Judge: Shirley K. Watkins, Case: 20VECV01484, Date: 2023-05-25 Tentative Ruling
Case Number: 20VECV01484 Hearing Date: May 25, 2023 Dept: T
20VECV01484 NAPCO, LLC, A CALIFORNIA LI... vs LB PROPERTY MANAGEMENT, INC
[TENTATIVE] ORDER: Cross-Defendant Yehuda Rafael dba Prime Group Realty’s Motion for Summary Judgment is DENIED.
Cross-Defendant Yehuda Rafael dba Prime Group Realty’s Motion for Summary Adjudication is GRANTED as to the Cross-Complaint’s second through fifth causes of action.
Introduction
Cross-Defendant/ Roe 1 Yehuda Rafael dba Prime Group Realty (Rafael) moved for summary judgment (MSJ) against the claims alleged in Cross-Complainant Elly Nesis Company, Inc., and Elihu S. Nesis’ (collectively, ENCO) Cross-Complaint and alternatively moved for summary adjudication (MSA) against the second cause of action (COA) for express indemnity, the third COA for equitable indemnity, the fourth COA for contribution, and the fifth COA for declaratory relief.
Procedure
“[T]he specific cause of action, affirmative defense, claims for damages, or issues of duty must be stated specifically in the notice of motion and be repeated, verbatim, in the separate statement of undisputed material facts.” (Cal. Rules of Court, rule 3.1350(b); Truong v. Glasser (2010) 181 Cal.App.4th 102, 118.) When multiple causes of action, issues or defenses are presented for summary adjudication in one motion, each cause of action, issue, or defense to which the motion is directed must have a separate section heading indicating the issue number and specifying the issue (Cal. Rules of Court, rule 3.1350(d).) Rafael’s separate statement failed to state each issue verbatim in the Separate Statement. On this defect, there is grounds to deny the MSA. However, the Court proceeded to review the merits of each issue presented in the MSA.
Discussion
ENCO’s Cross-Complaint alleged that its claims for indemnification, contribution, and declaratory relief against Rafael are grounded on the Lease Listing Agreement (LLA.) (Cross-Compl. pars. 25, 34, 51, 52, 57, 62, 65, and 66.) Rafael argued that there is no triable issue of fact as to ENCO’s claims for indemnity, contribution, or declaratory relief because Rafael is not a signatory to the Lease Listing Agreement (LLA) entered between ENCO and Aryeh Hoffman and/or Hoffman Brothers Realty, LLC (collectively, Hoffman.) (Rafael’s Separate Statement of Facts (RSSF) 16, 24.) Rafael further provided facts to show that he did not receive any compensation from the LLA, was not a part of any communications between ENCO and Hoffman, (RSSF 20, 21, 25, and 26.) Because Rafael is not a signatory of the LLA, Rafael has met their burden to show that there is no triable issue of fact as to a contractual basis for indemnity. Because Rafael was not involved in reviewing Mitzie Davis’ lease application and/or paid any compensation, Rafael met their burden to show that there are no facts to show wrongful conduct on the part of Rafael. Without facts showing a contractual basis for express indemnity and without facts showing any wrongful conduct to support equitable indemnity and contribution, Rafael met its burden of proof on the second through fourth COAs. Without evidence of a contract or wrongful conduct, there is no triable issue of fact as to an actual dispute between the parties. Rafael has also met their burden as to the fifth COA for declaratory relief. The burden of proof transferred to ENCO to show that a triable issue of fact exists.
ENCO argued that Hoffman signed the LLA as a representative of Rafael and his dba Prime Group Realty and that Prime Group Realty is identified as the “Broker.” (ENCO Separate Statement of Facts (ESSF) 24.) ENCO failed to present any evidence to support their contention that Hoffman’s signature on the LLA was on behalf of Rafael. Further, the LLA does not identify Prime Group Realty either as a contracting party or a signatory party or the “Broker.” The only persons identified are Aryeh Hoffman and “Juda” Rafael. Aryeh Hoffman and Juda Rafael are identified as the “Broker.” (RSSF 16.) “Yehuda” Rafael is not even identified on the LLA. The parties gloss over the fact that “Juda” Rafael is not a party to this action. It appears that the parties presume that “Juda” is the equivalent of “Yehuda.” Even if shown that the two names are the same, the LLA is not signed by “Juda” or “Yehuda.” And because Prime Group Realty is not identified in the LLA, there is no support for ENCO’s contention that Hoffman signed on behalf of Prime Group Realty. Further, ENCO has not shown a triable issue of fact as to the second COA for express indemnity because Rafael/Prime Group Realty is not a contracting/signatory party to the LLA.
