Pulver v. Kane

• Court: District Court, D. Nevada
• Decided: November 29, 2022
• Docket: 3:20-cv-00673
• Status: Unknown

Opinion

3 UNITED STATES DISTRICT COURT

4 DISTRICT OF NEVADA

5 * * *

6 GARY A. PULVER dba PULVER Case No. 3:20-cv-00673-MMD-CSD CONSTRUCTION COMPANY, 7 ORDER Plaintiff, Counter-Defendant, Third- 8 Party Plaintiff,

9 v.

10 BARRY KANE, et al.,

11 Defendants.

12 AND ALL RELATED ACTIONS 13 14 I. SUMMARY 15 This action arises from the construction of a private residence in Incline Village, 16 Nevada. Plaintiff, Counter-Defendant, and Third-Party Plaintiff Gary A. Pulver, doing 17 business as Pulver Construction Company (“Pulver”), alleges that, if the residence is 18 defectively constructed, Third-Party Defendants, including design professionals, A&E 19 Architects, P.C. (“A&E”) and Reno Tahoe Geo Associates, Inc. (“RTGA”) (collectively, 20 “Design Defendants”), are responsible for such defects. (ECF No. 40 at 4-5.) Before the 21 Court are A&E’s motion to dismiss all of Pulver’s claims against it (ECF No. 58) and 22 RTGA’s motion to dismiss all but one of Pulver’s claims against it (ECF No. 65) 23 (collectively, “Motions”).1 As further explained below, because the Court finds that 24 Pulver’s claims fail as a matter of law, the Court grants both Motions. 25 26 27 28 1Pulver filed responses (ECF Nos. 63, 68), and A&E and RTGA filed replies (ECF 2 The Court adapts the following allegations from Pulver’s amended third-party 3 complaint (ECF No. 40) and original complaint (ECF No. 1). Pulver is a licensed 4 contractor. (ECF No. 40 at 2.) Lakeshore LLC, comprised of Barry and Anna Kane, 5 contracted with Pulver to construct a residence located at 1059 Lakeshore Boulevard, 6 Incline Village, Nevada (“Subject Property”). (ECF No. 1 at 2.) Pulver filed suit against the 7 Kanes and Lakeshore LLC for alleged failure to pay all of its “incurred costs plus overhead 8 and profit,” and Lakeshore LLC counterclaimed against Pulver for alleged construction 9 defects. (Id. at 2-7; ECF No. 10 at 23-31.) Pulver then filed this third-party action against 10 Third-Party Defendants, including Design Defendants, alleging that they “failed to perform 11 their contracted work as required by contract, fell below the applicable standard of care 12 in performing their work, failed to perform their work in a workmanlike manner, and acted 13 negligently.” (ECF No. 40 at 4.) 14 As pertinent to the Motions, Pulver alleges the following. A&E is a licensed or 15 accredited architect, and RTGA is a licensed or accredited geotechnical engineer. (Id. at 16 3.) Third-Party Defendants owed Pulver and/or the Kanes and/or Lakeshore LLC “a 17 contractual and/or legal duty to exercise due and reasonable care in performing work on 18 the Subject Property.” (Id. at 5.) If the Subject Property is defectively constructed, “Third- 19 Party Defendants are responsible for such defects in that [they] failed to act reasonably 20 and according to the applicable standard of care” and their “acts or omissions” are “the 21 direct and proximate cause of any and all damages incurred by Lakeshore LLC such that 22 any and all damages assessed against [Pulver] must be in turn assessed against Third- 23 Party Defendants.” (Id.) 24 Pulver further alleges that it “entered into oral and/or written agreements with 25 Third-Party Defendants (except for A&E Architects) for [them] to perform construction 26 work at portions of the Subject Property.” (Id.) “By virtue of the contractual relationship” 27 between Pulver and Third-Party Defendants, except for A&E, “a special relationship exists 28 upon which an implied indemnity claim may attach.” (Id. at 6.) If Lakeshore LLC recovers 2 Defendants for injuries and damages sustained by Lakeshore LLC. (Id.) 3 Pulver also alleges that “Third-Party Defendants impliedly warranted that all work 4 performed . . . would be performed in a first class and workmanlike manner” and that they 5 “breached their warranties resulting in the defective work and damages described in the 6 Counterclaim.” (Id. at 7.) If a judgment is rendered against Pulver in favor of Lakeshore 7 LLC, Pulver is “entitled to contribution from Third-Party Defendants in an amount 8 proportionate to the amount of negligence and/or fault attributable” to them. (Id. at 8.) 9 Lastly, Pulver alleges that it has attached attorney affidavits, required under Nevada 10 Revised Statutes § 40.6884, “establishing the required elements of merit” of the claims 11 against A&E and RTGA. (Id. at 9.) 12 Pulver asserts six claims for relief: (1) negligence; (2) breach of contract; (3) 13 implied indemnity; (4) breach of implied warranties; (5) contribution; and (6) under NRS 14 Chapter 40. (Id. at 5-10.) Against both A&E and RTGA, Pulver asserts claims of 15 negligence, breach of implied warranties, contribution, and under NRS Chapter 40. (Id.) 16 Pulver asserts an additional two claims against RTGA: breach of contract and implied 17 indemnity. (Id. at 5-7.) 18 III. DISCUSSION 19 A&E moves to dismiss all four of Pulver’s claims against it, and RTGA moves to 20 dismiss all but Pulver’s breach of contract claim against it.2 (ECF Nos. 58, 65.) The Court 21 first addresses whether NRS Chapter 40 and its notice requirements apply, then 22 addresses Design Defendants’ Motions as to each challenged claim. Because Design 23

