Judge Joel R Wohlfeil, Case 37-2018-00032100-CU-BC-CTL 2023-09-19 Tentative Ruling

Judge: Joel R Wohlfeil, Case: 37-2018-00032100-CU-BC-CTL, Date: 2023-09-19 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

DEPT.:

EVENT DATE:

EVENT TIME:

HALL OF JUSTICE

TENTATIVE RULINGS - September 06, 2023

09/08/2023 09:00:00 AM C-73 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Joel R. Wohlfeil

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CASE CATEGORY:

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CASE TITLE: CASE TYPE:

Civil - Unlimited Breach of Contract/Warranty Summary Judgment / Summary Adjudication (Civil) 37-2018-00032100-CU-BC-CTL JAIME PARTNERS INC VS ALLEGRO TOWERS LP [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion for Summary Judgment and/or Adjudication, 06/22/2023

1. The Motion (ROA # 322) of Defendant / Cross-Complainant JAIME PARTNERS, INC. ('JPI') for an Order for Summary Adjudication of JPI's Twelfth Cause of Action against SLAYTON MECHANICAL CONTRACTORS, INC. ('Slayton') for an order declaring Slayton owes JPI Express Indemnity, is DENIED.

JPI's Request (ROA # 328) for judicial notice is GRANTED IN PART and DENIED IN PART. The Court takes judicial notice of the dates only on which Exh's '5 - 8' were filed with the Court; otherwise, the Request is DENIED.

Slayton' evidentiary objections (ROA # 357) are OVERRULED IN PART and SUSTAINED IN PART.

The objections are OVERRULED with the exception of no. 6 which are SUSTAINED.

Plaintiff's evidentiary objections (ROA # 385, 386, 391) are OVERRULED.

Initially, the Court notes that this Motion is limited to adjudication of the twelfth cause of action. The twelfth cause of action does not seek to adjudicate whether Slayton Mechanical was required to obtain additional insured coverage. Therefore, the Court does not address this aspect of the Motion.

The Court also notes that Plaintiff's Notice of Motion and separate statement of undisputed material facts sufficiently comply with California Rules of Court, Rule 3.1350.

2982064 CASE NUMBER: CASE TITLE: JAIME PARTNERS INC VS ALLEGRO TOWERS LP [IMAGED] 37-2018-00032100-CU-BC-CTL General Contractor... ('Indemnities') from and against any and all bodily injuries, claims, damages, losses and expenses, including but not limited to attorney's fees, arising out of or resulting from or attributable in any way to any aspect of the performance of the Subcontractor's Work under this Subcontract, regardless of whether or not such bodily injury, claim, damage, loss or expense is caused in whole or in part by the negligence of any Indemnity hereunder ...' It is undisputed that the subcontract with Slayton was for the installation of HVAC equipment and ductwork at the project, which included installing kitchen exhaust fans, kitchen hoods, and grease ducts, among other work.

'An indemnity against claims, or demands, or liability, expressly, or in other equivalent terms, embraces the costs of defense against such claims, demands, or liability incurred in good faith, and in the exercise of a reasonable discretion.' Civ. Code 2778(3).

'The person indemnifying is bound, on request of the person indemnified, to defend actions or proceedings brought against the latter in respect to the matters embraced by the indemnity, but the person indemnified has the right to conduct such defenses, if he chooses to do so.' Id. at (4).

The duty to indemnify and the duty to defend are correlative. Certain Underwriters at Lloyd's of London v. Superior Court (2001) 24 Cal. 4th 945, 958.

The duty to defend has as its purpose to avoid or at least minimize liability before liability is established, and the duty to indemnify has as its purpose to resolve liability after liability is established. Id. Although correlative, the duty to indemnify and the duty to defend are not coterminous. Id. They differ in their triggering: the duty to indemnify can arise only after damages are fixed in their amount, but the duty to defend may arise as soon as damages are sought in some amount. Id. Paragraph 4.6.1 of the subcontract expressly requires indemnification against any 'claims,' which includes reimbursement of attorney's fees.

As set forth above, 'indemnity against claims ... embraces the costs of defense against such claims ....' Civ. Code 2778(3).

