TENTATIVE RULING

Defendants/Cross-Complainant SPI Holdings, LLC, Verbena WRC 9901 LP, Verbena 9901 GP LLC, and Lincoln BP Management, Inc.’s Motion for Summary Adjudication is DENIED.

Defendants/Cross-Complainant SPI Holdings, LLC, Verbena WRC 9901 LP, Verbena 9901 GP LLC, and Lincoln BP Management, Inc. to give notice. 

REASONING

Defendants/Cross-Complainant SPI Holdings, LLC, Verbena WRC 9901 LP, Verbena 9901 GP LLC, and Lincoln BP Management, Inc. (collectively “Verbena”) moves the Court for an order adjudicating each of Verbena’s claims for implied indemnity, express indemnity, contribution, and declaratory relief against Defendant/Cross-Defendant Fiesta, Inc. dba Fiesta Blinds & Drapery (“Fiesta Blinds”) in favor of Verbena on the grounds that Fiesta Blinds owes a contractual duty to Verbena to defend Verbena against Plaintiffs Mohammad Parsajou and Kimia Karimian (“Plaintiffs”)’s claims and Fiesta Blinds has failed to provide a defense. At the outset, the Court notes that it has not considered Fiesta Blinds’ “Surresponse to [Verbena’s] Reply to Opposition to Motion for Summary Adjudication” or Fiesta Blinds’ “Response to Evidentiary Objections of [Verbena] to Evidence Filed in Support of Opposition to Motion for Summary Adjudication,” as there is no legal authority for filing a surreply or any supporting surreply documents, including a response to evidentiary objections, and Fiesta Blinds failed to seek leave of court to file such documents. 

Legal Standard

The purpose of a motion for summary judgment or summary adjudication “is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atl. Richfield Co. (2001) 25 Cal.4th 826, 843.) 

“On a motion for summary judgment, the initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact.” (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.) A defendant moving for summary judgment or summary adjudication “has met his or her burden of showing that a cause of action has no merit if the party has shown 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.” (Code Civ. Proc., § 437c, subd. (p)(2).) “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 the cause of action or a defense thereto.” (Ibid.) “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Med. Ctr. (2008) 159 Cal.App.4th 463, 467 (Avivi).)

“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.) “[T]he court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection) . . . in the light most favorable to the party opposing summary judgment.” (Avivi, supra, 159 Cal.App.4th at p. 467; see also Code Civ. Proc., § 437c, subd. (c).)

Analysis

In its Cross-Complaint against Fiesta Blinds, Verbena alleges Fiesta Blinds assumed a duty to defend pursuant to an agreement between the parties. (Cross-Compl. ¶ 11.) An indemnity provision in a Vendor Insurance Requirements and Agreement provides as follows:

3. INDEMNITY

TO THE FULLEST EXTENT PERMITTED BY LAW, AND IN ADDITION TO ALL OTHER INDEMNITEES PROVIDED AT LAW, IN EQUITY, OR IN THIS AGREEMENT OR THE EXHIBITS ATTACHED HERETO, CONTRACTOR SHALL INDEMNIFY, DEFEND AND HOLD HARMLESS THE OWNER, ITS

LENDER, LINCOLN AND RESPECTIVE PARENTS, SUBSIDIARIES, SHAREHOLDERS, PARTNERS, MEMBERS, AFFILIATES, AFFILIATED AGENCIES, OFFICERS, DIRECTORS, AGENTS, AND EMPLOYEES AT EVERY TIER, AND ALL THEIR RESPECTIVE HEIRS, EXECUTORS, SUCCESSORS AND ASSIGNS (“INDEMNITEES”) FROM AND AGAINST ALL OBLIGATIONS, LIENS, CLAIMS, LIABILITIES . . . AND (iii) BREACH OF THIS VIRA OR THE SERVICE AGREEMENT, TO THE EXTENT CAUSED BY THE NEGLIGENT ACTS, ERRORS, OMISSIONS OR WILLFUL MISCONDUCT OF CONTRACTOR, A SUBCONTRACTOR OF CONTRACTOR, ANYONE DIRECTLY OR INDIRECTLY EMPLOYED BY THEM OR ANYONE FOR WHOSE ACTS THEY MAY BE LIABLE, REGARDLESS OF WHETHER OR NOT SUCH CLAIM WAS CAUSED IN PART BY AN INDEMNITEE, EXCEPT TO THE EXTENT A CLAIM WAS CAUSED BY THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF THE INDEMNITEE SEEKING INDEMNITY, OR, IF THE PROJECT IS LOCATED IN CALIFORNIA, THE ACTIVE NEGLIGENCE OR WILLFUL MISCONDUCT OF THE INDEMNITEE SEEKING INDEMNITY . . . .

