California Court of Appeals, Second District, Seventh Division
C.W. HOWE PARTNERS INC. et al., Cross-complainants and Respondents,
v.
Greg MOORADIAN et al., Cross-defendants and Appellants.
[256
Cal.Rptr.3d 809] APPEAL from an order of the Superior Court
of Los Angeles County, Howard L. Halm, Judge. Affirmed. (Los
Angeles County Super. Ct. No. BC662798)
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[Copyrighted Material Omitted]
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COUNSEL
Pitre &
Teunisse and Randall J. Pitre, San Dimas, for
Cross-defendants and Appellants.
Clark
Hill, Richard H. Nakamura Jr., Mehrdad Farivar and
Christopher Menjou, Los Angeles, for Cross-complainants and
Respondents.
OPINION
PERLUSS,
P. J.
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Greg
Mooradian and Debra A. Mooradian appeal from the order
denying their special motion to strike under Code of Civil
Procedure section 425.16[1] directed to the cross-complaint
filed against them by C.W. Howe Partners Inc. and its
principal Carl William Howe (collectively the Howes) for
express indemnity, equitable indemnity, contribution and
declaratory relief. Although a claim of loss or potential
loss is an essential prerequisite to any indemnification
obligation, whether express or equitable, the Howes’
cross-complaint did not arise from the filing of the
Mooradians’ lawsuit, but from the alleged breach of their
agreement to indemnify the Howes for any liability
attributable to information provided by the Mooradians or the
Mooradians’ representatives and the Mooradians’ underlying
fault with regard to their decisionmaking. Accordingly, we
affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1.
The Mooradian Residence Construction Project
The
Mooradians, a married couple, were interested in remodeling
or reconstructing their existing Los Angeles residence.
Although they had no
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prior design or construction experience, they discovered in
2014 the work of Erla Dogg Ingjaldsdottir and Tryggvi
Thorsteinsson of Minarc, Inc. profiled in a book featuring
cutting-edge homes that were environmentally conscious,
energy efficient and built with major components
prefabricated offsite. The Mooradians were particularly drawn
to a house located in Venice, California, which the book
attributed to the following: "Minarc" as architect,
"Core Construction" as builder, "mnm.MOD"
as manufacturer and "C.W. Howe" as engineer. The
home was [256 Cal.Rptr.3d 810] constructed entirely from
factory-made parts using a "patented panelized
system," with structural components of metal and panels
containing expanded polystyrene (EPS) insulation.
The
Mooradians met with Ingjaldsdottir and Thorsteinsson, who
represented that MNM Mod Corp., also known as MNMmod and
mnmMOD, was one of their companies. MNM would custom
manufacture offsite, in accordance with a design
Ingjaldsdottir and Thorsteinsson created specifically for the
Mooradians, metal-framed EPS panels using the patented
panelized system. Thorsteinsson sent the Mooradians a
proposed agreement pursuant to which Minarc would provide
design and other services for the construction of a new
single-family dwelling at the site of the Mooradians’
existing residence.[2]
After
the Mooradians signed the Minarc agreement, Thorsteinsson
advised hiring a structural engineer and recommended Carl
Howe. He explained Howe had worked with Minarc on other
residential projects. Howe provided a proposal to
Thorsteinsson and then, after being told the proposal was
accepted, submitted an August 18, 2014 letter agreement
addressed to the Mooradians, printed on the letterhead of
C.W. Howe Partners and signed by Howe as its principal (the
Howe agreement).
2.
The Agreement Between the Mooradians and C.W. Howe
Partners
Howe
is a civil engineer licensed in California, and C.W. Howe
Partners is in the business of providing structural design
services for single-family homes and other building types.
Structural design typically entails designing the foundation
and structural framework for a building with specified
materials to allow the building to withstand a variety of
forces.
The
August 18, 2014 Howe agreement stated on the subject line,
"Contract for Structural Engineering Services: Mooradian
Residence - ‘MnM mod’ -
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Light Gage Steel Stud House, Green Roof Deck, Concrete Wall
Front Elevation Elements."[3] The first line of the
agreement indicated the C.W. Howe Partners’s engineering fee
for the project was "[i]n accordance with our review of
drawings produced by your Minarc." Howe understood
Minarc to be the designer of the Mooradian project.
Pursuant to the Howe agreement, the scope of services to be
provided by C.W. Howe Partners included preparing a
preliminary structural design, structural engineering
calculations and structural construction documents. The
agreement listed services that were specifically excluded
from the work to be performed by C.W. Howe Partners,
including permit acquisition; construction means and methods
or sequences; design and detailing of any nonstructural
element; and coordination with architectural plans, which was
instead to be performed by the "Designer," who was
to be responsible for coordination of structural plans with
all other professional disciplines.
[256
Cal.Rptr.3d 811] Section 4 of the Howe agreement contained
the heading "Client’s Responsibilities," which was
underlined, capitalized and in bold font. Section 4(a),
titled "Information Provided by Client" in bold
font, stated, "Client or Client’s representative shall
provide Engineer with all necessary information for
performance of Engineer’s work on a timely basis. Engineer
shall be entitled to rely upon information provided by Client
and Client’s representative, and shall not be held
responsible for accuracy or completeness of such information;
or omission of pertinent information."
Section 4(b), titled "Indemnity - Client Provided
Information" in bold font, provided, "Client agrees
to indemnify, defend and hold harmless Engineer, [its]
principals, agents and employees and subcontractors from and
against all costs or liability, including but not limited to
attorney fees and expert fees and costs; arising in whole or
in part from errors, omissions or inaccuracies in any Project
related information or documents provided by, or through
Client, or any other person or entity, acting on Client’s
behalf; including but not limited to recommendations as to
...