Judge: Steven A. Ellis, Case: 22STCV25230, Date: 2023-12-27 Tentative Ruling

Case Number: 22STCV25230    Hearing Date: March 18, 2024    Dept: 29

Motion for Summary Adjudication filed by Defendant 237 Windward, LLC

Tentative

The motion is denied.

Background 

This case arises out of an accident on August 11, 2020.  Plaintiff Oscar Dorantes Bustamante (“Plaintiff”) alleges that while he was on the premises of a multi-unit residential building to perform plumbing services, he was walking on the second floor of the building, the floor was not secure, and he fell through to the first floor, a distance of approximately 12 feet, and sustained severe injuries.

The history of the pleadings in this case is somewhat complicated.

On August 5, 2022, Plaintiff filed the Complaint in this action, asserting one cause of action for negligence against Defendants 237 Windward, LLC (“Windward”), Skylight Residential Inc. (“Skylight”), Solari, and Does 1 to 100.

On March 14, 2023, Windward filed its Answer to the Complaint and a Cross-Complaint for indemnity, contribution, breach of contract, and declaratory relief against AJ Khair Construction, Inc. (“Khair”), Indigo Construction Corporation (“Indigo”), DGK Plumbing, Inc. (“DGK”), and Roes 1 through 50.

On April 24, 2023, Indigo filed its Answer to Windward’s Cross-Complaint.

On May 15, 2023, default was entered against DGK as to Windward’s Cross-Complaint.

On May 17, 2023, Plaintiff filed a request for dismissal of the claims in the Complaint against Skylight.

On June 7 and August 7, 2023, Plaintiff amended the Complaint to name Indigo as Doe 4 and Khair as Doe 5.

Also on August 7, 2023, Windward amended the Cross-Complaint to name Forte Reinforcing Inc. (“Forte”) as Roe 1.  Forte’s default was entered on October 23, 2023.

On December 15, 2023, Khair filed its Answer to the Complaint, its Answer to Windward’s Cross-Complaint, and its own Cross-Complaint for indemnity, contribution, and declaratory relief against Moes 1 through 10.

On January 23, 2024, DGK filed its Answer to Windward’s Cross-Complaint and its own Cross-Complaint for indemnity, apportionment of fault, and declaratory relief against Windward, Skylight, Solair, Khair, Indigo, and Zoes 1 through 25.

On January 25, 2024, Windward filed a request for dismissal of the claims in its Cross-Complaint against Khair.

On February 1, 2024, Plaintiff amended the Complaint to name Forte as Doe 6.

Currently before the Court is a motion for summary adjudication filed by Windward on October 12, 2023.  In the motion, Windward seeks summary adjudication as to issues of duty and breach in connection with its Cross-Complaint against Indigo.  The motion was initially set for hearing on December 27, 2023, and was continued to January 29, and then again to March 18, on the Court’s own motion.

Indigo did not file any opposition to the motion prior to the initial hearing date.  After the hearing was continued to January 29, Indigo did file an opposition (one day late).  Windward filed an objection to and request to strike the opposition, as well as a reply, on January 24. 

Legal Standard

“The purpose of the law of summary judgment [and summary adjudication] is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) Code of Civil Procedure section 437c, subdivision (c), “requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.) “The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues; the function of the affidavits or declarations is to disclose whether there is any triable issue of fact within the issues delimited by the pleadings.” (Juge v. County of Sacramento (1993) 12 Cal.App.4th 59, 67, citing FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 381-382.)

“A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if the party contends that the cause of action has no merit, that there is no affirmative defense as to any cause of action, that there is no merit to an affirmative defense as to any cause of action, that there is no merit to a claim for damages, as specified in Section 3294 of the Civil Code, or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs.  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.”  (Code Civ. Proc., § 437c, subd. (f)(1).) 

As to each cause of action as to which summary adjudication is sought, , a defendant moving for summary judgment or summary adjudication must satisfy the initial burden of proof by presenting facts to show “that one or more elements of the cause of action ... cannot be established, or that there is a complete defense to the cause of action.” (Code Civ. Proc., § 437c, subd. (p)(2); see also Aguilar, supra, 25 Cal.4th at pp. 850-851; Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520.) Once the defendant has met that burden, the burden shifts to the plaintiff to show that a “triable issue of one or more material facts exists as to the cause of action or a defense thereto.” (Code Civ. Proc., § 437c, subd. (p)(2); see also Aguilar, supra, 25 Cal.4th at pp. 850-851.)

A plaintiff or cross-complainant moving for summary judgment or summary adjudication must satisfy the initial burden of proof by presenting facts to show “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 the cause of action.” (Code Civ. Proc., § 437c, subd. (p)(1).) Once the plaintiff or cross-complainant has met that burden, the burden shift to the defendant or cross-defendant to show that a “triable issue of one or more material facts exists as to the cause of action or a defense thereto.” (Ibid.)

The party opposing a motion for summary judgment or summary adjudication may not simply “rely upon the allegations or denials of its pleadings” but must instead “set forth the specific facts showing that a triable issue of material fact exists.” (Code Civ. Proc., § 437c, subds. (p)(1) & (p)(2). To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.)

Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.)

Preliminary Issues

First, Windward objects to Indigo’s late filed opposition and asks the Court to disregard it.  The Court OVERRULES the objection.  The hearing was continued (because of the Court’s schedule, and not for any reason related to the late filing), and given the importance of this motion and the substantive rights at issue, and the absence of any showing by Windward of any unfair prejudice, the Court exercises its discretion to consider Indigo’s opposition.

