Judge: Michael P. Linfield, Case: 22STCV33054, Date: 2024-01-18 Tentative Ruling

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Case Number: 22STCV33054    Hearing Date: January 18, 2024    Dept: 34

SUBJECT:        Motion for Summary Adjudication

Moving Party: Defendant/Cross-Complainant Mayo Hills, LLC

Resp. Party:    None

The Motion for Summary Adjudication is GRANTED.

Summary adjudication is GRANTED in favor of Mayo Hills, LLC and against Arturo Landeros on the second cause of action for express indemnity in Mayo Hills, LLC’s Cross-Complaint against Arturo Landeros.

BACKGROUND:

        On October 10, 2022, Fracisco Javier Perez, Miguel Betancourt, Jose Norberto Molina, and Francisco Javier Trujillo (“Plaintiffs”) filed their Complaint against Arturo Landeros and Javid Somekh on causes of action of negligence and constructive eviction.

        On November 14, 2022, Arturo Landeros, in propria persona, filed an Answer to the Complaint.

        On November 28, 2022, by request of Plaintiffs, the Clerk’s Office dismissed without prejudice Javid Somekh from the Complaint.

        On November 30, 2022, Plaintiffs amended their Complaint to substitute Doe 1 with Mayo Hills, LLC.

        On January 20, 2023, Mayo Hills, LLC filed: (1) Cross-Complaint against Arturo Landeros; and (2) Answer to Complaint.

        On February 14, 2023, Arturo Landeros, in propria persona, filed: (1) Cross-Complaint against Plaintiffs; (2) Cross-Complaint against Mayo Hills, LLC; and (3) Answer to Mayo Hills, LLC’s Cross-Complaint against Arturo Landeros.

        On March 20, 2023, Mayo Hills, LLC filed its Answer to Arturo Landeros’s Cross-Complaint against Mayo Hills, LLC.

        On October 30, 2023, Mayo Hills, LLC filed its Motion for Summary Judgment (“MSJ”) regarding the Complaint.

        On October 30, 2023, Mayo Hills, LLC filed its Amended Motion for Summary Judgment (“Amended MSJ”) regarding the Complaint. In support of its Amended MSJ, Mayo Hills, LLC concurrently filed: (1) Declaration of Aman Lal; (2) Separate Statement; and (3) Proposed Order. The Amended MSJ is currently scheduled to be heard on February 8, 2024.

        On November 2, 2023, Mayo Hills, LLC filed its Motion for Summary Adjudication (“MSA”) on issues involved in Mayo Hills, LLC’s Cross-Complaint against Arturo Landeros. In support of its MSA, Mayo Hills, LLC concurrently filed: (1) Declaration of Aman Lal; (2) Separate Statement; and (3) Proposed Order.

        On November 3, 2023, Mayo Hills, LLC filed its Notice of Errata regarding the MSA.

        No oppositions or other responses have been filed regarding the MSA.

ANALYSIS:

I.          Legal Standard      

“A party may move for summary judgment in an action or proceeding if it is contended that the action has no merit or that there is no defense to the action or proceeding. The motion may be made at any time after 60 days have elapsed since the general appearance in the action or proceeding of each party against whom the motion is directed or at any earlier time after the general appearance that the court, with or without notice and upon good cause shown, may direct.” (Code Civ. Proc., § 437c, subd. (1)(a).)

“[T]he party moving for summary judgment bears the burden of persuasion that there is no triable issue of fact and that he is entitled to judgment as a matter of law. That is because of the general principle that a party who seeks a court’s action in his favor bears the burden of persuasion thereon. 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. Atl. Richfield Co. (2001) 25 Cal.4th 826, 850, citation omitted.)

“[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.” (Aguilar, supra, at p. 850; Smith v. Wells Fargo Bank, N.A. (2005) 135 Cal.App.4th 1463, 1474, [applying the summary judgment standards in Aguilar to motions for summary adjudication].)

“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, citation omitted.)

