Superior Court of California 

County of Los Angeles – West District  

Beverly Hills Courthouse / Department 200 

 

 

BACKGROUND 

This is a breach of contract and negligence case.  Plaintiff Nicole Landau, LLC is a California corporation, wholly owned by Nicole Landau who is its CEO.  (Defendant’s Separate Statement of Facts (“SSOF”), No. 1).  Landau describes herself as a contemporary artist from Los Angeles whose artwork includes, among other things, large-format sculptures. (SSOF No. 2.)  

Defendant Romano Studio, LLC., is a California limited liability company located in Santa Monica, California. (SSOF Nos. 3-4).  Defendant Mario Romano is the managing member of Romano Studio, LLC. (Id.).  Plaintiff has dismissed its claims against Mario Romano individually.  The only remaining claims are against the studio (hereinafter “Romano”).   

In late 2021, Plaintiff was engaged to create two eight-feet tall contemporary sculptures for L’Oréal’s West Coast Headquarters in El Segundo, California (the “Project”). (Plaintiff’s Statement of Undisputed Facts (“SUF”) 68). Plaintiff was engaged by a company called Indiewalls, which acted as the agent and art consultant for L’Oreal. (SSOF 5). The Project was intended to be a permanent painted outdoor public artwork for L’Oreal. (SUF 69).  

Plaintiff sought to engage a design and fabrication professional with extensive experience in fabrication, especially in Corian fabrication. (SUF 70).  Romano and its principal held themselves out as having this specific expertise. (SUF 71). Beginning in late-October 2021, Ms. Landau and Mr. Romano began having numerous discussions, meetings and correspondence about the Project, including Mr. Romano’s recommendation to use the Dupont Corian product that Mr. Romano told Landau he specialized in. (SUF 72).  

On or about January 25, 2022, Romano presented its “Proposal” and “Quote” for the fabrication portion of the Project. (SUF 73). This “Proposal” and “Quote” became the parties’ Contract, as amended by subsequent modifications. Under this written Contract, Romano was required to “design”, “produce and fabricate” two final sculptures “made in Glacier White Corian” (each consisting of three pieces, for a total of six pieces) based on drawings provided by Ms. Landau, and subsequent modifications. (SUF 74). The Contract required Romano to obtain final design approval from Ms. Landau. (SUF 77). Specifically, the parties’ Contract states that Romano will “Seek Artist final design approvals and final dimensions.” (emphasis added). (SUF 78).  

Per the parties’ agreement, the sculptures were supposed to have metal angles inserted as slip joints into the interior of the corners of the sculptures to boost structural strength. (SUF 83). Romano tested the sculpture prototype using the slip joints as required and the “sculpture passed the structural tests” that were performed.  

Despite the contractual requirement that Romano “Seek Artist final design approvals and final dimensions,” Romano made a design choice to not use a slip joint, and to instead machine out the exterior of the Corian planks, insert metal brackets facing the open cavity, and then backfill the open exterior chasm with an unapproved non-structural material (Bondo). (SUF 84). What Romano did was a design change that, per the parties’ Contract, required “final design approvals” from the artist (Landau).  Ms. Landau claims she did not provide the approval.  Romano disputes the claim.  (Romano Decl. at 3:20-21.) 

Further, according to Ms. Landau, Romano made these material changes without any structural testing whatsoever to meet the acceptable structural vertical and lateral load tests called out on the original engineer’s plans that were to be adhered to in his contract. (SUF 85).  To make matters worse, Romano used a non-structural material (Bondo) as a substitute for slip joints inserted inside the Corian that would have provided structural support. (SUF 86).  Romano claims Ms. Landau approved the use of the Bondo.  (Romano Decl. at 3:20.)  

Shortly after the sculptures were installed at L’Oreal’s headquarters, Romano’s design changes caused lifting, cracking and pock marks to appear in the paint of the sculptures over the precise areas where Romano’s cut outs and Bondo were applied, and nowhere else. (SUF 87). These cracks, lifting, and pock marks appeared even without any stress test at 300 pounds or otherwise.  (Id.)  

Romano’s decision to use Bondo or other non-structural material, rather than slip-joints within the Corian, caused damage to the Project that could not be hidden by any paint application. (SUF 88). The resulting differential expansion and contraction due to changing temperatures caused by use of the unapproved filler material resulted in the paint overlaying the impacted areas (but only those areas) to lift and crack. (SUF 89)  

The numerous conspicuous cracks in the sculptures have now allowed rainwater to seep into the structure, further expanding and compromising the Bondo used to backfill the open chasm. (SUF 90). Water is expected to further erode the sculptures and further delaminate the angles and result in eventual joint collapse. (SUF 91). Even worse, Romano’s shortcut of carving a chasm on the outside of the Corian and backfilling the metal angles into place instead of inserting the angles into slip joints into the interior of the corners has structurally compromised the sculptures. (SUF 91).  

This hearing is on Romano’s motion for summary judgment.  Romano argues that Plaintiff will not satisfy the damages element of its breach of contract and negligence claims because Plaintiff’s damages are merely estimates, and it has not actually incurred damages. Additionally, Romano argues that Plaintiff’s cause of action for breach of warranty fails as a matter of law because the parties’ contract did not have an explicit express warranty clause, nor can they succeed on the basis of implied warranty because the sculptures were not defective. 

