Judge: Gail Killefer, Case: 21STCV15818, Date: 2025-04-01 Tentative Ruling
Case Number: 21STCV15818 Hearing Date: April 1, 2025 Dept: 37
HEARING DATE: Tuesday, April 1, 2025
CASE NUMBER: 21STCV15818
CASE NAME: Jose Correa, et al. v. SO Group Realty, LLC, et al.
MOVING PARTY: Defendants/Cross-Complainants the
Montgomery Management Company and Maria V. Mongomery, individually and as
Trustee the MVM Evergreen Trust, dated March 19, 2016.
OPPOSING PARTY: Defendant/Cross-Defendant Star
Parking Management
TRIAL DATE: 8 July 2025
PROOF OF SERVICE: OK
PROCEEDING: Motion for Summary
Adjudication
OPPOSITION: 21 February 2025
REPLY: 3
March 2025
TENTATIVE: Cross-Complainants’
Motion for Summary Adjudication is granted in part and denied in part. Summary
adjudication of the 1st, 2nd, and 6th causes of action is granted as to
Cross-Complainant Maria V. Montgomery, individually,
and as Trustee of the MVM Evergreen Trust, dated March 19, 2016. Summary
adjudication is granted as to the 2nd cause of action as to Cross-Complainant
Montgomery Management Company but denied as to the 1st and 6th causes of
action.
Background
on
April 27, 2021, Jose Correa and Veronica Correa (“Plaintiffs”) filed a
Complaint against SO Group Realty, LLC; Star Parking Management, Inc. (“Star
Parking”); and Does 1 to 100. The Complaint alleges that on June 6, 2019,
Plaintiff Jose Correa was hit on his head and body by a heavy gate while at the
parking lot (“the Premises”).
On August 23, 2021, SO Group Realty
LLC was dismissed as a Defendant. In January 2022, Plaintiffs added Montgomery
Management Company (“Montgomery Management”); The Estate of Francis J.
Montgomery; Francis J. Montgomery, individually and
as Trustee of the Francis J. Montgomery Living Trust, dated November 24, 1993;
and Maria V. Montgomery, individually, and as Trustee of the MVM Evergreen
Trust, dated March 19, 2016 (collectively “MVM”), as Defendants.
Montgomery Management on behalf of Premises owners, MVM
(collectively “Cross-Complainants), assert that the Premises were leased to
Star Parking under a March 31, 2010 lease agreement (the “Lease Agreement”). Under
the Lease Agreement, Star Parking was obligated to defend MVM and Montgomery
Management against any liability or lawsuit stemming from Star Parking’s usage
of the Premises.
Cross-Complainants assert that
on March 6, 2023, they tendered the defense of Plaintiffs’ Complaint to Star
Parking, but Star Parking did not accept. Consequently, on May 10, 2024 MVM and
Montgomery Management filed the operative First Amended Cross-Complaint (“FACC”)
against Star Parking alleging three causes of action: (1) Breach of Contract,
(2) Express Indemnification, (3) Implied Indemnity, (4) Comparative
Contribution, (5) Total Equitable Indemnity, and (6)
Declaratory Relief.
Cross-Complainants MVM and Montgomery Management
now move for summary adjudication as to the 1st cause of action for Breach of
Contract, 2nd cause of action for Express Indemnification, and 6th cause of
action for Declaratory Relief. Cross-Defendant Star Parking opposed the Motion.
The matter is now before the court.
Evidentiary
Objections
Cross-Defendants
Evidentiary Objections:
Objections Nos. 1 and 2 are overruled. The declarations
of Maria V. Montgomery and Mark Montgomery sufficiently authenticate the Lease
Agreement. (Maria Decl., ¶¶ 3, 5; Mark Decl., ¶¶ 2-4.) “A statement lacks
foundation ‘if no jury could reasonably find’ that the witness has
personal knowledge of the matter.” (Forest Lawn Memorial-Park
Association v. Superior Court of Riverside County (2021) 70
Cal.App.5th 1, 8.) The court may consider evidence provided in declaration if
such evidence would be admissible at trial. (See Sweetwater Union High
School Dist. v. Gilbane Building Co. (2019) 6 Cal.5th 931, 947-948.)
