Judge: H. Jay Ford, III, Case: 21SMCV00784, Date: 2024-01-18 Tentative Ruling

Case Number: 21SMCV00784    Hearing Date: January 18, 2024    Dept: O

Case Name:  Richmond Plastering, Inc. v. Brentwood School, et al.  

SUBJECT:                 MOTION FOR SUMMARY ADJUDICATION

MOVING PARTY:   Cross-Defendant/Cross-Complainant Richmond Plastering, Inc.

RESP. PARTY:         Cross-Defendant Dal Rae Exteriors, Inc.

TENTATIVE RULING

            Cross-Defendant/Cross-Complainant Richmond Plastering, Inc.’s motion for summary adjudication as to Cross-Defendant Dal Rae Exteriors, Inc.’s Duty to Defend within the fifth cause of action for breach of contract – duty to defend of the first amended cross-complaint is GRANTED. The Court finds no triable issues of fact remain as to the duty issue within the  5^th c/a for Breach of Contract - Duty to Defend.

“A party may move for summary adjudication as to…one or more issues of duty, if the party contends that…that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs. A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.”  (CCP §437c(f)(1). )

A motion for summary adjudication of an issue of duty is expressly allowed for by CCP §437c(f)(1), so long as it fully resolves an issue of duty.  (CCP §437c(f)(1).)  “[T]he substantive areas which may be challenged by motion for summary adjudication are stated in the disjunctive ‘a cause of action, an affirmative defense, a claim for damages or an issue of duty.’ We believe that the plain meaning of this language is that a motion for summary adjudication may be granted or denied as to any one of these substantive areas, standing alone, and without reference to the dispositive effect of such ruling on any of the companion substantive areas.”  (Linden Partners v. Wilshire Linden Associates (1998) 62 Cal.App.4th 508, 522.)

Thus, “on a motion for summary adjudication, the court may rule whether a defendant owes or does not owe a duty to plaintiff without regard for the dispositive effect of such ruling on other issues in the litigation, except that the ruling must completely dispose of the issue of duty.” Id.; cf. Regan Roofing v Supr. Ct. (1993) 24 Cal.App.4th 425, 433-434 (CCP §437c(f) should be interpreted to “prevent adjudication of issues which fail to dispose completely of a particular cause of action or defense, even where an ‘issue of duty’ is involved”)(disapproved of on other grounds in Crawford v. Weather Shield Mfg., Inc. (2008) 44 Cal.4th 541); Lilienthal & Fowler v. Superior Court (1993) 12 Cal.App.4th 1848, 1853–1854 (“The intent was made explicit in the Legislative Counsel's Digest to the amending bill, which notes: ‘It is ... the intent of this legislation to stop the practice of adjudication of facts or adjudication of issues that do not completely dispose of a cause of action or a defense.’”)

The duty to defend is not a question of fact for the jury.  (See Centex Homes v. R-Help Construction Co., Inc. (2019) 32 Cal.App.5^th 1230, 1236. The trial court is compelled as a matter of law to determine whether a lawsuit is embraced by an indemnification agreement.  (Id.)   

I.                The undisputed facts support a finding that a duty to defend exists as to Cross-Defendant Dal Rae Exteriors, Inc.  

As explained in Crawford v. Weather Shield Mfg. Inc. (2008) 44 Cal.4th 541, the duty to defend under CC §2778(4) “arises immediately upon a proper tender of defense by the indemnitee, and thus before the litigation to be defended has determined whether indemnity is actually owed. This duty, as described in the statute, therefore cannot depend on the outcome of that litigation.”  (Crawford, supra, 44 Cal.4^th at 558.)  Thus, under CC §2778(4), “claims ‘embraced by the indemnity,’ as to which the duty to defend is owed, include those which, at the time of tender, allege facts that would give rise to a duty of indemnity.  Unless the indemnity agreement states otherwise, the statutorily described duty ‘to defend’ the indemnitee upon tender of the defense thus extends to all such claims.”  (Id.)

            It is undisputed that Cross-Defendant/Cross-Complainant Richmond Plastering, Inc. (“Richmond”) and Cross-Defendant Dal Rae Exteriors, Inc. (“Dal Rae”) entered into a Master Subcontract Agreement (“Agreement”) where Dal Rae agreed to provide work services which included the lath portion of the stucco system, and also agreed to “defend, indemnify, and hold harmless CONTRACTOR [RICHMOND],” to any and all claims “which arise out of or are in any way related (a) to this AGREEMENT GENERAL CONTRACTOR. (SSUF, ¶¶ 6, 7, 8, 9; Lodgment Exhibit “E”, Master Subcontract Agreement ¶ 6.1.)  It is undisputed that Del Amo Construction filed a cross-complaint against multiple sub-contractors including Richmond in relation to the work Richmond and Dal Rae performed on the stucco system. (SSUF, ¶ 2; Lodgment Exh. B, X-Compl., ¶¶ 25.)

            Del Rae argues Richmond does meet their burden that an undisputed duty exists as to the duty to defend because “there is no specific claim noted in Richmond’s moving papers that Dal Rae’s specific work is alleged to be defective by either [Richmond] or Del Amo,” adding that “because the claim is defective “stucco” and Richmond installed the stucco at the project, on its face, Del Amo’s claim is solely against Richmond,” meaning Richmond’s motion must be denied. (Oppo, p. 5.) The Court disagrees. The indemnification agreement is broad enough to cover work that arises “out of or are in any way related to” the claim. (SSUF, ¶ 7; Lodgment Exhibit “E”, Master Subcontract Agreement ¶ 6.1.) Del Rae’s lath work sufficiently arises out of and is related to the stucco work completed by Richmond, which Richmond contracted with Del Rae to complete. (SSUF, ¶¶ 3,6.)

            Dal Rae argues that the Master Subcontract Agreement explicitly states that the indemnification and duty to defend obligations “shall not extend to any claims, demands, damages, costs, or liabilities arising out of the sole negligence or willful misconduct of [Richmond],” and therefore since there is still a question of fact as to whether the claims against Richmond are the result of Richmond’s sole negligence it would be improper to find a duty to defend exists as a matter of law. (Oppo., p. 6; Ebner Decl., ¶5; Exh. “A”, Master Subcontract Agreement ¶ 6.1.2.) Again the Court disagrees.  As stated in Crawford, a duty to defend “as soon as a suit was filed” and “regardless of whether it [is] ultimately determined” that Richmond was solely or jointly negligent regarding the stucco system work.

            Finally, the Court notes Dal Rae did not file a separate statement of disputed facts to their opposition as required under CCP § 437c. “The opposition papers shall include a separate statement that responds to each of the material facts contended by the moving party to be undisputed, indicating if the opposing party agrees or disagrees that those facts are undisputed. The statement also shall set forth plainly and concisely any other material facts the opposing party contends are disputed.” (Code Civ. Proc., § 437c(b)(1)(3).)

            The Court finds no triable issues of fact remain as to the duty issue within the  5^th cause of action for Breach of Contract - Duty to Defend.  Richmond’s Motion for Summary Adjudication at to the duty element of the breach of contract – duty to defend cause of action is GRANTED.