Judge: H. Jay Ford, III, Case: 19SMCV00443, Date: 2023-11-09 Tentative Ruling

Case Number: 19SMCV00443    Hearing Date: November 9, 2023    Dept: O

  Case Name:  Hartford Fire Insurance Company v. Wasser, et al.

SUBJECT:                 MOTION FOR SUMMARY JUDGMENT AND SUMMARY ADJUDICATION

MOVING PARTY:   Plaintiff Hartford Fire Insurance Company  

RESP. PARTY:         Defendant Jonathan Wasser

TENTATIVE RULING

            Plaintiff Hartford Fire Insurance Company’s Motion for Summary Judgment and Summary Adjudication is DENIED. The motion is procedurally deficient pursuant to CCP § 437c and Cal. Rules of Court § 3.3150.  The Plaintiff does not meet their burden to prove that there is no triable issue of material fact and that they are entitled to judgment as a matter of law for the Second Cause of Action for Written Contractual Indemnity or any issue of duty.

            I.          Plaintiff’s Motion is Procedurally Deficient

            “[I]f summary adjudication is sought…the specific cause of action…or issues of duty must be stated specifically in the notice of motion and be repeated, verbatim, in the separate statement of material facts.” (Cal. Rule Ct., Rule 3.3150(b).) The Separate Statement “must separately identify” each cause of action or issue of duty that is the subject of the motion. (Cal. Rule Ct., Rule 3.3150(d) (emphasis added).)

            Plaintiff moves for Summary Judgment or in the alternative Summary Adjudication, but in its notice, Plaintiff’s noticer does not state which causes of action it is seeking to be summarily adjudicate.  Plaintiff’s notice states they are seeking summary adjudication “that defendant Wasser had a duty to provide collateral on demand by Hartford, and has a duty to reimburse Hartford for its attorney fees and costs incurred in the Probate action Rhoda Fox Trust Dated June 21, 1988 as amended Los Angeles Superior Court Case No. 19 18STPB03467 ("Probate Action") and in the present action.”  (Motion, Notice, p. 1.)  Plaintiff’s Separate Statement, however, includes only one issue for summary judgement/summary adjudication “on the second cause of action in the written complaint for written contractual indemnity (Breach of contract for Indemnity).” [Plaintiff’s Separate Statement, pg 1.]   

            Plaintiff has not met its burden to have the Court the issues of duty stated in the notice.  More important, resolving the issues as framed by Plaintiff goes beyond just the legal interpretation of the indemnity agreement.  At minimum, resolving the issues as framed by the Plaintiff require the Court to summarily decide the factual issues of whether a demand was made on the bond, whether the demand for collateral was made “in good faith and, and in the exercise of a reasonable discretion” under Civil Code §2778.  Finally, as acknowledged in Linden Partners v. Wilshire Linden Associates (1998) 62 Cal.App.4^th 508, 519 the Court has the discretion to “declare or define” a contractual duty “if, under the facts and circumstances of a given case, a court finds it is appropriate to determine the existence or non-existence of a duty in the nature of a contractual obligation...” Here there is no dispute about what the indemnity agreement says.  Under this circumstance and the facts presented, therefore, the Court finds it is inappropriate to summarily adjudicate the issues of duty as phrased by the Plaintiff.

            Finally, Plaintiff seeks to summarily adjudicate Defendant’s breach of the indemnity agreement, but leave the calculation of the amount of its damages to be determined in a “post judgment memorandum of costs and possible motion to tax costs (sic) the determination of the amount of the attorneys’ fees and other costs.”  [Plaintiff’s memorandum in support of its motion, pg. 12.] The Court, however, cannot summarily adjudicate a defendant’s liability for breach of contract and leave the the calculation of the amount of those damages for resolution at trial.  (See e.g., Paramount Petroleum Corp. v. Superior Court (2014) 227 Cal.App.4^th 226, 242-243.)  The Court might agree that the recovery of attorney’s fees incurred in this action may be determined as a matter of costs in a post judgment motion.  However, Plaintiff has not provided any authority that the calculation of the damages recoverable under a claim for breach of and indemnity agreement are to be determined by the Court in a post-judgment motion. Plaintiff, therefore, has failed to meet its burden, to show there is no triable issue regarding the amount of its damages.