Judge: David B. Gelfound, Case: 22STCV09082, Date: 2024-06-10 Tentative Ruling

Counsel wishing to submit on a tentative ruling may inform the clerk or courtroom assistant in North Valley Department F49, 9425 Penfield Ave., Chatsworth, CA 91311, at (818) 407-2249.  Please be aware that unless all parties submit, the matter will still be called for hearing and may be argued by any appearing/non-submitting parties. If the matter is submitted on the court's tentative ruling by all parties, counsel for moving party shall give notice of ruling. This may be done by incorporating verbatim the court's tentative ruling. The tentative ruling may be extracted verbatim by copying and pasting, as unformatted text, from the Los Angeles Superior Court’s website, http://www.lasuperiorcourt.org.
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Case Number: 22STCV09082    Hearing Date: June 10, 2024    Dept: F49

Dept. F49 

Date: 6/10/24

Case Name: Edwin

Martinez, v. City of

Santa Clarity, County

of Los Angeles, Los

Angeles County Sherrif’s

Department, and Does

1 – 25.

Case No. 22STCV09082

LOS ANGELES SUPERIOR COURT

NORTH VALLEY DISTRICT

DEPARTMENT F49

MOTION FOR SUMMARY JUDGMENT/SUMMARY ADJUDICATION

Motion filed: 5/19/23

MOVING PARTY: Defendant/Cross-Complainant City of Santa Clarita (the “Moving Defendants” or the “City”) 

RESPONDING PARTY: Plaintiff Edwin Martinez (“Plaintiff” or “Martinez”), and /Cross-Defendant D&M Painting, Inc. (“Cross-Defendant” or “D&M”)

NOTICE: OK 

RELIEF REQUESTED: An order granting City’s Motion for Summary Judgment with respect to the Plaintiff’s Complaint against City, and granting its Motion for Summary Adjudication related to its Cross-Complaint against D&M.

TENTATIVE RULING: The motion for summary judgment is GRANTED. The motion for summary adjudication is DENIED.

BACKGROUND

This action arises from alleged personal injuries sustained by Plaintiff, an employee of a subcontractor, at a construction site owned by Defendant City.

            On March 15, 2022, Plaintiff filed his Complaint against City, County of Los Angeles (“COLA”), Los Angeles County Sheriff's Department (“LASD”) (collectively, “Defendants”) and Does 1 through 25, alleging two causes of action: (1) General Negligence, and (2) Premises Liability. Subsequently, City filed its Answer to the Complaint on April 29, 2022.

On the same day, April 29, 2022, City filed its Cross-Complaint against D&M, and Roes 1 to 25, alleging six causes of action: (1) Express Indemnity, (2) Equitable/Implied Indemnity, (3) Apportionment of Fault, (4) Declaratory Relief, (5) Contribution, and (6) Negligence. Subsequently, D&M responded with its Answer to the Cross-Complaint, filed on May 31, 2022.

            On May 19, 2023, City filed the instant Motion for Summary Judgment/Summary Adjudication (the “Motion”). Subsequently, on November 20, 2023, Plaintiff and D&M filed their respective Oppositions to the Motion. On November 29, 2023, City filed its consolidated Reply.

The hearing for the instant Motion, initially set for August 4, and subsequently rescheduled to December 4, 2023, has been continued to June 10, 2024.

ANALYSIS

A.    Evidentiary Objections

The court has reviewed the evidentiary objections submitted by the parties. While all objections have been considered, due to their extensive nature, the Court will not address each objection individually in this tentative ruling. Instead, the Court's analysis will focus on the substance of the objections raised and their relevance to the determination of the motion at hand. Parties are advised to review the Court's analysis and raise any specific concerns during the oral argument.

B.     Motion for Summary Judgment as to the Complaint

“A party may move for summary judgment in an action or proceeding if it is contended that the action has no merit or that there is no defense to the action or proceeding.” (Code Civ. Proc., § 437c, subd. (a)(1).)

“The 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. In determining if the papers show that there is no triable issue as to any material fact, the court shall consider all of the evidence set forth in the papers, except the evidence to which objections have been made and sustained by the court, and all inferences reasonably deducible from the evidence, except summary judgment shall not be granted by the court based on inferences reasonably deducible from the evidence if contradicted by other inferences or evidence that raise a triable issue as to any material fact.” (Code Civ. Proc., § 437c, subd. (c).) 

