QDG v. Vanir Construction Management, Inc.

trial on the damages phase is both inefficient and potentially prejudicial. Plaintiff in opposition challenges any attempts to adjudicate liability based on an inadmissible traffic report. Plaintiff also maintains that any testimony from Plaintiff and other witnesses about the accident, will inevitably lead to testimony involving the subsequent impacts to Plaintiff following the collision. Bifurcation will therefore not sufficiently reduce potential jury bias. Beigel in reply engages in qualitative challenges regarding liability, and reiterates the purpose of the bifurcation motion.

Legal Standard

Code of Civil Procedure section 598 states in part: "The court may, when the convenience of witnesses, the ends of justice, or the economy and efficiency of handling the litigation would be promoted thereby, on motion of a party, after notice and hearing, make an order, no later than the close of pretrial conference in cases in which such pretrial conference is to be held, or, in other cases, no later than 30 days before the trial date, that the trial of any issue or any part thereof shall precede the trial of any other issue or any part thereof in the case, except for special defenses which may be tried first pursuant to Sections 597 and 597.5."

The court, in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy, may order a separate trial of any cause of action, including a cause of action asserted in a cross-complaint, or of any separate issue or of any number of causes of action or issues, preserving the right of trial by jury required by the Constitution or a statute of this state or of the United States. (Code Civ. Proc., Sec. 1048, subd. (b).)

Liability and Damages

The court finds bifurcation will not yield greater efficiency. With the qualitative and traffic report admissibility issues acknowledged, the court still finds the possibility that at least some of the witnesses may testify as to both liability and damages. Should Beigel not prevail on the liability phase, a bifurcated trial will likely require reintroduction of certain evidence, and extend the trial simply based on the bifurcation structure itself. (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 888.) On prejudice, any issues under Evidence Code sections 352 can be addressed in motions in limine and jury instructions. (Evid. Code, Sec. 352.) The prejudice arguments otherwise insufficiently support the requested relief. The motion is denied without prejudice. Trial remains set for September 28, 2026.

Vanir Construction Management, Inc.'s Motion for Summary Judgment is GRANTED. The alternative Motions for Summary Adjudication and for Judgment on the Pleadings are denied as moot.

EVIDENTIARY OBJECTIONS

Code of Civil Procedure, Section 437c, subdivision (c) states, "[i]n determining if the papers show that there is no triable issue as to any material fact, the court shall consider all of the evidence set forth in the papers, except the evidence to which objections have been made and sustained by the court." (Code Civ. Proc., Sec.437c, subd. (c).) Pursuant to section 437c, subdivision (q): In granting or denying a motion for summary judgment or summary adjudication, the court need rule only on those objections to evidence that it deems material to its disposition of the motion. Objections to evidence that are not ruled on for purposes of the motion shall be preserved for appellate review. For the purpose of judicial economy, the Court rules only on the objections to evidence it has deemed material to the disposition of the instant Motion.

Cross-Defendant Vanir objects to paragraphs 7-15 of the Declaration of Kevin Tyrell, a licensed architect and Partner at QDG from 2014 to 2024, submitted in support of QDG's Opposition. Vanir's objections are SUSTAINED in their entirety. Vanir also objects to parts of QDG's Additional Material Facts. To the extent that these objections are not related to the declaration of Kevin Tyrell, the Court declines to rule on those objections as they are not material to the disposition of the Motion.

The FACC asserts the following causes of action against Cross-Defendant Vanir:

(a) Third Cause of Action for equitable indemnity; (b) Fourth Cause of Action for comparative indemnity and apportionment of fault; (c) Seventh Cause of Action for declaratory relief. Vanir moves for summary judgment or, in the alternative, summary adjudication, of all three causes of action on the basis that QDG cannot establish that (1) Vanir owed QDG a legal duty of care in connection with the services that Vanir provided to the District, (2) there was privity of contract between Vanir and QDG sufficient to support any of the causes of action in the FACC; and (3) an actual controversy under a written contract between QDG and Vanir exists such that declaratory relief is appropriate under the circumstances of this case.

