Judge Bradley S. Phillips, Case Number: 23STCV06189, Date: 2024-10-10 Tentative Ruling

Judge: Bradley S. Phillips, Case: 23STCV06189, Date: 2024-10-10 Tentative Ruling

Case Number: 23STCV06189 Hearing Date: October 10, 2024 Dept: 26

TENTATIVE RULING:

Cross-Defendant Ketter Design, Inc’s (“Ketter”) Demurrer to the Cross-Complaint of Nova Homes, Inc. (“Nova”) is overruled. Ketter asserts four bases for the Demurrer, each of which lacks merit.

First, Ketter argues that Nova has not sufficiently alleged that Ketter owed Nova a duty of care. As Ketter acknowledges (Demurrer at p. 4, l. 13-14), Nova alleges that Ketter was the “project architect.” As such, Ketter owed Nova a duty of care. See Beacon Residential Community Assoc. v. Skidmore, Owings & Merrill LLP (2014) 59 Cal.4^th 568; Huber, Hunt & Nichols, Inc. v. Moore (1977) 67 Cal.App.3d 278. Ketter relies principally on Weseloh Family Ltd. Partnership v. K.L. Wessel Const. Co. (2004) 125 Cal.App.4^th 152, a decision the relevance of which is thoroughly undermined by the discussion of it in Beacon Residential. See Beacon Residential, 59 Cal.4^th at 586-587.

Second, Ketter argues that Nova’s claim is barred by the economic-loss rule. That rule bars a claimant from seeking economic damages in tort, when the claimant is in privity with the defendant and has a claim for breach of contract. See Aas v. Superior Court (2000) 24 Cal.4^th 627, 643 (“A person may not ordinarily recover in tort for the breach of duties that merely restate contractual obligations. Instead, “[c]ourts will generally enforce the breach of a contractual promise through contract law….”). Here, as Ketter acknowledges (Demurrer at p. 4, l. 15-16), Nova does not allege that it was in privity with Ketter and has no claim for breach of contract. The economic-loss rule does not apply.

Third, Ketter argues that Nova’s claim is barred, in its entirety, by the statute of limitations. It does not appear affirmatively from the face of the Cross-Complaint that, as a matter of law, Nova’s claim is barred. It may or may not be, but the issue cannot be resolved on this Demurrer.

Finally, Ketter asserts that the Cross-Complaint is uncertain with respect to whether the parties had a contractual relationship and whether Nova’s damages are purely economic. As to the former, there is no uncertainty: Nova does not allege any contractual relationship, as Ketter acknowledges (Demurrer at p. 4, l.15-16). As to the latter, it is immaterial to the Demurrer, given that the economic-loss rule does not apply.