Judge: Randall J. Sherman, Case: 2018-01003045, Date: 2023-08-24 Tentative Ruling
Cross-Defendants Carl Barney and Peggy Runnels’ Motion for Summary Judgment against Cross-Complainant The Richard F. Crawford Company is denied. Crawford Company’s Objections to Declaration of Jonathan D. Dykstra are overruled as to #1-5 and 12-13, and sustained as to #6-11. Cross-Defendants’ Objections to Declarations of Frank Burton and Richard F. Crawford are overruled as to #1-2, and sustained as to #3-6.
Cross-Defendants failed to comply with CRC Rule 3.1350(d)(1)(A) and (B), which require Cross-Defendants’ Separate Statement to separately identify each cause of action that is the subject of the motion and each supporting material fact claimed to be without dispute with respect to the cause of action that is the subject of the motion. Cross-Defendants’ Separate Statement has only one group of Undisputed Material Facts and Supporting Evidence even though this motion applies to four different causes of action.
Cross-Defendants failed to include a table of contents for their evidence, as required by CRC Rule 3.1350(g).
Cross-Defendants’ memorandum of points and authorities failed to include a table of contents and a table of authorities, as required by CRC Rule 3.1113(f).
The term “Resident” in the Waiver and Release Agreement is ambiguous, in that it might refer only to The Laguna Property Trust, but it might also include Carl Barney and Peggy Runnels. Thus, its interpretation may require parol evidence to ascertain the parties’ intent and may not be summarily adjudicated.
The court cannot conclude that the indemnity provision is invalid under Civil Code §2782 because it does not necessarily purport to indemnify the promisee against liability for damages for injury to property or any other loss, damage or expense arising from the sole negligence or willful misconduct of the promisee.
There are triable issues of fact as to whether Cross-Defendants in fact seek coverage for work that is subject to the Waiver and Release Agreement. Crawford Company’s expert, Frank Burton, opines that the Patio Door Claim and Pool Claim are based in part on the waterproofing failure and existing deterioration which were pre-existing construction defects discovered during the remodeling work. Burton Declaration, ¶¶15-17.
Cross-Defendants contend that summary judgment may be granted because Crawford Company stated in discovery responses that it was unable to identify any work performed after the effective date of the Waiver and Release Agreement that would give rise to indemnity owed by Cross-Defendants. Cross-Defendants contend that the only repairs or remediation of potential sources of water intrusion and the damage caused thereby that Crawford Company performed after August 6, 2015 that were identified in the discovery responses were: (1) remediation of the bond beam located where the structure foundation meets the pool deck; (2) remediation of waterproofing at select, accessible areas of the atrium and theater; and (3) installation of new flashing and waterproofing at the exterior stairway on the right-side yard. Cross-Defendants argue that none of this work is included in the claims in plaintiff’s Third Amended Complaint. However, Crawford Company responds that it asserted objections to the discovery requests and noted that expert discovery has not begun, and as a result, Cross-Defendants’ characterization of the discovery responses is incorrect. Crawford Company argues that it recommended an investigation of pre-existing defects in the pool deck, but Cross-Defendant Carl Barney declined the recommendation. Thus, there are triable issues of fact as to whether Crawford Company can present evidence that the claims in the Third Amended Complaint are based in part on work covered by the Waiver and Release Agreement, also precluding summary judgment.
Cross-Complainant The Richard F. Crawford Company is ordered to give notice of the ruling, and to serve and submit a proposed Order that satisfies the requirements of CCP §437c(g).