Judge Ralph C. Hofer, Case Number: BC699002, Date: 2025-01-17 Tentative Ruling

Plaintiff Lisa Goodrich alleges that on June 19, 2017, while she was a passenger in a vehicle which was entering an intersection, defendant Guillermo Eduardo Padilla, Jr., driving a tractor-trailer, made an unsafe left-hand turn, causing a massive collision, which totaled the vehicle where plaintiff was a passenger and caused a life-changing injury to plaintiff requiring a cervical fusion surgery. The complaint alleges that defendant was negligent per se, and caused the collision in violation of the California Vehicle Code (failure to yield right of way while making left hand turn). The complaint alleges that at the time of the collision, defendant was driving a truck owned by defendant R+L Carriers in the course and scope of defendant Padilla’s employment with defendant R+L Carriers.

Defendants Padilla and R+L Carriers have filed a cross-complaint for negligence, contractual and equitable indemnity, contribution and declaratory relief against plaintiff and cross-defendant Eric Goodrich, alleging that Lisa Goodrich was the owner of the vehicle which defendant Eric Goodrich was driving with the permission and knowledge of Lisa Goodrich, and that cross-defendants negligently owned, operated and controlled the vehicle causing it to collide with the truck owned and operated by cross-complainants. The cross-complaint alleges that at all relevant times Lisa Goodrich should have known that Eric Goodrich was incompetent and unfit to drive her vehicle.

The cross-complaint also alleges that on April 6, 2018, Eric Goodrich entered into settlement agreement with R+L Carriers pursuant to which he agreed to indemnify, defend and hold harmless cross-defendants and to pay fees and costs in connection with any and all liabilities, damages, or losses arising out of or related to the Incident, so that cross-complainants are entitled to recover fees and costs in connection with Lisa Goodrich’s lawsuit.

The file shows that on April 2, 2021, the court heard Eric Goodrich’s a motion for summary adjudication of the cross-complaint claims for express indemnification and negligent entrustment filed by cross-defendants Lisa Goodrich and Erik Goodrich. The motion was denied.

On February 16, 2024, the special verdict was read and filed, the jury finding that defendants were not negligent, that cross-defendant Erik Goodrich was negligent, but that the negligence of Erik Goodrich was not a substantial factor in causing harm to Lisa Goodrich. The jury also found that Lisa Goodrich had not proved damages. The court took oral waivers for judgment pursuant to CCP section 664.

On July 5, 2024, the court heard an unopposed motion brought by cross-defendant Erik Goodrich for leave to file an amended answer to the cross-complaint. The motion was granted, and cross-defendant was permitted to file a First Amended Answer alleging a 20th affirmative defense that the contractual indemnity provision in the release is invalid, a 21st affirmative defense that the contractual indemnity provision in the release is procedurally and substantively unconscionable; and a 22nd affirmative defense that the contractual indemnity provision in the release is contrary to public policy and therefore void, invalid, and unenforceable.

Under CCP § 437c(p)(1) a cross-complainant “has met his or her burden of showing that there is no defense to a cause of action if that party has proved each element of the cause of action entitling the party to judgment on that cause of action. Once the…cross-complainant has met that burden, the burden shifts to the …cross-defendant 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(f)(1) provides that “A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.”

“By reason of plaintiff's lawsuit, R+L CARRIERS and GUILLERMO PADILLA have incurred, and continue to incur attorneys' fees and other legal costs, and may be found liable for damages to Plaintiff on her claims for relief. By the terms of the express indemnification clause contained in the agreement between ERIC GOODRICH and R+L CARRIERS, R+L CARRIERS and GUILLERMO PADILLA are entitled to recover their fees and costs, in connection with Plaintiffs lawsuit, from ERIC GOODRICH, and ERIC GOODRICH is responsible for any and all damages assessed against R+L CARRIERS and GUILLERMO PADILLA if liability is found.”