“[I]f the moving papers establish a prima facie showing that justifies a [ruling] in the [moving party's] favor, the burden then shifts to the [opposing party] to make a prima facie showing of the existence of a triable material factual issue.”' (Citation.)" (See's Candy Shops, Inc. v. Superior Court (2012) 210 Cal.App.4th 889, 900, quoting Rehmani v. Superior Court (2012) 204 Cal.App.4th 945, 950.) “The defendant or cross-defendant shall not rely upon the allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action or a defense thereto.” (Code Civ. Proc., § 437c, subd. (p)(1).) 

1)      The Privette Doctrine

In the three decades since our Supreme Court decided Privette v. Superior Court (1993) 5 Cal.4th 689, it has “repeatedly reaffirmed the basic rule that a hirer is typically not liable for injuries sustained by an independent contractor or its workers while on the job.” (Gonzalez v. Mathis (2021) 12 Cal.5th 29, 41 (Gonzalez).) This rule, commonly referred to as the Privette doctrine, applies to any person or entity in the hiring chain. (Sandoval v. Qualcomm Incorporated (2021) 12 Cal.5th 256, 270, fn. 2 (Sandoval); Tverberg v. Fillner Construction, Inc. (2010) 49 Cal.4th 518, 528.) Thus, an injured employee of an independent contractor typically cannot sue the contractor that let the subcontract. (Id., at p. 528.)

With respect to injured employees of independent contractors, the Supreme Court has grounded the Privette doctrine on the availability of worker's compensation. As explained in SeaBright Ins. Co. v. U.S. Airways, Inc. (2011) 52 Cal.4th 590, “[i]n light of [the workers’ compensation] limitation on the independent contractor's liability to its injured employee, Privette concluded that it would be unfair to permit the injured employee to obtain full tort damages from the hirer of the independent contractor. That was especially so because (1) the hirer likely paid indirectly for the workers’ compensation insurance as a component of the contract price [citation], (2) the hirer has no right to reimbursement from the contractor even if the latter was primarily at fault [citations], and (3) those workers who happen to work for an independent contractor should not enjoy a tort damages windfall that is unavailable to other workers [citation].” (Id., at pp. 598–599.)

As detailed below, our Supreme Court has recognized only “two limited circumstances” in which the presumption of delegation, a cornerstone of the Privette doctrine, is overcome. (Gonzalez, supra, 12 Cal.5th at p. 38.)

i.                    City’s Initial Burden of Establishing Entitlement to the Privette Doctrine

Here, City asserts that it is not liable for Plaintiff’s injuries under the Privette doctrine. (Mot., at p. 10.) It is undisputed that on June 17, 2019, the City entered into a prime contract with Icon West, Inc. (“Icon”) for the construction of the buildings and other structures at the project site for the new sheriff’s station. (UMF, No. 3.) D&M was listed as a subcontractor who was in charge of “painting” scope of work in the prime contract. (UMF, No. 4.) Subsequently, on August 16, 2019, Icon and D&M entered into a subcontract agreement for the painting work performed at the project site. (UMF, No. 5.) According to the prime contract, the City was defined as the “owner” of the project and Icon was defined as the contractor, with D&M defined as the subcontractor in the subcontract. (UMF, No. 6.) Furthermore, it is undisputed that Plaintiff was working at the project site as an employee of D&M. (UMF, No. 12.)

Plaintiff contends that Defendant City has not met its initial burden of production to demonstrate a prima facie showing that it is not liable to Plaintiff’s injury. (Pl.’s Opp’n., at p. 7.) To support this contention, Plaintiff disputes City’s Separate Statement of Fact Nos. 19, 20, 46, 47, 53, and 54, which addresses the issues of City’s involvement in the project and its awareness of the alleged dangerous condition. (Id., at p. 8.)

The Court notes that Plaintiff’s argument does not directly address the issue of whether City has met its initial burden in the Motion for Summary Judgment – specifically, showing that it is entitled to the protections afforded by the Privette Doctrine. Instead, Plaintiff’s argument pertains to a distinct issue – whether there exists a triable issue that could invoke exceptions to the Privette Doctrine. This separate issue will be addressed in a later portion of this ruling.

The appellate court in Alvarez v. Seaside Transportation Services LLC (2017) 13 Cal.App.5th 635 (Alvarez) held, “the Privette presumption affects the burden of producing evidence.” (Id., at p. 643.)

