Judge: Colin Leis, Case: BC680186, Date: 2022-07-26 Tentative Ruling

Case Number: BC680186    Hearing Date: July 26, 2022    Dept: 3

SUPERIOR COURT OF CALIFORNIA

COUNTY OF LOS ANGELES – NORTHEAST DISTRICT

DEPARTMENT 3

MOVING PARTY:                Defendant/Cross-Defendant West Coast Arborists, LLC

RESPONDING PARTY:       Defendant/Cross-Complainant City of South Pasadena

West Coast Arborists, Inc.’s Motion for Summary Judgment

The court considered the moving papers, opposition, and reply papers filed in connection with the motion.

BACKGROUND

This action arises out of a trip and fall incident involving an uplift in a sidewalk caused by a tree root. Plaintiff Liwen Hsu Togi filed this action on October 18, 2017, against Defendant City of South Pasadena (the “City”). On August 22, 2018, the City filed a cross-complaint against West Coast Arborists, LLC (“WCA”) alleging causes of action for apportionment of fault, indemnification, declaratory relief, and breach of contract. On October 16, 2018, WCA filed its own cross-complaint against the City for equitable indemnity, apportionment, and declaratory relief. On August 24, 2020, the court granted WCA’s motion for summary judgment as to Plaintiff’s action.

            WCA now moves for summary judgment as to the City’s cross-complaint.

EVIDENCE

            The court grants WCA’s request for judicial notice as to Exhibits A through P.

            The court denies the City’s request for judicial notice as to Exhibits A and B.

            The court finds it unnecessary to rule on WCA’s evidentiary objections submitted with its reply. (Code Civ. Proc., § 437c, subd. (q).)

LEGAL STANDARD

“[A] motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Code Civ. Proc., § 437c, subd. (c).) The moving party bears the initial burden of production to make a prima facie showing that there are no triable issues of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) If the moving party carries this burden, the burden shifts to the opposing party to make a prima facie showing that a triable issue of material fact exists. (Ibid.) Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.)

DISCUSSION

Express Indemnity and Duty to Defend

In its cross-complaint, the City alleges that it entered into an Agreement for Services (the “Agreement”) with WCA that contains an indemnification/hold harmless provision. (Cross-Compl., Ex. A., para. 7.) The City alleges it tendered to WCA the defense of Plaintiff’s lawsuit against the City, but WCA did not respond to the tender and has refused to defend and indemnify the City from the claims asserted in Plaintiff’s complaint. The City’s claims against WCA for breach of contract and declaratory relief rest on those allegations.

Under the indemnification provision, WCA agreed to defend and indemnify the City against all claims “occurring or arising directly out of the negligent acts, recklessness or willful misconduct of [WCA] in the performance of its services under [the] Agreement.” (WCA’s Undisputed Material Fact (“UMF”) 2.) WCA contends that because the “services” are limited to those expressly contained in the Agreement and no language in the Agreement required WCA to inspect and report sidewalk damage, Plaintiff’s injuries could not have occurred or arisen “directly” out of WCA’s negligent performance of its “services” under the Agreement.

            First, the court notes that WCA offers no analysis of or support for its first contention—that “services” (as the term is used in the indemnification provision) is limited to those expressly contained in the Agreement. Presumably, WCA is arguing that “services” is equivalent to the defined term “Services” as set forth in paragraph 1 of the Agreement. That paragraph provides that “Services” are “the tasks, obligations, and services set forth in the ‘Scope of Services’ attached to and incorporated into [the] Agreement as Exhibit A.” (Cross-Compl., Ex. A, para. 1.) It is essentially undisputed that the Scope of Services does not explicitly include inspecting and reporting sidewalk damage. (See UMF 4.) But because the defined term “Services” is not used in the indemnification provision, it is ambiguous whether “services” is, in fact, limited to those expressly contained in the Agreement.

            Second, the court notes that WCA offers no evidence tying Plaintiff’s injuries to the inspection/reporting of sidewalk damage. Nothing in Plaintiff’s complaint or the City’s cross-complaint identifies the failure to inspect or report sidewalk damage as the negligent conduct at issue, and WCA has not presented any discovery responses or other evidence that sets forth the factual basis for Plaintiff’s or the City’s theory of liability against WCA. To the extent that WCA is requesting judicial notice of WCA’s prior motion for summary judgment against Plaintiff in order to incorporate the evidence from that prior motion into WCA’s pending motion against the City, the request is procedurally improper. And to the extent that WCA is using the court’s earlier order granting summary judgment in favor of WCA against Plaintiff to shortcut its burden as the moving party in WCA’s motion against the City, that, too, is improper. In any event, WCA’s contention that Plaintiff’s injuries could not have occurred or arisen out of any negligent, reckless, or willful act by WCA because the court’s prior order found WCA owed no duty to Plaintiff, overstates the prior order’s findings. Moreover, collateral estoppel does not apply to the express indemnity claim because the issue decided in the prior summary judgment motion is not identical with the one presented here. (Cf. Columbus Line, Inc. v. Gray Line Sight-Seeing Companies Associated, Inc. (1981) 120 Cal.App.3d 622, 629 [finding that summary judgment determination “that Gray Line was not negligent toward plaintiffs” was identical to cross-complainant’s attempt to seek equitable indemnity “from Gray Line on the ground that it was negligent toward plaintiffs”].[1]) In WCA’s summary judgment motion on Plaintiff’s complaint, the issue decided was that there was no triable issue of fact as to whether WCA was negligent toward Plaintiff under any theory, including a contract theory; the court found no liability because WCA owed no duty to Plaintiff. The issue in WCA’s pending motion is whether a triable issue of fact exists that Plaintiff’s injuries arose from WCA’s negligent performance of its services under the Agreement. While the evidence and argument involving these issues may overlap, they are not identical, and thus collateral estoppel does not shift the summary judgment burden.[2]

            Accordingly, the court finds WCA has not carried its initial burden of showing the City cannot establish that WCA breached its contract by failing to defend or indemnify the City and that, accordingly, no merit exists to the City’s claims for breach of contract and declaratory relief. Because WCA is moving for summary judgment, not summary adjudication, and because the presence of any triable issue requires denial of the motion for summary judgment, the court need not consider WCA’s arguments about the City’s equitable causes of action.

CONCLUSION

Based on the foregoing, the court denies WCA’s motion for summary judgment.

The City is ordered to give notice of this ruling.

IT IS SO ORDERED.

DATED:  July 25, 2022

_____________________________

Colin Leis

Judge of the Superior Court