ENCO argued that Hoffman is Rafael’s ostensible or implied agent. “Ostensible authority arises as a result of conduct of the principal which causes the third party reasonably to believe that the agent possesses the authority to act on the principal's behalf.' 'Ostensible authority may be established by proof that the principal approved prior similar acts of the agent.'" (Chicago Title Ins. Co. v. AMZ Ins. Services, Inc. (2010) 188 Cal.App.4th 401, 426-427.) ENCO’s Opposition only asserted that Hoffman worked as an agent under Rafael’s brokerage between November 2018 and May 2021. (ESSF 21.) Hoffman and Rafael entered an Independent Contractor Agreement (Broker Agreement) (ESSF 20, 22.) However, facts are not provided to show that the Broker Agreement caused ENCO to reasonably believe that Hoffman was Rafael’s agent. ENCO failed to present any evidence to show that ENCO had any knowledge of the Broker Agreement at the time of the transaction. ENCO further cited to emails between Hoffman and ENCO regarding Davis’ lease application. (ESSF 13.) However, Hoffman’s email made no reference to Rafael or Prime Group Realty, but instead made reference to “Hoffman Brothers Realty.” There is insufficient evidence to show that Rafael caused ENCO to believe that Hoffman was Rafael’s agent. Hoffman failed to meet its burden to show that a triable issue exists regarding ostensible agency.
ENCO then argued that there are facts to show that Hoffman and Rafael were in a fiduciary relationship. However, the argument is of no consequence to show any duty owed to ENCO. Being in a fiduciary relationship as between Hoffman and Rafael would only provide evidence that Hoffman and Rafael owed a duty of care to each other. A fiduciary relationship between Hoffman and Rafael, if any evidence is submitted to support the contention, is irrelevant to ENCO’s burden to show a triable issue of fact as to Rafael’s liability to ENCO.
As to the third COA for equitable indemnity, ENCO again relied upon the LLA’s indemnity provision and the Broker Agreement. However, these two arguments were reviewed above and ENCO did not meet their burden based upon their arguments on the LLA or Broker agreement.
Rafael then argued that the LLA must comply with the statute of frauds (SOF.) (Code Civ. Proc. sec. 1624(a)(4).) As reviewed above, there is no evidence to show that Rafael signed the LLA or that anyone else signed the LLA on Rafael’s behalf. Because Rafael is not a signatory, there is no writing in compliance with the SOF. Rafael’s argument is persuasive to show that there is no triable issue of fact as to this defense. ENCO’s Opposition did not address this argument and did not meet their burden of proof. The SOF argument is sufficiently shown to be grounds to grant the motion.
The above review shows that Rafael met their burden to show that no triable issue of fact exists as to the second through fifth COAs and ENCO did not meet their burden to show that a triable issue of fact exists.
The MSA as to the second through fifth COAs is GRANTED.
[TENTATIVE] ORDER: Defendant, Cross-Complainant, and Cross-Defendant LB Property Management Inc.’s Motion for Summary Judgment and Motion for Summary Adjudication are DENIED.
Introduction
Defendant, Cross-Complainant, and Cross-Defendant LB Property Management (Defendant or LB) moved for summary judgment (MSJ) against the claims alleged against it in this action. Alternatively, LB moved for summary adjudication (MSA) against Plaintiff Napco, LLC’s (Plaintiff) Complaint. The alternative MSA placed into issue the first cause of action (COA) for breach of contract and the second COA for negligence alleged in Plaintiff’s Complaint.
Procedure
The points and authorities for LB’s reply is 15 pages long. The points and authorities for a reply may not exceed 10 pages. (Cal. Rules of Court, rule 3.1113(d).) The Court had the discretion to ignore the overage. However, the Court reviewed the entirety of the reply in that Plaintiff did not object and was not prejudiced by the lengthy reply. In the future, please be aware of the page limitations as there is no guarantee that sanctions might not attach or the extra pages will be disregarded.
