Judge Anne Hwang, Case Number: 21STCV25331, Date: 2024-11-21 Tentative Ruling

PLEASE NOTE: Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached. If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit. The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling. If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court. If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely. Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court.

On January 10, 2022, Plaintiffs Poppy Webster, Ludovica Pietroiacovo, a minor, Valentina Pietroiacovo, a minor, and Michael Pietroiacovo (collectively, “Plaintiffs”) filed the operative second amended complaint (“SAC”) against Defendants Adam Gruen, Amanda Gruen, Palisades Homeowners Association #3, and Does 1 to 100.

The SAC alleges that on June 6, 2021, a pit bull owned by Adam Gruen and Amanda Gruen (collectively, “the Gruens”), attacked Michael Pietroiacovo and Poppy Webster’s daughter, Ludovica Pietroiacovo (“Lulu”), biting her in the head, while her sister, Valentina Pietroiacovo (“Valentina”) was present. (SAC ¶¶ 16–19.) Plaintiffs allege that at the time of the incident, Lulu and Valentina were guests in the Gruens’ house, and playing with other children in the Gruens’ garage; the subject dog was in the garage and tied to a cord that he subsequently escaped from. (SAC ¶ 16–17.) Plaintiffs allege that Defendant had prior notice of the dog’s dangerous condition, based on two incidents in 2016 and 2018.

Plaintiffs allege that Defendant Palisades Homeowners Association #3 (“HOA”), which is the homeowner’s association in the community where Plaintiffs and the Gruens live, breached its duty of care to Plaintiffs “both by failing to enforce its own CC&Rs to abate the nuisance, enforce remedial measures, or otherwise mitigate the danger posed by the pit bull.” (SAC ¶ 46.) Plaintiffs allege Defendant could have warned the community, imposed restrictions on the dog, or sought a preliminary injunction. (Id. ¶ 46.)

On March 28, 2022, HOA filed a cross-complaint against the Gruens for, among other causes of action, breach of contract and express indemnification. The cross-complaint alleges that the Gruens, as members of the HOA, are bound by its Covenants, Conditions and Restrictions for Condominium Ownership (“CC&Rs”), which requires the Gruens to defend and indemnify HOA. (Cross-Complaint ¶ 6, 24-25.)

HOA now moves for summary adjudication, arguing that the Gruens owe a contractual duty to defend HOA against Plaintiffs’ action.[1] No opposition has been filed.

“A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if the party contends that the cause of action has no merit, that there is no affirmative defense to the cause of action, that there is no merit to an affirmative defense as to any cause of action, that there is no merit to a claim for damages, as specified in Section 3294 of the Civil Code, or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs.” (Code Civ. Proc., § 437c, subd. (f)(1).) “A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (Id.)

“[T]he party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law[.] There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) “[T]he party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact.” (Ibid.; Smith v. Wells Fargo Bank, N.A. (2005) 135 Cal.App.4th 1463, 1474 [summary judgment standards held by Aguilar apply to summary adjudication motions].) Further, in line with Aguilar v. Atlantic Richfield Co., “[o]n a motion for summary adjudication, the trial court has no discretion to exercise. If a triable issue of material fact exists as to the challenged causes of action, the motion must be denied. If there is no triable issue of fact, the motion must be granted.” (Fisherman's Wharf Bay Cruise Corp. v. Superior Court (2003) 114 Cal.App.4th 309, 320.)

“On a summary judgment motion, the court must therefore consider what inferences favoring the opposing party a factfinder could reasonably draw from the evidence. While viewing the evidence in this manner, the court must bear in mind that its primary function is to identify issues rather than to determine issues. Only when the inferences are indisputable may the court decide the issues as a matter of law. If the evidence is in conflict, the factual issues must be resolved by trial.” (Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 839 [cleaned up].) Further, “the trial court may not weigh the evidence in the manner of a factfinder to determine whose version is more likely true. Nor may the trial court grant summary judgment based on the court's evaluation of credibility.” (Id. at p. 840 [cleaned up]; see also Weiss v. People ex rel. Department of Transportation (2020) 9 Cal.5th 840, 864 [“Courts deciding motions for summary judgment or summary adjudication may not weigh the evidence but must instead view it in the light most favorable to the opposing party and draw all reasonable inferences in favor of that party”].)

