DeclarationCal. Super. - 6th Dist.March 23, 202110 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 21 CV381036 Santa Clara - Civil Matthew D. Giampaoli, Esq. (SBN 138357) Robert L. Davis, Esq. (SBN 195363) Electronically Filed COLLINSWORTH, SPECHT, by Superior Court 0f CA, CALKINS & GIAMPAOLI, LLP County of Santa Clara, 7041 K011 Center Parkway, Suite 120 on 2/9/2022 4:46 PM Pleasanton, California 94566 Reviewed By: F. Miller Telephone: (925) 400-9575 c #21 cv381 036 Facsimile: (925) 400-9576 E:\Slglope. 8257687 mgiampaoli@cslaw0ffices.com rdavis@cslaw0ffices.com Attorneys for Defendant, REEVE-KNIGHT CONSTRUCTION, INC. SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY 0F SANTA CLARA VIETNAM TOWN CONDOMINUM Case N0,; 21cv331036 OWNER'S ASSOCIATION, a California Assigned for an purposes t0: corporatlon’ Hon. Christopher G. Rudy, Dept. 7 Plaintiff, DECLARATION 0F ROBERT L. DAVIS IN vs. SUPPORT 0F REEVE-KNIGHT CONSTRUCTION, INCRS MOTION T0 TWN INVESTMENT GROUP, LLC, a STRIKE PORTIONS 0F PLAINTIFF California limited liability company, REEVE- VIETNAM TOWN CONDOMINUM ONWERS KNIGHT CONSTRUCTION, INC., a ASSOCIATION’S FIRST AMENDED l'f ' ' D E 1 h $38101, ornla corporatlon, and O S t rough COMPLAINT Defendants. Date: Time: Dept: 7 Judge: Hon. Christopher G. Rudy Complaint filed: March 23, 2021 I, Robert L. Davis, declare as follows: 1. I am attorney licensed t0 practice law in the State 0f California. I am an Associate 0f Collinsworth, Specht, Calkins & Giampaoli, LLP, counsel of record in this action for defendant REEVE-KNIGHT CONSTRUCTION, INC (“REEVE-KNIGHT”). Imake this declaration in support 0f REEVE-KNIGHT’S motion t0 strike portions 0f Plaintiff, VIETNAM TOWN CONDOMINUM OWNERS ASSOCIATION’S (“Plaintiff”) First Amended Compliant (“FAC”). 1 DECL. OF RLD ISO MTN TO STRIKE PORTIONS OF FIRST AMENDED COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2. Pursuant t0 Code of Civil Procedure section 435.5(a), 0n October 25, 2021, I sent a letter t0 Plaintiffs counsel t0 meet and confer with them regarding a prospective motion t0 strike the prayer for attorney’s fees from Plaintiffs FAC, as well as a prospective Demurrer. A true and correct copy ofmy meet and confer correspondence is attached herewith as Exhibit A. 3. On November 1, 2021, Plaintiffs counsel and I discussed Plaintiffs attorney’s fees prayer and the prospective motion to strike during a telephone conference at which other case management matters were addressed as well. 4. On November 1 1, 202 1 , Plaintiff” s counsel responded in writing t0 my meet and confer letter. A true and correct copy of that letter is attached herewith as Exhibit B. I declare under penalty ofperjury under the laws of the State of California the foregoing is true and correct. DATED: February 9, 2022 Wip-fl-u ROBERT L. DAVIS, ESQ. 2 DECL. OF RLD ISO MTN TO STRIKE PORTIONS OF FIRST AMENDED COMPLAINT \DOOQOflMhWNy-n NNNNNNNNNHt-Ar-an-Iv-Ir-Ir-AHHI-A WVQMbWNfloowflQMhWNF-‘o Matthew D. Giampaoli, Esq. (SBN 138357) Robert L. Davis, Esq. (SBN 195363) COLLINSWORTH, SPECHT, CALKINS & GIAMPAOLI, LLP 7041 K011 Center Parkway, Suite 120 Pleasanton, California 94566 Telephone: (925) 400-9575 Facsimile: (925) 400-9576 mgiampaoli@cslawoffices.com rdavis@cslawoffices.com Attorneys for Defendant, REEVE-KNIGHT CONSTRUCTION, INC. SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY 0F SANTA CLARA VIETNAM TOWN CONDOMINUM Case No.: 21CV381036OWNERS ASSOCIATION, a Califomia Assigned for an purposes t0;corporauon’ Hon. Christopher G. Rudy, Dept. 7 P1 ' t'ff,am 1 DECLARATION 0F ROBERT L. DAVIS IN vs. SUPPORT 0F REEVE-KNIGHT , CONSTRUCTION, INCJS MOTION T0 3Y1: INVIESTh/(IiElNgfilyiOUP, LLCkEEVE STRIKE PORTIONS 0F PLAINTIFFa 1 ornla lmlte 1a 1 1 company, - MIN NWEKNIGHT CONSTRUCTION, 1NC., a VIETNAM TOWN CONDO UM O RS California corporation and DOES 1 through ASSOCIATION S FIRST AMENDED 300, ’ COMPLAINT Defendants. Date: Time: Dept: Judge: Hon. Christopher G. Rudy Complaint filed: March 23, 2021 I, Robert L. Davis, declare as follows: 1. I am attorney licensed to practice law in the State of California. I am an Associate of Collinsworth, Specht, Calkins & Giampaoli, LLP, counsel of record in this action for defendant REEVE-KNIGHT CONSTRUCTION, INC. I make this declaration in support ofREEVE-KNIGHT’S motion to strike portions of Plaintiff VIETNAM TOWN CONDOMINUM OWNERS ASSOCIATION’S First Amended Compliant. 