“The trial court may not weigh the evidence in the manner of a fact finder to determine whose version is more likely true. Nor may the trial court grant summary judgment based on the court's evaluation of credibility.” (Binder, supra, at p. 840, citations omitted; see also Weiss v. People ex rel. Dep’t of Transp. (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”].)

“On a motion for summary adjudication, the trial court has no discretion to exercise. If a triable issue of material fact exists as to the challenged causes of action, the motion must be denied. If there is no triable issue of fact, the motion must be granted.” (Fisherman's Wharf Bay Cruise Corp. v. Super. Ct. (2003) 114 Cal.App.4th 309, 320, citation omitted.)

II.       Discussion

Mayo Hills, LLC moves the Court for summary adjudication on the following items:

(1)       that Arturo Landeros owes a contractual duty to defendant Mayo Hills, LLC from the date of its tender of defense; and

(2)       that Mayo Hills, LLC is entitled to judgment on the cause of action for express indemnity set forth within the Mayo Hills, LLC Cross-Complaint against Arturo Landeros because of Arturo Landeros’s failure to defend and indemnify Mayo Hills, LLC as required by the contract between them.

(MSA, pp. 2:1–10, 7:2–5.)

        The relevant contractual provisions are the following:

“8.7  Indemnity.   Except for Lessor's gross negligence or willful misconduct, Lessee shall indemnify, protect, defend and hold harmless the Premises, Lessor and its agents, Lessor's master or ground lessor, partners and Lenders, from and against any and all claims, loss of rents and/or damages, liens, judgments, penalties, attorneys' and consultants' fees, expenses and/or liabilities arising out of, involving, or in connection with, the use and/or occupancy of the Premises by Lessee. If any action or proceeding is brought against Lessor by reason of any of the foregoing matters, Lessee shall upon notice defend the same at Lessee's expense by counsel reasonably satisfactory to Lessor and Lessor shall cooperate with Lessee in such defense. Lessor need not have first paid any such claim in order to be defended or indemnified.

“8.8  Exemption of Lessor and its Agents from Liability.  Notwithstanding the negligence or breach of this Lease by Lessor or its agents, neither Lessor nor its agents shall be liable under any circumstances for: (i) injury or damage to the person or goods, wares, merchandise or other property of Lessee, Lessee's employees, contractors, invitees, customers, or any other person in or about the Premises, whether such damage or injury is caused by or results from fire, steam, electricity, gas, water or rain, indoor air quality, the presence of mold or from the breakage, leakage, obstruction or other defects of pipes, fire sprinklers, wires, appliances, plumbing, HVAC or lighting fixtures, or from any other cause, whether the said injury or damage results from conditions arising upon the Premises or upon other portions of the Building, or from other sources or places, (ii) any damages arising from any act or neglect of any other tenant of Lessor or from the failure of Lessor or its agents to enforce the provisions of any other lease in the Project, or (iii) injury to Lessee's business or for any loss of Income or profit therefrom. Instead, it is intended that Lessee’s sole recourse in the event of such damages or injury be to file a claim on the Insurance policy(ies) that Lessee is required to maintain pursuant to the provisions of paragraph 8.”

(Decl. Lal, Exh. A.1, p. 8 [actual page 16 of 100].)

        Arturo Landeros, who is litigating this matter in propria persona, has not opposed or otherwise responded to the MSA. Similarly, Plaintiffs have not opposed or otherwise responded to the MSA. Thus, it appears that no party is contesting Mayo Hills, LLC’s arguments in the MSA.

        Upon considering the evidence submitted, the Court determines that Mayo Hills, LLC has met its initial burden on summary judgment to show that there are no triable issues of material fact. Arturo Landeros has not met his subsequent burden. Therefore, summary adjudication is appropriate here.

III.     Conclusion

The Motion for Summary Adjudication is GRANTED.

Summary adjudication is GRANTED in favor of Mayo Hills, LLC and against Arturo Landeros on the second cause of action for express indemnity in Mayo Hills, LLC’s Cross-Complaint against Arturo Landeros.