The duty to provide this defense arises as soon as damages are sought. Thus, Plaintiff is not required to establish Slayton Mechanical's liability before it is entitled to seek indemnification of its defense costs.

The Notice of Motion seeks to summarily adjudicate the twelfth cause of action. Paragraph 85 within the Fourth Amended Complaint sets forth the determination of rights Plaintiff seeks via this cause of action: 'Plaintiff desires a judicial determination and declaration of the respective rights of the Plaintiff [and] SUBCONTRACTOR DEFENDANTS .... Specifically, Plaintiff requests that the court declare that Plaintiff is entitled to be indemnified, held harmless and defended without cost to themselves by SUBCONTRACTOR DEFENDANTS and DOES 26 through 250, and each of them, for the alleged damages complained of by Defendant [Allegro].' It is well established that the pleadings determine the scope of relevant issues on a summary judgment motion. Nieto v. Blue Shield of California Life & Health Ins. Co. (2010) 181 Cal. App. 4th 60, 74.

Generally, summary adjudication must completely dispose of a cause of action. Edmon & Karnow, Cal. Prac. Guide: Civ. Pro. Before Trial (The Rutter Group 2023) at ¶ 10:33 (citing Code Civ. Proc.

437c(f)(1)).

Even assuming the evidence presented by Plaintiff is admissible, this would only establish Defendant's contractual obligation to defend Plaintiff against Allegro's claim, which embraces the work performed by Calendar No.: Event ID: TENTATIVE RULINGS

2982064 CASE NUMBER: CASE TITLE: JAIME PARTNERS INC VS ALLEGRO TOWERS LP [IMAGED] 37-2018-00032100-CU-BC-CTL Defendant Slayton Mechanical (kitchen hood ventilation, grease interceptor in the parking garage, unprotected openings in the walls at the garage generator room).

On the other hand, this evidence does not establish Plaintiff's entitlement to indemnification because liability has not been established. Even if the right to indemnification could be established on the evidence presented, it is also disputed whether this Defendant must indemnify Plaintiff for all of 'the alleged damages complained of by Defendant [Allegro].' It appears that Allegro's claimed damages also encompass work by other subcontractors, and thus not 'arising out of or resulting from or attributable in any way to any aspect of the performance of the [Slayton Mechanical's] Work.' Summary adjudication is denied on this basis.

_____ 2. The Motion (ROA # 330) of Defendant / Cross-Complainant JAIME PARTNERS, INC. ('JPI') for an Order for Summary Adjudication of JPI's Twelfth Cause of Action against HELIX ELECTRIC, INC.

('Helix') for an order declaring Helix owes JPI Express Indemnity, is DENIED.

JPI's Request (ROA # 335) for judicial notice is GRANTED IN PART and DENIED IN PART. The Court takes judicial notice of the dates only on which Exh's '5 - 8' were filed with the Court; otherwise, the Request is DENIED.

Initially, the Court notes that this Motion is limited to adjudication of the twelfth cause of action. The twelfth cause of action does not seek to adjudicate whether Helix Electric was required to obtain additional insured coverage. Therefore, the Court does not address this aspect of the Motion.

The Court also notes that Plaintiff's Notice of Motion sufficiently provides notice of the motion for summary adjudication. California Rules of Court, Rule 3.110.

It is undisputed that Jaime Partners was retained as the general contractor on the Allegro 'Craft & Commerce' project located at 675 West Beech Street. Following construction, Allegro failed to pay Jaime $61,705.50, prompting Jaime to file this lawsuit. Allegro thereafter filed its Cross-Complaint alleging Jaime and its subcontractors are liable to Allegro for failing to perform their construction duties 'in a proper workmanlike manner and fashion,' and failing construct the improvements 'in accordance with applicable code requirements.' In response to this cross-action, Jaime amended its pleading to include, among others, the twelfth cause of action for Declaratory Relief. Paragraph 85 within this cause of action seeks a judicial determination and declaration that Jaime 'is entitled to be indemnified, held harmless and defended without cost to themselves by [Helix], for the alleged damages complained of by [Allegro].' Paragraph 4.6.1 of the subcontract between Jaime Partners and subcontractor Helix Electric provides, in part: '4.6.1 To the fullest extent permitted by law, the Subcontractor shall indemnify and hold harmless the General Contractor... ('Indemnities') from and against any and all bodily injuries, claims, damages, losses and expenses, including but not limited to attorney's fees, arising out of or resulting from or attributable in any way to any aspect of the performance of the Subcontractor's Work under this Subcontract, regardless of whether or not such bodily injury, claim, damage, loss or expense is caused in whole or in part by the negligence of any Indemnity hereunder ...' It is undisputed that the subcontract with Helix was for 'installation of electrical, among other work.' Separate Statement no. 5.