“The effect of a presumption affecting the burden of producing evidence is to require the trier of fact to assume the existence of the presumed fact unless and until evidence is introduced which would support a finding of its nonexistence, in which case the trier of fact shall determine the existence or nonexistence of the presumed fact from the evidence and without regard to the presumption. (Evid. Code, § 604.)” (Alvarez, supra, 13 Cal.App.5th at p. 644.)

Accordingly, “on summary judgment, a moving party need only show it is entitled to the benefit of a presumption affecting the burden of producing evidence in order to shift the burden of proof to the opposing party to show there are triable issues of fact.” (Alvarez, supra, 13 Cal.App.5th at p. 644.)

Directly applicable to this case, it is held in Alvarez that when the defendant produced evidence that it hired the plaintiff’s employer to perform work at the job site, and the plaintiff was injured while working at the site, “[t]his evidence [is] sufficient to establish that the Privette presumption applies and, therefore, shifts the burden [the] plaintiff to raise a triable issue of fact” that any of the exceptions to the Privette doctrine applies. (Alvarez, supra, 13 Cal.App.5th at p. 644.)

As the records indicate that City has made these necessary showings based on undisputed material facts, thus meeting the initial burden. The burden now shifts to Plaintiff to raise a triable issue of fact that any of the two exceptions to the Privette doctrine apply.

ii.                  Plaintiff’s Burden of Showing the “Concealed Hazard” Exception to the Privette Doctrine

In Kinsman v. Unocal Corp. (2005) 37 Cal.4th 659,  664 (Kinsman), our Supreme Court held that “[a] hirer as landowner may be independently liable to the contractor's employee, even if it does not retain control over the work, if: (1) it knows or reasonably should know of a concealed, preexisting hazardous condition on its premises; (2) the contractor does not know and could not reasonably ascertain the condition; and (3) the landowner fails to warn the contractor.” (Id. at p. 675.)

Here, Plaintiff argues that the evidence presents all necessary elements to invoke the “concealed hazard” exception. He asserts that the partially covered holes, into which Plaintiff fell and sustained injuries, constitute a concealed hazard, and that City was aware of this condition. (Pl.’s Opp’n., at p. 9.) He further claims that he did not know and could not be reasonably expected to know that holes lie below the outermost edges of the plywood. (Ibid.) Additionally, Plaintiff maintain that neither he nor his employer, Cross-Defendant D&M, could have remedied the hazardous condition because their scope of responsibilities was limited to painting. (Id., at pp. 12-13.)

In its Reply, City argues that Plaintiff’s position is contradicted by his own testimony that he and his supervisor were aware of the holes (Reply, at p. 9), referencing the deposition of Plaintiff. However, the Court does not consider this argument by City as it must not weigh the evidence or inference against Plaintiff in examining whether Plaintiff has met his burden of production in reviewing a motion for summary judgment. (See Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 856 (Aguilar).)

Despite this, the Court nonetheless finds that Plaintiff’s own evidence, when viewed as a whole, does not support a triable issue of material fact sufficient to apply the “concealed hazard” exception.

Here, Plaintiff has presented that a total of 72 date-stamped photographs taken by the City, depicting “(1) the holes in the area of the incident on March 4, 2021, at or near the time they were dug; (2) the holes covered with plywood with painted warning “holes” on March 4, 2021; (3) the covered holes with a-frame barricades placed on top of the plywood on March 5, 2021; (4) the covered holes with a-frame barricades no longer in place by April 22, 2021; (5) the painted warning “hole” on the plywood nearly entirely faded by April 30, 2021.” (UMF, No. 97.) Moreover, Plaintiff asserts that he walked toward the edge of the plywood believing the holes were not located at the edge of the plywood. (Pl.’s Opp’n., at p. 4, UMF, No. 79.)

While this evidence may suggest that City was initially aware of the hole’s existence, it does not reasonably infer a critical finding that City retained “exclusive knowledge” of the hazard (see, Toland v. Sunland Housing Group, Inc. (1989) 18 Cal.4th 253, 267) such that the contractor or its employees, including Plaintiff, could not have independently discovered it. According to Kinsman, supra, 37 Cal.4th at p. 674, for the “concealed hazard” exception to apply, it must be shown that the contractor could not have reasonably discovered the hazard without explicit disclosure by City.

