Judge H. Jay Ford, III, Case SC127710 2023-04-14 Tentative Ruling

Case No.: SC127710

Hearing: 4-13-23 UPDATED 4-14-23 PRIOR TO HEARING

RESP. PARTY: Defendant/Cross-Complaint Frank Armendarez d/b/a AB Construction

Defendant/Cross-Complainant/Cross-Defendant Stites’ Motion for Summary Adjudication is GRANTED as to Issues 1 and 2 and DENIED as to Issue 3 based on Labor Code §2802. The motion for summary adjudication as to Issue 3 based on CCP §§1021.6 and tort of another is MOOT in light of the ruling on Issues 1 and 2.

Stites moves for summary adjudication of three issues identified in the notice of motion.

The Court declines to rule on Armendarez’s Objection as they are immaterial to the Court ruling under CCP §437c(q).

Stites’ RJN is GRANTED. I. Issue 1: "Summary adjudication is proper as to the first cause of action for attorney’s fees under Tort of Another Doctrine and the second cause of action for fees under CCP §1021.6, because they are barred by the Court’s good faith settlement order as equitable claims." -- GRANTED

“A determination by the court that the settlement was made in good faith shall bar any other joint tortfeasor or co-obligor from any further claims against the settling tortfeasor or co-obligor for equitable comparative contribution, or partial or comparative indemnity, based on comparative negligence or comparative fault.” CCP §877.6(c).

“Section 877.6 provides that a good faith settlement bars other joint tortfeasors from any further claims of indemnity or contribution against the settling tortfeasor…The purpose of this statute is to bar claims against a settling tortfeasor and thereby promote settlement. Allowing a joint tortfeasor to bring an affirmative claim for damages that is actually an artfully pleaded claim for indemnity would contravene the purpose of the statute. The Supreme Court has stressed the importance of interpreting section 877.6, subdivision (c) such that settlement is encouraged. Few joint tortfeasors would be willing to settle with plaintiffs if they knew another tortfeasor could bring an action on the same issues by merely cloaking claims of indemnity in affirmative language. Therefore, a trial court must have the discretion to ferret out those claims that are in fact claims for indemnity.” Cal-Jones Properties v. Evans Pacific Corp. (1989) 216 Cal.App.3d 324, 327–328 (nonsettling defendant’s breach of fiduciary duty claim was not “direct” claim but claim for indemnification).

“If the claims between the joint tortfeasors are identical to those made by the plaintiffs or if the damages sought by the joint tortfeasors are those that the court would consider in determining the proportionate liability of the settling tortfeasor, then the claims are indemnity claims regardless of whether one or more of the claims are couched in affirmative language. A claim by a joint tortfeasor seeking neither indemnity nor contribution and which the trial court would not contemplate in determining the proportionate liability of a settling tortfeasor is not a claim for indemnity and hence survives a good faith settlement under section 877.6. If a claim is in fact one of indemnity, then it is barred pursuant to section 877.6.” Id. at 328.

“Following a good faith determination, the judge doubtless may dismiss disguised or artfully pleaded claims for indemnity or contribution — i.e., causes of action purporting to state direct claims but which, in fact, seek only to recover derivative damages.” Norco Delivery Service, Inc. v. Owens Corning Fiberglas (1998) 64 Cal.App.4th 955, 964. Once a settling defendant makes a prima facie showing of good faith, it is incumbent on the nonsettling defendant to “produce evidence establishing it has direct causes of action.” Id. (trial court properly dismissed non-settling defendant’s “direct” causes of action against settling defendant where nonsettling defendant could not produce any evidence of damages that were not derivative).

Stites satisfies his initial burden as moving party on the tort of another cause of action based on CCP §877.6(c). Stites need only establish that the settlement was arrived at in good faith based on the Court’s order granting Stites’ motion for determination of good faith settlement. See Dec. of P. Berry, Ex. 8.

