we are here today because the trial court's improper dismissal of my client's breach of contract and fiduciary duty claims under a twelve b six motion which severely prejudices my client by deny nick denying it the opportunity to pursue its claims and recover what is of prejudice is also the citizens of imperial county who these but ditches were meant to benefit this twelve b six motion resulted in dismissal of both barred speech of fiduciary duty and breach of contract because of actions on the grounds that barred failed to state a claim for relief this is not the case i asked so where why did where's the contract what is the contract the contract is the action is on a written contract it is the contract acts of the party james davy by stamping and signing the documents that he wrote and then by proceeding to perform under the contract as contra project engineer and accepting payment of excess of five hundred ninety it's a hefty document it is are there any pages in here in which people are expected to sign not in that particular document there's no place in here now i've got something called page one twenty four i got a contract agreement that looks like a looks like there's a blank form yes ok is that part of the contract yes ok and was this something that we would have expected davey to sign or is this for somebody else so the contract was the contract documents were also written as the bidding documents for the general contractor the parties then utilized that writing as their contract ok i'm still i'm a little confused i'm not i'm not exactly sure i understood that answer so look the contract documents were written by james davy he created the documents they list within them the duties of the project engineer  rather than create another document the party james davy assented to his duties under that document by stamping and signing the document and then proceeding to perform under the document so it's not your typical contract but this is like a contract implied in the law is that what you're asking for and no they agreed to utilize they agreed to this as the contract how do we know that they agreed the stamp on the document and then performed i said by one side while i said i said just a sign that contract i want to make sure you've got a contract yes and this doesn't look like a contract that i've seen before when it's not signed by part it's not a signature page or something not something that i don't see in some of the refers to the parties and just describes you know who is what it doesn't look like the typical contract but the parties utilize it as their contract and there's case law parties have utilized documents an example the think it was because the contract in and i guess there is case law saying that even though it doesn't look like your typical contract if the parties utilized it as the writing as their contract of the case or the claim is on written contract for example in the believe it was a great case they had a written and escrow instructions that was written by the ex it didn't look like your typical contract they didn't act on they didn't follow the instructions that they wrote in the court found that that was on a written contract despite the fact that it was for using on a written contract as a term of art well the statute of limitations for ok i just don't find anything that says you know that this is a this is a contract between james davy and bard water district opposed to just having him having prepared the document for their use with somebody else i can't even figure that out that that he's the guy that they referring to here can't help me figure out where that is well they have the sections that say what the project engineer does the project does that and then later document that is there any place that says the davy is going to be the project engineer and subsequent documents there is proof that he accepted to act as project engineer as in the change orders when he signs engineer which under the original contract were supposed to be signed by the project engineer when the canal was constructed there were several issues but the main one was that the inspections testing standards were waived which resulted in the ground not being compacted as it should have been which is now resulting in he was responsible for ensuring that the inspections happened in actually waive the inspections that he wrote in the contract that should've been completed when inspections  and i think also we need to address the issue of fiduciary duty because that was dismissed by the trial court on the grounds that we couldn't have a separate and distinct from fiduciary duty with a contract well so of argument because we do argue there is a contract but even if there isn't this responsibility and trust in trusted into the ways created a fiduciary relationship between the parties that went above and beyond the typical  engineering relationship ok so so that your fiduciary duty does not depend in any way i'm finding that there was a contract  good morning may please the court brian rather look for a pelleas james davy and james levy and associates inc i would like to first address two points raised by judge wardlaw related as to the first page two forty two is not a portion of the document which the water district alleges is the contract between the parties it's a separate exhibit that was attached to a later version of the  that those services were related to preparation of the big document and perhaps associated meetings to create you know what i called the bid package what the district call the contract document and i believe which the district court called the project document the day the act is the engineer on this davey did not act as the engineer neither him personally nor his corporation and the duty just he was just preparing documents for somebody else to sign he was preparing the bid package so that the district could retain an engineer to perform an engineering work on this project but not him correct and i identified for the district court and for counsel when i received the complain originally who that engineer is so who did the engineering a different entity i believe it is george ca george cairo engineering that package for the district which would then hire the engineer that it felt appropriate to retain for this project so how has he received payments and submitted and license for preparation of the bid document in the different  down and how much did he get in total i don't know that your honor i know that it's you referenced thirty something thousand dollars at the end of one of them was that i would be very much for a project of this of this nature that well the big package is one hundred fifty one pages  documents perhaps but if you're supervising the building of a canal that doesn't seem like a lot of money for that kind of project the one thing i would note to that point judged by b is that the invoices predate the date of the bid package so it doesn't follow  that he would be these would be invoices for him performing services relating to testing out in the canal which is the other point a just this was that i just wanted to address that the g d it was not the project engineer because she was raised that the backdrop of this case is that this is a professional negligence case it has all of the hallmarks there's a canal improvement project a contractor that construct the improvements the engineer that designed the project and the district as owner and if it's a professional negligence case and you have a to your stature limitation that's correct and moreover to that point the allegations against g d a are that they failed to perform engineering services so that they might have they might