Moreover, the Lease Agreement is
not hearsay as it is a legally operative document. (See People v. Jimenez (1995)
38 Cal.App.4th 795, 802 [“An operative fact, such as words forming an
agreement, is not hearsay . . .”]); Remington Investments, Inc. v. Hamedani
(1997) 55 Cal.App.4th 1033, 1042 [“The Promissory Note document itself is not a
business record as that term is used in the law of hearsay, but rather is an
operative contractual document admissible merely upon adequate evidence of
authenticity.”]; Jazayeri v. Mao (2009) 174 Cal.App.4th 301, 316
[“documents containing operative facts, such as the words forming an agreement,
are not hearsay”].) “Where, as here, judicial notice is requested of a legally
operative document—like a contract—the court may take notice not only of
the fact of the document and its recording or publication, but also facts that
clearly derive from its legal effect.” (Scott v. JPMorgan Chase Bank,
N.A. (2013) 214 Cal.App.4th 743, 754 [italics original].)
I. Legal Standard
The purpose of a motion for summary judgment or summary
adjudication “is to provide courts with a mechanism to cut through the parties’
pleadings in order to determine whether, despite their allegations, trial is in
fact necessary to resolve their dispute.”¿(Aguilar v. Atl. Richfield Co.
(2001) 25 Cal. 4th 826, 843.) “Code of Civil Procedure section 437c,
subdivision (c), requires the trial judge to grant summary judgment if all the
evidence submitted, and ‘all inferences reasonably deducible from the evidence’
and uncontradicted by other inferences or evidence, show that there is no
triable issue as to any material fact and that the moving party is entitled to
judgment as a matter of law.” (Adler v. Manor Healthcare Corp. (1992) 7
Cal.App.4th 1110, 1119.) Summary adjudication may be granted as to one or more
causes of action within an action, or one or more claims for damages. (CCP, §
437c(f).)¿¿¿¿¿¿¿¿¿¿¿¿
¿¿¿¿¿¿¿
A defendant moving for summary judgment bears two burdens:
(1) the burden of production – presenting admissible evidence, through material
facts, sufficient to satisfy a directed verdict standard; and (2) the burden of
persuasion – the material facts presented must persuade the court that the
plaintiff cannot establish one or more elements of a cause of action, or a
complete defense vitiates the cause of action. (CCP, § 437c(p)(2);¿Aguilar,¿supra,
25 Cal.4th at p. 850-851.) A defendant may satisfy this burden by showing that
the claim “cannot be established” because of the lack of evidence on some
essential element of the claim.¿¿(Union Bank v. Superior Court (1995) 31
Cal.App.4th 574, 590.)¿¿Once the defendant meets this burden, the burden shifts
to the plaintiff to show that a “triable issue of one or more material facts
exists as to that cause of action or defense thereto.”¿(Ibid.)¿¿¿¿¿¿¿¿¿¿¿
¿¿¿¿¿¿¿
“On ruling on a motion for summary judgment, the court is
to ‘liberally construe the evidence in support of the party opposing summary
judgment and resolve doubts concerning the evidence in favor of that party.’” (Cheal
v. El Camino Hospital¿(2014) 223 Cal.App.4th 736, 760.) 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.
[Citation.]” (Binder v. Aetna Life Ins. Co.¿(1999) 75
Cal.App.4th¿832, 839.)¿¿¿¿¿¿¿¿
¿¿¿¿¿¿¿
Defeating summary judgment requires only a single disputed
material fact. (See CCP, § 437c(c) [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”] [italics added].) Thus, any disputed material fact means the
court must deny the motion – the court has no discretion to grant summary
judgment. (Zavala v. Arce (1997) 58 Cal.App.4th 915, 925, fn. 8; Saldana
v. Globe-Weis Systems Co. (1991) 233 Cal.App.3d 1505, 1511-1512.)¿¿¿
II. Discussion
The 1st cause of action for Breach
of Contract asserts that Star Parking breached its contractual obligation to insure,
defend, and indemnify Cross-Complainants
pursuant to sections 8.2 and 8.7 of the Lease Agreement. (FACC, ¶¶ 8- 19.)