The burden therefore shifts to Armendarez to establish that his claim for tort of another is not merely a recast claim for equitable indemnification. The fact that Armendarez’s first cause of action for tort of another is not labeled equitable indemnification is irrelevant. “[A] party may not avoid a section 877.6 motion by providing different labels for what are in reality indemnity or contribution claims. The words ‘indemnity’ or ‘contribution’ need not be used. It is the substance of the claim that is determinative.” Gackstetter v. Frawley (2006) 135 Cal.App.4th 1257, 1274.

Armendarez argues that CCP §877.6 does not apply, because tort of another by definition is a claim for damages and those damages are attorney’s fees incurred as a result of the tort of another. However, the Court must “ferret out” whether Armendarez’s tort of another claim is “in fact” a claim for indemnity. See Cal-Jones Properties v. Evans Pacific Corp. (1989) 216 Cal.App.3d 324, 327–328 (nonsettling defendant’s breach of fiduciary duty claim was not “direct” claim but claim for indemnification). The mere fact that “tort of another” is by definition based on an independent duty does not establish that Armendarez’s alleged claim is based on an independent duty or that it is not in reality an equitable indemnification claim.

Armendarez argues his “tort of another claim” is based on Stites’ actions towards Armendarez, not Stites’ negligent work on Plaintiff Hoelzer’s remodel. Armendarez argues he seeks damages based on Stites’ fraudulent misrepresentations to him about Hoelzer’s project, which were made to induce Armendarez to work on the project, and Stites’ abuse of process when he filed through his insurer a frivolous ZOE 1 amendment naming Armendarez in Stites’ cross-complaint.

Armendarez denies his “tort of another” claim is based on damage to Hoelzer’s property as a result of Stites’ negligent performance of his general contracting duties. Armendarez relies on his cross-complaint allegations to establish that his tort of another claim is not an equitable indemnification claim in disguise. The allegations of Armendarez’s cross-complaint however, belie that claim.

Armenderez does not allege in his cross-complaint that Stites made any fraudulent misrepresentations to Armendarez or that he committed any abuse of process. Armendarez only alleges that “Stites’ actions caused Armendarez to be named in the Hoelzer Complaint and caused Armendarez to seek to protect his interest by defending the Hoelzer action.” See Dec. of P. Berry, ¶6, Ex. 5, Armendarez Cross-Complaint against Stites, ¶31. The only actions or wrongdoing alleged against Stites in the cross-complaint are his performance of general contracting duties on the remodel, the presence of dry rot or termite damage on portions of the remodel before Armendarez starting work on the project, and Stites’ failure to stay within his framing estimate to Hoelzer of $6000. Id. at ¶¶2-29.

Armendarez also alleges in his second cause of action for fees under CCP §1021.6 that “any injuries claimed by Hoelzer in her action were caused by the acts and/or omissions of Stites.” Id. at ¶38. The second cause of action clearly alleges recovery based on equitable indemnification. Id. at ¶¶36-40.

Moreover, by its express terms, CCP §1021.6 is a prevailing party statute for recovery of fees in an implied indemnification claim, where the “indemnitee through the tort of the indemnitor has been required to act in the protection of the indemnitee’s interest by bringing an action against or defending an action by a third party” and “the trier of fact determined that the indemnitee was without fault in the principal case which is the basis for the action in indemnity or that the indemnitee had a final judgment entered in his or her favor granting a summary judgment, a nonsuit, or a directed verdict.” CCP §1021.6. CCP §1021.6 therefore only awards fees to prevailing indemnitees and is not itself a stand-alone cause of action. “The proper interpretation of statute and the application of the statute to undisputed facts are questions of law…” Parsons v. Estonson Logistics, LLC (2022) 86 Cal.App.5^th 1260, 1265.

Both the first cause of action for tort of another and the second cause of action for fees under CCP §1021.6 are based on equitable indemnification. In fact, the second “cause of action” can only reasonably be read as a prayer for attorney’s fees in connection with the first cause of action for “tort of another,” implicitly making the first cause of action a claim based on implied indemnification. Both of these causes of action are therefore barred by the Court’s good faith settlement determination and CCP §877.6(c).

