Judge Mark A. Young, Case 19STCV43863 2023-01-19 Tentative Ruling

A party may move for summary judgment in any action or proceeding if it is contended the action has no merit or that there is no defense to the action or proceeding. (CCP, § 437c(a).) “The purpose of the law of summary judgment 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. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.)

“A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if the party contends that the cause of action has no merit, that there is no affirmative defense to the cause of action, that there is no merit to an affirmative defense as to any cause of action, that there is no merit to a claim for damages, as specified in¿Section 3294 of the Civil Code, or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs.”¿(CCP,¿§ 437c(f)(1).)¿If a party seeks summary adjudication as an alternative to a request for summary judgment, the request must be clearly made in the notice of the motion. (Gonzales v. Superior Court¿(1987) 189 Cal.App.3d 1542, 1544.)¿ “[A] party may move for summary adjudication of a legal issue or a claim for damages other than punitive damages that does not completely dispose of a cause of action, affirmative defense, or issue of duty pursuant to” subdivision (t). (CCP,¿§ 437c(t).)¿

To prevail, the evidence submitted must show there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.¿(CCP, §¿437c(c).)¿The motion cannot succeed unless the evidence leaves no room for conflicting inferences as to material facts; the court has no power to weigh one inference against another or against other evidence. (Murillo v. Rite Stuff Food Inc. (1998) 65 Cal.App.4th 833, 841.) In determining whether the facts give rise to a triable issue of material fact, “[a]ll doubts as to whether any material, triable, issues of fact exist are to be resolved in favor of the party opposing summary judgment…” (Gold v. Weissman (2004) 114 Cal.App.4th 1195, 1198-99.) “In other words, the facts alleged in the evidence of the party opposing summary judgment and the reasonable inferences there from must be accepted as true.” (Jackson v. County of Los Angeles (1997) 60 Cal.App.4th 171, 179.) However, if adjudication is otherwise proper the motion “may not be denied on grounds of credibility,” except when¿a material fact is the witness’s¿state of mind and “that fact is sought to be established solely by the [witness’s] affirmation thereof.” (CCP, § 437c(e).)¿

Once the moving party has met their burden, the burden shifts to the opposing party “to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto.” (CCP § 437c(p)(1).) “[T]here¿is no obligation on the opposing party... to establish anything by affidavit unless and until the moving party has by affidavit stated facts establishing every element... necessary to sustain a judgment in his favor.”¿(Consumer Cause, Inc. v.¿SmileCare¿(2001) 91 Cal.App.4th 454, 468.)¿

“The pleadings play a key role in a summary judgment motion. The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues and to¿frame¿the outer measure of materiality in a summary judgment proceeding.” (Hutton v. Fidelity National Title Co.¿(2013) 213 Cal.App.4th 486, 493, quotations and citations omitted.) “Accordingly, the burden of a defendant moving for summary judgment only requires that he or she negate plaintiff's theories of liability¿as alleged in the complaint; that is, a moving party need not refute liability on some theoretical possibility not included in the pleadings.” (Ibid.)¿

Cross-Defendant Wabi’s objections are not ruled upon by the Court. (CCP § 437c(q).) As set forth below, the Court does not reach the second phase of the summary judgment analysis. Thus, the Court will not consider the evidence in support of the opposition.

Cross-Defendant Wabi Venice, LLC (“Wabi”) seeks summary judgment and/or adjudication against the claims raised in The Abbot Kinney Grill, LLC, dba The Tasting Kitchen’s (hereinafter, “AKG”) cross-complaint for negligence, implied indemnity, contribution and indemnity and declaratory relief. Wabi moves for summary adjudication against each cause of action. Wabi’s motion is premised on the economic loss rule. Specifically, Wabi reasons that the economic loss rule bars any duty to AKG, and it is therefore not jointly and severally liable for the harm suffered by Topa Insurance pursuant to AKG’s indemnity claims.

The economic loss rule posits that a purchaser of a product that does not live up to the buyer’s expectations can only recover in contract and not tort, “unless [the purchaser] can demonstrate harm above and beyond a broken contractual promise.” (Food Safety Net Services v. Eco Safe Systems USA, Inc. (2012) 209 Cal.App.4th 1118, 1130, quoting Robinson Helicopter Company, Inc. v. Dana Corporation (2004) 34 Cal.4th 979, 988.)