Discussion
LB argued that there is no triable issue of fact as to any duty owed because the provision in the Property Management Agreement (Agreement) between Plaintiff and Co-Defendants Elihu Nesis and Elly Nesis Company, Inc. (collectively, ENCO) is vague as to the duty. LB argued that the contractual duties are subjective concepts. LB provided that the Agreement, although entered by ENCO, applied to LB under the Contract Assignment Agreement (Assignment.) (Defendant’s Separate Statement of Fact (DSSF) 2, 3, 7, 8, 20, 21, 24, 25, and 26.) To support their argument that the contractual duty was vague, LB cited to the provision that stated: “To use his best skill to obtain suitable new tenants for vacancies in said premises, to direct all services required therefore and for the management of said premises and to supervise all work for their operation and basic upkeep. [Italics added.]” (DSSF 3 & 21.) However, the argument did not address all the allegations of the Complaint. Plaintiff alleged that LB, through ENCO, and through Co-Defendants Aryeh Hoffman and/or Hoffman Brothers Realty, LLC (collectively, Hoffman) disobeyed or defied Plaintiff’s express rejection/denial/refusal of the Mitzie Davis’ lease application. (Compl. pars. 8-9.) Plaintiff’s claim for breach of contract and breach of the duty of care also included the allegation that LB/ENCO/Hoffman disobeyed or defied Plaintiff’s rejection of Davis’ application. Further, Plaintiff provided that ENCO drafted the Agreement. (Plaintiff’s Supplemental Statement of Facts (PSSF) 34.) Vagueness in the provisions of a contract are construed against the draftsman of the Agreement. (Civ. Code sec. 1654.) Even if the terms “best skill” and “suitable tenant” could be seen as vague, the Court disagrees with LB’s contention that the terms are “subjective concepts.” Determining definitions for “best skill” in the context of broker’s duties in finding “suitable tenants” can be objective factual evidence submitted through expert opinions. The Court cannot say as a matter of law that this issue should not go to the jury. The Court does not find LB’s first argument to be persuasive. A triable issue of fact exists as to whether “best skill” and “suitable tenants” is vague.
LB argued that there is no triable issue of fact based upon a contractual defense grounded in the exculpatory clause within the Agreement (DSSF 2, 4, 7, 20, 22, 25, and 26.) The exculpatory clause stated, in pertinent part:
“To save the Agent harmless from all claims, actions or judgments for damages including but not limited to …. The Agent shall not be held liable for any error of judgment or for any mistake of fact or law, or for anything which Agent may do or refrain from doing hereunder.”
(DSSF 4 and 22.) Plaintiff argued that exculpatory clauses are inapplicable to claims of gross negligence. (Civ. Code. sec. 1668; City of Santa Barbara v. Superior Court (2007) 41 Cal.4th 747, 777.) Preliminarily, LB argued that the Complaint did not plead “gross negligence” as a COA. However, gross negligence is not a recognized COA in California. If the COA is not recognized, there is no requirement to plead it separately or independent of a negligence COA. (Saenz v. Whitewater Voyages (1990) 226 Cal.App.3d 758, 766.) The facts alleged in the Complaint are sufficient to place Defendant on notice of the claim that LB, ENCO, and Hoffman acted in direct disobedience to Plaintiff’s rejection of Davis’ lease application. Further, the evidence submitted by the parties are sufficient to present a triable issue of fact as to gross negligence. Plaintiff submitted Jeff Glenn’s declaration to provide facts showing that he notified Hoffman on March 17, 2020, that Davis’ application was to be rejected. (PSSF 11, Glenn Decl. par. 3.) However, on April 3, 2020, ENCO, through Elihu Nesis (Nesis,) signed the Lease Agreement with Davis. (Glenn Decl. Exh. 1, pgs. 71:13 -73:1 and 73:2-16.) Mr. Nesis’ deposition testimony also provided facts to infer that Nesis had knowledge of Glenn’s rejection of the Davis application as seen in Nesis’ comment to Hoffman, “Whats [sic] not to like?” (Glenn Decl. Exh.1 pgs. 72:5-7 and 73:2-14.) The facts showing that LB/ENCO/Hoffman disregarded, defied, or disobeyed Plaintiff’s express rejection of Davis’ application provided evidence to show a triable issue of fact as to gross negligence. In that there is a triable issue of fact as to gross negligence, there is a triable issue of fact as to whether LB’s defense based upon the exculpatory clause of the Agreement is applicable. LB’s argument based upon the exculpatory clause of the Agreement is unpersuasive to grant the MSJ/MSA.
