Judge Lee S. Arian, Case Number: 20STCV04029, Date: 2024-02-09 Tentative Ruling

RESPONDING PARTY: Defendant/Cross-Complainant Del Amo Fashion Center Operating Company, LLC

Plaintiff Toni Marsden (“Plaintiff”) sued Defendant Del Amo Fashion Center Operating Company, LLC for general negligence and premises liability. Del Amo Fashion Center Operating Company, LLC (“Cross-Complainant”) cross-complained against Cross-Defendant Whiting-Turner Contracting Company (“Cross-Defendant”) for express indemnity and breach of contract.

The Cross-Complaint alleges that Cross-Complainant and Cross-Defendant entered into a written contract wherein Cross-Defendant agreed to perform services as a General Contractor at the Del Amo Fashion Center regarding the redevelopment of existing leasable area into a food court, renovation of the existing mall and conversion of the existing food court into retail leasable area. (XC ¶ 6.) Cross-Complainant alleges the agreement contained an indemnification provision wherein Cross-Defendant agreed to defend and indemnify Cross-Complainant “from and against all claims, damages, costs and expenses, including attorney’s fees, arising out of or resulting from the performance of the Work, but only to the extent caused by the acts or omissions of the Contractor, its laborers, employees, agents, Subcontractors, and anyone for whose acts they may be liable.” (Id.) Cross-Complainant alleges that Cross-Defendant failed to defend and indemnify it from the claim brought against Cross-Complainant by Plaintiff on January 31, 2020, for general negligence and premises liability based on personal injuries she allegedly sustained when she fell down the stairs inside the Shopping Center. (Id. ¶ 9.) Plaintiff claims that Cross-Complainant negligently designed, constructed, maintained, controlled and managed the premises where the alleged fall happened. (Id.) (emphasis added.)

On April 17, 2023, the Court overruled Cross-Defendant’s demurrer to the Cross-Complaint filed by Cross-Complainant on January 27, 2023.

On November 22, 2023, Cross-Defendant filed the instant motion for summary judgment. On January 25, 2024, Cross-Complainant opposed. On February 2, 2024, Cross-Defendant replied.

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 Civ. Proc. § 437c(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.)

“As to each claim as framed by the complaint, the defendant moving for summary judgment must satisfy the initial burden of proof by presenting facts to negate an essential element, or to establish a defense.” (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 its 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. (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th 826, 849.) “[T]he plaintiff must produce substantial responsive evidence sufficient to establish a triable issue of material fact on the merits.” (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 163.) “A mere scintilla of evidence does not create a conflict for the jury’s resolution.” (Nally v. Grace Community Church (1988) 47 Cal.3d 278, 291.) “An issue of fact . . . is not created by speculation, conjecture, imagination or guess work.” (Brown v. Ransweiler (2009) 171 Cal.App.4th 516, 525.)

Although Cross-Complainant failed to abide by the requirements under California Rules of Court, Rule 3.1354 for making evidentiary objections, the Court will exercise its discretion in considering them.

The Court OVERRULES the objections to the Declaration of Tavio Darchangelo in full.

Cross-Defendant asserts that all of Cross-Complainant’s causes of action are barred by the four-year statute of limitations for patent defects. Cross-Defendant states that summary judgment is proper because Plaintiff’s Complaint and Cross-Complainant’s Cross-Complaint were filed more than four years after Cross-Defendant achieved substantial completion of the stairs at issue.

Code of Civil Procedure § 337.1. Code of Civil Procedure § 337.1 states, in pertinent part:

(a) Except as otherwise provided in this section, no action shall be brought to recover damages from any person performing or furnishing the design, specifications, surveying, planning, supervision or observation of construction or construction of an improvement to real property more than four years after the substantial completion of such improvement for any of the following:

(1) Any patent deficiency in the design, specifications, surveying, planning, supervision or observation of construction or construction of an improvement to, or survey of, real property;

(3) Injury to the person or for wrongful death arising out of any such patent deficiency.

(e) As used in this section, “patent deficiency” means a deficiency which is apparent by reasonable inspection.

“Section 337.1 of the Code of Civil Procedure requires that an action based upon a patent deficiency resulting from the activities associated with construction of an improvement to real property … be brought within four years after substantial completion of such improvement. A patent defect is one which can be discovered by such an inspection as would be made in the exercise of ordinary care and prudence. [Citations.] This is contrasted with a latent defect, one which is hidden, and which would not be discovered by a reasonably careful inspection. [Citations.]” (Wagner v. State of Cal. (1978) 86 Cal.App.3d 922, 928.)

An objective test is employed to determine whether the deficiency is patent. “The use of an objective test for a patent defect effectuates the broad protection afforded contractors by the statute by eliminating the possibility that a defect could be deemed patent as to some plaintiffs and latent as to others depending on the circumstances of each person injured as a result of the defect. … [T]he test focuses on the nature of the defect, the circumstances surrounding it, and the nature and gravity of the harm it presents. The question to be answered is whether the average consumer, during the course of a reasonable inspection, would discover the defect. The test assumes that an inspection takes place.” (Geertz v. Ausonio (1992) 4 Cal.App.4th 1363, 1370.)