Calendar No.: Event ID: TENTATIVE RULINGS

2982064 CASE NUMBER: CASE TITLE: JAIME PARTNERS INC VS ALLEGRO TOWERS LP [IMAGED] 37-2018-00032100-CU-BC-CTL 'An indemnity against claims, or demands, or liability, expressly, or in other equivalent terms, embraces the costs of defense against such claims, demands, or liability incurred in good faith, and in the exercise of a reasonable discretion.' Civ. Code 2778(3).

The duty to indemnify and the duty to defend are correlative. Certain Underwriters at Lloyd's of London v. Superior Court (2001) 24 Cal. 4th 945, 958.

As set forth above, 'indemnity against claims ... embraces the costs of defense against such claims ....' Civ. Code 2778(3).

The duty to provide this defense arises as soon as damages are sought. Thus, Plaintiff is not required to establish Helix Electric's liability before it is entitled to seek indemnification of its defense costs.

Generally, summary adjudication must completely dispose of a cause of action. Edmon & Karnow, Cal. Prac. Guide: Civ. Pro. Before Trial (The Rutter Group 2023) at ¶ 10:33 (citing Code Civ. Proc.

437c(f)(1)).

It is disputed whether Allegro's claim embraces the work performed by Defendant Helix Electric.

Separate Statement nos. 19, 20 and 22. Even assuming Allegro's claim includes work performed by Defendant Helix, this would only establish Defendant's contractual obligation to defend Plaintiff against Allegro's claim.

On the other hand, this evidence does not establish Plaintiff's entitlement to indemnification because liability has not been established. Even if the right to indemnification could be established on the evidence presented, it is also disputed whether this Defendant must indemnify Plaintiff for all of 'the alleged damages complained of by Defendant [Allegro].' It appears that Allegro's claimed damages also encompass work by other subcontractors, and thus not 'arising out of or resulting from or attributable in any way to any aspect of the performance of the [Helix Electric's] Work.' Calendar No.: Event ID: TENTATIVE RULINGS

2982064 CASE NUMBER: CASE TITLE: JAIME PARTNERS INC VS ALLEGRO TOWERS LP [IMAGED] 37-2018-00032100-CU-BC-CTL Summary adjudication is denied on this basis.

_____ 3. The Motion (ROA # 338) of Defendant / Cross-Complainant JAIME PARTNERS, INC. ('JPI') for an Order for Summary Adjudication of JPI's Twelfth Cause of Action against CHRISTIAN BROTHER'S FLOORING & INTERIORS, INC. ('Christian Brothers') for an order declaring Christian Brothers owes JPI Express Indemnity, is DENIED.

JPI's Request (ROA # 343) for judicial notice is GRANTED IN PART and DENIED IN PART. The Court takes judicial notice of the dates only on which Exh's '5 - 8' were filed with the Court; otherwise, the Request is DENIED.

Christian Brother's objections (ROA # 366) are OVERRULED.

Initially, the Court notes that this Motion is limited to adjudication of the twelfth cause of action. The twelfth cause of action does not seek to adjudicate whether Christian Brothers was required to obtain additional insured coverage. Therefore, the Court does not address this aspect of the Motion.