24 2Pulver argues that RTGA’s 12(b)(6) motion is untimely because it has already filed its answer. (ECF No. 68 at 5.) However, the Ninth Circuit instructs that, where 25 “[d]efendants filed their motion to dismiss after filing their answer,” courts should treat the motion “as a motion for judgment on the pleadings, pursuant to Rule 12(c) or 12(h)(2).” 26 Elvig v. Calvin Presbyterian Church, 375 F.3d 951, 954 (9th Cir. 2004) (citing Aldabe v. Aldabe, 616 F.2d 1089, 1093 (9th Cir. 1980)); see also Gregg v. Hawaii, Dep’t of Pub. 27 Safety, 870 F.3d 883, 887 (9th Cir. 2017) (“Because a Rule 12(c) motion is functionally identical to a Rule 12(b)(6) motion, the same standard of review applies to motions 28 brought under either rule.”) (citation and internal quotation marks omitted). The Court 2 Court addresses those arguments together where appropriate. 3 A. Applicability of NRS Chapter 40 4 As an initial matter, Pulver and Design Defendants do not appear to dispute that 5 NRS Chapter 40 is applicable here. But A&E in its reply “respectfully requests the Court 6 either find NRS Chapter 40 does not apply at all under the circumstances found in this 7 matter, or that Pulver must comply with the notice requirements of NRS Chapter 40.” 8 (ECF No. 64 at 5.) The Court therefore briefly addresses whether NRS Chapter 40 applies 9 to Pulver’s third-party claims. 10 NRS Chapter 40 governs, in relevant part, actions resulting from constructional 11 defects in residences. See NRS §§ 40.600-40.695. “Constructional defect” is defined as: 12 a defect in the design, construction, manufacture, repair or landscaping of a new residence . . . and includes, without limitation, the design 13 construction, manufacture, repair or landscaping of a new residence . . .