Cross-Defendant asserts the defect at issue is patent and that substantial completion of the project occurred no later than November 17, 2015, when the punch list was created and the inspection was conducted by Del Amo’s architect, David Littman. The punch list created by Littman did not identify any deficiencies for the stair steps. (Cross-Defendant’s Undisputed Material Facts no. 7; Darchangelo Decl. ¶ 9, Exhib. B, Punch List WTC001113-001120.)

In opposition, Cross-Complainant argues that Cross-Defendant wrongly relies on Code of Civil Procedure section 337.1; instead, section 337.15 applies. Cross-Complainant cites Valley Crest Landscape Development, Inc. v. Mission Pools of Escondido, Inc. (2015) 238 Cal.App.4th 468, 479., which states: “An action for indemnity—express or implied—is not included within section 337.1(a)’s definition of the word “action.”

In reply, Cross-Defendant states that the Valley Crest case is not controlling, and that the Court may choose between conflicting lines of authority. Cross-Defendant argues that the 4^th Appellate District improperly interpreted Code of Civil Procedure section 337.1 because the statute is broad enough to include claims for indemnity and the purpose of the statute was to protect improvers of real property against claims for patent defects, not property owners. Cross Defendant argues that instead this Court should follow

In Valley Crest, the plaintiff suffered injuries after diving into a swimming pool at the St. Regis Resort. (Valley Crest Landscape Development, Inc., supra, 238 Cal.App.4th at 472.) The plaintiff sued the owner of the St. Regis, the general contractor, and the subcontractor involved in the design and construction of the pool. (Id.) Valley Crest, the general contractor, filed a cross-complaint against the subcontractor, Mission Pools, for express indemnity. (Id. p. 472-473.) The appellate court affirmed the trial court’s finding that section 337.1(a) was inapplicable because “Valley Crest brought an action on a contract, not an action to recover damages on any of the grounds listed in section 337.1(a).” (Valley Crest Landscape Development, Inc., supra, 238 Cal.App.4th at 479.) The court explained “When, as here, the parties have expressly contracted with respect to the duty to indemnify, the extent of that duty is determined from the contract. [Citation.]” (Id.)

Although Cross-Defendant requests the Court follow Wagner v. State of California (1978) 86 Cal.App.3d 922, the court in Valley Crest considered Wagner and distinguished that case. The Valley Crest court stated that “[a]n action for indemnity—express or implied—is not included within section 337.1(a)’s definition of the word ‘action.’” (Valley Crest, supra, 238 Cal.App.4th at 479.) The court contrasted the statute with section 337.15 “which sets forth a 10–year statute of limitations for latent deficiencies, expressly defines the word ‘action’ to include ‘an action for indemnity.’ (§ 337.15, subd. (c).)” (Id.) “Subdivision (c) of section 337.15 reads:

As used in this section, ‘action’ includes an action for indemnity brought against a person arising out of that person's performance or furnishing of services or materials referred to in this section, except that a cross-complaint for indemnity may be filed pursuant to subdivision (b) of Section 428.10 in an action which has been brought within the time period set forth in subdivision (a) of this section.

(Id. at p. 479-480.) The court pointed out that section 337.1 does not similarly include such a provision which indicates that such terms should not be implied. (Id. at p. 480.) “When terms are used in some statutes but not in other related statutes, we should not imply the terms into the statute from which they were excluded.” (Id., citations removed.) The court also reasoned that since section 337.15 was enacted after section 337.1, “[i]f the Legislature believed the word ‘action’ was broad enough to include an action for indemnity, then it would have had no need to expressly define ‘action’ to include indemnity in section 337.15, subdivision (c).” (Id.)

The court also declined to follow Wagner for the following reasons: (1) Wagner did not consider section 337.15, which “defines the word ‘action’ to include an action for indemnity”; (2) Wagner dealt with equitable indemnity, and, here, we deal with a claim for express indemnity”; (3) “Wagner is contrary to the principle that ‘[a] tort defendant retains the right to seek equitable indemnity from another tortfeasor even if the plaintiff's action against the cross-defendant is barred by the statute of limitations.’ [Citations.]”; and (4) in another case, the Court of Appeal criticized Wagner “on the ground ‘[it] reached its conclusion without citing, accommodating or distinguishing the existing Supreme Court authority holding that claims for implied indemnity do not accrue until the indemnitee has suffered actual loss through payment.’” (Id. at 480-481.)

In its Reply, Cross-Defendant argues that the rationale behind Valley Crest does not appear to take into account plain statutory language and legislative history. While the Court finds that argument preliminarily persuasive, it would like to hear further argument and give Cross-Complainant an opportunity to address the Reply. Further, the Court notes that Cross-Defendant did not address one of Valley Crests stated reasons for not following Wagner: the Court of Appeal in another case criticized Wagner “on the ground ‘[it] reached its conclusion without citing, accommodating or distinguishing the existing Supreme Court authority holding that claims for implied indemnity do not accrue until the indemnitee has suffered actual loss through payment.’” The Court would like both parties to address whether this basis for distinction is in any way germane here, where the indemnity is based on an express agreement? Further, the Court would like to hear the parties’ views on public policy bases for the positions surrounding the CCP sections at issue.

The Court is not persuaded by any of the other issues/arguments raised for or against summary judgment. In its view, the summary judgment decision depends on the statute of limitations and, thus, which CCP section (and which authority), the Court follows.

Hon. Lee S. Arian

Judge of the Superior Court