Larsen v. Johannes

Decision Date11 May 1970
Citation7 Cal.App.3d 491,86 Cal.Rptr. 744
CourtCalifornia Court of Appeals Court of Appeals
PartiesDouglas LARSEN, Melba Larsen, Lewis Keller, Walter Kaitz, idell Kaitz, Kenneth Healy, Martha Healy, Julius A. LaQuaglia, Dulcie LaQuaglia, Carl L. Fuller and Carla G. Fuller, Cross-Complainants and Appellants, v. Allan R. JOHANNES, Cross-Defendant and Respondent. Civ. 26187.

Harold R. Farrow, Anne R. Grupp, Oakland, for appellants.

Farella, Braun & Martel, San Francisco, for respondent.

DAVID, Associate Justice pro tem. *

Respondent Johannes was employed by appellant landowners to design a large $900,000 apartment house project. He prepared the basic architectural plans and specifications. Disputes arose before any further architectural services were rendered during actual construction or any supervision was provided. The landowners purported to terminate his contracts for services. Thereafter there was a mutual rescission. In this transaction, the parties executed a mutual release 'from any and all claims, demands, actions, or suits of any kind, arising out of any liability, known or unknown, of said parties to each other, including but not limited to, any liability arising out of the agreements made by the parties on August 21, 1962, January 15, 1965, and March 30, 1965, with respect to The Pentagon Apartment project.'

Based upon such rescission and the mutual release, Johannes secured a summary judgment, upon appellants' refusal to honor this settlement and to relieve him of this claim, suing him in their cross-complaint filed herein. This appeal followed.

The controversy is based upon the following documents: (1) the contracts between appellant owners and architect Johannes for architectural services; (2) the letter of May 9, 1965 from appellants to Johannes, purporting to terminate the contracts in (1); (3) the response of Johannes, dated May 11, 1965, denying the right to end their contracts, and offering to do so upon an additional payment and execution of the mutual release clauses referred to, thereafter executed by three of the appellants on behalf of all; (4) the owner-builder contract, so far as it relates to architectural services.

The notice of motion indicated reliance upon all the files in this action, and the pleadings incorporating the documentation. This was sufficient to bring them before the court (People ex rel. Mosk v. Lynam (1967) 253 Cal.App.2d 959, 964--965, 61 Cal.Rptr. 800); and appellants' opposing affidavits affirmatively incorporate the documents by reference. Both parties rely upon them. Thus they were properly before the trial court upon the motion for summary judgment (Newport v. City of Los Angeles (1960) 184 Cal.App.2d 229, 234, 7 Cal.Rptr. 497). Since the determination of the trial court is one of law based upon the instruments, the appellate court must make its own independent determination of their construction and effect (Consolidated Theatres, Inc. v. Theatrical Stage Employees Union (1968) 69 Cal.2d 713, 724, 73 Cal.Rptr. 213, 447 P.2d 325; Estate of Russell (1968) 69 Cal.2d 200, 213, 70 Cal.Rptr. 561, 444 P.2d 353).

The pleadings have been carefully considered, to determine whether the issues presented on the motion for summary judgment are triable and whether a genuine cause of action exists (Craig v. Earl (1961) 194 Cal.App.2d 652, 655, 15 Cal.Rptr. 207, and cases cited; Michelman v. Frye (1965) 238 Cal.App.2d 698, 48 Cal.Rptr. 142) as well as to determine the admissions pertinent to the motion for summary judgment (cf. Jack v. Wood (1968) 258 Cal.App.2d 639, 647, 65 Cal.Rptr. 856), and which need not be incorporated in the affidavits on a motion for summary judgment (Reich v. Yow (1967) 249 Cal.App.2d 12, 14--15, 57 Cal.Rptr. 117, and cases cited, including University of So. Cal. v. Weiss (1962) 208 Cal.App.2d 759, 767, 25 Cal.Rptr. 475).

We summarize from the pleadings those matters which bear upon this controversy.

The attempted discharge of Johannes as architect was prompted (in part, at least) by the previously declared intention of appellants to dispense with the supervisory architectural services which he was to perform during the construction of the $900,000 apartment house project.