LB then argued that there is no triable issue of fact as to their defense as to express bar on “collection of rent.” LB cited to the contract provision which stated: “It is expressly agreed that the Agent does not have any personal liability for or guarantee the collection of rents.” (DSSF 2, 5, 7, 20, 23, 25, and 26.) However, the argument misconstrued the factual allegations of the Complaint. As reviewed above, the allegations included Plaintiff’s claim that Davis was not to be a tenant. The allegations are not that Davis was an authorized tenant and she failed to pay. LB/ENCO/Hoffman were alleged to have disobeyed Plaintiff’s rejection of Davis’ lease application and leased the property to her anyway. Calculating Plaintiff’s compensatory damages for LB/ENCO/Hoffman’s alleged disobedience may use the lost rent, however, lost rent is not the sole means in calculating Plaintiff’s damages. “Collection of rent” is not at issue since Davis is alleged to not have been an authorized tenant. The Court finds a triable issue of fact as to LB’s defense based upon the alleged bar on “collection of rents.”
Finally, in LB’s points and authorities’ section titled “II. The Allegations in the Operative Complaint, and Fact Regarding How the Lease was Formed,” (starting at Mtn pg. 7:9) LB referenced some facts that were not used in their separate statement or in the argument section of their P&As, so they need not be considered. A memorandum of points and authorities should demonstrate how each fact is material to the pleadings and how it supports positions asserted. (Juge v. County of Sacramento (1993) 12 Cal.App.4th 59, 67-68.) The courts are not required to expend efforts to ascertain the relationships between stated facts, and the law. (Juge v. County of Sacramento (1993) 12 Cal.App.4th 59, 67-68.) In deciding motions for summary judgment, courts disregard evidence that was not referenced in the separate statement, included with the motion, or incorporated by reference with specificity to matter in the court's file. (Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242, 1266.) All necessary evidence must be referenced in the moving party's separate statement in order to be considered. (Scripps Clinic v. Sup. Ct. (2003) 108 Cal.App.4th 917, 928.)
LB also provided that: “NAPCO had no communications with Elly Nesis or Mr. Nesis’ real estate agent, Mr. Aryeh Hoffman (of defendant Hoffman Brothers Realty, LLC), about how NAPCO wanted their two properties to be managed. (Exh. B, Glenn Depo. pp. 43:7 – 44:18 (Defendant Exhibit’s Bate Stamp PDF 111-112).)” (Mtn pg. 8:18-20.) However, this argument is not supported by any Bate Stamped evidence.
LB’s MSJ and MSA are DENIED.
IT IS SO ORDERED, CLERK TO GIVE NOTICE.
[TENTATIVE] ORDER: Defendant/Cross-Complainants Elly Nesis Company, Inc. and Elihu Nesis’ Motion for Summary Judgment is DENIED.
Defendant/Cross-Complainants Elly Nesis Company, Inc. and Elihu Nesis’ Motion for Summary Adjudication is GRANTED as to Plaintiff Napco, LLC’s first cause of action for breach of contract in the Complaint; and DENIED as to Plaintiff Napco, LLC’s second cause of action for negligence in the Complaint and all issues presented under Cross-Complainant Elly Nesis Company, Inc., and Elihu Nesis’ Cross-Complaint.
Introduction
Defendant/Cross-Complainant Elly Nesis Company, Inc. and Elihu Nesis (collectively, ENCO) moved for summary judgment (MSJ) against Plaintiff Napco, LLC’s (Napco) Complaint and Cross-Complainants ENCO/Nesis’ Cross-Complaint against Cross-Defendants Napco (Napco), LB Property Management, Inc. (LB), Aryeh Hoffman dba Prime Group Realty, and Hoffman Brothers Realty, LLC (collectively, HBR), and Yehuda Rafael dba Prime Group Realty (Rafael). In the alternative, ENCO/Nesis moved for summary adjudication (MSA) as to Napco Complaint’s first cause of action (COA) for breach of contract and second COA for negligence; and for ENCO/Nesis Cross-Complaint’s second COA for express indemnity against Napco; seventh COA for declaratory relief, sixth COA for breach of contract against Napco, first COA for breach of contract against LB, second COA for express indemnity against LB, seventh COA for declaratory relief against LB, second COA for express indemnity against HBR, seventh COA for declaratory relief against HBR, second COA for express indemnity against Rafael, and seventh COA for declaratory relief against Rafael. Oppositions were filed by Napco, LB, and Rafael.