Armendarez cannot escape summary adjudication based on theories not alleged in his cross-complaint, including his claim that his tort of another cause of action is based on Stites’ direct fraud and the damages flowing therefrom. The cross-complaint acts as the outer measure of materiality for purposes of summary judgment. See FPI Development, Inc. v. Nakashima (1991) 231 Al.App.3d 367, 381-382.

Stites’ Motion for Summary Adjudication is GRANTED as to the 1^st cause of action for tort of another and 2^nd cause of action under CCP §1021.6. The undisputed facts establish that these causes of action are in fact claims rooted in equitable indemnification and therefore barred by CCP §877.6(c) and the Court’s good faith settlement determination.

II. Issue 2: "Summary adjudication is proper as to the second cause of action for fees under CCP §1021.6 and the fourth cause of action for fees under CCP §1038, because they are not causes of action but remedies." -- GRANTED

As discussed in connection with Issue 1, CCP §1021.6 is clearly a prevailing party attorney fee statute applied to actions for implied indemnification where the indemnitee prevails under certain conditions. The motion for summary adjudication of the Issue 2 as to CCP §1021.6 is GRANTED.

Likewise, CCP §1038 expressly allows a party to recover “defense” costs after “granting of any summary judgment motion, motion for directed verdict, motion for judgment under Section 631.8, or any nonsuit dismissing the moving party other than the plaintiff, petitioner, cross-complainant, or intervenor, or at a later time set forth by rule of the Judicial Council adopted under Section 1034.” CCP §1038(a). The statute only applies to actions under the Government Claims Act or for express or implied indemnity. Id. CCP §1038 allows for recovery of “defense costs where the proceeding was not brought in good faith and with reasonable cause.” Id.

CCP §1038 is therefore a costs provision, not a cause of action. Moreover, it would not apply to Armendarez’s cross-complaint, because it only allows a “defendant or cross-defendant” to move for “defense costs” based on a showing that the “plaintiff…cross-complainant brought the proceeding” without good faith and reasonable cause. CCP §1038(a). Armendarez is not the cross-defendant of his own cross-complaint. He is the cross-complainant who “brought” the proceeding.

CCP §1038 allows for recovery of defense costs after a defendant or cross-defendant prevails on summary judgment motion, motion for directed verdict, motion for judgment under Section 631.8, or any nonsuit dismissing the moving party other than the plaintiff, petitioner, cross-complainant, or intervenor. It is a form of relief, not a cause of action. The motion for summary adjudication of the Issue 2 as to CCP §1038 is GRANTED.

III. Issue 3: “Summary adjudication is proper as to attorney’s fees claimed as damages in the first cause of action for tort of another, second cause of action for fees under CCP §1021.6 and third cause of action for indemnity and fees under Labor Code §2802, because these claims are limited to third party claims.” -- DENIED

Issue 3 is moot as to the first cause of action for tort of another and second cause of action for fees under CCP §1021.6. Adjudication of Issue Nos. 1 and 2 resolved these claims. The motion is denied as to Issue 3 to the extent it seeks adjudication of the third cause of action for indemnity and fees under Labor Code §2802.

“An employer shall indemnify his or her employee for all necessary expenditures or losses incurred by the employee in direct consequence of the discharge of his or her duties, or of his or her obedience to the directions of the employer, even though unlawful, unless the employee, at the time of obeying the directions, believed them to be unlawful.” Lab. Code, § 2802(a).

The term “indemnify” under Labor Code §2802(a) has been interpreted in accordance with its “common understanding,” which limits indemnification to circumstances involving an indemnitee’s liability to a third party. See Nicholas Laboratories, LLC. V. Chen (2011) 199 Cal.App.4^th 1240, 1248. The Court noted that the term indemnification has only been applied to direct liability between the proposed indemnitee and indemnitor where the contracting parties intended such an unusual interpretation. Id. The Court found no basis to apply this unusual interpretation of “indemnify” to Labor Code §2802: “We are not persuaded that the Legislature, in drafting section 2802, intended to depart from the usual meaning of the word ‘indemnify’ to address ‘first party’ disputes between employers and employees. The Legislature could have specifically provided in section 2802 that attorney fees incurred defending an action by the employer were recoverable by a prevailing employee. The fact that the Legislature did not do so suggests disputes between employers and employees are subject to the ordinary rules applying to the recovery of attorney fees in California litigation.” Nicholas Laboratories, LLC v. Chen (2011) 199 Cal.App.4th 1240, 1251