“Parties to a contract, . . . , may define therein their duties toward one another in the event of a third party claim against one or both arising out of their relationship. Terms of this kind may require one party to indemnify the other, under specified circumstances, for moneys paid or expenses incurred by the latter as a result of such claims. (Citation omitted.) They may also assign one party, pursuant to the contract's language, responsibility for the other's legal defense when a third party claim is made against the latter.” (Crawford v. Weather Shield Mfg., Inc. (2008) 44 Cal.4th 541, 551 [citation omitted, emphasis in original] [hereafter, Crawford].)

“In noninsurance contexts, . . . it is the indemnitee who may often have the superior bargaining power, and who may use this power unfairly to shift to another a disproportionate share of the financial consequences of its own legal fault. [citations.] This public policy concern influences to some degree the manner in which noninsurance indemnity agreements are construed. For example, it has been said that if one seeks, in a noninsurance agreement, to be indemnified for his or her own active negligence, or regardless of the indemnitor's fault—protections beyond those afforded by the doctrines of implied or equitable indemnity—language on the point must be particularly clear and explicit, and will be construed strictly against the indemnitee.” (Id. at 552.)

“[T]he [indemnitor’s] duty to defend is broader than its duty to indemnify. The latter duty runs only to claims that are actually covered by the [agreement], while the duty to defend extends to claims that are merely potentially covered. The [indemnitor’s] defense duty is a continuing one, arising on tender of defense and lasting until the underlying lawsuit is concluded, or until it has been shown that there is no potential for coverage.” (Crawford, supra, 44 Cal.4th at p. 547 [citations and quotations omitted, emphasis in original].) Further, “a contractual promise to “defend” another against specified claims clearly connotes an obligation of active responsibility, from the outset, for the promisee’s defense against such claims. The duty promised is to render, or fund, the service of providing a defense on the promisee’s behalf — a duty that necessarily arises as soon as such claims are made against the promisee, and may continue until they have been resolved.” (Id. at pp. 553–554.)

Equally important, “[i]f not forbidden by other, more specific, statutes, the obligations set forth in [Civil Code] section 2778 thus are deemed included in every indemnity agreement unless the parties indicate otherwise.” (Crawford, supra, 44 Cal.4th at p. 553.) Civil Code section 2778 provides, in pertinent part:

3. An indemnity against claims, or demands, or liability, expressly, or in other equivalent terms, embraces the costs of defense against such claims, demands, or liability incurred in good faith, and in the exercise of a reasonable discretion;

4. The person indemnifying is bound, on request of the person indemnified, to defend actions or proceedings brought against the latter in respect to the matters embraced by the indemnity, but the person indemnified has the right to conduct such defenses, if he chooses to do so;

5. If, after request, the person indemnifying neglects to defend the person indemnified, a recovery against the latter suffered by him in good faith, is conclusive in his favor against the former

(Civ. Code § 2778, subds. (3)–(5).) “By virtue of these statutory provisions, the case law has long confirmed that, unless the parties' agreement expressly provides otherwise, a contractual indemnitor has the obligation, upon proper tender by the indemnitee, to accept and assume the indemnitee's active defense against claims encompassed by the indemnity provision. Where the indemnitor has breached this obligation, an indemnitee who was thereby forced, against its wishes, to defend itself is entitled to reimbursement of the costs of doing so.” (Crawford, supra, 44 Cal.4th at p. 555.) Moreover,

Implicit in this understanding of the duty to defend an indemnitee against all claims “embraced by the indemnity,” as specified in subdivision 4 of section 2778, is that the duty arises immediately upon a proper tender of defense by the indemnitee, and thus before the litigation to be defended has determined whether indemnity is actually owed. This duty, as described in the statute, therefore cannot depend on the outcome of that litigation. It follows that, under subdivision 4 of section 2778, claims “embraced by the indemnity,” as to which the duty to defend is owed, include those which, at the time of tender, allege facts that would give rise to a duty of indemnity. Unless the indemnity agreement states otherwise, the statutorily described duty “to defend” the indemnitee upon tender of the defense thus extends to all such claims.” (Id. at p. 558.)