14 (1) which presents an unreasonable risk of injury to a person or property; or 15 (2) which is not completed in a good and workmanlike manner and proximately causes physical damage to the residence, an 16 appurtenance or the real property to which the residence or appurtenance is affixed. 17 18 NRS § 40.615. “It is well established that when the statute’s language is plain, the sole 19 function of the courts—at least where the disposition required by the text is not absurd— 20 is to enforce it according to its terms.” Lamie v. U.S. Trustee, 540 U.S. 526, 534 (2004) 21 (citation and internal quotation marks omitted). Here, it is undisputed that Pulver’s claims 22 against Design Defendants arise from alleged constructional defects of a new residence 23 regarding its design. (ECF No. 40.) The Court therefore finds that, by its plain language, 24 NRS Chapter 40 governs Pulver’s claims. 25 B. NRS Chapter 40 Notice Requirements 26 Having found that NRS Chapter 40 is applicable, the Court addresses A&E’s 27 argument that Pulver failed to comply with the notice requirements of NRS Chapter 40. 28 (ECF No. 58 at 5-6.) A&E specifically argues that Pulver failed to provide A&E notice of 2 Pulver’s claims are barred. (Id.) Pulver counters that the express language of NRS § 3 40.646, read with NRS § 40.645, does not require Pulver to provide A&E notice of 4 Lakeshore LLC’s Chapter 40 claim.3 (ECF No. 63 at 6-8.) The Court agrees with Pulver 5 as further explained below. 6 NRS § 40.645(1)(a) requires that before a claimant, typically defined as “an owner 7 of a residence” under NRS § 40.610, “commences an action . . . for a constructional defect 8 against a contractor, subcontractor, supplier, or design professional, the claimant . . . 9 [m]ust give written notice . . . to the contractor.” NRS § 40.645(4)(a) provides an exception 10 for the notice requirement “if . . . the contractor, subcontractor, supplier or design 11 professional has filed an action against the claimant.” NRS § 40.646 then requires that 12 “not later than 30 days after . . . a contractor receives notice of a constructional defect 13 pursuant to NRS 40.645, the contractor shall forward a copy of the notice” to “each 14 subcontractor, supplier or design professional whom the contractor reasonably believes 15 is responsible for a defect specified in the notice.” 16 Read on its own, NRS § 40.646 plainly states that a contractor must forward a 17 copy of the Chapter 40 notice to potentially liable subcontractors and supplier or design 18 professionals only where the contractor first receives Chapter 40 notice of a 19 constructional defect. See NRS § 40.646. Such is not the case here, where Pulver, the 20 contractor, did not receive a Chapter 40 notice from Lakeshore LLC or the Kanes, the 21 property owners and would-be Chapter 40 claimants, because Pulver first filed suit 22 against them, not vice versa. (ECF No. 1 at 1-2.) Pulver was therefore not required to 23 forward a nonexistent copy of the Chapter 40 notice to Design Defendants. 24