            Given that the photographs show progressive changes to the covering and warning over the holes, the Court reasonably infers that there were ample indications of potential hazards at the site, given the consideration that Plaintiff had worked approximately 7 months at the project site. (UMF, No. 71.) Therefore, even if all inferences are drawn from the evidence presented by Plaintiff alone, it does not support a finding that City was the exclusive keeper of critical information regarding the location and nature of the holes.

            Accordingly, the Court concludes that Plaintiff’s attempt to establish a triable issue of material fact necessary to invoke the “concealed hazard” exception lacks sufficient merit.

iii.                Plaintiff’s Burden of Showing the “Retained Control” Exception to the Privette Doctrine

Plaintiff contends that City retained control over the jobsite and affirmatively contributed to the condition that resulted in Plaintiff’s injury. (Pl.’s Opp’n., at p. 13.) He claims that City maintained oversight over the day-to-day operations of the project, as evidenced by the City employee conducting daily walkthroughs of the site in the weeks leading up to the incident. He also notes that City took proactive steps at the project site to ensure that everything was per the contract documents and that City occasionally suggested topics to be discussed at weekly meetings. These points are referenced in Plaintiff’s Separate Statement of Undisputed Fact, Nos. 90-94. (Pl.’s Opp’n., at p. 14.)

In Sandoval, supra, our Supreme Court explained that to establish a hirer’s duty under the “retained control” exception to the Privette doctrine, the plaintiff must show that the hirer retained control over the contracted work and exercised that control in a manner that affirmatively contributed to the contract worker's injury. (Sandoval, supra, 12 Cal.5th at p. 274.)

A hirer “retains control” where it retains a sufficient degree of authority over the manner of performance of the work entrusted to the contractor.” (Sandoval, supra, 12 Cal.5th at p. 274.) “A hirer ‘actually exercise[s]’ its retained control over the contracted work when it involves itself in the contracted work ‘such that the contractor is not entirely free to do the work in the contractor's own manner.’” (Id. at p. 276.) An “affirmative contribution” occurs when a general contractor “is actively involved in, or asserts control over, the manner of performance of the contracted work. [Citation.] Such an assertion of control occurs, for example, when the principal employer directs that the contracted work be done by use of a certain mode or otherwise interferes with the means and methods by which the work is to be accomplished. [Citations.]’ [Citation.]” (Hooker, supra, 27 Cal.4th at p. 215.)

            The Hooker case (Hooker v. Department of Transportation (2002) 27 Cal.4th 198, 213 (Hooker) involved the death of a crane operator, Hooker, who was killed on a California Department of Transportation (Caltrans) site. The decedent was employed by a general contractor hired by Caltrans to construct a highway overpass. The overpass was 25 feet wide, and the crane with the outriggers extended was 18 feet wide, so Hooker had to retract the crane's outriggers to allow other construction vehicles to pass. Shortly before the fatal accident, Hooker retracted the outriggers; he then attempted to swing the boom without first reextending the outriggers, causing the crane to tip over. Hooker was thrown to the pavement and killed. (Id. at p. 202.) The Supreme Court affirmed the trial court’s grant of summary judgment, explaining, “although Caltrans was aware that Hooker was retracting the crane's outriggers to allow traffic to pass, it had not ordered him to do so. (Id. at p. 214.) Under these circumstances, the court said Caltrans's actions had not affirmatively contributed to Hooker's death.

            Conversely, courts have found hirers liable under circumstances where their intervention or provision affirmatively contributed to an injury. For instance, a hirer was found liable when it furnished the employee with a defective forklift (see, e.g., McKown v. Wal-Mart Stores, Inc.  (2002) 27 Cal.4th 219, 223-226), or when a general contractor undertook to supply scaffolding for subcontractor’s use that contributed to an injury (see Brown v. Beach House Design & Development (2022) 85 Cal.App.5th 516.)

Notably, the Hooker Court held that, “summary judgment was appropriate here. Plaintiff raised triable issues of material fact as to whether defendant retained control over safety conditions at the worksite. However, plaintiff failed to raise triable issues of material fact as to whether defendant actually exercised the retained control so as to affirmatively contribute to [Hooker's death].” (Id., at p. 215.) (Italics in original.)