Alternatively, Vanir moves for judgment on the pleadings on the grounds that none of the causes of action state facts sufficient to constitute a cause of action against Vanir.

According to Vanir, the District retained QDG under a written agreement dated June 5, 2012, ("Architect Agreement") to provide professional architectural services for the Santa Monica College Malibu Center (the "Project"). The Architect Agreement obligated the QDG, as the Architect, to provide schematic design, design development, and construction design services. Vanir is not a party to the Architect Agreement. District separately retained Vanir as a construction manager pursuant to a Construction Management Agreement ("Management Agreement") dated May 15, 2017.

Under that agreement, Vanir agreed to provide construction management services including project management, time management, and cost management during pre-design, design, bid and award, and post-construction phases. The Management Agreement expressly excluded architectural design professional services from Vanir's scope of work and stated: "nothing in this Agreement shall be construed to mean that [Vanir] assumes any of the responsibilities or duties of the Contractors or the Design Professional....The Design Professional is solely responsible for the Project design and shall perform in accordance with the agreement between the Design Professional and the Owner.

There are no third party beneficiaries of this Owner-CM agreement and no one except the parties to the CM agreement may seek to enforce its terms." (Whitley Decl., Ex. A: Construction Management Agreement, Art. 1.5.) The Management Agreement further provided that Vanir "is not responsible for providing, nor does [Vanir] control, the Project design, or the contents of the design documents" and that "[t]he Architect is not a third party beneficiary of [Vanir]'s work described in this paragraph and the Architect remains solely responsible for the contents of design drawings and design documents." (Id. at Art. 3.3.1.5.)

On September 25, 2024, District initiated an action against QDG alleging that corrections were necessary throughout the Project due to professional architectural errors and omissions in documents prepared by the Architect. District claimed it incurred additional costs for modification, addition, and refabrication of structural steel members and connections, delay to final completion, and extra costs for work performed in excess of the construction contract. District did not assert any claims against Vanir. On May 7, 2025, QDG filed the FACC against Vanir and other project participants for equitable indemnity, comparative indemnity and apportionment of fault, and declaratory relief.

a. Equitable Indemnity

"Equitable indemnity, which requires no contractual relationship, is premised on a joint legal obligation to another for damages; it is subject to allocation of fault principles and comparative equitable apportionment of loss." (C.W. Howe Partners Inc. v. Mooradian (2019) 43 Cal.App.5th 688, 700, quotation marks omitted.) "The elements of a cause of action for equitable indemnity are (1) a showing of fault on the part of the indemnitor and (2) resulting damages to the indemnitee for which the indemnitor is equitably responsible." (Ibid., quotation marks, brackets, and ellipses omitted.) "Equitable indemnity principles govern the allocation of loss or damages among multiple tortfeasors whose liability for the underlying injury is joint and several." (Expressions at Rancho Niguel Assn. v.

Ahmanson Developments, Inc. (2001) 86 Cal.App.4th 1135, 1140.) "It can apply to acts that are concurrent or successive, joint or several, as long as they create a detriment caused by several actors." (BFGC Architects Planners, Inc. v. Forum/Mackey Construction, Inc. (2004) 119 Cal.App.4th 848, 852.) However, with limited exceptions, there must be a basis for tort liability against the proposed indemnitor, generally, based on a duty owed to the underlying plaintiff. (Ibid.) The Court finds that Vanir has sustained its burden of demonstrating that there are no triable issues of material fact as to the third cause of action for equitable indemnity.

According to the FACC, the District filed a lawsuit against QDG alleging breach of contract and negligence causes of action for construction defects. The FACC alleges that "[i]n the event that Cross-Complainant suffers any liability pursuant to the allegations of the DISTRICT's Complaint, or any cross-action, it will be solely and exclusively the result of the primary and active negligence of Cross-Defendants and ROES 11-100, and each of them." (FACC, P.P.30, 32.) First, as stated in the Motion, Vanir is not a joint tortfeasor because the District does not allege any wrongdoing against Vanir and has not brought a legal action against Vanir.

