Judge Kevin A. Enright, Case 37-2016-00018510-CU-EI-CTL 2023-09-01 Tentative Ruling

Judge: Kevin A. Enright, Case: 37-2016-00018510-CU-EI-CTL, Date: 2023-09-01 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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CENTRAL COURTHOUSE TENTATIVE RULINGS - August 31, 2023

09/01/2023 10:30:00 AM 2103 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Kevin A. Enright

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Civil - Unlimited Eminent domain/Inverse condemnation Summary Judgment / Summary Adjudication (Civil) 37-2016-00018510-CU-EI-CTL BLACKBURN VS. COUNTY OF SAN DIEGO [IMAGED] CAUSAL DOCUMENT/DATE FILED:

TENTATIVE RULING Defendant's motion for summary judgment/summary adjudication is DENIED.

DISCUSSION Preliminary Matters Defendant's request for judicial notice of Exhibits U-W is GRANTED. Plaintiffs' request for judicial notice is GRANTED as to Exhibits 6, 8-9, and 17. Plaintiffs' request for judicial notice as to Exhibits 5A, 5B, 7, 10, 24-25, and 28-29 is not needed as these exhibits are part of the record in this action. Although the Court may take judicial notice of the existence of court filings, it cannot accept the truth of their contents except for documents such as orders. (Garcia v. Sterling (1985) 176 Cal.App.3d 17, 22.) Plaintiffs raised certain evidentiary objections in their Response to Defendant's Separate Statement of Undisputed Material Facts. (ROA 539.) However, Plaintiffs did not separately file their objections to Defendant's evidence. (See CRC, Rule 3.1354.) Thus, the Court declines to consider these objections.

The general rule of motion practice is that new evidence is not considered on reply unless the evidence fills gaps created by the opposition. (Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1538.) As this was the case here, the Court has considered the reply declarations of John Cooley and Steven Houk. (ROA 559, 561.) Background This case arises from a landlord/tenant dispute based on the alleged breach of two commercial lease agreements. Plaintiffs' FAC alleged: (1) trespass; (2) conversion; (3) negligence; (4) inverse condemnation; and (5) breach of contract. (ROA 17.) Only the fourth and fifth causes of action for inverse condemnation and breach of contract were alleged against Defendant County of San Diego (Defendant).

According to the FAC, Defendant damaged Plaintiff Blackburn's building and improperly removed property when Defendant vacated the building after the expiration of the rental lease. Defendant denied the allegations and maintained that Plaintiffs could not establish breach of contract to the extent any of the repairs were covered by Plaintiffs' insurance.

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2999962 CASE NUMBER: CASE TITLE: BLACKBURN VS. COUNTY OF SAN DIEGO [IMAGED] 37-2016-00018510-CU-EI-CTL The parties agreed to sever all issues related to insurance coverage to a second phase of trial (Phase II). As to the first phase of trial (Phase I), the jury found in favor of Plaintiffs and awarded $65,863, only a fraction of the damages sought by Plaintiffs. The jury essentially awarded damages for the repair costs of the elevator plus $100 for an alarm control panel. As to the second phase, the trial court granted Plaintiffs' motion for judgment on the pleadings, finding that Defendant was barred from raising insurance coverage issues based on its failure to plead the issues as an affirmative defense.

The parties cross-appealed the judgment, and the Court of Appeal (COA) affirmed the judgment as to Phase I, finding that substantial evidence supported the jury's verdict. The COA reversed and remanded the judgment as to Phase II with instructions to retry Phase II. (ROA 409, Remittitur.) The COA observed that in effect, the 'severance split [Plaintiff] Blackburn's breach of contract cause of action with the element of breach being split in two: in the first phase, the jury was limited to considering whether the County damaged the building and, in the second phase, the trial court was to consider whether the resulting repair costs were covered by insurance.' (Decision at p. 18.) The COA found 'the leases impose an obligation on the County to reimburse Blackburn for any repairs necessitated by the County's negligent or intentional act only when those repair costs are not covered by any insurance policy carried by Blackburn.' (ROA 409, Decision at p. 17, original italic.) As such, the COA remanded the matter for retrial on the insurance issue and noted that to establish the breach of contract claim, Plaintiffs had the burden of proving Defendant did not perform as required by the lease, which under the circumstances meant showing that the elevator repair costs were not covered by any insurance policy carried by Plaintiff. (Ibid.) After remand, Plaintiffs moved to reopen discovery, for a mistrial, and for leave to file a Second Amended Complaint (SAC). Defendant moved to reopen discovery. The Court granted the motions to reopen discovery, denied the motion for mistrial, and granted Plaintiffs' motion for leave to file an SAC in part. On December 14, 2022, Plaintiffs filed the operative SAC alleging a single cause of action for breach of contract against Defendant. (ROA 492.) Analysis Defendant moves for summary judgment on the sole cause of action alleged against it for breach of contract. Defendant alternatively moves for summary adjudication on the grounds it owed no duty under the two leases to reimburse Plaintiffs for the damage to the elevator.

