Judge Holly J. Fujie, Case 21STCV11525 2022-12-30 Tentative Ruling

DEPARTMENT 56 JUDGE HOLLY J. FUJIE, LAW AND MOTION RULINGS. The court makes every effort to post tentative rulings by 5.00 pm of the court day before the hearing. The tentative ruling will not become the final ruling until the hearing [see CRC 3.1308(a)(2)], and are also available in the courtroom on the day of the hearing [see CRC 3.1308(b)]. If the parties wish to submit on the tentative ruling and avoid a court appearance, all counsel must agree and choose which counsel will give notice. That counsel must 1) call Dept 56 by 8:30 a.m. on the day of the hearing (213/633-0656) and state that all parties will submit on the tentative ruling, and 2) serve notice of the ruling on all parties. If any party declines to submit on the tentative ruling, then no telephone call is necessary and all parties should appear at the hearing in person or by Court Call. Court reporters are not provided, and parties who want a record of motions and other proceedings must hire a privately retained certified court reporter.

This action arises out of alleged damage to Plaintiff’s residential property. On March 21, 2021, Plaintiff filed a complaint (the “Complaint”) alleging: (1) negligence; (2) strict liability; and (3) lateral support. The Complaint alleges that construction at Plaintiff’s neighbor’s property caused Plaintiff’s property to be damaged.

On May 5, 2022, Baldwin filed a cross-complaint (the “Baldwin XC”) alleging: (1) total equitable indemnity; (2) contribution and apportionment; (3) comparative fault; (4) express contractual indemnity; (5) declaratory relief; (6) breach of contract; (7) declaratory relief re: duty to defend; and (8) declaratory relief re: duty to indemnify.^{^[1]} On May 21, 2021, Plaintiff amended the Complaint to name KLM as Doe Defendant 1.

On May 12, 2022, Baldwin filed a motion for summary adjudication (the “Motion”). The Motion requests that the Court determine that KLM owes Baldwin a duty to defend as alleged in the seventh cause of action for declaratory relief.

KLM’s Request for Judicial Notice is GRANTED, but not to the truth of the matters stated within the documents. (See Lockley v. Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875, 882.)

KLM’s objections to the Declaration of Allison R. De La Riva (“De La Riva Decl.”) are OVERRULED in their entirety.

Under California Code of Civil Procedure (“CCP”) section 437c, subdivision (f), a party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if the party contends that the cause of action has no merit, that there is no affirmative defense to the cause of action, that there is no merit to an affirmative defense as to any cause of action, that there is no merit to a claim for damages, as specified in Section 3294 of the Civil Code, or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs. (CCP § 437c, subd. (f)(1).) 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. (Id.) The function of a motion for summary judgment or adjudication is to allow a determination as to whether an opposing party cannot show evidentiary support for a pleading or claim and to enable an order of summary dismissal without the need for trial. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) CCP 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.)

A plaintiff moving for summary judgment or summary adjudication meets the burden of showing that there is no defense to a cause of action if the plaintiff has proved each element of the cause of action entitling them to judgment on that cause of action. (CCP § 437c, subd. (p)(1).) Once the moving party has met that burden, the burden shifts to the opposing party to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.) Courts liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of the opposing party. (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.)

The Motion presents evidence that on or about July 1, 2020, Baldwin and KLM entered into a master subcontract (the “Subcontractor Agreement”) for KLM to perform construction work. (See Separate Statement of Undisputed Material Facts (“UMF”) 1-4, De La Riva Decl., Exhibit E.) The Subcontractor Agreement included demolition, shoring, and excavation in the scope of work to be performed by KLM. (UMF 4.)

"Indemnification: Subcontractor shall indemnify, protect and defend Owner and Contractor and hold Owner and Contractor harmless from claims or damages caused by Subcontractor's negligent acts or omissions or willful misconduct in its performance of this Subcontract, or such action or inaction by Subcontractor's employees or others for whom Subcontractor is responsible. This indemnification shall not be subject to limitation on the amount or type of damages, notwithstanding anything herein to the contrary, and shall not negate or reduce other rights and obligations of indemnity belonging to a party to this Subcontract except for loss, damage or expense arising from the sole negligence or willful misconduct of the Owner or the Owner's agents, including General Contractor or Construction Manager, servants or other independent contractors. This indemnification shall extend to claims occurring after this Contract is completed as well as while it is in force. The indemnity set forth in this section shall not be limited by insurance requirements or by any provision of this Contract. All work covered by this Contract done at the site or in preparing or delivering materials or equipment to the site shall be at the sole responsibility of Subcontractor until the completed work is accepted by Owner." (UMF 5.)