Defendant Stites fails to establish that Armendarez’s expenditures or losses are only attributable to first-party claims between himself and Armendarez. Stites acknowledges that Hoelzer’s complaint against Armendarez is a third-party claim. Stites argues Armendarez can only recover those expenditures or losses he suffered defending against Hoelzer’s complaint. Stites fails, however, to demonstrate that Armendarez did not suffer any expenditures or losses to Hoelzer’s complaint.

In addition, Armendarez persuasively argues that Stites’ cross-complaint for equitable indemnification is a third party claim, because it is derivative of Hoelzer’s complaint. A cause of action for equitable indemnification is derivative of the third-party claim that generated the liability for which indemnification is sought. The indemnitor may raise any defenses that could have been raised to the injured party’s complaint and the indemnitee may proceed on any theory of indemnification that the injured party could have successfully asserted against the indemnitor. See Prince v. Pacific Gas & Electric Co. (2009) 45 Cal.4th 1151, 1158–1159; Western Steamship Lines, Inc. v. San Pedro Peninsula Hospital (1994) 8 Cal.4^th 100, 114-115; Gem Developers v. Hallcraft Homes of San Diego, Inc. (1989) 213 Cal.App.3d 419, 429. A claim for equitable indemnification is based on the indemnitor’s breach of a tort duty owed to the third party. See Western Steamship Lines, Inc., supra, 8 Cal.4^th at 114-115.

Nicholas Laboratories is also distinguishable. Nicholas Laboratories did not involve an employer’s claim of equitable indemnification against an employee. Nicholas Laboratories involved an employer’s direct causes of action against an employee based on the employee’s violation of his direct duties to the employer, i.e. breach of contract, breach of the implied covenant, conversion, negligence, money had and received, unjust enrichment and constructive trust. See Nicholas Laboratories, LLC, supra, 199 Cal.App.4^th at 1243.

In order to adjudicate the third cause of action based on Issue 3, Stites had to establish that Armendarez did not suffer any expenditures or losses due to any third party claim. Stites fails to do so. In fact, Stites acknowledges that Hoelzer sued Armendarez directly on 12-11-19, that Hoelzer’s complaint is a third party claim and that limitation of Armendarez’s recovery under Labor Code §2802 to third party claims would only “reduce,” not eliminate his recoverable damages under Labor Code §2802. Stites also fails to establish as an issue of law that his cross-complaint for equitable indemnification is not included under Labor Code §2802.

Finally, as pointed out by Armendarez, Stites cannot obtain summary adjudication by partially negating the damages element. CCP §437c(f)(1) only allows for adjudication of punitive damages, and it only allows for adjudication of a cause of action if it fully disposes of that cause of action. No punitive damages are alleged, and Stites fails to demonstrate that limiting Armendarez’s recovery under Labor Code §2802 to third party claims would fully dispose of the third cause of action.

Under the parties’ stipulation filed on 1-13-23., the Court allowed the parties to file these motions for summary adjudication. The Court’s authority is limited by CCP §437c. The Court is entitled to adjudicate only those categories of issues enumerated under CCP §437c(f)(1). It also has discretion to grant leave for parties to file motions for summary adjudication based on the detailed procedure under CCP §437c (t). Unfortunately, the parties did not stipulate under CCP §437(c) subd. (t), to summary adjudication of part of Armendarez damages. No did they follow the proper procedure under subdivision (t). The stipulation was not accompanied by any declarations of counsel under CCP 437c(t)(1)(A)(ii). The stipulation also did not ask for partial adjudication of the Labor Code §2802 cause of action or partial adjudication of a claim of damages under Labor Code §2802. The stipulation states, “On January 17, 2023, under CCP §437c, Cross-Defendant Stites will file a motion for summary adjudication of the viability of all of the Cross-Defendant Armendariz’s causes of action and claims for damages.” Id. at ¶4. No mention of partial adjudication of damages is referenced and Armendarez raises this objection in his opposition.