Second, both the Architect Agreement and the Construction Management Agreement are clear regarding the allocation of responsibilities between Vanir and QDG: Vanir was hired as the construction manager to provide project management, time management, and cost management services during pre-design, design, bid and award, and post-construction phases and QDG was hired as the Architect to provide professional architectural services, including schematic design, design development, and construction design services.

Vanir is not a party to the Architect Agreement and the Management Agreement expressly excludes architectural design professional services from Vanir's scope of work. Thus, Vanir has demonstrated that QDG cannot establish that Vanir was a tortfeasor that was jointly and severally liable for any of the claims asserted against QDG in the District's complaint.

Given that QDG uses allegations of negligence to support its equitable indemnity claim, Vanir also argues that QDG cannot establish that Vanir owed QDG any legal duty of care. Vanir cites to Ratcliff Architects v. Vanir Construction Management, Inc. to support its arguments on the basis that in Ratcliff, the Court held that a construction manager owes no duty of care to an architect when the two have no contractual or other relationship and the imposition of a duty could potentially subject the professional service provider to conflicting loyalties. (Ratcliff Architects v.

Vanir Construction Management, Inc. ("Ratcliff") (2001) 88 Cal.App.4th 595.) A duty of care may arise through statute, contract, the general character of the activity in which the defendant engaged, the relationship between the parties, or even the interdependent nature of human society. (J'Aire Corp. v. Gregory (1979) 24 Cal. 3d 799, 803.) "The determination whether a particular relationship supports a duty of care rests on policy and is a question of law." (Regents of University of California v.

Superior Court (2018) 4 Cal. 5th 607, 620.)

The Court finds that Vanir has met its burden in demonstrating that it did not owe a legal duty to QDG. First, there is no statutory basis for legal duty in this case. Second, Vanir has shown that it had no contractual relationship with QDG and, under the Management Agreement, bore no responsibility for preparing or controlling the design documents, conferred no third party beneficiary rights on QDG, and left QDG solely accountable for the design documents. The Court also finds that Ratcliff is instructive in establishing that Vanir, as the construction manager, did not owe a separate duty to QDG, as the Architect. (88 Cal.App.4th at 605.)

In Ratcliff, the Berkeley Unified School District ("BUSD") retained architects to provide architectural services for a school construction project and retained Vanir and Don Todd Associates, Inc. ("Todd") to be the construction managers of the project. First, as in the instant case, the court in Ratcliff, determined that there was no contractual or statutory duty and instead, analyzed whether a duty could be imposed based on the activity or the relationship of the parties. Second, as in the instant case, the Court noted that, although sometimes a duty could be imposed to prevent pure economic loss, the contract between BUSD and Vanir and Todd specifically excluded third-party beneficiaries.

The instant Management Agreement also excludes third-party beneficiaries. Third, the Court assessed the factors set forth in Biakanja v. Irving ("Biakanja") (1958) 49 Cal.2d 647, including "'the 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.'" (Ratcliff, 88 Cal.App.4th at 605.)

The court noted that the contract between BUSD, Vanir, and Todd, was not intended to affect the architects and any duty to the architects would represent a potential conflict of loyalty between BUSD and the architects. Finally, the Court concluded that it refused "to expand tort liability to include a duty of care from the construction manager to the project architect" as "policy considerations overwhelmingly weigh against creating such a duty." (Id. at 607.)

Given that Vanir has met its burden in establishing that it did not owe a legal duty to QDG and is not a potential tortfeasor, the burden shifts to QDG to demonstrate that a triable issue of material fact exists as to the equitable indemnity cause of action. In its opposition, QDG argues that its claims are based on a special relationship between Vanir and QDG that gives rights to a duty of care and subjects Vanir to tort liability. First, "[i]t is well established that the pleadings determine the scope of relevant issues on a summary judgment motion." (Nieto v.