1 DECL. OF RLD ISO MTN TO STRIKE PORTIONS OF FIRST AMENDED COMPLAINT AWN \OOONQUI 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2. Pursuant to Code of Civil Procedure section 435.5(a), on October 25, 2021, I sent a letter to Plaintiff’s counsel to meet and confer with them regarding a prospective motion to strike the prayer for attorney’s fees from Plaintiff s FirstAmended Complaint, as well as a prospective demurrer. A true and correct copy ofmy meet and confer correspondence is attached herewith as Exhibit A. 3. On November 1, Plaintiff’s counsel and I discussed Plaintiffs attorney’s fees prayer and the prospective motion to strike during a telephone conference at which other case management matters were addressed as well. 4. On November 1 1, Plaintiff s counsel responded in writing t0 my meet and confer letter. A true and correct copy of that letter is attached herewith as Exhibit B. I declare under penalty ofperjury under the laws of the State of California the foregoing is true and correct. DATED: February 9, 2022 mffiflr-fi ROBERT L. DAVIS, ESQ. 2 DECL. OF RLD ISO MTN TO STRIKE PORTIONS OF FIRST AMENDED COMPLAINT Exhibit A Comaxswowm-i, SPECI-I'r, CALKINS & GIAMPAOLI,ma Mark T~ Cd'insmm’fl 7041 Kan Center Parkway. Suite 120Jason A Specht‘ Pleasanton, California 94566Scott D. Calkins’D Mathew D. Giampaoii‘ Sender’s Email:Jam M. Ganion‘EH mgiamgaolchslawofficesmm Anthony P. Gaeta‘ Ryan P. Swart’uo Jennifer E4 MullenEI TimothyA Gravitt‘ agbufirgfiwmséy October 25, 2021 John R. Marking‘ " Admitted in California D Admitted in Arizona 0 Admitted in New Mambo + Admitted in Washington John W. Chapman, Esq. Via Email Only J. Spencer Edgett, Esq. John F. Baumgardner, Esq. Chapman & Intrieri, LLP 2236 Mariner Square Drive, Suite 300 Alameda, California 94501 jchapman@chapmanandintrieri.com spencer@chapmanandintrieri.com jbaumgardner@chapmanandintrieri.com Re: Vietnam Town Condominium 0A. v. TWN Investment Groun, LLC Our Client: Reeve-Knight, Inc. Gentlemen: By this correspondence we seek to meet and confer with you regrading Reeve-Knight, Inc.’s prospective demurrer to and motion to strike portions of your client’s First Amended Complaint (“complaint”). We are required to meet and confer by telephone no later than October 27. Please let us know if one of you are available today, tomorrow, or the morning of the 27th to discuss the matter and, if so, a good time to call and whom to call. Alternatively, you can call me at 925-400-9575. As a preliminary matter, we analyzed whether the Judicial Council of California’s Emergency Rule 9 had any impact on the statute of repose for the case. We.concluded it did and your client’s complaint appears to have been timely filed, though Reeve-Knight does not waive any of its rights in the matter if it is later determined your client’s original complaint was not timely filed. 