Mirroring the reasoning in Hooker, the Court finds that Plaintiff’s evidence supports, at most, a triable issue of material fact as to whether City retained control over the conditions at the project site through its involvement in weekly meetings and walk-throughs. However, the evidence does not show that City affirmatively contributed to Plaintiff’s injury, for example, by ordering the placement of the plywood over the holes, or directing Plaintiff and his supervisor to traverse on a path through holes to get the lift inside the building. (UMF, No. 14.) Thus, the Court concludes that Plaintiff has failed to raise a triable issue of material fact, demonstrating that City actually exercised the retained control in a manner that affirmatively contributed to Plaintiff’s injury.

            Furthermore, the Court distinguishes Ray v. Silverado Constructors (2002) 98 Cal.App.4th 1120 (Ray), which Plaintiff relies on as an analogous case. (Pl.’s Opp’n., at p. 14.) The California Supreme Court in a recent case Gonzalez, supra, emphasizes that the dispositive finding in Ray is that “the hirer contractually prohibited independent contractors from implementing the one safety precaution that would have saved the worker’s life.” (Id., at p. 56.) (Underlines added.)

Here, Plaintiff does not argue that City is contractually liable for warning or covering the holes, nor that City had promised to undertake a particular safety measure concerning the holes. Instead, Plaintiff’s contention is based on the grounds that City acted negligently by failing to warn of the project site’s condition despite having knowledge of it.

However, this is insufficient. As the Supreme Court stated in Gonzalez, “[a] hirer's failure to correct an unsafe condition” is insufficient, by itself, to establish liability under Hooker’s exception to the Privette doctrine. (Khosh v. Staples Construction Co., Inc. (2016) 4 Cal.App.5th 712, 718; see also Tverberg v. Fillner Construction, Inc. (2012) 202 Cal.App.4th 1439, 1446, [“[P]assively permitting an unsafe condition to occur ... does not constitute affirmative contribution”].) To be liable, a hirer must instead exercise its retained control over any part of the contracted-for work — such as by directing the manner or methods in which the contractor performs the work; interfering with the contractor's decisions regarding the appropriate safety measures to adopt; requesting the contractor to use the hirer's own defective equipment in performing the work; contractually prohibiting the contractor from implementing a necessary safety precaution; or reneging on a promise to remedy a known hazard — in a manner that affirmatively contributes to the injury. [Internal citation omitted.]” (Gonzalez, supra, at pp. 46-47.)

            Accordingly, in alignment with the decades-long precedent set by our Supreme Court in Privette and its progeny, the Court concludes that Plaintiff has not met the burden to implicate the “retained control” exception to the Privette Doctrine, by failing to raise a trial issue of material facts for all requirement elements under this exception.

Based on the above, the Court concludes that the Privette Doctrine applies in this case, and therefore, City does not retain a duty of care to the subcontractor’s employees, including Plaintiff.

2)      Cause of Action – Negligence

A cause of action for Negligence includes the following elements: (1) legal duty owed to plaintiffs to use due care; (2) breach of duty; (3) causation; and (4) damages to plaintiff. County of Santa Clara v. Atlantic Richfield Co. (2006) 137 Cal.App.4th 292, 318; Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917.) A negligence claim must be based on a duty owed by defendant to plaintiff. Absent such a duty, there is no liability, no matter how easily the injury might have been prevented. (J.L. v. Children’s Institute, Inc. (2009) 177 Cal.App.4th 388, 396.) The existence and scope of duty are questions of law for the court. (Artiglio v. Corning, Inc. (1998) 18 Cal.4th 604, 614.)

Given the Court’s prior conclusion that the Privette Doctrine applies in this case, City does not owe Plaintiff a legal duty. Absent this duty, there can be no liability for negligence.

Thus, the Court GRANTS the Motion for Summary Judgment as to the cause of action for negligence.

3)      Cause of Action – Premises Liability

A premises liability claim requires the following elements: (1) that defendant owned, leased, occupied or controlled the property, (2) that defendant was negligent in the use, maintenance or management of premises; (3) that plaintiff was harmed, and (4) that defendant’s negligence was a substantial factor in causing plaintiff’s harm. ((Brooks v. Eugene Burger Management Corp. (1989) 215 Cal.App.3d 1611, 1619 [premises liability is a form of negligence]; See also Pultz v. Holgerson (1986) 184 Cal.App.3d 1110, 1116-1117.)