Summary judgment is appropriate only if all of the papers submitted by the parties show there is no triable issue of material fact and the moving party is entitled to judgment as a matter of law. (C.C.P., § 437c(c).) 'First, and generally, from commencement to conclusion, the party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law.' (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) A party may move for adjudication as to causes of action, affirmative defenses, claims for damages or issues of duty. (C.C.P., § 437c(f)(1).) A motion for summary adjudication shall be granted only if it completely disposes of a cause of action. (Ibid.) Summary adjudication motions are 'procedurally identical' to summary judgment motions. (Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, 859.) A defendant who moves for summary judgment has the initial burden of showing each alleged cause of action is without merit. (Aguilar, supra, 25 Cal.4th at 843.) If a defendant meets its burden, the burden shifts to the plaintiff to produce evidence to make a prima facie showing of the existence of a triable issue of material fact. (C.C.P., § 437c(p)(2); Aguilar, supra, 25 Cal.4th at 849-851.) If the plaintiff fails to meet that burden, the motion for summary judgment will be granted. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 780-781.) A triable issue of material fact exists if the evidence would allow a reasonable trier of fact to find the underlying facts in favor of the party opposing the motion in Calendar No.: Event ID: TENTATIVE RULINGS

2999962 CASE NUMBER: CASE TITLE: BLACKBURN VS. COUNTY OF SAN DIEGO [IMAGED] 37-2016-00018510-CU-EI-CTL accordance with the applicable standard of proof. (Aguilar, supra, 25 Cal.4th at 850.) In conducting this analysis, the court must strictly construe the moving party's evidence and liberally construe the opposing party's evidence (Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 838-39), and may not weigh the evidence or conflicting inferences. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 856.) ' 'The purpose of a summary judgment proceeding is to permit a party to show that material factual claims arising from the pleadings need not be tried because they are not in dispute.' The purpose is carried out in section 437c, subdivision (b)(1) by requiring the moving party to include in the moving papers 'a separate statement setting forth plainly and concisely all material facts which the moving party contends are undisputed [together with] a reference to the supporting evidence.' ' (Teselle v. McLoughlin (2009) 173 Cal.App.4th 156, 168, emphasis original and citations omitted.) Here, Defendant has failed to set forth 'all material facts contended to be undisputed together with supporting evidence.' (C.C.P., § 437c(b)(1).) Defendant argues: 'Putting the pieces together, the Policy covered the elevator damage because it was 'direct physical loss or damage [mechanical breakdown] to Covered Property [the elevator] at the premises described in the Declarations [the office building] caused by or resulting from . . . Covered Cause[s] of Loss [the County's action to prop open the elevator door combined with the risk that the elevator could produce excessive heat].' ' (ROA 509, Memo. Points and Authorities, p. 21: 8-12, citing SSUMF 18 [quoting the coverage provision under the Policy].) However, Defendant's arguments are based on facts that Defendant does not include or support in its separate statement of undisputed material facts. For instance, Defendant contends the causes and nature of the elevator damage are 'undisputed,' but does not set forth any of these facts in its separate statement. (Id., pp. 12: 3-13: 18.) Nor does Defendant cite to or provide undisputed material facts that the damage to the elevator was a 'direct physical loss or damage' under the Policy. (Id., p. 20: 6-18.) Moreover, Defendant does not cite or provide undisputed material facts of the risks the elevator would draw electric current and produce excessive heat or that these are risks of direct physical loss that would provide coverage under the Policy. (Id., pp. 5: 19-20, 17: 13-26.) For these reasons, Defendant has not met its initial burden to show that the cause of action for breach of contract is without merit or that it did not owe a duty to Plaintiffs. The burden thus did not shift to Plaintiffs to demonstrate a triable controversy. Even if the burden shifted, triable issues of material fact exist whether the elevator is 'Covered Property' under the Policy, whether the damage to the elevator was the result of a 'Covered Cause of Loss,' and whether Travelers paid Plaintiffs for any of the costs to repair the elevator based on damages allegedly caused by Defendant. (See Pltfs.' Additional Undisputed Material Facts 26, 32-35, 39, 46; Def.'s Exh. I, pp. 49-50 at ¶¶ G.2a(3) and G.4b(8).) Based on the foregoing, Defendant's motion for summary judgment/summary adjudication is DENIED.

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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