The authorities cited in the moving papers include the above elements, including the essential element of damages. In Four Star Electric, Inc. v. F&H Construction (1992) 7 Cal.App.4th 1375, the court of appeal set forth the elements for an indemnitee seeking to recover on an agreement for indemnification as follows:

“…the parties' contractual relationship, the indemnitee's performance of that portion of the contract which gives rise to the indemnification claim, the facts showing a loss within the meaning of the parties' indemnification agreement, and the amount of damages sustained.

Similarly, the court of appeal in Reagan Roofing Co. v. Superior Court (1994) 24 Cal.App.4th 425 (disapproved of on other grounds in Crawford v. Weather Shield Mfg., Inc. (2008) 44 Cal.4th 541), relied on the “standard elements of a cause of action for breach of contract: (1) The contract, (2) plaintiff’s performance or excuse for nonperformance, (3) defendant’s breach, and (4) damages to plaintiff therefrom.” Reagan Roofing, at 434-435, citation omitted, emphasis added.

It is held that with respect to a cause of action which includes damages as an element, the summary judgment procedures obligate a plaintiff to prove each element of the cause of action, including damages. In Department of Industrial Relations v. UI Video Stores, Inc. (1997) 55 Cal.App.4th 1084, the court of appeal expressly held that where issues of the calculation of damages remain to be determined, it is not appropriate to grant summary judgment:

“Although we have determined that Blockbuster is liable to appellant, Code of Civil Procedure section 437c makes no provision for a partial summary judgment as to liability. Even summary adjudication may be granted only in limited instances. (Code Civ. Proc., § 437c, subd. (f)(1).) Because issues of the calculation of damages apparently remain to be determined, it is not appropriate to grant summary judgment for appellant at this time. (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 1996) ¶ 10:40.1, p. 10-17 [summary judgment or adjudication improper where amount of damages raises factual issue].) The correct procedure below would have been a motion to bifurcate the issue of liability, which the parties could have tried upon the undisputed facts. (Code Civ. Proc., § 598.) A decision on the issue of liability against the party on whom liability is sought to be imposed does not result in a judgment until the issue of damages is resolved.

In Paramount Petroleum Corp. v. Superior Court (2014) 227 Cal.App.4th 226, the Second District held, “As damages are an element of a breach of contract cause of action, a plaintiff cannot obtain judgment on a breach of contract cause of action in an amount of damages to be determined later.” Paramount Petroleum, at 241, internal citation omitted. Accordingly, summary judgment or adjudication are improper where “the issue of calculation of damages apparently remain to be determined.” Paramount Petroleum, at 243, citing Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 1996) 10:40.1.

Here, the moving papers argue quite broadly that as of the date of the motion for summary adjudication cross-complainants have incurred a total of $1,254,449.04 in fees and costs in this lawsuit, that due to the defense verdict defendants are entitled as a matter of right to recover $66,472.85 from plaintiff under Code Civ. Proc. § 1032(b), and that due to a CCP section 998 offer, it is cross-complainants’ “position” that judgment should be issued for post-offer expert witness fees, so that the “total value of Mr. Goodrich’s indemnification obligations pursuant to the Release would be at least $1,165,486.19.” [Memorandum, p. 7].

There is no evidence at all submitted supporting this argument concerning the amount of damages to be awarded on summary adjudication, and such arguments are not set forth as facts with supporting evidence in the separate statement. [See Compendium of Evidence; Shimkin Decl.; Separate Statement]. There is no documentation reflecting any sum of fees or costs incurred in connection with the claims allegedly subject to the express indemnity agreement, such as billing records, or invoices. The argument concedes the damages are not pursued in a specific amount, arguing that cross-defendant’s indemnification obligations would be “at least” an unsupported amount. [Memorandum, p. 7:12-13]. The proposed order submitted with the moving papers leaves the amount to be paid to cross-complainants by cross-defendant blank.

Cross-complainants accordingly have failed to sufficiently establish each element of the cause of action it seeks to summarily adjudicate entitling cross-complainants to judgment, as the issue of the full amount of damages to be awarded remains to be tried. As set forth above, under CCP § 437c(p)(1), to establish entitlement to summary adjudication, a cross-complainant, “has met his or her burden of showing that there is no defense to a cause of action if that party has proved each element of the cause of action entitling the party to judgment on that cause of action.”