Triable issues of fact remain as to Armendarez’s third cause of action under Labor Code §2802. Stites’ Motion for Summary Adjudication is DENIED as to Issue 3.

Case
No.: SC127710

Hearing: 4-6-23

Calendar
#: 6

Notice: OK

Complaint
Filed: 6-19-17

Motion
C/O: 4-4-22

Discovery
C/O: 3-18-22

Trial
Date: 7-10-23

SUBJECT: (1) MOTION FOR SUMMARY JUDGMENT,
OR IN THE ALTERNATIVE SUMMARY ADJUDICATION BASED ON Aas

(2) MOTION
FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE SUMMARY ADJUDICATION BASED ON Miller

Defendant Armendarez’s Motion for
Summary Judgment based on Aas v. Supr. Ct. (2000) 24 Cal.4^th
627, 635 and the economic loss rule is GRANTED as to Stites’ Cross-Complaint
filed on 6-20-19. No triable issues of
fact remain as to Stites’ four causes of action for equitable indemnity,
implied indemnity, declaratory relief and apportionment of fault. Based on the undisputed evidence, Stites
cannot establish that Hoelzer suffered any property damage or personal injury
as a result of any alleged construction defect.

Defendant Armendarez’s Motion for Summary Judgment, or in
the alternative, Summary Adjudication is MOOT in light of the Aas motion
and/or DENIED as procedurally improper.

The Court does not rule on Stites’ evidentiary
objections, because they are not material to the Court’s ruling. CCP §437c(q).

The
case of Aas v. Supr. Ct. (2000) 24 Cal.4^th 627, 635 answered
a very specific question: “May
plaintiffs recover in negligence from the entities that built their homes a
money judgment representing the cost to repair, or the diminished value
attributable to, construction defects that have not caused property damage?” Aas, supra, 24 Cal.4th at 635. The Supreme Court was presented with the
question in connection with the trial court’s ruling on motions in limine “as
to plaintiffs’ tort claims only.” Id
at 634. The trial court granted the in
limine motion, excluding any evidence of construction defects that did not
cause property damage (no claim of personal injury was ever asserted) from the
trial of plaintiffs’ tort claims.

The Supreme Court ultimately held that a homeowner cannot
recover in negligence for construction defects that have not caused any damage
separate and independent from the defective construction itself. The homeowner who suffers purely “economic
losses” due to construction defect, e.g. damages due to deviations from
applicable building codes and industry standards or diminishment in home value,
is limited to recovery in contract. Id.
at 636.

“[C]onduct
amounting to a breach of contract becomes tortious when it also violates a duty
independent of the contract arising from principles of tort law.” Id. at 643. Violation of such an independent duty exists
in the construction defect context when the construction defect causes damage
to the property or injury to person. Id.
at 643. Thus, pursuant to the economic
loss rule, a homeowner may not recover in negligence for construction defects
if those defects did not cause property damage or personal injury. Id. at 634-653.

“Unlike express indemnity,
traditional equitable indemnity requires no contractual relationship between an
indemnitor and an indemnitee. Such indemnity is premised on a joint legal
obligation to another for damages, but it does not invariably follow fault. [¶] A
key restrictive feature of traditional equitable indemnity is that, on matters of
substantive law, the doctrine is wholly derivative and subject to
whatever immunities or other limitations on liability would otherwise be
available against the injured party.
This rule is often expressed in the shorthand phrase ‘... there can be
no indemnity without liability.’” Prince
v. Pacific Gas & Electric Co. (2009) 45 Cal.4th 1151, 1158–1159
(emphasis added); Western Steamship Lines, Inc. v. San Pedro
Peninsula Hospital (1994) 8 Cal.4^th 100, 114-115.