25 3Pulver also argues that A&E has had actual notice of the constructional defects alleged by Lakeshore LLC because of Lakeshore LLC’s prior lawsuit against A&E, Case 26 No. 3:21-cv-00097, and therefore “any contention that A&E has not been afforded adequate notice of the Chapter 40 claims against it is disingenuous.” (ECF No. 63 at 6- 27 8.) Because the Court finds that Pulver has not failed to comply with the notice requirements of NRS Chapter 40, the Court need not—and does not—address Pulver’s 28 actual notice argument and A&E’s corresponding counterarguments. (Id.; ECF No. 64 at 2 together with NRS § 40.645. See NRS § 40.646. It therefore logically flows that, if a 3 claimant is not required to provide NRS Chapter 40 notice to a contractor in instances 4 where the contractor has filed an action against the claimant, then there is no copy of the 5 Chapter 40 notice that the contractor can—nor must—forward to any potentially liable 6 subcontractors or design professionals. See id. § 40.645-40.646. Here, it is undisputed 7 that Lakeshore LLC and the Kanes are the owners of the Subject Property and therefore 8 claimants under NRS Chapter 40; Pulver was their contractor; and Pulver filed an action 9 against them before this third-party action. (ECF No. 1 at 1-2.) The exception in NRS § 10 40.645(4)(a) to the notice requirement therefore applies and logically extends to Pulver 11 in relation to any potentially liable subcontractors or design professionals, such as Design 12 Defendants. See NRS § 40.645(4)(a). 13 Moreover, the Court finds A&E’s reliance on Barrett v. Eighth Jud. Dist. Ct., 331 14 P.3d 892 (Nev. 2014), unpersuasive. (ECF No. 58 at 5-6.) A&E cites to Barrett for the 15 proposition that “NRS 40.690 allows a contractor to be treated as a claimant for purposes 16 of requiring another party to appear and participate in the NRS Chapter 40 proceedings 17 after that party receives notice of the proceedings from the contractor or claimant,” but 18 A&E does not elaborate any further why that supports its position. (Id.) This citation is 19 further irrelevant here because, as the Barrett court stated, “NRS 40.690 governs [pre- 20 litigation] NRS Chapter 40 proceedings, such as mediation under NRS 40.680, not the 21 district court proceedings, and it requires notice of those NRS Chapter 40 proceedings, 22 not of construction defects.” 331 P.3d at 895 (emphasis added). 23 The Court also finds unpersuasive A&E’s argument that a finding that Pulver does 24 not need to provide A&E an NRS Chapter 40 notice would render all other NRS Chapter 25 40 notice provisions inapplicable. (ECF No. 64 at 4-5.) As already discussed, NRS § 26 40.645(4)(a) and NRS § 40.646 clearly carve out an exception that logically extends to 27 cover Pulver’s circumstances here. See NRS § 40.645-40.646. The Court’s finding merely 28 2 of the statute unenforceable.” (ECF No. 64 at 4-5.) 3 In sum, the Court finds that the notice requirements of NRS Chapter 40 do not bar 4 Pulver’s claims against Design Defendants. The Court moves on to address the merits of 5 each of the disputed claims. 6 C. Negligence Claim 7 Pulver asserts a negligence cause of action against both A&E and RTGA. (ECF 8 No. 40 at 5.) Design Defendants generally argue that the economic loss doctrine under 9 Nevada law bars Pulver’s negligence claim and no exceptions apply, while Pulver 10 counters that the economic loss doctrine does not preclude tort-based claims in a 11 residential constructional defect action brought by a contractor under NRS Chapter 40. 12 (ECF No. 58 at 6-13; ECF No. 65 at 7-17; ECF No. 63 at 9-11; ECF No. 68 at 5-10.) The 13 Court agrees with Design Defendants. 14 As an initial matter, Pulver and Design Defendants all agree that Nevada law 15 recognizes the economic loss doctrine. (ECF No. 58 at 6; ECF No. 65 at 7; ECF No. 63 16 at 9.) “Under the economic loss doctrine ‘there can be no recovery in tort for purely 17 economic losses.’” Calloway v. City of Reno, 993 P.2d 1259, 1263 (Nev. 2000) (internal 18 citation omitted), overruled on other grounds by Olson v. Richard, 89 P.3d 31, 31-33 (Nev. 19 2004). In Calloway, the Nevada Supreme Court concluded that the economic loss 20 doctrine applied to constructional defect cases. See id. at 1266. Therefore, in 21 constructional defect cases, “economic losses are not recoverable in negligence absent 22 personal injury or damage to property other than the defective entity itself.” Id. at 1267 23 (citations omitted). 