Thus, the Motion is DENIED as to the Sixth cause of action, for breach of contract, in LDG’s cross-complaint.

As to the Seventh cause of action for Declaratory Relief, LDG has demonstrated that there is no genuine issue of material fact that Plaintiff failed to satisfy the condition precedent. Thus, to the extent that declaratory relief is sought as to the rights and duties concerning the parties’ liability stemming from Article IX, Plaintiff’s claim against LDG for professional negligence is barred as a matter of law. (Cross-Complaint, ¶ 26.) The Motion is otherwise DENIED, however, in line with the Court’s ruling on the 11th, 13th, and 14th claims in Plaintiff’s TAC.

Affirmative Defenses

A party may move for summary adjudication to decide whether there is no merit to causes of action, affirmative defenses, or claims for damages, whether “one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs,” or some combination thereof. (Code Civ. Proc., § 437c, subd. (f)(1).) Summary adjudication is only proper when it “completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.”

SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA

RG21108716: Janco Industries, Inc VS Williams 08/14/2026 Hearing on Motion for Summary Judgment filed by LANDRY DESIGN GROUP, INC., a California Corp. (Defendant) CRS# 655267513231 in Department 25 (Ibid.)

LDG and Landry move for summary adjudication of their affirmative defenses 26 (Condition Precedent) and 27 (Plaintiff’s Breach). The Motion is GRANTED IN PART as to the 26th Affirmative Defense for Condition Precedent, specifically, that for the reasons stated above, Plaintiff’s cause of action against LDG, only, for professional negligence is barred as a matter of law. As to the 27th affirmative defense, Defendants present no undisputed material facts to substantiate any prior breach by Plaintiff. The Motion is thus DENIED as to the 27th Affirmative Defense for Plaintiff’s Breach.

Issue 2: Limited Liability

This issue affects:

(a) FAXC: Sixth (Breach of Contract) and Seventh (Declaratory Relief) Cross- Claims; and (b) Amended Answer: Twenty-Eighth (Limitation of Liability) Affirmative Defense.

To meet their moving burden as Cross-Complainants, Defendants must show admissible evidence on each element of a cause of action (cross-claim) entitling them to judgment. (Code Civ. Proc., § 437c, subd. (p)(1).) Similarly, for their affirmative defense, they must show admissible evidence on each element, amounting to a complete defense. (Code Civ. Proc., § 437c, subd. (f)(1), (p)(2).)

For the breach of contract claim, for purposes of this motion, LDG has established that the Contract is enforceable. The Contract provides that damages “shall not exceed the amount of Professional Liability Insurance (PLI) applicable and available to the Architect at the time a claim is settled.” (TAC, Ex. A, pp. 6-7, Art. IX.) However, LDG offers no evidence that any claim has been settled. Further, the Contract also provides that LDG “currently carries a PLI policy with an initial limit of $1,000,000.00 and shall keep said policy, or a policy of equal coverage, active for a minimum period of five years following the signing of this contract, unless said policy becomes unavailable to Architect.” (Ibid.)

But again, LDG does not provide evidence to show compliance with this requirement, initially or over the next five years. While Exhibit D to Landry’s declaration constitutes some evidence of insurance coverage effective from October 2019 through October 2020, it is not prima facie evidence of continuous coverage from the Contract’s execution in 2016 and the ensuing five years. Moreover, Defendants failed to provide a complete insurance policy to show what coverage actually existed at the relevant time. (Certain Underwriters at Lloyd’s of London v.

Superior Ct. (1997) 56 Cal.App.4th 952, 956 [denying summary judgment where a dispute required examination of a complete insurance policy that the moving party failed to submit, and no secondary evidence sufficient to establish policy coverage was provided].) The Motion is therefore denied as to issue 2, limitation of liability, as to the enumerated claims and defenses.

SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA

RG21108716: Janco Industries, Inc VS Williams 08/14/2026 Hearing on Motion for Summary Judgment filed by LANDRY DESIGN GROUP, INC., a California Corp. (Defendant) CRS# 655267513231 in Department 25

Issue 3: Licensed Architect and Statute of Limitations

This issue affects:

(a) TAC: Thirteenth (Fraud) and Fourteenth (Negligent Misrepresentation) Causes of Action. (b) Punitive Damages

The elements of a claim for intentional misrepresentation include (1) a representation; (2) knowledge of falsity; (3) intent to defraud or induce reliance; (4) reliance was justifiable; (5) and it resulted in damages. (Lazar v. Superior Court (1996) 12 Cal.4th 631, 638; Aton Ctr., Inc. v. United Healthcare Ins. Co. (2023) 93 Cal.App.5th 1214, 1245.)

Defendants challenge Plaintiff’s ability to prove any misrepresentation, specifically, Plaintiff’s allegation that they told her that “only licensed architects would design the project” (TAC, ¶¶ 33, 181, 183), as well as Williams’ reliance upon such a representation in entering the Contract. Plaintiff alleges that “Richard Landry and Mark Savary both repeatedly represented to [Plaintiff] that Mark Savary was a licensed architect.” (Id. at ¶ 33.) Plaintiff also alleges various facts about the prominent role Mark Savary played in the Project, and that Plaintiff later discovered that he was not in fact licensed. (Id. at ¶¶ 33-35.) The 13th cause of action incorporates these allegations. (Id. at ¶¶ 180-187.)

