Judge: Lynne M. Hobbs, Case: 22STCV32750, Date: 2024-02-28 Tentative Ruling

Case Number: 22STCV32750    Hearing Date: February 28, 2024    Dept: 30

MAYRA MEDASOSA vs CENTURY HOUSING CORPORATION, A CALIFORNIA CORPORATION, et al.

TENTATIVE

Cross-Defendant’s motion for summary judgment, or in the alternative, summary adjudication as to the cross-complaint is DENIED.

Clerk is ordered to give notice.

Legal Standard

Summary judgment is proper “if all the papers submitted 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.” (Code Civ. Proc. §437c(c).) A cross-defendant moving for summary judgment must show “that one or more elements of the cause of action ... cannot be established, or that there is a complete defense to that cause of action.” (Code Civ. Proc., § 437c, subd. (p)(2).)

“[T]he initial burden is always on the moving party to make a prima facia 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 must show either (1) that one or more elements of the cause of action cannot be established or (2) that there is a complete defense to that cause of action. (Id. at §437c(p).) On a motion for summary judgment, the moving party's supporting documents are strictly construed and those of his opponent liberally construed, and doubts as to the propriety of summary judgment should be resolved against granting the motion. (D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 21.)

Once the defendant or cross-defendant has met that burden, the burden shifts to the plaintiff or cross-complainant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. The plaintiff or cross-complainant shall not rely upon the allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action or a defense thereto. (Code Civ. Proc., § 437c, subd. (p)(2).) “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467.)

Discussion

I. Summary Judgment as to the Cross-Complaint

Cross-Defendant moves for summary judgment as to the cross complaint, which alleges causes of action for (1) breach of contract, (2) equitable indemnity, (3) contribution, (4) comparative partial indemnity, and (5) declaratory relief, on the grounds that Cross-Defendant’s conduct was not a substantial factor in causing the complained of harm. Further, Cross-Complainant’s verified discovery responses are “factually devoid” with respect to liability.

Cross-Defendant has failed to address the causes of action for breach of contract and declaratory relief. “Contentions supported neither by argument nor by citation of authority are deemed to be without foundation and to have been abandoned.” (Anastos v. Lee¿(2004) 118 Cal.App.4th 1314, 1318. See also¿Badie v. Bank of America¿(1998) 67 Cal.App.4th 779, 784-85 (failure to raise a point or raising a point and filing to support it with reasoned argument and citations to authority results in the point being treated as waived).

Nor has Cross-Defendant submitted the contract between itself and Cross-Complainant for the Court to review the indemnity provision in order to analyze and make a determination as to whether the parties have contracted for indemnity even in the absence of negligence. “Parties to a contract . . . may define therein their duties toward one another in the event of a third-party claim against one or both arising out of their relationship. Terms of this kind may require one party to indemnify the other, under specified circumstances, for moneys paid or expenses incurred by the latter as a result of such claims. (See Civ. Code § 2772 [“Indemnity is a contract by which one engages to save another from a legal consequence of the conduct of one parties, or of some other person”].) Parties to an indemnity contract have great freedom of action in allocating risk, subject to limitations of public policy. (See Peter Culley & Associates v. Superior Court (1992) 10 Cal.App.4th 1484, 1492 [parties may require negligence by the indemnitor as a condition to indemnification]; Continental Heller Corp. v. Amtech Mechanical Services, Inc. (1997) 53 Cal.App.4th 500, 505 [parties may establish a duty in the indemnitor to save the indemnitee harmless even if the indemnitor is not negligent].) In fact, the cross-complaint alleges that: “Subcontractor hereby releases and agrees to defend, indemnify, and hold Contractor harmless from and against all claims, demands, or liabilities of every nature, regardless of the cause, arising out of or in any way related to this Agreement.” As such, even if the Court were to find that there is no triable issue of fact that Plaintiff’s injuries were not caused by Cross-Defendant’s negligence, Defendant has still not shown there is no triable issue of material fact as to the cause of action for breach of contract, because the cross-complaint alleges it provides for indemnity regardless of the cause.

As such, Defendant has failed to meet its burden to show there is no triable issue as to each cause of action. A motion for summary judgment or summary adjudication must be denied where the moving party's evidence does not prove all material facts, even in the absence of any opposition or where the opposition is weak. (See Leyva v. Superior Court (1985) 164 Cal.App.3d 462, 475; Salesguevara v. Wyeth Labs., Inc. (1990) 222 Cal.App.3d 379, 384, 387.) In turn, because Defendant has not filed a motion for summary adjudication as to each cause of action, failing to address the causes of action for breach of contract and declaratory relief is fatal to the motion for summary judgment.

Accordingly, Defendant’s motion for summary judgment is DENIED.

II. Summary Adjudication of Affirmative Defenses

Cross-Defendant moves for summary adjudication of the following affirmative defenses: the Second Affirmative Defense (Other Persons or Entities Responsible for Alleged Losses); (2) the Sixth Affirmative Defense (Intervening/Supervening/Superseding Acts); (3)

Sixteenth Affirmative Defense (Controversy); and (4) the Twenty-Third Affirmative Defense (Bar – Act of Others).

However, Cross-Defendant fails to address each of the elements of these affirmative defenses (See Consumer Cause, Inc. v. SmileCare (2001) 91 Cal.App.4th 454), and additionally, fails to provide any argument in the memorandum as to these affirmative defenses. “Contentions supported neither by argument nor by citation of authority are deemed to be without foundation and to have been abandoned.” (Anastos v. Lee¿(2004) 118 Cal.App.4th 1314, 1318. See also¿Badie v. Bank of America¿(1998) 67 Cal.App.4th 779, 784-85 (failure to raise a point or raising a point and filing to support it with reasoned argument and citations to authority results in the point being treated as waived). The Court will not locate appropriate authority and argument in support of Cross-Complainant’s arguments regarding the affirmative defenses and Cross-Complainant has failed to meet its burden in its moving papers to show the affirmative defenses are barred as a matter of law.

Accordingly, Cross-Defendant’s motion for summary adjudication is DENIED as to the affirmative defenses.