Judge Elaine W. Mandel, Case Number: 22SMCV00098, Date: 2024-11-01 Tentative Ruling

Judge: Elaine W. Mandel, Case: 22SMCV00098, Date: 2024-11-01 Tentative Ruling

Case Number: 22SMCV00098 Hearing Date: November 1, 2024 Dept: P

Tentative Ruling

Miller v. Oto Development LLC, Case no. 22SMCV00098

Hearing date November 1, 2024

Defendant/Cross-Complainant Lusardi’s Motion for Summary Adjudication

Plaintiff Abigail Miller, who is disabled and uses a wheelchair, alleges a door fell, striking her and pinning her in a doorway in defendants’ hotel. She alleges the hotel denied requests for reasonable accommodations, and the hotel and its amenities were inaccessible and/or dangerous. Plaintiff sues defendants Palmetto Hospitality of Santa Monica II, LLC Lessee, Interstate Management Company and Lusardi Construction for negligence, premises liability, disability discrimination and false imprisonment. Interstate Management cross-complains against Lusardi for indemnity arising from Lusardi’s role as general contractor. Lusardi sued JSI Doors, Inc. for indemnity and declaratory relief arising from JSI’s installation of the door.

Lusardi moves for summary adjudication on its claim for declaratory relief against cross-defendant JSI. Lusardi asserts its subcontract obligates JSI to defend and indemnify it against claims arising from JSI’s work.

JSI opposes, arguing Lusardi fails to establish the essential elements of declaratory relief, the indemnification provision is void and the claim for which Lusardi seeks indemnification falls outside the scope of the indemnification provision.

Evidentiary Objections

JSI evidentiary objections to Lusardi UMF. Objections 1-8 OVERRULED.

JSI evidentiary objection to declaration of Kurt Evans. Objection 1 OVERRULED.

JSI evidentiary objection to declaration of Katie Branch. Objection 1 OVERRULED.

Lusardi evidentiary objections to declaration of John Henige. Objection 1 SUSTAINED (parol evidence rule), objection 2 OVERRULED.

Request for Judicial Notice

Lusardi requests judicial notice pursuant to Cal. Evid. Code §452(d)(1) of the following: (1) 1/20/22 complaint, (2) 9/19/22 FAC, (3) 2/7/23 SAC, (4) 8/2/23 operative TAC, (5) Lusardi 4/25/23 cross-complaint, (6) Palmetto Hospitality of Santa Monica II, LLC’s 2/2/23 cross-complaint, (7) 2/28/23 Doe amendment to SAC substituting Lusardi for Doe defendant No. 5, (8) 10/4/23 Doe amendment to TAC substituting JSI for Doe defendant No. 4. GRANTED, as these are all court records.

Cross-Complainant Lusardi Construction’s Motion for Summary Adjudication

The rules applicable to summary judgments apply equally to motions for summary adjudication. Blue Shield of California Life & Health Ins: Co. v. Superior Court (2011) 192 Cal.App.4th 727. The moving party bears the burden of persuasion that there is no triable issue of material fact and that it is entitled to judgment as a matter of law. Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850. Once a moving party meets their burden, the burden shifts to respondents to show a triable issue of material fact. Id.

JSI argues Lusardi has not met its initial burden because its moving papers did not address the essential elements of the claim for declaratory relief. JSI asserts Lusardi fails to meet its burden per Juge v. County of Sacramento (1993) 12 Cal.App.4th 59, 67-68 (holding the moving party has the initial burden to define the issues to be summarily adjudicated in its moving papers).

Lusardi’s cross-complaint alleges “cross-complainant has tendered its defense to cross-defendants… but cross-defendants have not agreed to defend. Cross-complainant seeks an order declaring cross-defendants… must immediately defend cross-complainant.” Compl. 11:23-28, 12:2-5. Lusardi defined the issues within its declaratory relief claim such that JSI is advised of the issues to be addressed.

JSI argues the subcontract’s indemnification provision is void and unenforceable. JSI also asserts plaintiff’s claims do not fall within JSI’s scope of work, so the indemnification provision is unenforceable under Civ. Code §2782.05(a). JSI argues Miller’s operative TAC does not allege any claims against JSI or Doe 4, so JSI’s scope of work is not implicated. The TAC alleges “defective installation of the bathroom door.” TAC, para. 53. A general description of defects can implicate a subcontractor’s work and trigger the duty to defend. UDC-Universal Dev., L.P. v. CH2M Hill (2010) 181 Cal.App.4th 10. JSI does not provide material facts that contradict plaintiff’s pleadings.

JSI argues the indemnification provision states “subcontractor shall not be required to indemnify contractor for contractor’s willful misconduct, sole negligence or active negligence.” JSI argues Lusardi was the general contractor and supervisor of JSI’s work, so any defects in JSI’s installation of the doors makes Lusardi negligent in its supervision of JSI. Lusardi seeks to compel JSI’s duty to defend. The two are distinct actions; indemnification requires a finding of guilt, whereas the duty to defend arises in the course of litigation. No triable issue of material fact exists.

JSI argues Lusardi failed to properly tender its claim to JSI. The duty to defend does not arise automatically, but upon a proper tender of defense. Civ. Code § 2782.05(e). JSI argues the tender correspondence from Lusardi does not provide a statement regarding what portion of Lusardi’s fees and costs should be reasonably allocated to JSI. JSI asserts the then-operative 2/7/23 SAC did not contain allegations pertaining to JSI’s work at the hotel.

Lusardi argues its tender to JSI complied with Civ. Code §2782.05(e). Lusardi’s tender included defects alleged by plaintiff, including “the August 7, 2020, incident was due to a ‘design flaw and/or defective installation of the bathroom door.’” ASMF No. 55, FAC para. 53. Civ. Code §2782.05(e) requires a written statement of fees and costs in addition to prescribing proper tender; the two requirements are distinct and subsequent. No triable issue of material fact exists.

JSI raised numerous arguments regarding the scope of the indemnification provision, the scope of plaintiff’s claims and the scope of Lusardi’s liability. These contentions are not supported by material facts; the disputed facts identified in the UMF, SSMF and ASMF address JSI’s subjective interpretation of the subcontract or are identified by JSI as immaterial. Lusardi demonstrated that no triable issue of material fact exists regarding the existence of the subcontract, the indemnification clause in the subcontract, the scope of plaintiff’s claims and the scope of JSI’s work. JSI fails to demonstrate a triable issue of material facts. GRANTED.