24 Design Defendants argue that the Calloway holding squarely bars Pulver’s 25 negligence claim; point to Terracon Consultants W., Inc. v. Mandalay Resort Grp., 206 26 P.3d 81 (Nev. 2009) to support that position; and contend that the homeowner exception 27 carved out in Olson does not apply to Pulver. (ECF No. 58 at 6-13; ECF No. 65 at 7-15.) 28 Pulver counters that, under Calloway and Terracon, the economic loss doctrine applies 2 projects, but not those relating to residential construction projects. (ECF No. 63 at 9-11; 3 ECF No. 68 at 5-10.) Pulver also argues that the Olson exception applies to contractors, 4 like Pulver, who are acting as NRS Chapter 40 claimants in residential constructional 5 defect actions. (ECF No. 63 at 9-10; ECF No. 68 at 5-7.) 6 In Olson, the Nevada Supreme Court carved out a homeowner exception to 7 Calloway, holding that “a negligence claim can be alleged in a construction defects cause 8 of action initiated under Chapter 40.” 89 P.3d at 33. Notably, Calloway and Olson involved 9 homeowners suing contractors and subcontractors who were directly involved with the 10 alleged defective residential construction. See 993 P.2d at 1261-62; 89 P.3d at 32. In 11 Terracon, the Nevada Supreme Court extended the Calloway holding beyond claims 12 against contractors and subcontractors, holding that the economic loss doctrine also bars 13 tort-based claims for purely economic losses against design professionals, such as 14 architects and engineers, in commercial constructional defect cases. See 206 P.3d at 90. 15 The Terracon court made clear that its decision “in no way implicate[d] NRS Chapter 40, 16 as the property at issue [there] was not residential.” Id. at 90 n.9. 17 The Nevada Supreme Court therefore left open the question of whether the 18 economic loss doctrine bars tort-based claims for purely economic losses against design 19 professionals in residential constructional defect cases under NRS Chapter 40, the 20 question at issue here. “When a federal court interprets state law, it is bound by the 21 decisions of the state’s highest court.” Assurance Co. of Am. v. Wall & Assocs. LLC of 22 Olympia, 379 F.3d 557, 560 (9th Cir. 2004) (internal citation, brackets, and quotation 23 marks omitted). “If the state’s highest appellate court has not decided the question 24 presented, then [a federal court] must predict how the state’s highest court would decide 25 the question.” Orkin v. Taylor, 487 F.3d 734, 741 (9th Cir. 2007). 26 The Court predicts that the Nevada Supreme Court would decide that the 27 economic loss doctrine also applies to design professionals in residential constructional 28 defect cases under NRS Chapter 40 and that the Olson exception could similarly apply in 2 Terracon to the commercial construction context, it would be most consistent with existing 3 Nevada case law to find that the economic loss doctrine also bars claims against design 4 professionals in a residential context. See 206 P.3d at 89, 90 n.9. In Terracon, the Nevada 5 Supreme Court stated that it “perceive[d] no significant policy distinction that would drive 6 [it] to permit tort-based claims to recover economic losses against design professionals . 7 . . who provided their professional services in the commercial property development and 8 improvement process,” when it has concluded that “such claims are barred under the 9 economic loss doctrine if brought against contractors and subcontractors involved in 10 physically constructing improvements to real property.” Id. at 89. There is logically even 11 less of a policy distinction and therefore similarly no significant policy distinction that 12 would permit negligence claims for purely economic losses against design professionals 13 in the residential construction context but not for contractors and subcontractors in the 14 same context. 15 Moreover, any significant policy distinctions that would warrant treating differently 16 design professionals in commercial settings and design professionals in residential 17 settings are already taken into account by the Olson exception. The Court agrees with 18 Design Defendants that the Olson exception only applies to homeowners bringing 19 construction defect cases under NRS Chapter 40, not contractors such as Pulver.4 (ECF 20 No. 58 at 11-13; ECF No. 65 at 9-11.) Olson involved a suit by homeowners, and the 21 Olson court specifically contemplated carving out an exception for homeowners, finding 22 that “it is reasonable to infer that the Legislature did not intend for the economic loss 23