7041 Koll Center Parkway, Suite 120 I Pleasanton, California 94566 I Tel: (925) 400-9575 Fax: (925) 400-9576 331 J SL, Suite 200 l1 Sacramento. California 95814 I Tel: (916) 447-2500 Fax: (916) 447-25019665 Chesapeake Dr.. Suite 305 l San Diego, Califomia 92123 l Tel: (858) 549-2800 Fax: (858) 549-37004695 MacArthur Court, Suite 370 I Newport Beach, California 92660 ll Tel: (949) 554-1570 Fax: (949) 554-15717310 N. 16m SL. Suile 135 I Phoenix, Arizona 85020 l Tel: (602) 508-3127 Fax: (602) 508-3129 John W. Chapman, Esq. / Chapman & Intriéri; LLP J. Spencer Edgett, Esq. / Chapman & Intrieri, LLP John F. Baumgardner, Esq. / Chapman & Intrieri, LLP Re: Vietnam Town Condominium 0A.» v. TWN Ihvestment Groug, LLC October 25, 2021 Page 2 The remainder ofthis letter briefly addresses the grounds for the prospective demurrer and motion to strike and Will serve to inform our discussion regarding the matter. Breach of Contract The complaint does not state facts sufficient to constitute a cause of action for breach of contract. “To state a cause of action for breach of contract, it is absolutely essential to plead the terms of the contract either in haec verba or according to legal effect.” (Twaite v. AllState Insurance Co. (1989) 216 Ca1.App.3d 239, 252) Contract based causes of action may set out the terms ofthe contract in haec verba in the body ofa complaint and/or include the written instrument as an attachment and incorporate it by proper reference. (Byrne v. Harvey (1962) 211 Cal.App.2d 92, 103; quoting Holly Sugar Corp. v. Johnson (1941) 18 Cal.2d 218, 225)) Pleading mere legal conclusions is insufficient. (Lesperance v. North American Aviation, Inc. (1 963) 217 Cal.App.2d 336, 343 (“It is elementary that a pleading must allege facts and not conclusions”). The_complaint does not identify a contract between your client and Reeve-Knight, or between your client’s members and Reeve-Knight, and does not sufficiently allege the terms of any purported contract which were allegedly breached. Nor can it. Reeve-Knight was and is not a developer of condominium projects (residential or commercial), did not develop the project, and did not contract with your client or any of its members. Réeve-Knight acted solely as general contractor for construction of the project. The allegatiOns in this cause of action are conclusoryand insufficient to constitute a cause of action for breach of contract. Breach of Contract - Third Party Beneficiary The complaint also fails to allege facts to sufficient to constitute a cause ofaction for breach of a third-party beneficiary contract. A “party not named in a contract may qualify as a beneficiary under it where the contracting parties must have intended to benefit the unnamed party and the agreement reflects that intent.” (Sessions Payroll Management v. Noble Constr. Co. (2000) 84 Cal.App.4th 671, 680.) (Emphasis added). “The intent to benefit a third party must appear on the terms of the contract.” (Landale-Cameron Court, Inc. v. Ahohen (2007) 155 Cal.App.4th 1401, 1410.) The party claiming to be a third party beneficiary bears the burden of proving that the contracting parties actually promised the performance Which the third party beneficiary seeks. (Sessions Payroll at 680.) As with your client’s breach of contract cause of action, the complaint does not identify any specific contracts to which your client or its members were intended beneficiaries, or the terms ofthose contracts which were allegedly breached. Whether a third party is an intended beneficiary or merely an incidental beneficiary to the contract involves construction of the parties’ intent,gleanedfiom reading the contract as a whole in light of the circumstances under which it was 7041 Koll Center Parkway, Suite 120 I Pleasanton, California 94566 I Tel: (925) 400-9575 Fax: (925) 400-9576331 J St., Suite 200 I Sacramento, California 95814 I Tel: (916) 447-2500 Fax: (916) 447-25019665 Chesapeake Dr., Suite 305 I San Diego, California 92123 l Tel: (858) 549-2600 Fax: (858) 549-37003200 Park Center Dr., Suite 550 I Costa Mesa. California 92626 l Tel: (949) 554-1570 Fax: (949) 554-1 57115717310 N. 16th St.. Suite 135 I Phoenix. Arizona 85020 I Tel: (602) 508-3127 Fax: (602) 508-3129 John W. Chapman, Esq. / Chapman & Intrieri, LLP J. Spencer Edgett, Esq. / Chapman & Intricri, LLP John F. Baumgardner, Esq. / Chapman & Intrieri, LLP Re: Vietnam Town Condominium 0A. v. TWN Investment Groun, LLC October 25, 2021 Page 3 entered. (Landale at 141 l .) (Emphasis added) As with the breach of contract cause of action, thecomplaint does not allege facts which state a valid breach of third party beneficiary contract, butrather simply concludes that is the case. Absent identification of specific contracts to which youclient was a third party beneficiary and which were purportedly breached, or inclusion of thosecontracts in the complaint, the complaint fails to allege facts sufficient to state that cause ofaction. Negligent Misrepresentation Each element of a cause of action for negligent misrepresentation must be factually andspecifically alleged. “This means: (1) general pleading of the legal conclusion of fraud isinsufficient; and (2) every element ofthe cause ofaction for fraud must be alleged in full, factuallyand specifically, and the policy of liberal construction of pleading will not usually be invoked tosustain a pleading that is defective in any material respect.” (Wilhelm v. Pray, Price, Williams &Russell (1986) 186 Ca1.App.3d 1324, 1331.) “Pleading with specificity is required and thus, themere assertion of ‘reliance’ is insufficient. The plaintiff must allege the specifics of his or herreliance on the misrepresentation to show a bona fide claim of actual reliance. (Ibid.)” (Caldo v.Owens-Illinois, Inc. (2005)_Cal.App.4‘h 5 1 3, 5 l 9.) The complaint fails to allege facts sufficient to constitute a cause of action for negligentmisrepresentation against Reeve-Knight. The complaint does not identify any allegedmisrepresentations made by Reeve-Knight employees, when those alleged misrepresentationswere made, or to whom they were made. The complaint does not specifically allege what materialfacts were concealed by Reeve-Knight employees. As such, the complaint fails to constitute acause of action for negligent misrepresentation. Fraud Non-Disclosure As with the negligent misrepresentation cause of action, each element of a cause of actionfor fraud must be factually and specifically alleged. The complaint does not allege with anyspecificity material facts Reeve-Knight purportedly failed to disclose, to whom it was required tomake disclosures, or what individuals associated with Reeve-Knight were required to but allegedlyfailed to disclose material facts. As such, the complaint fails to allege facts sufficient to constitutea cause of action for fraud. Private Nuisance The complaint fails to allege facts sufficient to constitute a cause of action for privatenuisance. Private nuisance liability depends on some sort of conduct by a defendant that eitherdirectly and unreasonably interferes With a plaintiffs property or creates a condition that does so.(Lussier v. San Lorenzo Valley'Water Dist. (1988) 206 Ca1.App.3d 92, 100) Here, the only conduct 7041 Koll Center Parkway, Suite 120 I Pleasanton, California 94566 l Tel: (925) 400-9575 Fax: (925) 400-9576331 J St, Suite 200 I Sacramenm, California 95814 l Tel: (916) 447-2500 Fax: (916) 447-25019665 Chesapeake Dr.. Suite 305 I San Diego, California 92123 I Tel: (858) 549-2800 Fax: (856) 549-37003200 Park Center Dr., Suite 550 I Cosia Mesa, California 92626 IE Tel: (949) 554-1570 Fax: (949) 554-157115717310 N. 16th St, Suite 135 I Phoenix, An'zona 85020 I Tel: (602) 508-3127 Fax: (602) 508-3129 John W. Chapman, Esq. / Chapman & Intrieri, LLP J. Spencer Edgett, Esq. / Chapman & Intrieri, LLP John F. Baumgardner, Esq. / Chapman & Intrieri, LLP Re: Vietnam Town Condominium 0A. v.’TWN Investment Groug, LLC October 25, 2021 Page 4 alleged on the part of Reeve-Knight is it allegedly negligently constructed the project. No current conduct by Reeve-Knight which purportedly created or maintained a nuisance is