have brought a suit in tort but they didn't but they did bring a suit and contract and fiduciary duties so we're sort of stuck with that because there is a four year statute limitations for that for those claims are it that's correct and the reason that the district allowed the statute of limitations to run on any negligence claims against g t a is because the district elected to instead pursue the contractor granite construction for the same alleged damages in a separate litigation for years before suing g a t a and that's a detail on page labels the cause of action as you're going through and bring you can bring an action in contract an action in tort in the same in the same lawsuit and they're out of time on the tort so your your client last that he's not going to have to face that he's going have to face the contract and produce your duty so let me turn to the produce your duty question because i've got some questions about that for you so why the california cases are very clear that you can have a fiduciary duty that exists outside of a contract and if that's the case that's what they plaid like and the district court dismissed out of this stage i would i will answer that and i would like to take a step back as to the standard of care for an engineer in the district is it attempting to enlarge this case involving trustee beneficiary there is no recognized right the california cases also say that also it also may depend on the facts of each of each case as to whether a fiduciary relationship has been created and if it doesn't fall in something standard such as attorney client you might still have a fiduciary relationship i believe that as a matter of law the court can which the district court did find that there was no fiduciary duty because there was no evidence california law says about sherry duty i mean as i read those california cases it says that a cut that if it is your duty made just independent of a contractual relationship and maybe i can perform provide some clarity on that issue the district attempts to allege that the agency relationship giving rise to the fiduciary duties existed soley by virtue of the appellee is acting as the project engineer on this project and that's engineer memorialized in the contract end quote and they further say that pelleas breached those fiduciary duties by quote failing to perform the duties responsibilities and obligations of the project engineer memorialized in the project document and quote so these aren't really fiduciary duties at all these are simply alleged contractual duties then it should be easy to beat this on summary judgment i'm just trying to figure out how you think you can win on the twenty six because the bid package that the that the appellant attached to the complaint as the contract document does not identify either of the appellate as being this project engineer right but if they behaved in that way it might not be a contract but it but it might have might have a created a relationship between them that was on that was understood by them that could then be a breach of a fiduciary duty and i would argue that if that relationship existed there would have to be and evidence of assent by both parties to a principal agent relationship which there is none in the bid package and fact that they might have done it and in fact the whole problem is that is that if they if we have the signatures on the document then we'd have a contract we would have to worry about the but i would add to that that the public contract that the big package on its face says that it needs to be signed by all parties the public contract code requires that when yunis a pal of these or districts like the water district contract with private civil engineering forms to perform professional services that has to be reduced to erotic and signed by all parties and i believe it's section six  had agreed to perform services or to be an agent to a principal of the district that relationship would have needed to be disclosed in a writing signed by both parties i also set forth in my brief that the claims regardless of the breach of contract and breach of duty issues are barred by the statutes of limitations as to the two year statute i argue that the grab them in of these claims like i introduced earlier is really a professional negligence claim and by simply of trying to recast that as a breach of contract which doesn't exist or a breach of  duty doesn't change the analysis for statute of limitations purposes i provided further argument that the three year statute in section three thirty eight applies to the breach of a do share duty claim because they had alleged some sort of concealment of breaches in their complaint and then it's that the four year statute i provided analysis related to california certificate of merit which the district had not provide and authority that  if a claimant such as the district does not obtain a certificate of merit their claims are effectively not filed until they do so under the four year the claims will be barred as well  you i would just like to address a couple of the points brought up by opposing counsel specifically with a reference of to whether j d a was or was not the project engineer the complaint alleges that he was the project engineer and shows that we paid him as the project engineer so even his contentions are to pay him over one hundred ninety thousand dollars we don't have the invoices attached to each each invoice attached to the complaint but the it boils down to the fact that that's not a matter for a twelve b six motion to dismiss he's bringing up extraneous facts we have to base it on the complaint and from the complaint jay da was the project engineer and then as to the independent cunt his argument that that we have not alleged independent contractual relation or independent fiduciary duty outside of our contractual relations it says the complaint in paragraph twenty eight says that the british are duty was separate distinct and in addition to any contractual obligations owned by owed by the parties the reasons we included some reference to the contract documents is because we were asked by the trial court to include more information on what that to produce your duty was so we did we went further into what what kind of things he was doing underneath under there as project engineer further as to the argument that it had to be our assent to fiduciary relationship had to be in writing due to the public contract code the public contract clo does not prohibit a quasi governmental entity from pursuing its claims against a professional that contract co deals specifically with the bidding process the competitive bidding process and is meant to make sure that there is fairness in the bidding process and there isn't misuse of public funds so that to say that that statue prohibits us from filing our claims against an engineer is a far stretch and is not reflected in the statue professional arising out of professional negligence there is no cause of action for for professional negligence here and the court and the legislator clearly meant to apply it narrowly to professional negligence situations otherwise they could have said arising out of any alleged wrongful conduct by an engineer or change the language to broaden that this is clearly only meant to apply to professional negligence claims which we have not alleged in our complaint whereby we didn't file a certificate continue on and show up to prove what we tried to prove our case is it true that you are ready sued another engineer for the same now we have not sued another engineer we sued the cut the contractor in another matter the actual who actually completed the work which is a separate matter