24 4The Court finds unpersuasive Pulver’s arguments to the contrary. Pulver relies on out-of-context citations to the Olson decision and on NRS § 40.690 to argue that it may 25 be considered a Chapter 40 claimant and covered under the Olson exception. (ECF No. 63 at 9-10; ECF No. 68 at 5-7.) As already discussed, NRS § 40.690 only allows a 26 contractor to be treated as a claimant for purposes of pre-litigation NRS Chapter 40 proceedings, such as mediation under NRS § 40.680, not court proceedings. See Barrett, 27 331 P.3d at 895. In any case, the Olson exception is intended to protect and apply to NRS Chapter 40 homeowner claimants, not sophisticated parties such as contractors. See 28 Olson, 89 P.3d at 33; see also Westpark Owners’ Ass’n v. Eighth Jud. Dist. Ct. ex rel. 2 defects cause of action initiated pursuant to Chapter 40.” 89 P.3d at 33 (emphasis added). 3 A finding that the Olson exception also applies to allow homeowners to recover economic 4 losses against design professionals in residential construction defect actions would 5 therefore be consistent with Nevada case law and effectuate the policy undergirding NRS 6 Chapter 40 of protecting unsophisticated homeowners. See Westpark Owners’ Ass’n v. 7 Eighth Jud. Dist. Ct. ex rel. Cnty. of Clark, 167 P.3d 421, 428 (Nev. 2007) (“[T]he 8 legislative history of NRS Chapter 40 indicates that a primary legislative purpose of 9 enacting the statutory scheme was to protect the rights of homebuyers by providing a 10 process to hold contractors liable for defective original construction or alterations.”). 11 The Court accordingly predicts that the Nevada Supreme Court would decide here 12 that the economic loss doctrine bars tort-based claims for purely economic losses against 13 Design Defendants and that the Olson exception to the doctrine does not apply to 14 contractors such as Pulver. Here, Pulver asserts what amounts to a professional 15 negligence claim against Design Defendants in a residential context, without claiming 16 injury to any property beyond the allegedly defectively constructed Subject Property. 17 (ECF No. 40 at 5.) Pulver alleges only that, “if the Subject Property is defectively 18 constructed,” Design Defendants “are responsible for such defects” and their “acts or 19 omissions . . . are the direct and proximate cause of any and all damages.” (Id.) Because 20 it is undisputed that Pulver does not allege damage to property “other than the defective 21 entity itself” and is not a homeowner falling under the Olson exception, Pulver fails to 22 state a claim upon which relief can be granted. See Calloway, 993 P.2d at 1267; Fed. R. 23 Civ. P. 12(b)(6). The Court therefore dismisses Pulver’s negligence claims against A&E 24 and RTGA as barred by the economic loss doctrine.5 25 26 5Having found that the economic loss doctrine bars Pulver’s negligence claim 27 against Design Defendants and that no exceptions apply, the Court need not—and does not—address A&E’s arguments that it did not owe a tort-based duty to Pulver and Pulver’s 28 arguments in response. (ECF No. 58 at 14-15; ECF No. 63 at 11-12.) 2 Related to its negligence claim, Pulver asserts an implied indemnity claim against 3 RTGA and contribution claims against both A&E and RTGA. (ECF No. 40 at 6-8.) Design 4 Defendants argue that, because implied indemnity and contribution are tort-based claims, 5 those claims are also barred by the economic loss doctrine under Nevada law. (ECF No. 6 65 at 7.) Pulver generally raises the same counterarguments it raised as to its negligence 7 claim and does not dispute that its implied indemnity and contribution claims are tort- 8 based. (ECF No. 68 at 10). 