It is undisputed that Jaime Partners was retained as the general contractor on the Allegro 'Craft & Commerce' project located at 675 West Beech Street. Following construction, Allegro failed to pay Jaime $61,705.50, prompting Jaime to file this lawsuit. Allegro thereafter filed its Cross-Complaint alleging Jaime and its subcontractors are liable to Allegro for failing to perform their construction duties 'in a proper workmanlike manner and fashion,' and failing construct the improvements 'in accordance with applicable code requirements.' In response to this cross-action, Jaime amended its pleading to include, among others, the twelfth cause of action for Declaratory Relief. Paragraph 85 within this cause of action seeks a judicial determination and declaration that Jaime 'is entitled to be indemnified, held harmless and defended without cost to themselves by [Christian Brothers], for the alleged damages complained of by [Allegro].' Paragraph 4.6.1 of the subcontract between Jaime Partners and subcontractor Christian Brothers provides, in part: '4.6.1 To the fullest extent permitted by law, the Subcontractor shall indemnify and hold harmless the General Contractor ... ('Indemnities') from and against any and all bodily injuries, claims, damages, losses and expenses, including but not limited to attorney's fees, arising out of or resulting from or attributable in any way to any aspect of the performance of the Subcontractor's Work under this Subcontract, regardless of whether or not such bodily injury, claim, damage, loss or expense is caused in whole or in part by the negligence of any Indemnity hereunder ...' It is undisputed that the subcontract with Christian Brothers was for 'installation of flooring and tile, among other work.' Separate Statement no. 5.

The duty to indemnify and the duty to defend are correlative. Certain Underwriters at Lloyd's of London v. Superior Court (2001) 24 Cal. 4th 945, 958.

Calendar No.: Event ID: TENTATIVE RULINGS

2982064 CASE NUMBER: CASE TITLE: JAIME PARTNERS INC VS ALLEGRO TOWERS LP [IMAGED] 37-2018-00032100-CU-BC-CTL The duty to defend has as its purpose to avoid or at least minimize liability before liability is established, and the duty to indemnify has as its purpose to resolve liability after liability is established. Id. Although correlative, the duty to indemnify and the duty to defend are not coterminous. Id. They differ in their triggering: the duty to indemnify can arise only after damages are fixed in their amount, but the duty to defend may arise as soon as damages are sought in some amount. Id. Paragraph 4.6.1 of the subcontract expressly requires indemnification against any 'claims,' which includes reimbursement of attorney's fees.

As set forth above, 'indemnity against claims ... embraces the costs of defense against such claims ....' Civ. Code 2778(3).

The duty to provide this defense arises as soon as damages are sought. Thus, Plaintiff is not required to establish liability before it is entitled to seek indemnification of its defense costs.

Generally, summary adjudication must completely dispose of a cause of action. Edmon & Karnow, Cal. Prac. Guide: Civ. Pro. Before Trial (The Rutter Group 2023) at ¶ 10:33 (citing Code Civ. Proc.

437c(f)(1)).

Even assuming the evidence presented by Plaintiff is admissible, this would only establish Defendant Christian Brothers' contractual obligation to defend Plaintiff against Allegro's claim, which embraces the work performed by this Defendant (tripping hazards at access points for the Tiki Bar).

On the other hand, this evidence does not establish Plaintiff's entitlement to indemnification because liability has not been established. Even if the right to indemnification could be established on the evidence presented, it is also disputed whether this Defendant must indemnify Plaintiff for all of 'the alleged damages complained of by Defendant [Allegro].' It appears that Allegro's claimed damages also encompass work by other subcontractors, and thus not 'arising out of or resulting from or attributable in any way to any aspect of the performance of [Christian Brothers'] Work.' Summary adjudication is denied on this basis.

_____ 4. The Motion (ROA # 346) of Defendant / Cross-Complainant JAIME PARTNERS, INC. ('JPI') for an Order for Summary Adjudication of JPI's Twelfth Cause of Action against SHERWOOD MECHANICAL, INC. ('Sherwood') for an order declaring Sherwood owes JPI Express Indemnity, is DENIED.

JPI's Request (ROA # 350) for judicial notice is GRANTED IN PART and DENIED IN PART. The Court Calendar No.: Event ID: TENTATIVE RULINGS

2982064 CASE NUMBER: CASE TITLE: JAIME PARTNERS INC VS ALLEGRO TOWERS LP [IMAGED] 37-2018-00032100-CU-BC-CTL takes judicial notice of the dates only on which Exh's '5 - 8' were filed with the Court; otherwise, the Request is DENIED.