Procedure
“[T]he specific cause of action, affirmative defense, claims for damages, or issues of duty must be stated specifically in the notice of motion and be repeated, verbatim, in the separate statement of undisputed material facts.” (Cal. Rules of Court, rule 3.1350(b); Truong v. Glasser (2010) 181 Cal.App.4th 102, 118.) When multiple causes of action, issues or defenses are presented for summary adjudication in one motion, each cause of action, issue, or defense to which the motion is directed must have a separate section heading indicating the issue number and specifying the issue (Cal. Rules of Court, rule 3.1350(d).) Napco’s separate statement failed to state each issue verbatim and failed to include a separate section heading for each issue. On this defect, there is grounds to deny the MSA. However, the Court proceeded to review the merits of each issue presented in Napco’s MSA.
The points and authorities for Napco’s Opposition is 22 pages long. The points and authorities for an opposition brief may not exceed 20 pages. (Rules of Court, rule 3.1113.) The Court had the discretion to ignore the overage. However, the Court reviewed the entirety of the reply in that ENCO did not object and was not prejudiced by the lengthy reply. In the future, please be aware of the page limitations as there is no guarantee that sanctions might not attach or the extra pages will be disregarded.
Discussion
As to Napco’s breach of contract COA, ENCO argued that there is no triable issue of material fact as to the existence of the Management Agreement between Napco and ENCO. ENCO provided the Asset Purchase Agreement (APA) to show that the Management Agreement was purchased by LB on January 10, 2020, and the purchase of ENCO closed on February 28, 2020. (Defendant ENCO’s Separate Statement of Facts (DSSF) 4, 5.) ENCO further produced the March 1, 2020, Amendment to Management Agreement also titled, Contract Assignment Agreement (Assignment Agreement) between Napco and ENCO. The Assignment Agreement assigned ENCO’s rights and responsibilities to management of the property to LB. (DSSF 7-8.) ENCO provided facts to show that Nesis counter-signed the lease with Mitzie Davis (Davis) on April 5, 2020. (DSSF 15-16.) Because of the sale of ENCO and assignment of the Management Agreement from ENCO to LB occurred prior to April 5, 2020, ENCO met its burden to show that there was no Management Agreement in effect between Napco and ENCO in March 2020 and April 5, 2020. The burden is transferred to Napco to show a triable issue of fact as to the existence of any agency agreement as between Napco and ENCO. Napco argued that a duty existed because ENCO is a real estate broker and ENCO continued to perform under the Management Agreement. However, the mere fact that ENCO is a real estate broker is insufficient to show a triable issue of fact as to whether a contract was in existence at the time of the alleged misconduct. An agency relationship requires a showing of entry into a contract that creates the agency relationship. Napco does not provide any evidence to dispute the APA or the assignment of the Management Agreement. ENCO’s evidence showed that they continued to perform under LB’s authority. Napco did not provide any evidence to dispute that ENCO’s conduct in leasing the property to Mitzie Davis was under LB’s agency relationship with Napco. Because there are no disputed facts as to the assignment of the Management Agreement to LB and no disputed facts as to the termination of the agency relationship between Napco and ENCO, ENCO’s MSA as to Napco’s breach of contract COA is persuasive.
ENCO’s MSA against Napco’s first COA in the Complaint is GRANTED.
ENCO argued additional grounds to show that no triable issue exists as to Napco’s breach of contract COA. ENCO argued that: the Management Agreement included an exculpatory clause; and that the Management Agreement included a provision barring damages related to “collection of rents.” However, with the finding that the Management Agreement was no longer in effect during the time of the alleged misconduct, the arguments relying upon defenses found within the specific provisions of the Management Agreement are without merit.