(Verbena UMF No. 71, bolding, underline, and capitalization in original.) The agreement was signed by Hooman Kabir on behalf of Fiesta Blinds. (Verbena UMF No. 73.)

First, “[d]eclaratory relief generally operates prospectively to declare future rights, rather than to redress past wrongs.” (Jolley v. Chase Home Finance, LLC (2013) 213 Cal.App.4th 872, 909.) The elements required to state a claim for declaratory relief on a contract include (1) a legally binding contract that is “a proper subject of declaratory relief” and (2) “an actual controversy involving justiciable questions relating to [the Cross-Complainant’s] rights or obligations.” (Wilson & Wilson v. City Council of Redwood City (2011) 191 Cal.App.4th 1559, 1582; see also Code Civ. Proc., § 1060.)

Here, Verbena’s claims relate only to past conduct, that is, Fiesta Blinds’ failure to provide a defense in this action. Declaratory relief is not proper where only past conduct is at issue. (See Babb v. Superior Court (1971) 3 Cal.3d 841, 848 [declaratory relief “operates prospectively, and not merely for the redress of past wrongs”].) Specifically, Verbena provides evidence that its insurer tendered Verbena’s defense to Fiesta Blinds, which rejected the notion that it had any duty to defend Verbena by failing to respond to the tender demands. (Verbena UMF Nos. 75-79.) This controversy is not ongoing because if there was a breach of contract, it occurred as soon as Fiesta Blinds refused to defend Verbena in this action. (See Crawford v. Weather Shield Mfg., Inc. (2008) 44 Cal.4th 541, 558 (Crawford) [duty to defend arises immediately upon a proper tender of defense].) It follows that adjudication in Verbena’s favor as to its action for declaratory relief is not proper because the controversy between Verbena and Fiesta Blinds is not ongoing, despite the fact that damages for the alleged failure to defend may be accruing through the course of this litigation. (Mulligan v. Wilson (1949) 94 Cal.App.2d 286, 292 [“An applicant for declaratory relief must show that a present controversy exists, and if this fact is not shown a cause of action for declaratory relief is not established.”]; see also Crawford, supra, 44 Cal.4th at p. 565, fn. 12 [discussing how court may adjudicate duty to defend after underlying litigation has concluded by determining breach of the duty to defend].) Accordingly, summary adjudication is DENIED as to Verbena’s cause of action for declaratory relief. 

Verbena also moves for summary adjudication as to its claims for implied indemnity, express indemnity, and contribution on the ground that Fiesta Blinds has a duty to defend and has failed to do so. Notably, a cross-complainant cannot obtain summary adjudication when the amount of damages is disputed, as it is here given that Plaintiffs’ claims against Verbena have not been dismissed, because the moving party is required to establish each element of the cause of action, which includes the amount of damages in an action. (See Paramount Petroleum Corp. v. Superior Court (2014) 227 Cal.App.4th 226, 243 [summary adjudication is improper where the issue of damages remains unresolved].) Verbena provides no specific amount of damages it seeks from Fiesta Blinds on its indemnity and contribution claims given that this action is ongoing, so the motion may be denied on that ground alone.

Finally, the indemnity provision provides that Fiesta Blinds must indemnify and defend Verbena “except to the extent a claim was caused by . . . the active negligence or willful misconduct of” Verbena. (Verbena UMF No. 71, bolding, underline, and capitalization in original.) It follows that to obtain summary adjudication here, Verbena must establish that Plaintiffs’ claim against it is not the result of Verbena’s own negligence, but it provides no evidence in this respect. It is not Fiesta Blinds’ burden to create a triable issue as to Verbena’s own negligence or lack thereof where Verbena has moved for summary adjudication.

For the reasons discussed herein, the Court concludes that there is a triable issue as to whether Fiesta Blinds owed Verbena a duty to defend it in this action. Accordingly, Defendants/Cross-Complainant SPI Holdings, LLC, Verbena WRC 9901 LP, Verbena 9901 GP LLC, and Lincoln BP Management, Inc.’s Motion for Summary Adjudication is DENIED.

 

Evidentiary Objections

Verbena objects to certain discovery responses by Fiesta Blinds. The Court declines to rule on these objections, as this evidence was not material to the Court’s ruling herein.