In the complaint, the builder sued appellants for a balance due, and for an item of $43,000 damages, asserting that after discharge of Johannes, appellants did not, as the contract contemplated, provide an architect to assist in supervision, interpreting the plans, and providing detailed drawings; though the work was to be done to the satisfaction of the architect and the owner. Answering with general denials, appellants cross-complained and added Johannes as a cross-defendant.

Of him, it was alleged that he at all times had held himself out as a fully qualified and experienced architect, licensed as such, and that he undertook to design appellants' apartment building and to provide plans and specifications of sufficient completion, quality and clarity to accomplish such purpose.

It was then alleged of the cross-defendants that 'they negligently and carelessly designed, drew plans and specifications for, obtained defective materials, and negligently and carelessly supervised and performed the work, labor and construction of said building in such manner as to cause said structure and its accompanying improvements to be completed in a defective and deficient manner * * * in * * * the roofing, exterior walls, doors and windows, weather tightness, bathroom tiling and fixtures, wiring, laundry and exterior lighting facilities, grouting around bathroom fixtures, finish work, drawers, fixtures in apartments, swimming pool, and elevator.' Demand of each of them to perform is alleged to have been made against cross-defendants and their failure and refusal to do so to appellants' damage is averred.

It is then alleged that the appellants have expended $16,000 for cure and repair of certain defects, will have to make additional repairs, and by delays lost the use of the apartments constructed, to their damage. It then is alleged that the contractor has claimed the defects are the result of poor design rather than of improper or incomplete construction, and that respondent Johannes has claimed that the defects and insufficiencies are the results of improper construction; that both the contractor and Johannes are joined as cross-defendants, as cross-complainants have no means of knowing or ascertaining the respective liabilities of the contractor and the architect, but allege that appellants' damage is the result of the negligence and carelessness of one or both of such cross-defendants.

Johannes denied such allegations, and additionally, pleaded the settlement agreement between the parties, by which his services as architect were terminated, and pleaded as well the contracts under which he was employed. Under the abrogated contracts, in addition to the basic plans and specifications, Johannes was to provide working drawings and specifications, and all architectural, engineering and consulting services with conferences, preparation of preliminary studies, and large-scale and full-size detail drawings, as might be required. He was to supervise the work, determining the builder's compliance, advising the owner of any omissions, substitutions, defects and deficiencies in performance. Payments to the builder were to be upon his certificate. He did not guarantee the performance of the building contracts.

Paragraph 11 of their agreement provided that either the architect or the owners, the appellants here, might terminate this agreement 'for reason of noncompliance with any of the aforesaid provisions by the other party. In addition, both principals will recognize as valid reason for termination, any request by the Federal Housing Administration based upon inadequate performance, undue delay or misrepresentation which may make the further services of the Architect unacceptable to the Administration.' No such request by the FHA is pleaded nor indicated in appellants' opposing affidavits.

On May 9, 1965, attorney Walter Kaitz, one of the joint venturers, appellants herein, advised Johannes: 'The question of architect supervision during the construction period of the Pentagon Apartments was fully discussed with FHA in San Francisco and it has been decided to dispense with such supervision. Consequently, in compliance with such decision by FHA and with Section 11 of the Owner-Architect Agreement, I wish to advise you that your supervisory services will not be required and pursuant to our telephone discussion of this date your services are terminated.'

Such a determination to dispense with the further services of Johannes was an outright breach of the contract with Johannes, unless in fact his performance, including the preparation of plans, specifications, etc., was then in fact inadequate. In responding to this notice from the owners, Johannes denied any noncompliance. He offered to make a settlement and to terminate the contract, upon additional payments being made to him; and as a term thereof, upon the execution of the following agreement:

'3. The mutual release by The Pentagon, a joint venture, and each member thereof, jointly and severally, on the one hand, and Allan R. Johannes, on the other, each for themselves, himself and herself, their heirs, executors, administrators, successors and assigns, none of whom admit any liability and all of whom expressly deny any liability, as between themselves, from any and all claims, demands, actions, or suits of any kind, arising out of any liability, known or unknown, of said parties to each other, including but not limited to, any liability arising out of the agreements made by the parties on August 21, 1962, January 15, 1965, and March 30, 1965, with respect to The Pentagon Apartment project.

'4. The assent of the parties to this settlement shall be evidenced by the signature of Allan R. Johannes, herewith,...

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