Initially, the Court notes that this Motion is limited to adjudication of the twelfth cause of action. The twelfth cause of action does not seek to adjudicate whether Sherwood Mechanical was required to obtain additional insured coverage. Therefore, the Court does not address this aspect of the Motion.

It is undisputed that Jaime Partners was retained as the general contractor on the Allegro 'Craft & Commerce' project located at 675 West Beech Street. Following construction, Allegro failed to pay Jaime $61,705.50 , prompting Jaime to file this lawsuit. Allegro thereafter filed its Cross-Complaint alleging Jaime and its subcontractors are liable to Allegro for failing to perform their construction duties 'in a proper workmanlike manner and fashion,' and failing construct the improvements 'in accordance with applicable code requirements.' In response to this cross-action, Jaime amended its pleading to include, among others, the twelfth cause of action for Declaratory Relief. Paragraph 85 within this cause of action seeks a judicial determination and declaration that Jaime 'is entitled to be indemnified, held harmless and defended without cost to themselves by [Sherwood Mechanical], for the alleged damages complained of by [Allegro].' Paragraph 4.6.1 of the subcontract between Jaime Partners and subcontractor Sherwood Mechanical provides, in part: '4.6.1 To the fullest extent permitted by law, the Subcontractor shall indemnify and hold harmless the General Contractor... ('Indemnities') from and against any and all bodily injuries, claims, damages, losses and expenses, including but not limited to attorney's fees, arising out of or resulting from or attributable in any way to any aspect of the performance of the Subcontractor's Work under this Subcontract, regardless of whether or not such bodily injury, claim, damage, loss or expense is caused in whole or in part by the negligence of any Indemnity hereunder ...' It is undisputed that the subcontract with Sherwood Mechanical was for 'installing grease waste piping, grease interceptor, fire table gas piping, floor drains and floor sinks, fire stopping at through wall penetrations, sewer ejector/pump, and mop sink, among other work.' Separate Statement no. 5.

The duty to indemnify and the duty to defend are correlative. Certain Underwriters at Lloyd's of London v. Superior Court (2001) 24 Cal. 4th 945, 958.

As set forth above, 'indemnity against claims ... embraces the costs of defense against such claims ....' Calendar No.: Event ID: TENTATIVE RULINGS

2982064 CASE NUMBER: CASE TITLE: JAIME PARTNERS INC VS ALLEGRO TOWERS LP [IMAGED] 37-2018-00032100-CU-BC-CTL Civ. Code 2778(3).

The duty to provide this defense arises as soon as damages are sought. Thus, Plaintiff is not required to establish liability before it is entitled to seek indemnification of its defense costs.

Generally, summary adjudication must completely dispose of a cause of action. Edmon & Karnow, Cal. Prac. Guide: Civ. Pro. Before Trial (The Rutter Group 2023) at ¶ 10:33 (citing Code Civ. Proc.

437c(f)(1)).

It is disputed whether Allegro's claim embraces the work performed by Defendant Sherwood Mechanical. See declaration of Mitch Roberts (ROA # 362). Even assuming Allegro's claim includes work performed by Defendant Sherwood, this would only establish Defendant's contractual obligation to defend Plaintiff against Allegro's claim.

On the other hand, this evidence does not establish Plaintiff's entitlement to indemnification because liability has not been established. Even if the right to indemnification could be established on the evidence presented, it is also disputed whether this Defendant must indemnify Plaintiff for all of 'the alleged damages complained of by Defendant [Allegro].' It appears that Allegro's claimed damages also encompass work by other subcontractors, and thus not 'arising out of or resulting from or attributable in any way to any aspect of the performance of the [Sherwood Mechanical's] Work.' Summary adjudication is denied on this basis.

_____ 5. The Ex Parte Application (ROA # 379) of Plaintiff and Cross-Defendant JAIME PARTNERS, INC.

('Plaintiff') to continue the trial date is DENIED.

Plaintiff has not shown good cause to continue the specially set trial date. The Court confirms the current trial date of October 2, 2023 at 9:00 AM in D 73.

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