8.2 Liability Insurance
(a)
Carried by Lessee. Lessee shall obtain and keep in force a Commercial General
Liability Policy of Insurance protecting Lessee and Lessor against
claims for bodily injury and property damage based upon or arising out of the
ownership, use, occupancy or maintenance of the premises and all areas
appurtenant thereto…The Policy…shall include coverage for liability assumed
under this Lease as an “insured contract” for the performance of Lessee’s
indemnity obligations under this Lease.
(FACC, ¶ 11; Maria Decl., ¶ 2,
Ex. A at p. 5 [italics added].)
The 2nd cause of action for Express Indemnification alleges
that Star Parking owes “the duty to hold Cross-Complainants harmless from any
and all liabilities which Cross-Complainants may have unto plaintiff in said
action.” (FACC, ¶ 22.)
The 6th cause of action for
Declaratory Relief asserts that a present controversy exists between Cross-
Complainants and Cross-Defendants “to indemnify or provide comparative
contribution to Cross-Complainants in regard to a verdict or judgment, if any,
rendered against Cross-Complainants in the above-entitled action by reason of
the allegations of plaintiff’s Complaint on file herein. Cross-Complainants
respectfully request a declaration of rights and duties of Cross-Defendants,
and each of them, to Cross-Complainants.” (Id. ¶ 34.)
Cross-Complainants now seek
summary adjudication as to the following single issue:
Defendant/Cross-Defendant STAR PARKING MANAGEMENT had and has
an immediate and continuing duty to defend Defendants/Cross-Complainants
MONTGOMERY MANAGEMENT COMPANY and MARIA V. MONTGOMERY, INDIVIDUALLY AND AS
TRUSTEE OF THE MVM EVERGREEN TRUST DATED MARCH 19, 2016 against the claims of
Plaintiffs JOSE CORREA and VERONICA CORREA (“Plaintiffs”) as alleged in the
First Cause of Action for Breach of Contract, the Second Cause of Action for
Express Indemnification and the Sixth Cause of Action for Declaratory Relief in
Defendants/Cross-Complainants MONTGOMERY MANAGEMENT COMPANY’s and MARIA V.
MONTGOMERY, INDIVIDUALLY and AS TRUSTEE OF THE MVM EVERGREEN TRUST DATED MARCH
19, 2016’s first amended Cross-Complaint.
Cross-Complainants Montgomery
Management and MVM assert that under the Lease Agreement signed by Star Parking
on March 31, 2010, Star Parking is obligated to indemnify, protect, defend and hold harmless the
Cross-Complainants pursuant to Section 8.7 of the Lease Agreement. That section provides:
8.7 Indemnity.
Except for Lessor’s gross negligence or willful misconduct, Lessee shall indemnify,
protect, defend and hold harmless the Premises, Lessor and its agents, Lessor’s master
or ground lessor, partners and Lenders, from and against any and all
claims, loss of rents and/or damages, liens, judgments, penalties, attorney’s
and consultant’s fees, expenses and/or liability arising out of, involving, or
in connection with, the use and/or occupancy of the Premises by Lessee. If any
action or proceeding is brought against Lessor by reason of any of the
foregoing matters, Lessee shall upon notice defend the same at Lessee’s
expense by counsel reasonably satisfactory to Lessor and Lessor shall cooperate
with Lessee in such defense. Lessor need not have first paid any such claim in
order to be defended or indemnified.
(Maria Decl., ¶ 2, Ex. A at p.
5 [italics added].)