KLM performed the work identified in the Subcontractor Agreement. (UMF 9.) Baldwin initially notified KLM about Plaintiff’s claims on March 31, 2021. (UMF 14.)[2] KLM did not respond to Baldwin’s tender of defense. (See UMF 15.)

Parties to a contract may define therein their duties toward one another in the event of a third party claim against one or both arising out of their relationship. (Crawford v. Weather Shield Mfg., Inc. (2008) 44 Cal.4th 541, 551 (“Crawford”).) Terms of this kind may require one party to indemnify the other, under specified circumstances, for moneys paid or expenses incurred by the latter as a result of such claims. (Id.) They may also assign one party, pursuant to the contract’s language, responsibility for the other’s legal defense when a third-party claim is made against the latter. (Id.) Where the duty “to defend” is expressly set forth in the contract, the duty arises when such a claim is made and is not dependent on whether the very litigation to be defended later establishes an obligation to pay indemnity. (Id. at 559.) Where the plaintiff's complaint alleges facts embraced by the indemnity agreement, the indemnitor has a duty to defend throughout the underlying tort action unless it can conclusively show by undisputed facts that plaintiff's action is not covered by the agreement. (Centex Homes v. R-Help Construction Co., Inc. (2019) 32 Cal.App.5th 1230, 1237.) The defense duty arises upon tender of a potentially covered claim and lasts until the underlying lawsuit is concluded, or until it has been shown that there is no potential for coverage. (Id. at 1238.) When the duty, having arisen, is extinguished by a showing that no claim can in fact be covered, it is extinguished only prospectively and not retroactively. (Id.) Courts may summarily adjudicate a duty to defend. (See Crawford, supra, 44 Cal.4th at 565, n. 12.)

KLM does not present evidence to dispute the evidence offered by Baldwin. Instead, KLM argues that summary adjudication is not proper because: (1) the issues raised in the seventh cause of action are implicated in the other claims asserted in the Baldwin XC; (2) the allegations in Plaintiff’s Complaint are insufficient to trigger its duty to defend Baldwin; and (3) there are factual issues regarding whether Plaintiff’s damages were caused solely by Baldwin’s negligence.

The Court is not persuaded by KLM’s arguments. First, the existence of a duty may be decided in a motion for summary adjudication. Second, the issue of Baldwin’s incurred fees is separate from KLM’s contractual duty to defend. Third, although Plaintiff’s Complaint does not specifically identify each Defendant’s role in causing Plaintiff’s damages, its general description of the damages and alleged causes of the damages implicate KLM’s work such that its duty to defend was triggered. (See UDC-Universal Development, L.P. v. CH2M Hill (2010) 181 Cal.App.4th 10, 21.)[3] Lastly, Baldwin was not required to present evidence to negate any potential defenses to its position regarding KLM’s duty to defend and was therefore not required to produce evidence to show that Plaintiff’s damages were not solely caused by its own negligence. (See Consumer Cause, Inc. v. SmileCare (2001) 91 Cal.App.4th 454, 468.) Nor has KLM presented evidence that Plaintiff’s damages were, in fact, caused solely by Baldwin’s negligence.

The Court finds that Baldwin has established that KLM is under a duty to defend Baldwin in this action for Plaintiff’s damages that arise from KLM’s negligent performance of the work identified in the Subcontractor Agreement and that KLM has not raised any triable issues of material fact. The Court therefore GRANTS the Motion.

In consideration of the current COVID-19 pandemic situation, the Court strongly encourages that appearances on all proceedings, including this one, be made by LACourtConnect if the parties do not submit on the tentative. If you instead intend to make an appearance in person at Court on this matter, you must send an email by 2 p.m. on the last Court day before the scheduled date of the hearing to SMC_DEPT56@lacourt.org stating your intention to appear in person. The Court will then inform you by close of business that day of the time your hearing will be held. The time set for the hearing may be at any time during that scheduled hearing day, or it may be necessary to schedule the hearing for another date if the Court is unable to accommodate all personal appearances set on that date. This rule is necessary to ensure that adequate precautions can be taken for proper social distancing.

Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.

Hon. Holly J. Fujie

Judge of the Superior Court

[1] On September 22, 2021, KLM filed a cross-complaint (the “KLM XC”) alleging: (1) implied indemnity; (2) equitable indemnity; (3) contribution; and (4) declaratory relief.

[2] Baldwin resubmitted its tender of defense to KLM on January 6, 2022. (See De La Riva Decl., Exhibit I.)

[3] For example, the Complaint alleges that a negligent shoring plan and construction contributed to Plaintiff’s property damage. (See Complaint ¶ 15.)