Judge: Keri G. Katz, Case: 37-2021-00052410-CU-CD-CTL, Date: 2023-10-20 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - October 19, 2023

10/20/2023  08:30:00 AM  C-74 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Keri Katz

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Civil - Unlimited  Construction Defect Summary Judgment / Summary Adjudication (Civil) 37-2021-00052410-CU-CD-CTL RUSSELL VS HILL CONSTRUCTION COMPANY INC [E-FILE] CAUSAL DOCUMENT/DATE FILED:

Defendant/Cross-Complainant Hill Construction Company, Inc.'s motion for summary adjudication of its seventh cause of action for 'Declaratory Relief Re: Duty to Defend' against Cross-Defendants/Cross-Complainants Stratton Specialty Coatings, Inc., Coastal Roofing and Sheet Metal, Inc., Peter Stuart Kane dba Kane Construction and Cross-Defendants ING Construction, Inc., Apptek Coachella, Inc., European Wholesale Countertops and Cabinets, Inc., Acuron, Inc. dba Kinslo Contract Glazing, Allan Stuart Fraser dba Fraser Plumbing, Garcia Brothers, Inc. dba Rock Enterprises Construction, Crossman Landscape & Maintenance, Inc., All Media Glass & Metal, Inc. and Insulation, Exact Framing and Lang William Naefke dba Lang Tree Woodworking is DENIED.

In assessing Hill's motion, brought pursuant to Crawford v. Weather Shield Mfg. Inc. (2008) 44 Cal.4th 541, the court is guided by footnote 12 of Crawford: 'If any party moves for summary judgment or adjudication (Code Civ. Proc., § 437c) with respect to the duty to defend against litigation still in progress, the court may proceed as it deems expedient.' Crawford, 44 Cal.4th at 565 fn. 12. As Hill seeks adjudication of a declaratory relief cause of action, the court also looks to CCP § 1061: 'The court may refuse to exercise the power granted by this chapter in any case where its declaration or determination is not necessary or proper at the time under all the circumstances.' As Stratton and Coast argue, Crawford recognizes 'the practical difficulties of sorting out multiple, and potentially conflicting, duties to assume the active defense of litigation then in progress.' Crawford, 44 Cal.4th at 565 fn. 12. Hill does address these arguments in reply nor does Hill address similar arguments raised by other opposing parties. Based on the evidence before the court it appears that, even were the court to find in favor of Hill on the issue of duty to defend, numerous issues relating to the subcontractors' defense obligations to Hill will remain, including, the amount of Hill's defense fees and costs, if any, the allocation of such fees and costs among the subcontractors, and the amount of any potential off-sets. Resolution of these issues is, at least partially, dependent on evidence of defects as well as a determination of the respective liabilities of both Hill and the subcontractor parties to this litigation. Considering these circumstances, and the absence of any evidence from Hill establishing a necessity for adjudication of the subcontractors' duty to defend at this stage of the litigation, the court finds it is neither necessary nor proper to adjudicate the subcontractors' duty to defend at this time. The court also finds that denial of Hill's pending motion is more expedient than ruling on a motion that will not completely resolve the subcontractors' defense obligations to Hill. At this stage of the litigation, Hill fails to establish that there is any practical benefit to resolution of the issue of duty to defend on such a limited basis. Compared with the significant burden Hill's motion as against 14 subcontractors places on the court, the court finds it is more expedient to deny the limited summary adjudication that Hill seeks.

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2974977  7 CASE NUMBER: CASE TITLE:  RUSSELL VS HILL CONSTRUCTION COMPANY INC [E-FILE]  37-2021-00052410-CU-CD-CTL In light of this ruling the court does not reach the evidentiary issues. Any evidentiary rulings would not change the result.

If this tentative ruling is confirmed the Minute Order will be the final order of the court and the parties shall not submit any further order on this motion.

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