Neither Party disputes that the original Lease Agreement had a two-year
term, and the Lease was to expire on January 31, 2012, under section 1.3 of the
Lease Agreement. (Maria Decl., ¶ 2, Ex. A at p. 1.) However, Cross-Complainants
attach “amendments” purporting to show that the Lease term was extended. (Cross-Complainants’
Compendium of Evidence, Ex. A.) Cross-Complainants include a Lease amendment in
the form of a letter dated April 9, 2018, from Mark E. Montgomery to Omar
Alousta, an authorized representative of Star Parking, agreeing that “Beginning
May 1st, 2018, this Lease shall be extended on the Month-to month basis.” (Id.)
The April 9, 2018 letter was signed by both Mark Montgomery (“Mark”) and Omar
Alousta, as an authorized representative of Star Parking. (Id.)
Mark Montgomery asserts that Montgomery Management managed the
Premises on behalf of the owners “through the date of the incident that is the
subject of Plaintiffs’ Complaint.” (Mark Decl., ¶ 3.) Mark further declares
that Montgomery Management leased the Premises to Star Parking at the direction
of the Premises’ owners, Maria V. Montgomery, individually and as Trustee of
the MVM Evergreen Trust Dated March 19, 2016. (Id. ¶ 4.) Mark further
asserts that “Lessee Star used and occupied the Property pursuant to the Lease
Agreement on June 6, 2019.” (Id. ¶ 5.)
Accordingly, Cross-Complainants have met their initial burden of
showing that Star Parking was the Lessee of the Premises at the time of
Plaintiff’s injury and, pursuant to Section 8.7 of the Lease Agreement, Star
Parking is required to indemnify Cross-Complainants.
B. Star Parking Burden to Show No Triable
Issues of Fact Exist
“Thus, where the parties have had sufficient opportunity
adequately to develop their factual cases through discovery and the defendant
has made a sufficient showing to establish a prima facie case in his or her
favor, in order to avert summary judgment the plaintiff must produce
substantial responsive evidence sufficient to establish a triable issue of
material fact on the merits of the defendant's showing.” (Sangster v.
Paetkau (1998) 68 Cal.App.4th 151, 162-163.) “If the opposing party is
unable to do so, the moving party is entitled to judgment as a matter of law.”
(Kincaid v. Kincaid (2011) 197 Cal.App.4th 75, 82.) “Each material fact
contended by the opposing party to be disputed shall be followed by a reference
to the supporting evidence. Failure to comply with this requirement of a separate
statement may constitute a sufficient ground, in the court's discretion, for
granting the motion.” (CCP § 437c(b)(3).)
Cross-Defendant Star Parking first opposes this Motion by
asserting that Cross-Complainants have not met their evidentiary burden because
the Lease Agreement is hearsay and not properly authenticated. As explained
above, the court has overruled any objections to the admissibility of the Lease
Agreement.
Star Parking does not produce any evidence to negate the existence
of the Lease Agreement or show that it was not the Lessee at the time of Plaintiff’s
accident. Moreover, Star Parking does not challenge the validity of the Lease
Agreement.
Instead, Star Parking argues that MVM and Montgomery Managements are
not parties to the Lease Agreement and that Star Parking owes them no
obligation to indemnify.
Section 1.1 of the Lease
Agreement states:
1.1 Parties: this
Lease (“Lease”, dated for reference purposes only March 2, 2010, is made by and
between MONTGOMERY MANAGEMENT COMPANY (“Lessor”) and STAR PARKING MANAGEMENT, Inc. (“Lessee”),
(collectively the “Parties,” or individually a “Party”).
(Maria Decl., ¶ 2, Ex. A at p. 1.)
Section 17 of the Lease
Agreement states in relevant part:
17. Definition of Lessor. The term “Lessor”
as used herein shall mean the owner or owners at the time in question of the
fee title to the Premises, or if this is a sublease, the Lessee’s interest in
the prior lease. . .
(Maria Decl., ¶ 2, Ex. A at p. 10.)
