Judge Holly J. Fujie, Case Number: 21STCV24228, Date: 2024-12-06 Tentative Ruling

MOVING PARTY: Defendant and Cross-Defendant Jada, Inc. dba Sierra Woods (“Jada”)

RESPONDING PARTY: Defendant and Cross-Complainant Tyler Development (“Tyler”)

The Court has considered the moving and opposition papers. No reply has been filed.

This action arises out of alleged construction defects in a single-family residence (the “Project”). On June 29, 2021, Plaintiff Ted Waitt Trustee of The Nightingale Trust dated November 1, 2017 (“Plaintiff”) filed a Complaint against Defendants Tyler; Landry Design Group Incorporated; Planned Partners Limited; Mark L. Smith; James West Roofing & Waterproofing; California Energy Designs, Inc.; and DOES 1 through 100, inclusive for: (1) Breach of Contract; (2) Negligence; (3) Professional Negligence; (4) Strict Products Liability; (5) Breach of Express Warranty; (6) Breach of Implied Warranty of Merchantability; (7) Breach of Implied Warranty Of Fitness For Particular Purpose; and (8) Declaratory Relief.

On July 9, 2021, Defendant and Cross-Complainant Tyler filed a Cross-Complaint against Cross-Defendants Jada Windows, Hammerhead International, S&S Waterproofing, Stoneland, ECM Exotic Pools & Spa, Crystal Clear Glass, Inc., Maiden Stone, Planning Partners Limited, James West Roofing & Waterproofing, California Energy Designs, Inc. and ROES 1 through 100, inclusive, alleging causes of action for: (1) Breach of Contract; (2) Equitable Indemnity; (3) Contribution; (4) Express Indemnity; and (5) Declaratory Relief.

On April 24, 2024, Jada filed the instant Motion for Summary Judgment, or Alternative, Motion for Summary Adjudication (the “Motion”). On June 26, 2024, Tyler filed an opposition to the Motion. No reply has been filed.

Pursuant to Evidence Code section 452, subdivision (d), the Court may take judicial notice of “[r]ecords of (1) any court of this state or (2) any court of record of the United States or of any state of the United States”.

The court, however, may not take judicial notice of the truth of the contents of the documents. (Herrera v. Deutsche Bank National Trust Co. (2011) 196 Cal.App.4th 1366, 1375.)

Although it is not required because they are pleadings filed in the within action, pursuant to Jada’s request, the Court takes judicial notice of the following:

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.) 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.) “The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues; the function of the affidavits or declarations is to disclose whether there is any triable issue of fact within the issues delimited by the pleadings.” (Juge v. County of Sacramento (1993) 12 Cal.App.4th 59, 67, citing FPI Development, Inc. v. Nakashima (1991) 231 Cal. App. 3d 367, 381-382.)¿¿¿

As to each cause of action as framed by the complaint, the defendant moving for summary judgment or summary adjudication must satisfy the initial burden of proof by presenting facts to show “that one or more elements of the cause of action ... cannot be established, or that there is a complete defense to the cause of action.” (CCP § 437c subd. (p)(2); Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520.) Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.)¿¿¿

Once the defendant has met that 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 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.)¿¿¿

Jada moves for summary judgment, or in the alternative, summary adjudication, of Tyler’s first cause of action for breach of contract, second cause of action for equitable indemnity, and third cause of action for contribution. The Court notes that Jada is not moving for summary adjudication or judgment with regard to the Complaint, as to which it is a defendant.

Initially, Tyler concedes that it is neither seeking contractual remedies against Jada nor has it any facts to support a breach of contract cause of action against Jada. (Opp. p. 2:5-9.)

The principle behind equitable indemnity and contribution is to allocate loss among multiple tortfeasors on a comparative fault basis. “The right depends on the principle that everyone is responsible for the consequences of his or her own wrong…” (Fireman’s Fund Ins Co. v. Haslam (1994) 29 Cal.App.4th 1347, 1353.) “Under the doctrine of equitable indemnity, one tortfeasor may obtain partial indemnity from another tortfeasor on a comparative fault basis. [citations omitted] Thus, liability for the injury is borne by each individual tortfeasor in direct proportion to his or her respective fault.” (Id. at 1354)

Therefore, if Jada is jointly liable for Plaintiff’s damages, then Jada owes a duty to Tyler to indemnify or contribute to the damages that Tyler may be compelled to pay to Plaintiff. (Western Steamship Lines, Inc. v. San Pedro Peninsula Hospital (1994) 8 Cal. 4th 100, 114 [“there can be no indemnity without liability.”]; Herrero v. Atkinson (1964) 227 Cal. App. 2d 69, 73 [“Contribution distributes the loss equally among all tortfeasors, each bearing his pro rata share.”].)

Jada. argues that Tyler cannot prevail on its claims for equitable indemnity or contribution because none of Plaintiff’s alleged defects include materials supplied or work performed by Jada. Jada asserts that Plaintiff’s claim is based upon defects with the window glass and glazing that were installed at Plaintiff’s property. (UMF 34.) Jada argues that it only provided door and window frames, which are not alleged to be the source of Plaintiff’s defects. (UMF 22-23, 34.)

Jada has not met its burden to show that the causes of action for equitable indemnity and contribution cannot be established. Plaintiff has, in fact, alleged that there were defects in Jada’s work. Jada provided both window frames and door frames to the Property. (UMF 3.) The Complaint alleges and Plaintiff’s discovery responses establishes that the alleged defects in the Project include the failure of the doors to seal properly. (UMF 47.)

As such, the equitable indemnity and contribution causes of action cannot be determined until Plaintiff’s claims against Jada and Tyler are resolved. The doctrines of equitable indemnity and contribution apply only among defendants who are jointly and severally liable to the plaintiff. (BFGC Architects Planners, Inc. v. Forcum/Mackey Construction, Inc. (2004) 119 Cal.App.4th 848, 852.) Plaintiff has asserted causes of action against both Tyler and Jada.

The Court has not yet made a finding on the merits of Plaintiff’s claims. Jada’s duty to indemnify Tyler may arise “when in equity and good conscience” the burden of judgment in Plaintiff’s favor should be lifted from Tyler and imposed on Jada. (Fireman’s Fund Ins Co., supra 29 Cal.App.4th at 1353) Therefore, until there is a finding on the merits of Plaintiff’s claims, there is necessarily a triable issue of material fact as to whether Jada bears a proportion of fault for Plaintiff’s construction defects and thus owe a duty to indemnify or contribute to the damages Tyler may owe to Plaintiff.

Thus, Jada’s motion for summary adjudication as to the second and third causes of action for equitable indemnity and contribution are DENIED.

The Court GRANTS Cross-Defendant Jada’s motion for summary adjudication as to the First Cause of Action for Breach of Contract. The Court DENIES Cross-Defendant Jada’s motion for summary adjudication as to the Second Cause of Action for Equitable Indemnity and the Third Cause of Action for Contribution.

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