Judge Michael E. Whitaker, Case Number: 22SMCV02467, Date: 2025-02-06 Tentative Ruling

Judge: Michael E. Whitaker, Case: 22SMCV02467, Date: 2025-02-06 Tentative Ruling

This case arises from a flooding incident involving a cistern pump/filter on the real property of Plaintiff State Farm General Insurance Company’s (“State Farm”) insured.

On November 22, 2022, State Farm filed a subrogation complaint against Defendants Watertronics, LLC (“Watertronics”); BTC Builders, Inc. (“BTC”); Timothy Wageman Plumbing (“Wageman”); H20 Dynamics Landscape, LLC (“H20”); and Eagle Pump Services, Inc. (“Eagle”), alleging five causes of action: three for negligence, one for strict products liability, and one for breach of implied warranties.

Various Defendants have cross-complained for indemnity and other related claims. Watertronics filed one such cross-complaint against H20; Virtual Rain, Inc. (“Virtual Rain”); Lakos Corporation (“Lakos”); Lindsay Corporation (“Lindsay”); Jeffrey Frasco (“Frasco”); Beverly Frank (“Frank”); Domaen LTD; and Domaen Build Inc. (“Domaen Inc.”); alleging three causes of action for (1) implied indemnity; (2) contribution; and (3) declaratory relief.

Lakos now moves for summary judgment as to Watertronics’ cross-complaint on the grounds that Watertronics has no facts demonstrating Lakos’ fault regarding the underlying flood. Watertronics opposes the motion and Lakos replies.

Lakos objects to the untimely opposition. An opposition to a motion for summary judgment was due14 days prior to the hearing, but effective January 1, 2025, that deadline was changed to 20 days prior to the hearing. (See Code Civ. Proc., § 473c, subd. (b)(2).) Fourteen days before the February 6, 2025 hearing date is January 23, 2025, the date Watertronics filed its opposition. Twenty days prior to the hearing is January 17, 2025.

However, the Court has discretion whether to consider late-filed papers. (Cal. Rules of Court, rule 3.1300(d).) The new rules also require that Reply briefs be filed and served no later than eleven days prior to the hearing, whereas the prior rule only required that Reply briefs be served five days prior to the hearing. Eleven days prior to the hearing was Sunday, January 26, yet Lakos did not file the reply brief until Tuesday, January 29. Thus, the Court exercises its discretion and considers both the untimely opposition and reply briefs.

With respect to Watertronics’ objections to the Declaration of Mark W. Norman submitted in support of the motion, the Court rules as follows:

“[T]he 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[.] There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) “[T]he party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact.” (Ibid.)

“On a summary judgment motion, the court must therefore consider what inferences favoring the opposing party a factfinder could reasonably draw from the evidence. While viewing the evidence in this manner, the court must bear in mind that its primary function is to identify issues rather than to determine issues. Only when the inferences are indisputable may the court decide the issues as a matter of law. If the evidence is in conflict, the factual issues must be resolved by trial.” (Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 839 [cleaned up].) Further, “the trial court may not weigh the evidence in the manner of a factfinder to determine whose version is more likely true. Nor may the trial court grant summary judgment based on the court's evaluation of credibility.” (Id. at p. 840 [cleaned up]; see also Weiss v. People ex rel. Department of Transportation (2020) 9 Cal.5th 840, 864 [“Courts deciding motions for summary judgment or summary adjudication may not weigh the evidence but must instead view it in the light most favorable to the opposing party and draw all reasonable inferences in favor of that party”].)

Courts recognize two basic types of indemnity: express indemnity and equitable indemnity (which includes implied contractual indemnity.) (Prince v. Pacific Gas & Electric Co. (2009) 45 Cal.4th 1151, 1157.) “The elements of a cause of action for [equitable] indemnity are (1) a showing of fault on the part of the indemnitor and (2) resulting damages to the indemnitee for which the indemnitor is ... equitably responsible.” (C.W. Howe Partners Inc. v. Mooradian (2019) 43 Cal.App.5th 688, 700, bracket & ellipses in original.)

Similarly, equitable contribution is “the right to recover, not from the party primarily liable for the loss, but from a co-obligor who shares such liability with the party seeking contribution.” (American States Ins. Co. v. National Fire Ins. Co. of Hartford (2011) 202 Cal.App.4th 692, 701, emphasis in original.)