Blue Shield of California Life & Health Ins. Co. (2010) 181 Cal.App.4th 60, 74.) QDG improperly introduces its claim regarding a special relationship for the first time in the opposition to the Motion. Second, QDG argues that a special relationship exists based on an analysis of the factors in Biakanja, claiming that Vanir' s comprehensive construction management services were intended to affect the project as a whole, including the District and QDG; Vanir's failure to conduct competent construction management resulted in the foreseeable harm; the District's claim for damages against QDG arises, in whole or in part, out of Vanir' s incompetent management services; the connection between Vanir's conduct and the damages is not remote; and there is a strong policy to protect owners from the negligence of construction managers.

However, as discussed above, the Court finds Ratcliff, which addressed the Biakanja factors in a very similar context, is applicable here. The Court finds that QDG's arguments distinguishing Ratcliff from the instant case lack merit. QDG argues that important procedural and factual differences make Ratcliff inapplicable here. The Court disagrees. First, QDG argues that the court in Ratcliff ruled on a demurrer, not a summary judgment motion. This distinction lacks legal significance as the central legal question of duty remains the same.

The Ratcliff court's holding that policy considerations overwhelmingly weigh against creating such a duty applies with equal force regardless of the procedural posture. Second, QDG argues that in Ratcliff, the architect asserted a negligence claim against the construction manager. However, the architect in Ratcliff alleged causes of action for comparative equitable indemnity, apportionment of fault, contribution, breach of contract, breach of written contract by third party beneficiary, negligence, and declaratory relief--similar causes of action as pleaded here.

Third, QDG argues that the court in Ratcliff did not analyze Vanir's construction management services. While the court in Ratcliff did note Vanir's duties, such analysis was not necessary to the determination of legal duty of care. Fourth, QDG argues that the architect in Ratcliff was attempting to enforce the manager's contract or impose architectural duties while QDG is claiming that Vanir failed to competently perform its construction management duties. However, the District has not alleged that Vanir breached any of its management duties and QDG cannot establish that Vanir breached any duties to QDG, without first establishing the existence of a duty.

Fifth, QDG argues that Ratcliff does not address whether a duty of care can arise without contractual privity when a "special relationship" exists. However, the Ratcliff court expressly considered the Biakanja factors in its analysis and concluded that no special relationship existed. Thus, the Court is not convinced that the facts in Ratcliff are distinguishable from the instant case.

QDG also argues that there is a triable issue of material fact as to whether Vanir is a joint tortfeasor based on allegations regarding Vanir's duties presented in the Opposition. However, these facts, even if admitted by the Court, would not create a triable issue of material fact as these allegations concern Vanir's contractual duties to the District, not an independent duty to QDG. The District has not sued Vanir or alleged any wrongdoing on Vanir's part; the District's claims are directed solely against QDG for architectural errors and omissions.

The FACC contains no specific allegations of wrongful conduct by Vanir, only boilerplate and conclusory allegations of "negligence" against all cross-defendants collectively. QDG's Opposition attempts to manufacture tort theories not alleged in the FACC, but the Cross-Complaint serves as the outer measure of materiality on summary judgment. The Court finds that Vanir owed its duty to the District, QDG was not a third-party beneficiary, and the policy considerations identified in Ratcliff preclude imposing a duty that would create competing loyalties.

QDG has not presented sufficient evidence in opposition regarding Vanir's duty of care or status as a joint tortfeasor. Accordingly, the Court finds that no triable issue of material fact exists as to the equitable indemnity cause of action.

b. Comparative Indemnity and Apportionment of Fault

California recognizes a single comparative indemnity doctrine which permits partial indemnification on a comparative fault basis. (Far West Financial Corp. v. D & S Co. (1988) 46 Cal. 3d 796, 808.) Under comparative indemnity principles, a full range of allocations is possible, from no indemnity to complete indemnity for the amounts paid by the indemnitee. (Expressions at Rancho Niguel Assn. v. Ahmanson Developments, Inc. (2001) 86 Cal.App.4th 1135, 1140.) Apportionment of fault is based on the relative responsibility of various parties for an injury to a claimant, to arrive at an equitable apportionment or allocation of loss. (Knight v.