Maria Montgomery, individually and as trustee of MVM, asserts that
she was an owner of the Premises from March 31, 2010, through June 6, 2019,
and, as such, under section 17 of the Lease Agreement, both she and MVM are
parties to the Lease Agreement. (Maria Decl., ¶ 4.) “Legal title to property
owned by a trust is held by the trustee, and common law viewed the trustee as
the owner of the trust's property.” (Galdjie v. Darwish (2003)
113 Cal.App.4th 1331, 1343–1344.) Moreover, even if Montgomery Management and
MVM are not the Lessor, the indemnification provision in section 8.7 is broad
and intended to apply to “Lessor
and its agents,
Lessor’s master or ground lessor, partners and Lenders[.]”
(Maria Decl., ¶ 2, Ex. A at p. 5 [italics added].) Cross-Defendant Star Parking
produces no evidence to show that the indemnity provision does not apply to
Cross-Complaints or that MVM and Montgomery Management are not agents of the
Lessor.
For purposes of the obligation to defend and indemnify, what is
material is not who is the Lessor but whether the indemnity provision in
section 8.7 covers Cross-Complainants as the Lessor’s agent. Here, triable
issues of fact exist as to whether Montgomery Management is a Lessor and is entitled
to be insured under section 8.2 of the Lease Agreement as alleged in the first
cause of action for breach of contract.
Accordingly, summary adjudication as to the 1st, 2nd, and 6th
causes of action is granted as to Maria V.
Montgomery, individually, and as Trustee of the MVM Evergreen Trust, dated
March 19, 2016 (collectively “MVM”).
Summary
adjudication as to the 1st and 6th causes of action is denied as to Montgomery
Management as triable issues of fact exist as to whether it is a Lessor
entitled to be insured under section 8.2 of the Lease Agreement. As the
Declaratory Relief cause of action requires the court to adjudicate the parties'
rights and obligations, the court cannot make that determination when triable
issues of fact exist. However, summary adjudication as to the 2nd cause of
action for Express Indemnification is granted in favor of Montgomery
Management.
C. Entitlement to Attorney Fees
Cross-Complainants assert that due to their duty to defend and the
attorney’s fees provision in section 31 of the Lease Agreement, they are
entitled to attorney’s fees. (See UMF No. 4.)
The court declines to decide this issue as it was not presented
for adjudication in the notice of motion or in the separate statement. “In
motions for summary judgment or adjudication, all material facts must be
set forth in the separate statement. ‘This is the Golden Rule of Summary
Adjudication: if it is not set forth in the separate statement, it does not
exist.’ ” (Los Angeles Unified School District v. Torres Construction
Corp. (2020) 57 Cal.App.5th 480, 492 [italics original] [citations and quotations
omitted].) As a general rule, the trial court may consider only the grounds
stated in the notice of motion. (Gonzales v. Superior Court (1987)
189 Cal.App.3d 1542, 154.)
Cross-Complainants’ Notice of Motion only requested adjudication as
to the “immediate and continuing duty to defend” “as alleged in the First Cause
of Action for Breach of Contract, the Second Cause of Action for Express
Indemnification and the Sixth Cause of Action for Declaratory Relief in” the
FACC. Section 31 of the Lease Agreement was not in the Separate Statement and
the Separate Statement did not allege that Cross-Complainants were seeking to
adjudicate their entitlement to attorney’s fees under section 3.7 of the Lease
Agreement.
If Cross-Complainants believe they are entitled to post-tender
attorney’s fees, they may bring a motion for attorney’s fees.
Conclusion
Cross-Complainants’ Motion for Summary Adjudication is granted in
part and denied in part.
Summary adjudication of the
1st, 2nd, and 6th causes of action is granted as to Cross-Complainant Maria V. Montgomery, individually, and as Trustee of the
MVM Evergreen Trust, dated March 19, 2016. Summary adjudication is granted as
to the 2nd cause of action as to Cross-Complainant Montgomery Management
Company but denied as to the 1st and 6th causes of action.