9 The Court agrees with Design Defendants that Pulver’s implied indemnity (or 10 equitable indemnity) and contribution claims sound in tort and are based on Pulver’s 11 negligence claim. See The Doctors Co. v. Vincent, 98 P.3d 681, 686 (Nev. 2004) (“The 12 remedies of contribution and implied, i.e., noncontractual indemnity allow parties 13 extinguishing tort liabilities by way of settlement or payment of judgments to seek 14 recovery from other potential tortfeasors under equitable principles.”). Pulver’s implied 15 indemnity claim arises from its contractual relationship with RTGA but is ultimately based 16 on RTGA’s allegedly negligent “conduct . . . in constructing the portions of the Subject 17 Property which are allegedly defective,” not on an alleged breach of contract. (ECF No. 18 40 at 6.) And Pulver’s contribution claim is similarly based on “the amount of negligence 19 and/or fault attributable to [Design Defendants].” (Id. at 8.) Because Pulver’s negligence 20 claim is barred by the economic loss doctrine, as already discussed, Pulver has not 21 alleged a valid underlying tort claim to support its implied indemnity and contribution 22 claims. See Halcrow, Inc. v. Eighth Jud. Dist. Ct., 302 P.3d 1148, 1154 n.4 (Nev. 2013) 23 (finding that equitable claims for contribution and indemnity “necessarily fail” after 24 determining that the economic loss doctrine barred negligence claims). The Court 25 therefore dismisses Pulver’s implied indemnity claim against RTGA and its contribution 26 claims against A&E and RTGA.6 27 6Having found that Pulver’s contribution claim is facially barred by the economic 28 loss doctrine, the Court need not—and does not—address RTGA and Pulver’s arguments 2 Pulver also asserts a breach of implied warranties claim against both A&E and 3 RTGA. (ECF No. 40 at 7.) Design Defendants argue that Pulver’s breach of implied 4 warranties claim must be dismissed because, as California and the majority of 5 jurisdictions hold, design professionals do not warrant their services and therefore cannot 6 be held liable under claims of implied warranty. (ECF No. 65 at 18-19.) Pulver counters 7 that the Nevada Supreme Court has recognized that the implied warranty of workmanship 8 accompanies every contract and would embrace the minority view holding that implied 9 warranties do apply to design professionals. (ECF No. 68 at 12-14.) 10 To the extent that Pulver is alleging that Design Defendants breached an implied 11 warranty of workmanship, that claim fails because the sparse case law that exists to 12 support the recognition of an implied warranty of workmanship under Nevada law involves 13 contractors and subcontractors and has not been extended to design professionals. See 14 KB Home Nevada Inc. v. Dunrite Constr., Inc., 402 P.3d 1253 (Nev. 2017), 2017 WL 15 4351376 (unpublished disposition); Robert Dillon Framing, Inc. v. Canyon Villas 16 Apartment Corp., 129 Nev. 1102 (2013), 2013 WL 3984885 (unpublished disposition). In 17 any case, the implied warranty of workmanship has historically applied to builders and 18 contractors in American jurisprudence. See 3 Philip Lane Bruner & Patrick J. O’Connor, 19 Bruner & O’Connor on Construction Law § 9:77 n.2 (2022) (collecting cases). Moreover, 20 “a claim for breach of the implied warranty of workmanship requires privity of contract.” 21 KB Home, 402 P.3d at 1253. Therefore, as to A&E, such a claim also fails because Pulver 22 itself admits that it did not contract with A&E and does not allege any privity of contract 23 with A&E in its pleadings. (ECF No. 40 at 5-6.) 24 Design Defendants correctly point out that Nevada law is silent on the issue of 25 whether design professionals can be held liable under claims of implied warranty and 26 point to California law to support their position. (ECF No. 65 at 18-19.) Nevada courts 27 on the ripeness of Pulver’s contribution claim. (ECF No. 65 at 17-18; EFC No. 68 at 10- 28 12.) 2 Co. v. Tab Constr., Inc., 583 P.2d 449, 451 (Nev. 1978); see also Mort v. United States, 3 86 F.3d 890, 893 (9th Cir. 1996) (“Where Nevada law is lacking, its courts have looked to 4 the law of other jurisdictions, particularly California, for guidance.”). The majority of 5 jurisdictions that have addressed this issue, including California, have rejected the 6 application of implied warranties to the services of design professionals. See 5 Bruner & 7 O’Connor on Construction Law § 17:24 nn.16-18 (collecting cases). “[T]he well settled 8 rule in California is that where the primary objective of a transaction is to obtain services, 9 the doctrines of implied warranty and strict liability do not apply.” Allied Properties v. John 10 A. Blume & Assocs., 25 Cal. App. 3d 848, 855 (Ct. App. 1972). Stated differently, “those 11 who sell their services for the guidance