Further, Watertronics’ third cause of action for declaratory relief seeks “a judicial determination of its rights and duties, and a declaration of its right to be indemnified and/or to receive contribution from Cross-Defendants, and each of them, as a result of the lawsuit filed herein by Plaintiff.” (Cross-Complaint at ¶ 16.)

Thus, all three causes of action require a showing of fault. Lakos has moved for summary judgment on the grounds that Watertronics cannot make any such showing of Lakos’ fault.

SPECIAL INTERROGATORY NO. 1: Please set forth all facts that support YOUR (“YOU” and “YOUR” shall refer to WATERTRONICS, LLC) cause of action for Implied Indemnity against LAKOS CORPORATION.

RESPONSE TO SPECIAL INTERROGATORY NO. 1: Responding Party objects to this Interrogatory on the basis that it is overbroad, vague, and unduly burdensome and further seeks information protected by the attorney-client privilege and attorney work-product doctrine. Responding Party also objects to the extent this Interrogatory seeks the premature disclosure of expert opinion.

Without waiving to and subject to these objections, Responding Party responds as follows: As set forth in Responding Party’s Cross-Complaint for implied indemnity, contribution, and declaratory relief, Responding Party contends that in the event it can be found in some manner responsible to Plaintiff as a result of the incidents and occurrences described in Plaintiff’s Complaint, Responding Party’s liability would be based solely on derivative liability not resulting from its own conduct but of an obligation imposed upon it by law and would therefore be entitled to indemnification from any liability and for any and all court costs incidental to the defense, investigation, and handling of the Plaintiff’s claim herein, from Cross-Defendants, including, but not limited to Requesting Party.

Responding Party contends that Plaintiff’s damages, if any, were solely and/or substantially caused by the negligence and/or other acts or omissions by other parties, including Cross-Defendants, and that in the event found Responding Party is found liable to Plaintiff, Responding Party is entitled to contribution and/or indemnity from Cross-Defendants, and each of them, in any amount which Responding Party/Cross-Complainant pays or is obligated to pay to Plaintiff in excess of that proportion of the judgment which its conduct making it subject to liability is found to have contributed to Plaintiff’s injuries and damages.

Responding Party’s investigation is ongoing, discovery is continuing, and the finding of liability has yet to be determined in this case. Responding Party reserves the right to amend this response.

SPECIAL INTERROGATORY NO. 4: Please set forth all facts that support YOUR cause of action for Contribution LAKOS CORPORATION.

RESPONSE TO SPECIAL INTERROGATORY NO. 4: Responding Party objects to this Interrogatory on the basis that it is overbroad, vague, and unduly burdensome and further seeks information protected by the attorney-client privilege and attorney work-product doctrine. Responding Party also objects to the extent this Interrogatory seeks the premature disclosure of expert opinion.

Responding Party’s investigation is ongoing, discovery is continuing, and the finding of liability has yet to be determined in this case. Responding Party reserves the right to amend this response.

SPECIAL INTERROGATORY NO. 7: Please set forth all facts that support YOUR cause of action for Declaratory Relief LAKOS CORPORATION.

RESPONSE TO SPECIAL INTERROGATORY NO. 7: Responding Party objects to this Interrogatory on the basis that it is overbroad, vague, and unduly burdensome and further seeks information protected by the attorney-client privilege and attorney work-product doctrine. Responding Party also objects to the extent this Interrogatory seeks the premature disclosure of expert opinion.

Responding Party’s investigation is ongoing, discovery is continuing, and the finding of liability has yet to be determined in this case. Responding Party reserves the right to amend this response.

Thus, Lakos has met its initial burdens of production and persuasion to demonstrate that Watertronics cannot demonstrate Lakos had any fault, and thus, there are no triable issues of material fact concerning Watertronics’ cross-claims.

Watertronics points to State Farm’s operative complaint, which alleges, “The cistern filter was manufactured by Lakos Corporation and located in box manufactured, designed and or assembled by Watertronics to hold the subject cistern filter and accompanying pipes and regulator valves allowing an O-ring to the filter housing to not seat properly resulting in the water filter housing to fail.” (Complaint at ¶ 13.) [1]

Watertronics also points generally to State Farm’s responses to H20’s form interrogatories and requests for production and photographs of the pump in question, but Watertronics does not point to any particular response, and it is unclear to the Court how this creates a triable issue of material fact about Lakos’ responsibility for the leak, which is alleged to be due to the design and/or assembly of Watertronics’ box causing the O-ring to not seat properly, causing the filter housing to fail.