[W]here a purchaser's expectations in a sale are frustrated because the product he bought is not working properly, his remedy is said to be in contract alone, for he has suffered only ‘economic’ losses. This doctrine hinges on a distinction drawn between transactions involving the sale of goods for commercial purposes where economic expectations are protected by commercial and contract law, and those involving the sale of defective products to individual consumers who are injured in a manner which has traditionally been remedied by resort to the law of torts. The economic loss rule requires a purchaser to recover in contract for purely economic loss due to disappointed expectations, unless he can demonstrate harm above and beyond a broken contractual promise. [Citation.] Quite simply, the economic loss rule “prevent[s] the law of contract and the law of tort from dissolving one into the other.”¿

(Robinson, supra, 34 Cal.4th at 988, emphasis added.)¿

Thus, economic loss consists of damages for inadequate value, costs of repair and replacement of the defective product or consequent loss of profits—without any claim of personal injury or damages to other property. (Id., citing Jimenez v. Superior Court (2002) 29 Cal.4th 473, 482.) “[I]n actions arising from the sale or purchase of a defective product, plaintiffs seeking economic losses must be able to demonstrate that either physical damage to property (other than the defective product itself) or personal injury accompanied such losses; if they cannot, then they would be precluded from any tort recovery in strict liability or negligence.” (North American Chemical Co. v. Superior Court (1997) 59 Cal.App.4th 764, 777.)

AKG’s claims in the cross-complaint are not barred by the economic loss rule because the rule does not apply under these factual circumstances. Furthermore, Wabi’s motion essentially raises a question of law on the pleadings, akin to a demurrer. Wabi fails to meet any burden of production to show that the economic loss rule applies, or that there is otherwise no duty to AKG. While Wabi filed a summary judgment motion, Wabi supplies no evidence of its own disclaiming liability. This evidence may have demonstrated that they did not, in fact, negligently perform any of the alleged construction work. Instead, Wabi solely focuses on the pure legal issue of the economic loss rule as to the pleadings only.

Read liberally, AKG’s claims in their cross-complaint arise from property damage suffered due to the subject fire, and not from the sale of goods. (UMF 6, 7, 9, 11, 18, 20.) Notably, Wabi was named as Roe 1, and thus the allegations pled against all cross-defendants apply to Wabi. (UMF 13.) AKG denies that it was negligent, denies that it was engaged in any other tortious conduct and denies that it is liable under any theory found in Topa’s complaint, or any cross-complaint, or under any theory whatsoever for the damages and/or injuries allegedly suffered by Plaintiffs or Cross-Defendants. (CC ¶ 12.) According to the cross-complaint, Wabi owed a duty to perform the various construction works at the Subject Property. (CC ¶ 15.) Wabi breached this duty by negligently performing the construction work. (CC ¶ 16.) The negligence was “a direct, proximate and legal cause of the injuries sustained by Cross-Complainant, and for which Plaintiffs have named Cross-Complainant in the underlying Lawsuit.” (CC ¶17.)

As noted, Wabi does not provide affirmative evidence that AKG suffered no property damage (or personal injuries), such that the economic loss rule would apply. Wabi does not provide any evidence controverting the allegations that they negligently performed construction work at the subject property that led to the fire. (See CC ¶¶ 16-17.) Wabi relies upon the references to Topa’s underlying claims and injuries in an attempt to argue that the cross-complaint only seeks damages related to Topa’s underlying complaint, and that such damages are purely economic damages barred by the economic loss rule. (E.g., CC ¶ 13 [“As a result of [Topa’s] complaint, Cross-Complainant now brings this Cross-Complaint…] ¶17 [cross-defendants negligence caused “injuries sustained by Cross-Complainant, and for which Plaintiffs have named Cross-Complainant in the underlying Lawsuit”].) However, these references do not demonstrate that the cross-complaint only seeks economic damages without any property damage. Furthermore, such allegations do not transform the instant claims into a products-liability lawsuit.

Moreover, the cross-complaint provides for a duty based on premises liability. “[A] defendant’s duty to maintain land in a reasonably safe condition extends to land over which the defendant exercises control, regardless of who owns the land …[A] landowner’s duty of care to avoid exposing others to a risk of injury is not limited to injuries that occur on premises owned or controlled by the landowner.” ’ ‘Rather, the duty of care encompasses a duty to avoid exposing persons to risks of injury that occur off site if the landowner’s property is maintained in such a manner as to expose persons to an unreasonable risk of injury offsite.’ Barnes v. Black, 71 Cal. App. 4th 1473, 1478. Premises liability may be extended to persons or entities with “the power to correct or protect against the hazard” Huffman v. City of Poway (2000) 84 Cal. App. 4th 975, 989-991.