Jewett(1992) 3 Cal. 4th 296, 314 [quotations omitted].) "[A] defendant/indemnitee may in an action for indemnity seek apportionment of the loss on any theory that was available to the plaintiff upon which the plaintiff would have been successful." (GEM Developers v. Hallcraft Homes of San Diego, Inc. (1989) 213 Cal.App.3d 419, 430.) Comparative indemnity, like equitable indemnity, requires that the proposed indemnitor be a joint tortfeasor subject to potential liability to the underlying plaintiff.

Without a duty of care and without joint tortfeasor status, there is no basis for comparative fault allocation. Given that Vanir refers to "contribution" in its moving papers, QDG attempts to distinguish comparative indemnity from contribution by characterizing it as a pretrial allocation mechanism rather than a post-judgment remedy. This distinction does not alter the threshold issue: whether Vanir can be held liable to the District such that fault may be apportioned among multiple tortfeasors.

As discussed above, Vanir has met its burden in showing that QDG cannot establish that Vanir is a joint tortfeasor or that it owed a legal duty to QDG and QDG has not produced sufficient evidence in opposition to demonstrate that a triable issue of material fact exists.

c. Declaratory Relief

According to Code of Civil Procedure section 1060: Any person interested under a written instrument, excluding a will or a trust, or under a contract, or who desires a declaration of his or her rights or duties with respect to another...may, in cases of actual controversy relating to the legal rights and duties of the respective parties, bring an original action or cross-complaint in the superior court for a declaration of his or her rights and duties in the premises, including a determination of any question of construction or validity arising under the instrument or contract.

He or she may ask for a declaration of rights or duties, either alone or with other relief; and the court may make a binding declaration of these rights or duties, whether or not further relief is or could be claimed at the time. The declaration may be either affirmative or negative in form and effect, and the declaration shall have the force of a final judgment. The declaration may be had before there has been any breach of the obligation in respect to which said declaration is sought.

Thus, action for declaratory relief under section 1060 requires two things: "(1) a proper subject of declaratory relief and (2) an actual controversy involving justiciable questions relating to the rights or obligations of a party. [Citation.]" (Lee v. Silveira (2016) 6 Cal.App.5th 527, 546; Brownfield v. Daniel Freeman Marina Hospital (1989) 208 Cal.App.3d 405, 410.) The requirement that an "actual controversy" exists "concerns the existence of present controversy relating to the legal rights and duties of the respective parties pursuant to contract (Code Civ.

Proc. Sec. 1060), statute, or order," instead of a controversy that is "conjectural, anticipated to occur in the future, or an attempt to obtain an advisory opinion from the court." (Brownfield, 208 Cal.App.3d at 410.) "One test of the right to institute proceedings for declaratory judgment is the necessity of present adjudication as a guide for plaintiff's future conduct in order to preserve his legal rights." (Osseous Technologies of America, Inc. v. DiscoveryOrtho Partners, LLC (2010) 191 Cal.App.4th 357, 364-365.)

In Osseous, the Court notes that "when there is accrued cause of action for an actual breach of contract or other wrongful act," the court may exercise its discretion under Code of Civil Procedure Sec. 1061 to deny declaratory relief." (Osseous, 191 Cal.App.4th at 366.) Code of Civil Procedure Sec. 1061 states that "[t]he court may refuse to exercise the power granted by this chapter in any case where its declaration or determination is not necessary or proper at the time under all the circumstances."

The Court in Osseous found that the demurrer was properly sustained because there were "no allegations of an ongoing contractual relationship" between the parties and "[t]he future impact of any declaratory relief on the parties' behavior is speculative." (Osseous, 191 Cal.App.4th at 376-77.)