For the same reason as explained previously, Plaintiff is unable to establish the negligence element for a premises liability claim under the Privette doctrine. 

Plaintiff argues that City may not avoid premises liability because the owner’s duty to put and maintain its premises in a reasonably safe condition is nondelegable. (Pl.’s Opp’n., at p. 16.) Plaintiff cites Government Code section 815.4, which states, in part, that “[a] public entity is liable for injury proximately caused by a tortious act or omission of an independent contractor of the public entity to the same extent that the public entity would be subject to such liability if it were a private person.”

Additionally, Plaintiff references Government Code section 835, which provides, “Except as provided by statute, a public entity is liable for injury caused by a dangerous condition of its property if the plaintiff establishes that the property was in a dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and that either: (a) A negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the dangerous condition; or (b) The public entity had actual or constructive notice of the dangerous condition under Section 835.2 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.”

The argument, however, was rejected by the Court of Appeal in Marin v. Department of Transportation (2023) 88 Cal.App.5th 529, which affirmed the trial court’s grant of motion for summary judgment, holding, “we agree with the trial court that the Privette doctrine serves as an absolute bar to holding the DOT liable for decedent's death under section 835 (dangerous condition) or section 815.2 (vicarious liability for its employees’ negligence).”

Therefore, the Court GRANTS the Motion for Summary Judgment as to the premises liability claim.

C.    Motion for Summary Adjudication of the Issues in Cross-Complaint against D&M

City moves the Court to summarily adjudicate the legal issues associated with the causes of action in its Cross-Complaint against D&M, alleging: (1) Express Indemnity, (2) Equitable/Implied Indemnity, (3) Apportionment of Fault, (4) Declaratory Relief, (5) Contribution, and (6) Negligence. The issues are phrased as follows:

“Issue 3: D&M failed to defend CITY against the claims alleged by Plaintiff.”

“Issue 4: D&M failed to indemnify CITY against the claims alleged by Plaintiff.”

(Mot., at pp. 15 [“D&M BREACHED ITS DUTY TO DEFEND AND INDEMNIFY CITY”], 19.)

1)      Governing Summary Adjudication Standards

A party may seek summary adjudication on whether a cause of action, affirmative defense, or punitive damages claim has merit or whether a defendant owed a duty to a plaintiff. (Code Civ. Proc., § 437c, subd. (f)(1).) “A motion for summary adjudication ... shall proceed in all procedural respects as a motion for summary judgment.” (Code Civ. Proc., § 437c, subd. (f)(2).) The moving party “bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact.” (Aguilar, supra, 25 Cal.4th at pp. 850–851.) To meet that burden, the moving party must present evidence sufficient to show they are entitled to summary adjudication as a matter of law. (Code Civ. Proc., § 437c, subds. (c) & (f)(2); Monticello Ins. Co. v. Essex Ins. Co. (2008) 162 Cal.App.4th 1376, 1385.)

The Legislature authorized a trial court to summarily adjudicate whether a defendant owes a duty because “‘[t]he question of whether a duty exists under certain circumstances is generally a question of law [citation]....’” (Linden Partners, supra, 62 Cal.App.4th at p. 522.) Accordingly, the existence of a duty can often be resolved on a summary adjudication motion. The question whether a defendant breached a duty, however, is generally a question of fact for the jury (see, e.g., Amtower v. Photon Dynamics, Inc. (2008) 158 Cal.App.4th 1582, 1599; Piscitelli v. Friedenberg (2001) 87 Cal.App.4th 953, 983), and therefore is not amenable to summary adjudication unless it completely disposes of a cause of action.

Here, whether D&M breached its contractual duty purportedly owed to City is a question of fact, thus not an issue on which Code of Civil Procedure section 437c, subdivision (f)(1) authorizes summary adjudication. Additionally, City does not contend that the issues as framed in the Motion for Summary Adjudication completely dispose of a cause of action in its Cross-Complaint.

            Based on the above, the Court concludes that it lacks authority to summarily adjudicate whether D&M breached any duties.

            Therefore, the Court DENIES the Motion for Summary Adjudication.

CONCLUSION

Defendant City of Santa Clarita’s Motion for Summary Judgment as to Plaintiff’s Complaint against it is GRANTED.

Defendant City of Santa Clarita’s Motion for Summary Adjudication related to its Cross-Complaint against D&M Painting, Inc. is DENIED.

Moving party to give notice.