Conversely,
an indemnitee may proceed on any theory which would have been available to the
injured party against the indemnitor in a direct action. See Gem Developers v. Hallcraft Homes of
San Diego, Inc. (1989) 213 Cal.App.3d 419, 429. “[A] defendant/indemnitee may in an action
for indemnity seek apportionment of the loss on any theory that was available
to the plaintiff upon which the plaintiff would have been successful. To do
otherwise, would mean a defendant/indemnitee's right to an allocation of the
loss for comparative responsibility on a strict liability theory would be
subject to the vagaries of plaintiff's pleading and joinder of
cross-complaints.” Id. at 430 (indemnitee
could proceed on indemnification claim based on strict liability even though
underlying plaintiff did not allege such a claim). Id. at 430.

Where
a defendant seeks summary judgment or adjudication, he must show that either
“one or more elements of the cause of action, even if not separately pleaded,
cannot be established, or that there is a complete defense to that cause of
action.” See Code of Civil
Procedure §437c(o)(2).) 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. See Union Bank v. Superior Court
(1995) 31 Cal.App.4th 574, 590. Once the
defendant meets this burden, the burden shifts to plaintiff to show that a
“triable issue of one or more material facts exists as to that cause of action
or defense thereto.” Id. If unable to prove the existence of a triable
issue of material fact, summary judgment or summary adjudication in favor of
the defendant is proper. Id.

“The
burden on a defendant moving for summary judgment based upon the assertion of
an affirmative defense is different than the burden to show that one or more
elements of the plaintiff's cause of action cannot be established. Instead of
merely submitting evidence to negate a single element of the plaintiff's cause
of action, or offering evidence such as vague or insufficient discovery
responses that the plaintiff does not have evidence to create an issue of fact
as to one or more elements of his or her case the defendant has the initial
burden to show that undisputed facts support each element of the affirmative
defense. If the defendant does not meet
this burden, the motion must be denied.”
Consumer Cause, Inc. v. SmileCare (2001) 91 Cal.App.4th 454, 467–468.

“A
party is entitled to summary judgment only if it meets its initial burden of
showing there are no triable issues of fact and the moving party is entitled to
judgment as a matter of law. This is true even if the opposing party fails to
file any opposition. The court's
assessment of whether the moving party has carried its burden—and therefore
caused a shift—occurs before the court's evaluation of the opposing party's
papers. Therefore, the burden on the
motion does not initially shift as a result of what is, or is not, contained in
the opposing papers.” Mosley v.
Pacific Specialty Insurance Company (2020) 49 Cal.App.5th 417, 434–435
(landlord’s failure to address issue of whether they were aware of their
tenant’s marijuana growing operation was not grounds to grant summary judgment
where moving party failed to satisfy its initial burden as to the issue); Thatcher
v. Lucky Stores, Inc. (2000) 79 Cal.App.4^th 1081, 1086-1087
(court cannot grant summary judgment based merely on lack of opposition; court
must first determine if the moving party has satisfied its burden).

In addition, the evidence and affidavits of the moving
party are construed strictly, while those of the opponent are liberally
read. See Government Employees Ins.
Co. v. Sup. Ct. (2000) 79 Cal.App.4th 95, 100. “All doubts as to the propriety of granting
the motion (whether there is any issue of material fact [Code of Civil
Procedure] § 437c) are to be resolved in favor of the party opposing the motion
(i.e., a denial of summary judgment).” Hamburg
v. Wal-Mart Stores, Inc. (2004) 116 Cal.App.4th 497, 502.

IV. No triable issues of fact remain as to Stites’
cross-complaint for equitable indemnity.

Armendarez argues he is entitled to summary judgment,
because Stites cannot establish that Hoelzer would have been able to recover in
negligence against Stites and Armendarez under Aas. Hoelzer would not have prevailed on a
negligence claim against either Stites or himself, because (1) Hoelzer only
claimed economic losses as a result of the alleged construction defects; (2) there
is no evidence of property damage or personal injury from the alleged
construction defects; (3) there is no evidence of property damage or personal
injury from Armendarez’s work specifically; and (4) Armendarez’s work was not
negligently performed.

Armendarez establishes that Stites lacks any evidence of
damage to property or personal injury as a result of any construction defect and
specifically the work of Armendarez on the property. See Armendarez Separate Statement,
SSUMF Nos. 16-18. Stites’ responses to
Hoelzer’s discovery requests were factually devoid, claiming that discovery was
ongoing. Discovery closed nearly a year
ago in March 2022.