LEGAL STANDARD  

In evaluating a motion for summary judgment, the Court engages in a three-step process. First, the Court identifies the issues framed by the pleadings. The pleadings define the scope of the issues on a motion for summary judgment. (FPI Dev. Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 381-382.)  Because a motion for summary judgment is limited to the issues raised by the pleadings (Lewis v. Chevron (2004) 119 Cal.App.4th 690, 694), all evidence submitted in support of or in opposition to the motion must be addressed to the claims and defenses raised in the pleadings.  

The court cannot consider an impleaded issue in ruling on a motion for summary judgment. (Roth v. Rhodes (1994) 25 Cal.App.4th 530, 541.) The papers filed in response to a defendant's motion for summary judgment may not create issues outside the pleadings and are not a substitute for an amendment to the pleadings. (Tsemetzin v. Coast Federal Savings & Loan Assn. (1997) 57 Cal. App.4th 1334,1342.) 

Second, the Court must determine whether the moving party has met its burden. A defendant moving for summary judgment bears the burden of persuasion that one or more elements of the plaintiffs cause of action cannot be established, or that there is a complete defense to the cause of action. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 [quoting Code Civ. Proc, § 437c, subd. (p)(2)].) 

Third, once the moving party has met its initial burden, the burden shifts to the opposing party to show that a material factual issue exists as to the cause(s) of action alleged or the affirmative defense(s) claimed. (Code Civ. Proc.,§ 437c, subd. (p); see generally Bush v. Parents without Partners (1993) 17 Cal.App.4th 322, 326-327.) 

In ruling on the motion, the Court must consider the evidence and inferences reasonably drawn therefrom in the light most favorable to the opposing party. (Aguilar, 25 Cal.4th at 843.) Summary judgment is properly granted only if the moving party's evidence establishes that there is no issue of material fact to be tried. (Lipson v. Super. Ct. (1982) 31 Cal.3d 362, 374.) 

EVIDENTIARY OBJECTIONS  

The Court sustains Objection Nos. 1, 4, 5, 6, 7, 11, and overrules Objection Nos. 3, 8, 9, 10, 12 to the Declaration of Mario Romano.  The Court sustains Objection Nos. 1-3 to the Declaration of Nicole Landau.   

DISCUSSION 

Breach of Contract 

Romano argues Plaintiff cannot prove it suffered any damages due to a breach of contract.  In opposition, Plaintiff argues that (1) L’Oreal is a third party beneficiary to the contract between Romano and Plaintiff; (2) L’Oreal suffered actual damages because of defects to the sculptures which L’Oreal owns, and (3) Plaintiff is an assignee to L’Oreal’s claims against Romano.  In reply, Romano argues that these allegations are not in the Complaint, and Plaintiff cannot make these last-minute allegations in opposition to a motion for summary judgment.  The Court agrees with Romano.  

It is important to note that Plaintiff is not claiming damages because it will have to replace the sculptures at its own expense.  Rather, Plaintiff is claiming damages on behalf of L’Oreal, which damages Plaintiff claims it is entitled to recover by virtue of an assignment entered into with L’Oreal, on January 10, 2025, nearly two years after the Complaint was filed, and over a month and a half after the motion for summary judgment was filed.  Not surprisingly, this assignment was never alleged in the Complaint as a basis for the breach of contract claim, nor are there allegations that L’Oreal is a third party beneficiary of Plaintiff’s contract with Romano.   

 “The¿pleadings¿delimit¿the issues to be considered on a motion for summary judgment. Thus, a defendant moving for summary judgment need address only the issues raised by the complaint; the plaintiff¿cannot¿bring up new, unpleaded issues in his or her opposing papers. To create a triable issue of material fact, the opposition evidence must be directed to issues raised by the pleadings. (Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242, 1253.)   

As such, Plaintiff cannot oppose a motion for summary judgment based on issues not alleged anywhere in its Complaint.  Accordingly, the Court grants the motion for summary adjudication as to the breach of contract claim.   

Breach of Warranty 

Romano argues Plaintiff cannot prove breach of a warranty because the warranty, i.e. the capacity of the sculptures to bear a 300-lb lateral load requirement, has never been breached, and no evidence has been produced by Plaintiff to suggest that it actually could not bear this load.  The Court disagrees. 

Even if the warranty was limited only as to passing the 300 pound and 150 pound test, there is a disputed issue as to whether Romano ever tested the sculptures based on his change of carving the outside of the Corian and using a non-structural adhesive like Bondo.  Plaintiff claims Romano never tested a prototype based on his actual construction of the sculptures (SUF 121), while Romano disputes the claim (Romano Decl. at 3:22-23, 4:7-9.)  

In any event, there is a disputed issue as to whether the warranty is limited to the structural testing.  The warranty includes fabricating the sculpture per the Contract, with the required approvals (which Plaintiff claims Romano did not obtain from Ms. Landau).  Also, because the October 2021 “fabricator notes” provide that “cracking or damage . . . is considered unacceptable,” (SUF 114), there is a disputed issue as to whether Romano provided a warranty to Landau against “cracking or damage” of the sculptures. And according to Plaintiff, there are at least 44 instances of “cracking and [other] damage” to the sculptures (SUF 97 and 116), meaning Romano breached any warranty against cracking or damage of the sculptures.    

CONCLUSION 

Based on the foregoing, the Court DENIES IN PART and GRANTS IN PART Defendant Romano Studios, LLC’s motion for summary judgment or in the alternative for summary adjudication.   

 

IT IS SO ORDERED. 

 

DATED: January 30, 2025 ___________________________ 

Edward B. Moreton, Jr. 

Judge of the Superior Court