Second, Windward moves for summary adjudication on two issues of duty and two issues of breach.  Summary adjudication of less than an entire cause of action or an entire affirmative defense is limited to issues of punitive damages and issues of duty.  (Code Civ. Proc., § 437c, subd. (f)(1).)  Moving for summary adjudication as to issues of duty is proper.  Moving for summary adjudication as to issues of breach is not (except potentially through the procedures set forth in subdivision (t), which have not been pursued here).  Accordingly, the Court will consider only the duty issues (Issue Nos. 1 and 3) raised by Windward’s motion.

Discussion

Windward is the owner of the property on which the accident occurred.  (Defendant’s Statement of Undisputed Material Facts [“DSUMF”], No. 1.)  Windward contracted with Khair to construct an apartment building on the property with a two level underground parking garage.  (DSUMF, Nos. 2, 4.)  The bottom level of the parking garage is designated as “P2”; the upper level of the parking garage is “P1”; and the ground level is “L1.”  (DSUMF, No. 3.)

Khair entered into a subcontract with Indigo to perform structural concrete and masonry work on L1, P1, and P2.  (DSUMF, Nos. 5, 7; see also Chang Decl., Exh. B [the “Subcontract”].)  That included pouring the concrete floor/slabs on L1, P1, and P2.  (DSUMF, No. 8.)  At the time of the accident, Indigo had completed its work.  (DSUMF, No. 9.)  Paragraph 8 of the Subcontract provides:

“Subcontractor [Indigo] agrees to indemnify, defend and save Owner [Windward] and Contractor [Khair] and their affiliates and each of their respective directors, officers, employees, agents, contractors and consultants harmless from and against all liability and claims for damages, loss, costs, expenses and reasonable attorney’s fees in connection with, arising from or in any way related to any Subcontract Work performed by Subcontractor or any breach of this Subcontract by Subcontractor.  The foregoing indemnity and hold harmless agreement of Subcontractor shall apply to any act, omission, negligence, whether active or passive, or willful misconduct on the part of Contractor or its agent, other subcontractors or employees, except that such agreement shall not apply to the extent of injury, death or damage to property arising from the sole negligence or sole willful misconduct of Contractor.”

(Subcontract, ¶ 8.)  Indigo also agreed to name Windward as an additional insured under its insurance policies for the work.  (DSUMF, Nos. 11-12.)

 The primary issue in this motion is whether Plaintiff’s injury and resulting claims for damages are “arising from or in any way related to any Subcontract Work performed by Subcontractor or any breach of this Subcontract by Subcontractor.”    

The Complaint appears to indicate that Plaintiff’s claims do not arise from or relate to Indigo’s work.  Indigo performed work in the parking garage, but Plaintiff’s says nothing about a parking garage.  Instead, Plaintiff alleges that he “was walking on the second floor”; the building “had a non secured floor”; and that “as the Plaintiff walked on the second floor, he fell straight down (approximately 12-18 feet) to the first floor, causing severe and permanent injuries, to the Plaintiff.”  (Complaint, ¶ 11; see also id., ¶ 8.)

Windward asserts (in essence) that the description of the accident in the Complaint is not accurate.  Instead, Windward asserts, the accident occurred in the parking garage; what Plaintiff describes as the “second floor” in the Complaint is actually P1; and Plaintiff actually fell from P1 to P2.  (DSUMF, No. 14.)  Indigo disputes this. 

In support of its assertion, Windward cites a document entitled “Incident Report” that it produced in discovery (Chang Decl., Exh. D) and Plaintiff’s responses to interrogatories and requests for admission propounded by Windward (Chang Decl., Exhs. F, G).  Windward also cites a photograph produced by Plaintiff in discovery (Change Decl., Exh. H).

This evidence is not sufficient to establish that, as a matter of law, the accident occurred in the parking garage and therefore fell within the scope of Indigo’s work under the Subcontract.

Exhibit D is an unauthenticated, unsworn statement, apparently of Plaintiff, along with an uncertified translation (the handwritten statement attributed to Plaintiff is in Spanish).

Exhibits E and F are discovery responses of Plaintiff.  These may be used against Plaintiff (at or before trial) but they are not binding as against other parties, including Indigo.  (Code Civ. Proc., §§ 2030.410; 2033.410, subd. (b).)  And even on the merits, they do not show as a matter of law that the accident occurred in the parking garage.  Plaintiff’s Response to Special Interrogatory No. 4 states that he was “walking on the second floor” and fell “to the first floor of the garage area.”  This could mean that he fell from P1 to P2 (as Windward contends), but it could also mean that he fell from the second floor of the building to the ground floor (L1) (as Indigo contends).  The responses to Special Interrogatory No. 12 and Request for Admission No. 12 are similarly ambiguous.

Exhibit H is a photograph that, standing alone, does not indicate whether the accident occurred in the parking garage.

Indigo undisputedly has a contractual obligation to defend and indemnify Windward, but, at the end of the day, the evidence in the record before the Court at this time does not establish, as a matter of law, that the accident falls within the scope of that duty to defend and indemnify.  Ultimately, Windward may well have the stronger side of the argument, but the Court cannot rule on this record that Windward is entitled to summary adjudication on the duty to indemnify for this accident as a matter of law.

Accordingly, the motion is denied.

Conclusion

The motion for summary adjudication is denied.

Moving party to give notice.