of others in their economic, financial, and personal 12 affairs are not liable in the absence of negligence or intentional misconduct.” Id. at 856 13 (internal citation and quotation marks omitted). The rationale is that “[t]hose who hire 14 [experts for their services] are not justified in expecting infallibility, but can expect only 15 reasonable care and competence.” Id. 16 The Court finds unpersuasive Pulver’s argument that the Nevada Supreme Court’s 17 citation to Williston on Contracts on the implied warranty of good workmanship in KB 18 Home and Robert Dillon indicates that it would adopt the minority view on this issue. (ECF 19 No. 68 at 12-14.) California law simultaneously recognizes the implied warranty of 20 workmanship as applied to contractors, see Pollard v. Saxe & Yolles Dev. Co., 525 P.2d 21 88, 91 (Cal. 1974), and rejects implied warranties as applied to professional services, 22 such as those rendered by architects, engineers, surveyors, and accountants, see Allied 23 Properties, 25 Cal. App. 3d at 855-56. Adopting the majority view under Nevada law would 24 therefore not conflict with its apparent recognition of the implied warranty of good 25 workmanship. The Court thus predicts that the Nevada Supreme Court would look to 26 California law and adopt the majority view that design professionals, such as Design 27 28 2 Court dismisses Pulver’s breach of implied warranties claims against A&E and RTGA.7 3 F. NRS Chapter 40 Claim 4 Lastly, Pulver appears to assert a claim for relief entitled “Meritorious Claims for 5 Relief Against A&E Architects and Reno Tahoe Geo Associates, Inc.; NRS Chapter 40.” 6 (ECF No. 40 at 8-9.) Design Defendants argue that NRS §§ 40.600-40.695 “does ‘not 7 create a new theory upon which liability may be based’” and therefore Pulver’s sixth claim 8 for relief does not constitute a valid, separate cause of action. (ECF No. 65 at 22.) Pulver 9 concedes that this claim for relief was “not intended to assert ‘a new theory on which 10 liability may be based’” but meant to lend clarity and satisfy the requirements of NRS § 11 40.6884 of filing an expert report and attorney affidavit along with the first pleading in an 12 action against a design professional. (ECF No. 68 at 14-16.) The Court therefore 13 considers Pulver’s allegations under its “sixth claim for relief” and the accompanying 14 expert reports and attorney affidavits (ECF Nos. 40-1, 40-2) as meeting the requirements 15 of NRS § 40.6884, but the Court dismisses Pulver’s sixth claim for relief because it does 16 not constitute a valid cause of action. 17 In sum, the Court finds that Pulver fails to state a claim upon which relief may be 18 granted as to all four claims against A&E and as to five of six claims against RTGA. 19 Because Pulver did not request leave to amend and amendment would be futile as the 20 challenged claims fail as a matter of law, the Court dismisses those claims with prejudice. 21 See Leadsinger, Inc. v. BMG Music Publ’g, 512 F.3d 522, 532 (9th Cir. 2008) (holding 22 that a court may deny leave to amend if amendment would be futile). 23 IV. CONCLUSION 24 The Court notes that the parties made several arguments and cited to several 25 cases not discussed above. The Court has reviewed these arguments and cases and 26

27 7Because Pulver agrees with Design Defendants that NRS Chapter 104 and the Universal Commercial Code are inapplicable here, the Court need not—and does not— 28 address those arguments. (ECF No. 65 at 20-22; ECF No. 68 at 12.) 1 || determines that they do not warrant discussion as they do not affect the outcome of the 2 || motions before the Court. 3 It is therefore ordered that Third-Party Defendant A&E Architects, P.C.’s motion to 4 || dismiss (ECF No. 58) is granted. 5 It is further ordered that Third-Party Defendant A&E Architects, P.C. is dismissed 6 || from this action. 7 It is further ordered that Third-Party Defendant Reno Tahoe Geo Associates, Inc.’s 8 || motion to dismiss five of the six claims against it (ECF No. 65), joined by A&E Architects, 9 || P.C., is granted, as specified herein. 10 DATED THIS 29 Day of November 2022. 11 12 13 MIRANDA M. DU 14 CHIEF UNITED STATES DISTRICT JUDGE

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