In support of their claim that there is no triable issue of material fact as to this alleged misrepresentation, Mr. Landry, who is a licensed architect, declares that he “stamped and signed the design for the Project under [his] architectural license” (Landry Decl., ¶ 2) and that LDG “started the design with hand drawn sketches on a blank sheet of paper” (Id. at ¶ 4.) This evidence does not address the thrust of Plaintiff’s allegations – that Landry improperly relied upon an unlicensed employee, Savary, to create the design, contrary to his express promise, and also that he represented that Mr. Savary was licensed. Accordingly, Defendants fail to shift the burden to Plaintiff.

Defendants argue that such delegation is permitted by law, which provided the licensed architect exercises “responsible control” as required Business & Professions Code section 5535.1. However, they offer no facts to show that he in fact exercised “responsible control” over Savary or an expert opinion defining the relevant standard of care for exercising such control. Defendants also argue that the preparation of preliminary sketches is not “architectural work” under Walter M. Ballard Corp. v. Dougherty (1951) 106 Cal.App.2d 35, 42. However, as noted, the TAC asserts that Savary did far more than just prepare preliminary sketches. Again, this argument fails to address the TAC’s actual allegations, and thus does not shift the burden. In any event, Plaintiff demonstrates triable issues regarding the extent of Savary’s role and participation in the Project. (AMFs 4, 7, 8, 13.)

SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA

RG21108716: Janco Industries, Inc VS Williams 08/14/2026 Hearing on Motion for Summary Judgment filed by LANDRY DESIGN GROUP, INC., a California Corp. (Defendant) CRS# 655267513231 in Department 25

In Reply, Defendants attempt to inject a new argument regarding Plaintiff’s inability to show causation of damages. However, this is not raised in the Separate Statement and points raised in a reply brief for the first time will not be considered unless good cause is shown for the failure to present them before. (Balboa Insurance Co. v. Aguirre (1983) 149 Cal.App.3d 1002, 1010.) Because Defendants cannot meet their prima facie burden as to the misrepresentation element, they cannot dispose of both causes of action.

Defendants also argue that the claims are barred by the statute of limitations of three years under CCP section 338(d), even with the application of the delayed discovery rule. First, Defendants argue that Plaintiff knew or should have known that Mr. Savary was not a licensed architect more than three years before the lawsuit was filed. (See UMF 9.) Although this is a legal conclusion that does not belong in a Separate Statement, it is accompanied by relevant factual assertions, rendering California-Am. Water Co. v. Marina Coast Water District (the basis for Plaintiff’s objection) inapposite. (California-Am. Water Co. v. Marina Coast Water District 2022) 86 Cal.App.5th 1272, 1297, fn. 10.)

Specifically, Defendants assert that Plaintiff should have been put on notice earlier in the Project by a difference between the email signature blocks of Landry and Savary, where Landry’s stated “AIA” (signaling he is a licensed architect) and Savary’s did not. But Savary’s signature block referred to Savary as an architect, when he is not licensed, in violation of Business & Professions Code section 5536(a), and was itself a misrepresentation. Defendants do not address this on Reply and therefore concede the point. Plaintiff has demonstrated triable issues as to the application of the discovery rule.

Summary adjudication is therefore DENIED on these two causes of action for intentional and negligent misrepresentation.

Punitive Damages

Although Defendants do not properly move for summary adjudication as to punitive damages in their Notice or Separate Statement, the Court considers the argument made in the last page of the moving papers. (MPA, pp. 22:13-23:1.) As the moving party, it is Defendants’ burden to show that “one or more claims for [punitive] damages” cannot survive by establishing that “there is no merit to [the claim], as specified in Section 3294 of the Civil Code ....” (Code Civ. Proc, § 437c, subd. (f)(1).) A defendant establishes a claim has no merit by showing that an element of the claim cannot be established. (Code Civ.

Proc, § 437c, subd. (p)(2).) To do so, a defendant must show that the plaintiff does not possess, and cannot reasonably obtain, needed evidence. (Aguilar, supra, 25 Cal.4th at p. 854.) To meet its burden, a defendant must present evidence; he may not simply point out that the plaintiff does not possess, and cannot reasonably obtain, needed evidence. (Id. at pp. 854-55.)

As the Court denies summary adjudication as to Plaintiff’s fraud claim and Defendants do not

SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA

RG21108716: Janco Industries, Inc VS Williams 08/14/2026 Hearing on Motion for Summary Judgment filed by LANDRY DESIGN GROUP, INC., a California Corp. (Defendant) CRS# 655267513231 in Department 25 meet their initial burden, summary adjudication is likewise DENIED as to punitive damages.

ORDER

Defendants’ Motion is GRANTED IN PART and DENIED IN PART, as set forth above. (Civ. Proc. Code, § 437c.)

The Court rules as follows on Plaintiff’s Objections to Evidence: Objections Nos. 1, 5, 6, 9, and 19 are OVERRULED. Objections Nos. 2-4, 7-8, 10-18 are SUSTAINED.

The Court rules as follows on Defendants’ Objections to Evidence: Objections Nos. 1 through 26 are OVERRULED.

The Court did not rely on the items identified in connection with the remaining objections and therefore does not reach any objections thereto. (Code Civ. Proc., §437c, subd. (q).)

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