Watertronics has also produced excerpts of the deposition transcript of BTC Builders, Inc. employee Jair Falomir, which indicates as follows:

Q Did Mr. Frasco point out to what he turned off the night of the water loss to turn the house water off?

Q Okay. And did he -- did Mr. Tarr then turn the water back on to see where the water was coming from?

A I don't recall exactly who turned it back on, but I do remember somebody turned it back on, and then we saw that the filter had failed. I don't remember who it was.

Q Yes. When the water was turned back on to the house, was the lid still on the skid? And this is the day after the water loss.

Q Okay. There was at least more than yourself, but you don't recall who else was present when the water was turned back on to the house; correct?

A We saw that the filter was not there no more. It had been pushed out. The water was just coming right out of there.

A The filter. Right there. No, lower, lower. Go a little bit higher. Go a little bit higher. Right where the filter -- right there where it connects to the unit, that's where it was leaking out of. Yes.

Q Okay. We'll mark that as Exhibit 3A, the 8 photograph with the arrow in it. 9 (Exhibit 3A was marked for identification.)

Q How long was the water turned on before it was turned off the day after the water loss to your recollection?

Q They turned the water on, and you could see the water coming out of the filter body; correct?

A The top lid that you see that you're talking about, that's part of the unit. The clear plastic that you're saying, that's the filter, and that's supposed to be screwed on all the way. As you can see in your picture, it's because the pressure of the water, it got pushed out.

Q Okay. Has anybody ever told you at any point other than your counsel that somebody had unscrewed the clear filter portion from the head to the –

A That didn't get unscrewed by physically. It was unscrewed by the pressure of the water coming up from both sides.

(See Declaration of Marion Cruz, ¶¶ 8-9; Ex. G at pp. 34, 36-38, emphasis added; Exh H. )

Watertronics also provided excerpts from the deposition transcript of H20’s Person Most Knowledgeable, Noe Granados, which provides:

Q Let me ask you a different question. Is it your belief that the filter you circled in this picture, Page 18 of this exhibit, the TwistIIClean LAKOS, is it your belief as you sit here today that that filter failed in this Watertronics harvesting system?

THE WITNESS: That's what they assume that the water came out of at the time of the flood. That's why I'm saying this is the filter that failed.

A The people that called me that said there was a flooding in the house and I have to go over there Monday or Tuesday to meet with people. That could have been -- that was actually Junior with BTC Builders.

Q Okay. So you're saying to the extent someone said that that's what happened, that's the filter they're talking about?

Q Okay. So you're saying there was a similar filter in the water harvesting system?

A By looking at it it (sic) looks like the same filter that was in the skid at the -- at the premises.

Q Okay. Then it should go through the filter, which we see a LAKOS filter TwistIIClean; right?

(See Declaration of Marion Cruz, ¶¶ 10-11; Ex. I at pp. 182-183, 194, emphasis added; Exh. J.)

Thus, Watertronics has met its burden of production to create a triable issue of fact as to whether the cause of the leak was due in part to defects in the Lakos filter within the Watertronics filter housing.

In considering the competent evidence proffered by Lakos and Watertronics, and viewing said evidence most favorable toward Watertronics, the Court finds that there are triable issues of material fact as to whether the Lakos TwistIIClean Inline Water Filter caused the flooding of Plaintiff’s insured’s property. In particular, the Court finds that there are triable issues of material fact concerning Lakos’s Undisputed Material Facts Nos. 7, 8, 9 and 10. In other words, the Court cannot find as a matter of law that Watertronics cannot establish the requisite elements of its claims of Implied Indemnity, Contribution and Declaratory Relief.

Lakos shall provide notice of the Court’s ruling and file the notice with a proof of service forthwith.

[1] “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. As our Supreme Court has explained it: The materiality of a disputed fact is measured by the pleadings, which set the boundaries of the issues to be resolved at summary judgment. 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.” (Hutton v. Fidelity National Title Co. (2013) 213 Cal.App.4th 486, 493 [cleaned up]; see also Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242, 1258 [“The complaint limits the issues to be addressed at the motion for summary judgment. The rationale is clear: It is the allegations in the complaint to which the summary judgment motion must respond”].)

DEPARTMENT	207
HEARING DATE	February 6, 2025
CASE NUMBER	22SMCV02467
MOTION	Motion for Summary Judgment
MOVING PARTY	Cross-Defendant Lakos Corporation
OPPOSING PARTY	Cross-Complainant Watertronics, LLC