In addition, McGowan, Stites’ expert, testified at
deposition that he was never able to examine the house itself because it had
been demolished. Id. He also testified that he had no opinion as
to whether the construction defects alleged by Hoelzer resulted in any property
damage. Id. The evidence is also undisputed that Hoelzer
demolished most of the construction work at the Project no later than 9-8-15. See Armendarez Separate Statement,
SSUMF No. 14. Based on this showing,
Armendarez establishes that Stites will be unable to establish the element of
damage necessary to support a claim of negligence by Hoezler, which is the
basis for his derivative claim for equitable indemnification.

In response, Stites relies on the deposition testimony of
McGowan and the declaration of McGowan submitted in support of the motion for
determination of good faith settlement.
The deposition testimony of McGowan cited by Stites does not raise a
triable issue of fact. McGowan testified
that there was damage to the parapet wall, but he did not testify that the
damage to the parapet wall was collateral damage from work performed by Armendarez
to another area of the house. See
Stites’ Response to Separate Statement, Responses to SSUMF Nos. 16-18; Dec. of K.
Retz, Ex. 7. Stites argues Armendarez admits
that he did not work on the parapet wall.
See Dec. of Armendarez, ¶7.
Stites asks that the Court infer that any damage to the parapet wall was
therefore the result of Armendarez’s work. The Court cannot make such an
inference. Such a conclusion would have
to be supported with admissible expert evidence.

McGowan’s declaration in support of the motion for
determination of good faith settlement does not raise a triable issue of fact as
to whether Armendarez’s work caused property damage that would support a
negligence claim. McGowan does not
render any opinion as to whether Armendarez’s work caused any property damage to
Hoelzer’s property. He only provided a
“rough approximation of the maximum total cost of repair for AB Construction,
Advance AC, Advance Welding, Stites and Plaintiff.” See Dec. of K. Retz,
Ex. 8, ¶18. McGowan only testified that
Armendarez’s work was “implicated in the following change orders, which I
estimate to be approximately 15% of the total cost of repair.” Id. at ¶19. As such, McGowan’s prior declaration
submitted for purposes of determining good faith settlement does not raise a
triable issue of fact as to whether Armendarez’s work caused property damage to
Hoelzer’s property beyond cost of repair or replacement of Armendarez’s
work.

Stites also argues the settlement was of all Hoelzer’s claims,
including Hoelzer’s negligence claim, and that Hoelzer alleged property damage
as a result of the defective construction.
See Hoezler Complaint, ¶29.
However, Stites was only entitled to seek indemnification on any theories
“available to the plaintiff upon which the plaintiff would have been
successful.” See Gem
Developers, supra, 213 Cal.App.3d at 430. Armendarez satisfied his initial burden on
summary judgment by establishing that Stites could not establish the damages
element of Hoelzer’s negligence claim.
In response, Stites could not rely solely on Hoelzer’s allegation that
she suffered property damage. He was
required to produce affirmative evidence that Hoelzer suffered property damage,
which he failed to do.

No triable issues of fact remain as to Stites’ Cross-Complaint
filed on 6-20-19. Based on Aas, Stites
cannot establish the essential element of legally recoverable damage necessary
to support his claims for equitable indemnification based on negligence. Armendarez’s
Motion for Summary Judgment based on Aas is GRANTED.

V. Armendarez’s Motion for Summary Judgment, or
in the alternative, Summary Adjudication is MOOT

Armendarez filed two concurrent motions for summary
judgment or in the alternative, adjudication based on Aas and Miller
v. Ellis (2002) 103 Cal.App.4^th 373. Armendarez’s second motion based on Miller
is procedurally improper. Armendarez
fails to cite any authority allowing him to file multiple, concurrent motions
for summary judgment, nor does CCP §437c(t) allow for parties to stipulate to
multiple, concurrent motions for summary judgment or adjudication. Armendarez’s motion based on Miller is
also moot in light of the Court’s ruling on the motion based on Aas.