Judge Stephen I. Goorvitch, Case 19STCV33443 2022-10-10 Tentative Ruling

Judge: Stephen I. Goorvitch, Case: 19STCV33443, Date: 2022-10-10 Tentative Ruling

Case Number: 19STCV33443 Hearing Date: October 10, 2022 Dept: 39

Telenet VOIP, Inc. v. Montebello School District

Case No. 19STCV33443

Motion for Summary Judgment

Telenet VOIP, Inc. (“Telenet”) filed this action against the Montebello Unified School District (the “District”) alleging that the District breached a contract for services. The District filed a third amended cross-complaint against Del Terra Real Estate Services, Inc. (“Del Terra”), asserting causes of action for breach of contract, professional negligence, express indemnity, and breach of fiduciary duty. In brief, the District alleged that it hired Del Terra to provide program management services. The District alleges that Del Terra breached its contract by, among other things, failing to recommend that the District retain an architect to perform services in connection with the project, including the preparation and/or review of design documents, coordination with the Division of the State Architect, and obtaining necessary approvals for the project.

Now, Del Terra moves for summary adjudication of the cause of action for express indemnity. The Court denies the motion for two independent reasons. First, the motion was directed at the second amended cross-complaint, but the third amended cross-complaint is the operative pleading. “There is little flexibility in the procedural imperatives of [Code of Civil Procedure section 437c], and the issues raised by a motion for summary judgment (or summary adjudication) are pure questions of law. As a result, section 437c is unforgiving; a failure to comply with any one of its myriad requirements is likely to be fatal to the offending party.” (Brantley v. Pisaro (1996) 42 Cal.App.4th 1591, 1607.)

In the alternative, the Court denies the motion on the merits. To prevail on its claim for express indemnity, the District must show that the parties entered into a contract, which required Del Terra to cover a loss the District incurred, and that the District incurred a loss for which Del Terra is required to reimburse the District. (Rossmoor Sanitation, Inc. v. Pylon, Inc. (1975) 13 Cal. 3d 622, 628.) Here, the District contends that Del Terra must indemnify the District per the Program Management Agreement, which Del Terra and the District entered on August 19, 2016. That agreement provides that Del Terra will not indemnify the District for “Losses resulting from [the District’s] sole or active negligence or willful misconduct.” (Table of Evidence in Support of Motion for Summary Adjudication, Exhibit, p. 105.)

The District alleges that Del Terra failed to obtain project approval by the California Department of General Services, Division of the State Architect, or the DSA, of the plans and specifications for the project. (Third Amended Cross-Complaint, ¶ 31.) As this Court has repeatedly ruled, Education Code section 17295, subdivision (a)(2) makes the District responsible for submitting an application for review with the DSA. (See, e.g., April 21, 2021 Minute Order.) As such, Del Terra has shown that the District was negligent in failing to obtain DSA review of the project, and Del Terra is not liable for indemnification under the Program Management Agreement.

However, in opposition, the District argues that its negligence was passive, not active. “Passive negligence is found in mere nonfeasance, such as the failure to discover a dangerous condition or to perform a duty imposed by law.” (Rossmoor Sanitation, Inc. v. Pylon, Inc. (1975) 13 Cal.3d 622, 629.) “Whether conduct constitutes active or passive negligence depends upon the circumstances of a given case and is ordinarily a question for the trier of fact; active negligence may be determined as a matter of law, however, when the evidence is so clear and undisputed that reasonable persons could not disagree.” (Ibid.)

As set forth above, Del Terra contends the District failed to perform its legal duty to obtain DSA review of the project. As such, a trier of fact could conclude that the District’s negligence was passive, rather than active, such that Del Terra must indemnify the District per the indemnification clause of the Program Management Agreement.

Based upon the foregoing, Del Terra’s motion for summary adjudication is denied. Del Terra’s counsel shall provide notice and file proof of such with the Court.