alleged. Further, the nuisance cause of action merely restates your client’s negligence cause of action. Paragraphs 103 and 104 of the complaint incorporate paragraphs 14 and 15, which themselves allege various construction defects exist in the property. See El Escorz'al Owners ’ Association v. DLC Plastering, Inc. (2007) 154 Ca1.App.4“‘ 1337, 1349, “where negligence and nuisance causes of action rely on the same facts about lack of due care, the nuisance claim is a negligence claim.” The nuisance cause of action merely restates construction defect allegations, so does not allege facts sufficient to constituted a cause of action for nuisance. Plaintiff’s Attorneys’ Fees Claim Your client is not entitled to recover attorney’s fees from Reeve-Knight. As-no contracts between Reeve-Knight and your client, or between Reeve-Knight and your client’s members, have been identified in the complaint, there are no contracts with prevailing party attomey’s fees provisions which would entitle your client to recover its attorney’s fees. Nor are there any statutory bases for your client to recover its attomey’s fees from Reeve-Knight. The prayer for attorney’s fees in the complaint is therefore inelevant, false, or improper matter pursuant. to Code of Civil Procedure section 435(a) and subject to a motion to strike. Thank you for your attention to this matter. Again, please let us know a good time to call you so we can attempt to resolve it. Very truly yours, COLLINSWORTH, SPECHT, CALKINS & GIAMPAOLIW?” ROBERT L. DAVIS Cc: Mathew Giampaoli/CSCG, LLP 7041 Koll Center Parkway, Suite 120 I Pleasanton, California 94566 I Tel: (925) 400-9575 Fax: (925) 400-9576331 J SL, Suite 200 Ii Sacramento, California 95814 I Tel: (916) 447-2500 Fax: (916) 447-25019865 Chesapeake Dr., Suite 305 I San Diego, California 92123 I Tel: (858) 549-2800 Fax: (858) 549-37003200 Park Center Dr., Suite 550 I Costa Mesa, California 92626 I Tel: (949) 554-1570 Fax: (949) 554-157115717310 N. 16th St. Suite 135 l Phoenix, Arizona 85020 I Tel: (602) 508-3127 Fax: (602) 508-3129 Exhibit B Mark G. Intrieri John W. Chapman Jessica A. Fakhz‘mi‘ J. Spencer Edger!" Karen St. Onge John F. Baumgardner *Also licensed in Nevada **Alm licensed in Massachusetts Mr. Mathew Giampaoli Mr. Robert L. Davis CHAPMAN & INTRIERI, L.L.P. ATTORNEYS ATLAW 2236 MARINER SQUARE DRIVE, SUITE 300 ALAMEDA, CALFORNIA 94501-6468 TELEPHONE (510) 864-3600 FACSIMILE (510) 864-3601 November 11, 2021 7041 K011 Center Pkwy., Ste. 120 Pleasanton, CA 94566 ROSEVILLE, CALIFORNIA 1382 BLUE OAKS BLVD., SUITE 140 ROSEVILLE, CA 95678 TELEPHONE (91 6) 975-31 10 SANDIEGO, CALIFORNIA 10620 TREENA STREET, SUITE 230 SAN DIEGO, CA 92131 TELEPHONE (858) 935-60] 9 ORANGE COUNTY 5000 BIRCH STREET, Sum: 3000 NEWPORT BEACH, CA 92660 TELEPHONE (949) 476-3611 PLEASE RESPOND To ALAMEDA OFFICE File Na: 210.19 Via Email Re: Vietnam Town Condo. Ownrs. Assn. v. TWNInvestment Group, LLC, et al.Santa Clara County Superior Court Case No.: 21CV381036 Dear Counsel: The following is in response to your letter dated October 25, 2021 regarding your “meet andconfer” efforts required before filing a demurrer. In your correspondence, you request the dismissalof the following causes of action and prayers for relief alleged against your client, Reeve-KnightConstruction: ( 1) Breach of Contract, (2) Breach ofContract - Third Party Beneficiary, (3) NegligentMisrepresentation, (4) Fraud Non-Disclosure, (5) Private Nuisance, and (6) the prayer for attorneys’fees. After consideration of the authority provided and fiu‘ther discussion between our offices, weagreed to dismiss the causes of action alleged against Reeve-Knight Construction for Breach ofContract, Negligent Misrepresentation, and Fraud Non-Disclosure without prejudice and subject toa stipulation that these causes of action can be realleged in an amended complaint and that they willrelate back to the filing of the original complaint. However, we cannot agree to dismiss the Breach of Contract - Third Party Beneficiary orPrivate Nuisance causes of action or the prayer for attorneys’ fees for the following reasons: Mr. Mathew Giampaoli Mr. Robert L. Davis Vietnam Town Condo. Ownrs. Assn. v. TWVInvestment Group, LLC, et al.November ll, 2021 Page 2 Breach of Contract - Third Pam Beneficiag; “Under Civil Code section 1559, a third party can enforce the terms of a contract ‘madeexpressly for the benefit of [the] third person.’ ‘Expressly’ in this context is interpreted to mean“merely the negative of ‘incidentally.”’ (Gilbert Financial Corp. v. Steelform Contracting Co.(1978) 82 Ca1.App.3d 65, 70.) “The contract need not be exclusively for the benefit ofthe third partyin order to permit enforcement, and the third party does not need t0 be the sole 0r the primarybeneficiary.” (National Union Fire Ins. Co. of Pittsburgh, PA v. Cambridge Integrated ServicesGroup, Inc. (2009) 171 Cal.App.4th 35, 51.) “Further, the third party need not be identified as abeneficiary, or even named, in the contract.” (Id.) It is sufficient that “the contract shows he or she‘is a member of a class of persons for whose benefit it was made.” (Goonewardene v. ADP, LLC(2016) 5 Ca1.App.5th 154, 172.) In Beacon Residential Community Association v. Skidmore, Owings & Merrill LLP, theCalifornia Supreme Court noted that the Architects’ “work on the Project ‘was intended to affectthe [homeowners association],’ and “the ‘end and aim’ of the transaction was to provide” safe andhabitable residences for future homeowners, a specific, foreseeable, and well-defined class.”(Beacon Residential Community Assn. v. Skidmore, Owings & Merrill LLP (2014) 59 Cal.4th 568,584.) Additionally, it has been said that “[t]he owner is . . . an intended beneficiary of thesubcontractor‘s contract with the general contractor. . . .” (Sanchez v. Swinerton & Walberg Co.(1996) 47 Cal.App.4th 1461, 1469; see also Gilbert, supra, 82 Ca1.App.3d at 70: property ownerwas ultimate third-party beneficiary of construction subcontract.) Clearly, the condominium owners’association and its membership are intended beneficiaries of Recve-Knights’ contract with TWNInvestments, LLC. Moreover, the contracts between TWN Investments, LLC and Reeve-Knight did notexplicitly exclude third-pany beneficiaries. Additionally, both contracts identify the project as the“Story Road Retail Condos” which manifests TWN Investment’s express intent to sell these units tosubsequent purchasers. It should be noted that the first page of the plans used by Reeve-Knight tobuild the project stated “STORY ROAD COMMERCIAL CONDOMINIUMS” and “SHELLCONSTRUCTION OF COMMERCIAL BUILDINGS”. Lastly, many of the units at the SubjectProperty were already sold prior to the commencement of construction, these sales were ongoingprior to 2010, and advertisements to sell the remaining units were located on-site during Reeve-Knight’s work on the project. These facts are sufficient to establish that the Association and itsmembers were the intended beneficiaries of these contracts. Prayer for Attorney’s Fees Non-signatories and third-party beneficiaries may be entitled to attorney’s fees for bothcontract and non-contract tort claims. (See Hom v. Petrou (2021) 67 Ca1.App.5th 459; RealPropertyServices Corp. v. City ofPasadena (1994) 25 Ca1.App. 4th 375, 380: “Under some circumstances .. . the reciprocity principles of Civil Code section 1717 will be applied in actions involving signatoryand non-signatory parties") Based upon the Breach of Contract - Third Party beneficiary cause of Mr. Mathew Giampaoli Mr. Robert L. Davis Vietnam Town Condo. 