As to ENCO’s MSA against Napco’s second COA for negligence in Napco’s Complaint, ENCO argued that there is no triable issue of fact as to duty, breach, or causation. However, ENCO’s common law or statutory duties are not reliant solely upon the Management Agreement. “A property owner's legal relationship with an agent hired to help market a property is created and defined by the listing agreement. In addition to the contractual terms of the agreement, “an entirely different set of legal rules is brought into play. The law of agency is not a substitute for the law of contracts, but an additional and overlapping legal framework” that governs the relationship. [Internal citation omitted.]” (Hall v. Rockcliff Realtors (2013) 214 Cal.App.4th 1134, 1140.) The Leasing Agreement was signed by ENCO/Nesis as Napco’s agent. LB, the then property manager, was not identified in the Lease Agreement and Nesis did not sign the Lease Agreement, on behalf of LB. Because ENCO/Nesis signed the Lease Agreement as Napco’s agent, there are triable issues of fact as to whether ENCO/Nesis owed a duty of care as Napco’s agent. ENCO argued that there is no triable issue of fact as to breach of the duty and causation based upon ENCO’s alleged failure to determine that Davis’ lease application was fraudulent. However, the allegations related to ENCO’s alleged failure to discover Davis’ fraud is only part of the allegations that support the negligence COA. Napco expressly alleged and provided facts to show that ENCO disobeyed the instruction to reject Davis’ lease application and Nesis instead signed the Lease Agreement with Davis. (Compl. pars. 8-9; Plaintiff Napco’s Supplemental Statement of Facts (PSSF) 17, Jeff Glenn Decl. par. 4 and David Hadek Decl. par. 2, Exh. 1: pgs. 71:13 -73:1 and 73:2-16.) Mr. Nesis’ deposition testimony also provided facts to infer that Nesis had knowledge of Glenn’s rejection of the Davis application as seen in Nesis’ comment to Hoffman, “Whats [sic] not to like?” (Hadek Decl., Exh.1: pgs. 72:5-7 and 73:2-14.) The evidence showing that Nesis disregarded and disobeyed Napco’s direct instruction to reject Davis’ application shows that a triable issue of fact exists as to breach and causation. Napco met their burden to show a triable issue of fact exists as to ENCO’s MSA against Napco’s negligence COA.
ENCO’s MSA against Napco Complaint’s second COA for negligence is DENIED.
Cross-Complainant ENCO then argued that there is no triable issue of fact as to its Cross-Complaint filed against Napco, LB, HBR, and Rafael. ENCO placed into issue the second COA for express indemnity against LB, HBR, and Rafael, the sixth COA for breach of contract (indemnification) against Napco, and the seventh COA for declaratory relief against Napco, LB, HBR, and Rafael. Because ENCO, as the Cross-Complainant, is the moving party, ENCO has the initial burden of proof to show that there is no triable issue of fact as to each element of the cause of action. (Code Civ. Proc. sec. 437c(p)(1).)
The elements for express indemnity are: (1) a contract defining the obligation for one party to make good as to a loss another party incurred; and (2) an occurrence of loss the other party incurred or of some other legal consequence of conduct of another party. (McCrary Construction Co. v. Metal Deck Specialists, Inc.) (2005) 133 Cal.App.4th 1528, 1536.) The only evidence submitted by ENCO is the written agreements which included indemnification provisions, which only addressed the first element. ENCO has not yet submitted any evidence showing that they suffered a loss. Because the underlying Complaint and LB’s Cross-Complaint are still pending, ENCO has not presented evidence to show that they have suffered a loss. It is submitted that ENCO has suffered some loss because they have paid out attorneys’ fees for their defense. However, there still remains a triable issue as to whether ENCO will suffer a loss based upon the underlying Complaint and LB’s Cross-Complaint. ENCO has not met their initial burden of proof and the burden does not shift to Napco, LB, HBR, and Rafael.
ENCO’s MSA as to the second COA for express indemnity and the sixth COA for breach of contract is DENIED.
The elements for declaratory relief are: (1) person interested under a written instrument or a contract; or a declaration of his or her rights or duties; with respect to another; or in respect to, in, over or upon property; and (2) an actual controversy. (Code Civ. Proc. sec. 1060.) ENCO’s claims under the seventh COA is based upon Napco, LB, HBR, and Rafael’s failure/refusal to indemnify ENCO and/or ENCO’s liability related to the underlying Complaint. (Cross-Compl. pars. 77.) ENCO’s declaratory relief claim is dependent upon the findings of the underlying complaint and the instant Cross-Complaint’s indemnification claim. Because triable issues of fact exist as to indemnification and the underlying Complaint’s second COA for negligence, ENCO’s seventh COA for declaratory relief also has triable issues of fact.
ENCO’s MSA as to the seventh COA for declaratory relief is DENIED.
IT IS SO ORDERED, CLERK TO GIVE NOTICE.