QDG argues that an actual controversy exists because the District sued QDG for over $3 million and these damages were caused by Vanir and others. However, a declaratory relief claim seeking to establish rights between QDG and Vanir presupposes that Vanir owes duties to QDG that may be declared and enforced. As discussed above, no such duties exist. The Construction Management Agreement expressly states there are no third-party beneficiaries and no one except the parties to that agreement may seek to enforce its terms. Without a duty of care, contractual privity, or third-party beneficiary status, there is no legal basis for a declaration of rights between QDG and Vanir. The declaratory relief claim therefore fails as a matter of law.

d. Request for Continuance

Should the court be inclined to grant Vanir's Motion, QDG requests the opportunity to conduct additional discovery, specifically witness depositions of the parties to this lawsuit pursuant to Code of Civil Procedure section 437c, subdivision (h). QDG argues that it has not completed the depositions of key witnesses with knowledge of Vanir's actual work and involvement on the project and such additional discovery is expected to provide facts to support the opposition to the Motion. Pursuant to section 437c, subdivision (h), "[i]f it appears from the affidavits submitted in opposition to a motion for summary judgment or summary adjudication, or both, that facts essential to justify opposition may exist but cannot, for reasons stated, be presented, the court shall deny the motion, order a continuance to permit affidavits to be obtained or discovery to be had, or make any other order as may be just.

The application to continue the motion to obtain necessary discovery may also be made by ex parte motion at any time on or before the date the opposition response to the motion is due."

The Court finds that QDG does not identify what specific facts might establish a triable issue of fact pertaining to any of the causes of action asserted against Vanir. Moreover, the threshold issue of whether a duty of care exists is a question of law for the court to decide, not a factual question requiring witness testimony. Additional discovery, including depositions of Vanir personnel, will not change the legal conclusion that Ratcliff precludes a duty of care from construction manager to architect. Whether a legal duty exists must be determined by the court based on the relationship of the parties and policy considerations, not on disputed facts about Vanir's conduct. The Court denies QDG's request for a continuance.

The Court does not find that any triable issues of material fact exist as to the causes of action for equitable indemnity, comparative indemnity and apportionment of fault, and declaratory relief, asserted against Vanir. Accordingly, Vanir Construction Management, Inc.'s Motion for Summary Judgment is GRANTED. The alternative Motions for Summary Adjudication and for Judgment on the Pleadings are denied as moot.

Case Number: 25SMCV05299 Hearing Date: September 3, 2026 Dept: N

TENTATIVE RULING

Defendant The City of Santa Monica's Demurrer to the second cause of action in the First Amended Complaint Filed by Plaintiff Marilyn Alexander is SUSTAINED with thirty (30) days leave to amend. Defendant The City of Santa Monica to give notice.

Meet and Confer

Before filing its demurrer, "the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer." (Code Civ. Proc. Sec. 430.41, subd. (a).) The demurring party must file and serve a meet and confer declaration stating either: "(A) The means by which the demurring party met and conferred with the party who filed the pleading subject to demurrer, and that the parties did not reach an agreement resolving the objections raised in the demurrer;" or "(B) That the party who filed the pleading subject to demurrer failed to respond to the meet and confer request of the demurring party or otherwise failed to meet and confer in good faith." (Id. at subd. (a)(3).)

Defendant's counsel states that she spoke with opposing counsel via telephone and by letter regarding the requirements to state a claim for breach of mandatory duty as to Plaintiff's original complaint. (Ford Decl., P. 2.) On March 23, 2026, she spoke with opposing counsel once more after receiving a copy of the first amended complaint, informing opposing counsel that Defendant intended to file a demurrer to the cause of action for breach of mandatory duty on the grounds that Plaintiff failed to state a cause of action. (Id., P. 4.) The Court finds Defendant's meet and confer efforts to be sufficient and turns to the demurrer's merits.

Second Cause of Action: Breach of Mandatory Duty by Government Employee, per Government Code Sec. 815.6

Government Code section 815.6 states: "Where a public entity is under a mandatory duty imposed by an enactment that is designed to protect against the risk of a particular kind of injury, the public entity is liable for an