0wnrs. Assn. v. TWNInvestment Group, LLC, et al.November 11, 2021 Page 3 action, the prayer for attorney’s fees is proper. In this case, the attorney's fees provision of thecontract is broadly worded. It states: In the event of any claim, controversy, or action arising from 0r relating to this contract, including, without limitation, any action which may be necessary by either party to enforce its provisions, the prevailing party shall be entitled to reasonable attorney fees and expert witness costs in addition to such other reliefthat the court may grant. The broad language is not qualified to limit dispute only between the parties or similarlanguage. Furthermore, it also does not include the limiting language that would make it onlyapplicable under CCP 1717. (See San Francisco CDCLLC v. Webcor Construction LP. (202 l) 62Cal.App.5th 266, 287: "In the absence of any limiting qualifier such as “solely” or “exclusivelybecause of,” we conclude that section 14.6.4 permits the recovery of attorney fees so long as thealleged breach was a cause of the action, that is, the commencement of the action was motivated atleast in part by the alleged breach of contract"; Brown Bark III, LP. v. Haver (2013) 219Cal.App.4th 809, 820: "Section l7 17 does not make a unilateral fee provision reciprocal on tort orother noncontract claims.") This language has been found to encompass noncontract claims. (See Santisas v. Goodin(1998) 17 Cal.4th 599, 608: holding contract provision allowing recovery ofattorney fees for actions“‘arising out of’” agreement “embraces all claims, both tort and breach of contract, in plaintiffs'complaint, because all are claims ‘arising out of the execution of th[e] agreement or the sale.”’;Xuereb v. Marcus & Millichap, Inc. (1992) 3 Cal.App.4th 1338, 1340, 1344: fee provision stating“[i]fthis [a]greement gives rise to a lawsuit” must be understood “in a far more general, transactionalsense than is suggested by phrases such as ‘derives from’ or ‘proximately caused by’” and“encompass[es] acts and omissions occurring in connection with the [agreement].”) Private Nuisance It is well settled law that common law negligence claims for construction defects requireproperty damage. (See Aas v. Superior Court (2000) 24 Cal.4th 627.) However, economic damagesare not required by private nuisance causes of action. Long standing California law holds that“liability for nuisance does not require proof of damage to the plaintifi‘s property; proof ofinterference with the plaintiffs use and enjoyment of that property is sufficient.” (San Diego Gas &Electric Co. v. Superior Court (1996) 13 Cal.4th 893, 937; see also Dauberman v. Grant (1926) 198Cal. 586, 590: “It was not necessary to the recovery of damages caused by the nuisance of smokeand soot to prove actual damage to plaintiff‘s property.”) Furthermore, fire hazards clearly constitutenuisance within provisions of Civ Codq, § 3479, defining nuisance. (See Bakersfield v. Miller(1966) 64 Cal. 2d 93; CACI 2021.) Although thé allegations relied upon to support Plaintifl‘snegligence claim may be the same, at the pleading stage, a plaintiff can plead alternative theories ofrecovery, subject to proof at trial. (See Steiner v. Rowley (1 950) 35 Cal.2d 713; Savage v. Van Marle(1974) 39 Cal.App.3d 241.) Mr. Mathew Giampaoli Mr. Robert L. Davis Vietnam TOWn Condo. Ownrs. Assn. v. TWNInvestmem‘ Group, LLC, et a1.November 1 1, 2021 Page 4 Conclusion Pursuant to the foregoing, our ofiice will amend the complaint relative to the causes ofactionfor Breach ofContract - Third-Party Beneficiary and Private Nuisance. Additionally, under separatecover, our office will provide a proposed stipulation dismissing the causes of action for Breach 'ofContract, Negligent Misrepresentation, and Fraud Non-Disclosure without prejudice as outlinedabove. Thank you for your attention in this matter. Should you have any questions or need anyadditional information, please do not hesitate to contact the undersigned. Very truly yours,