The motion is denied on the ground damages have not been sufficiently established by the moving parties, so an essential element of the cause of action which moving cross-complainants seek to summarily adjudicate has not been proved. Moreover, the argument itself, even if it had been supported by evidence, appears to seek differing total sums, stating first that cross-complainants are owed $1,254,449.04 in fees and costs, and then later seeking “at least” $1,165,486.19. The argument itself gives rise to competing reasonable inferences concerning the amount of relief being sought, further emphasizing the insufficiency of the showing. CCP § 437c(c) provides that “summary judgment shall not be granted by the court based on inferences reasonably deducible from the evidence if contradicted by other inferences or evidence that raise a triable issue as to any material fact.”

This posture is not a situation where the motion seeks to establish, for example, entitlement to an immediate duty to defend, based on a separate cause of action for declaratory relief seeking such relief separately from damages. As set forth above, the second cause of action sought to be adjudicated in the cross-complaint clearly seeks damages.

The trial court in Department of Industrial Relations apparently had ordered appellant in that case to move for summary judgment on the issue of liability, with damages to be determined in a later accounting procedure, which the court of appeal found improper under the summary judgment statute in effect at the time. Id.

The summary judgment statute has since been amended in 2011 to add a subdivision permitting summary adjudication of other issues, but only under specified circumstances. That subdivision currently reads, in pertinent part:

“(t) Notwithstanding subdivision (f), 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 this subdivision.

(2) Within 15 days of receipt of the stipulation and declarations, unless the court has good cause for extending the time, the court shall notify the stipulating parties if the motion may be filed. In making this determination, the court may consider objections by a nonstipulating party made within 10 days of the submission of the stipulation and declarations.

(3) If the court elects not to allow the filing of the motion, the stipulating parties may request, and upon request the court shall conduct, an informal conference with the stipulating parties to permit further evaluation of the proposed stipulation. The stipulating parties shall not file additional papers in support of the motion.

(4)(A) A motion for summary adjudication made pursuant to this subdivision shall contain a statement in the notice of motion that reads substantially similar to the following: “This motion is made pursuant to subdivision (t) of Section 437c of the Code of Civil Procedure. The parties to this motion stipulate that the court shall hear this motion and that the resolution of this motion will further the interest of judicial economy by decreasing trial time or significantly increasing the likelihood of settlement.”

(5) A motion filed pursuant to this subdivision may be made by itself or as an alternative to a motion for summary judgment and shall proceed in all procedural respects as a motion for summary judgment.”

No such stipulation was filed or court determination obtained here. Also, the notice does not conform with this subdivision. The motion accordingly is improperly made for “partial” summary judgment or adjudication, without following the proper procedures. The motion accordingly is denied.

Cross-complainants have failed to establish through evidence or reference in the separate statement the essential element of a cause of action for contractual indemnity of damages, and the amount of damages. Cross-defendants accordingly have failed to meet their initial burden on this motion. CCP § 437c(p)(1); CCP § 437c(f)(1); Rossmoor Sanitation, Inc. v. Pylon, Inc. (1975) 13 Cal.3d 622, 628; Four Star Electric, Inc. v. F&H Construction (1992) 7 Cal.App.4th 1375, 1380; Department of Industrial Relations v. UI Video Stores, Inc. (1997) 55 Cal.App.4th 1084, 1097; Paramount Petroleum Corp. v. Superior Court (2014) 227 Cal.App.4th 226, 243 (summary adjudication improper where “the issue of calculation of damages apparently remain to be determined.”). The Compendium of Evidence, the Declaration submitted and the Separate Statement include no evidence or reference to evidence supporting an amount of damages incurred or claimed. [See Compendium of Evidence, Shimkin Decl., Separate Statement].

Evidentiary Objections to Declaration of Brian Plessala in Support of Cross-Defendant Erik Goodrich’s Opposition to Defendants and Cross-Complainants’ Guillermo Eduardo Padilla, Jr. and Green Wood Motor Lines, Inc. D/B/A R+L Carriers’ Motion for Summary Adjudication of Contractual Indemnity Claim and Exhibits Thereto:

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