Whether a duty to defend arises from an indemnity agreement is question of law for a court. (See Centex Homes v. R-Help Construction Co., Inc. (2019) 32 Cal.App.5th 1230 (“the duty to defend was not a question of fact for the jury; the trial court was compelled to determine [that issue of duty] as a matter of law”].) In Centex Homes, the court rejected the promisee’s argument that “the question of scope of work under the subcontract may be resolved independently of the underlying tort action,” because the court found that the scope of work was an issue in the underlying tort action, and therefore, the duty to defend arose “as a matter of law from the mere allegation in the underlying tort action that plaintiff’s injuries arose out of R-Help’s work.” (Id. at 1236.)

The duty to defend continues until the underlying lawsuit is concluded “or until it has been shown that there is no potential for coverage.” (Montrose Chemical Corp. v. Superior Court (1993) 6 Cal.4th 287, 295 (emphasis in original).) “To prevail, the insured must prove the existence of a potential for coverage, while the insurer must establish the absence of any such potential. In other words, the insured need only show that the underlying claim may fall within policy coverage; the insurer must prove it cannot.” (Id. at 300 (emphasis in original).) Doubt about an insurer’s duty to defend generally must be resolved in the insured’s favor. (Id.)

- The HOA’s Covenants, Conditions and Restrictions (CC&Rs) are recorded against every unit in the Community. (UMF 5.)

- The Gruens received a copy of the CC&Rs when they bought their home in 2014. (UMF 7.)

- The CC&Rs state: “Each Member shall have the rights, duties and obligations set forth in this Declaration, the Articles, the By-Laws and the Association Rules[.] (UMF 8.)

- The Declaration for the CC&Rs provides in pertinent as follows: … [O]wners, mortgagees, occupants and all other persons hereafter acquiring any interest in the Property or any part thereof shall at all times enjoy the benefits of, and shall hold, sell and convey their interests subject to the rights, easements, covenants, conditions, restrictions, and obligations hereafter set forth, all which are hereby declared to be in furtherance of a general plan established for the purpose of enhancing, perfecting and maintaining the value, desirability, and attractiveness of the Property. (UMF 9.)

- Article VIII Section 10 states in pertinent part: “no animals . . . may be kept which result in an annoyance or are obnoxious to residents in the vicinity, and . . . , any Owner shall be absolutely liable to each and all remaining Owners, . . . and to the Association, for any and all damage to person . . . caused by any pets . . . kept upon the Units[.]” (UMF 10.)

- On November 23, 2021, the HOA tendered the Plaintiffs’ claims against the HOA to the attorney for the Gruens, asking that the Gruens immediately agree to defend and indemnify the HOA against the Plaintiffs’ claims. (UMF 18.)

- The Gruens, separate and apart from their insurers, have never accepted their obligation to indemnify the HOA against damages arising out of their dog’s conduct. (UMF 29.)

Based on the foregoing, Cross-Complainant Palisades Homeowners Association #3’s Motion for Summary Adjudication on its cross complaint is GRANTED.

Moving party shall provide notice of this ruling and file a proof of service of such.

[1] On November 4, 2024, the Court on its own continued the hearing for this matter from November 14, 2024, to the instant date. (Min. Order, 11/4/24.)

DEPT:	32
HEARING DATE:	November 21, 2024
CASE NUMBER:	21STCV25331
MOTIONS:	Motion for Summary Adjudication of Cross Complaint
MOVING PARTY:	Cross-Complainant Palisades Homeowners Association #3
OPPOSING PARTY:	None