Judge Thomas D. Long, Case Number: 21STCV45599, Date: 2023-11-30 Tentative Ruling

On December 14 2021, Concord Estates filed this action against Y&Y New Hampshire Inc. (“Y&Y”) and I Park Inc. (“I Park”) for violations of building standards. The complaint alleges that Y&Y was the developer responsible for the construction and sale of the property, and I Park was a builder.

On April 12, 2022, I Park filed a cross-complaint against Y&Y, alleging (1) implied contractual indemnity; (2) equitable indemnity; (3) express indemnity; (4) breach of express and implied warranties; (5) breach of written contract; (6) breach of oral contract; (7) breach of implied contract; (8) negligence; (9) declaratory relief re: duty to defend; (10) declaratory relief re: duty to indemnify; and (11) declaratory relief re: contractual duties and obligations. I Park later identified Horizon Plastering Inc. as an additional cross-defendant.

On March 15, 2023, Y&Y filed a motion for summary judgment of I Park’s cross-complaint. On June 8, 2023, the Court denied the motion.

“A party shall not move for summary judgment based on issues asserted in a prior motion for summary adjudication and denied by the court unless that party establishes, to the satisfaction of the court, newly discovered facts or circumstances or a change of law supporting the issues reasserted in the summary judgment motion.” (Code Civ. Proc., § 437c, subd. (f)(2).)

Y&Y’s first motion—labeled as a motion for summary judgment, but actually asking for summary adjudication—identified three issues for adjudication: “(1) order [I Park] to indemnify Y&Y for loss already suffered by Y&Y against [Concord Estates] and Y&Y’s cross-complaint . . . based on I-Park’s duty of defense for Y&Y; (2) dismiss the Cross-Complaint in accordance with I-Park’s contractual obligations under the construction/development contract and the release addendum by and between Y&Y and I-Park . . .; and (3) prevent any indemnification, express or implied, from Y&Y to I-Park.”

Y&Y’s current motion—labeled as a motion for summary adjudication only, but a grant of all issues would result in a full judgment—identifies twelve issues for adjudication. Each of these issues is based on issues asserted in the prior motion.

Issue No. 1 asserts that the first cause of action for implied contractual indemnification “is barred because Y&Y was neither a subcontractor nor an active or passive participant in the construction [leading] to the defects and damages of the Property at issue and the Release Agreement between I-Park and Y&Y released Y&Y from liability to I-Park.” Issue No. 2 asserts that the second cause of action for equitable indemnity “is barred because I-Park was actively responsible for the construction and development of the Property and the Release between I-Park and Y&Y releases Y&Y from liability to I-Park.” Issue No. 3 asserts that the third cause of action for express indemnity “is barred because the cited indemnity provision in the Cross-Complaint is not part of the Construction Contracts between Y&Y and I-Park and applies to the subcontractors to the Property’s construction.” Issue No. 4 asserts that the fourth cause of action for breach of express and implied warranties “is barred because these cited warranties are not included or implied within the Construction Contracts between I-Park and Y&Y and are contrary to the warranty clauses within the Initial Contract between the parties.” Issue No. 5 asserts that the fifth cause of action for breach of written contract “is barred because Y&Y was not responsible for the labor and services obligations alleged and these duties are contrary to Y&Y’s covenants and obligations stated in the Construction Contracts.” Issue No. 6 asserts that the sixth cause of action “is barred because the Construction Contracts fully outlined the duties of both parties and the Construction Contracts were the final agreements between both affecting the Property.”

These issues are based on issues asserted in Y&Y’s prior motion. In its prior motion, Y&Y argued that it had limited participation in the construction, that the parties’ contracts outlined the parties’ obligations and released Y&Y from liability, and that the contracts did not provide for indemnification. (3/15/2023 MSJ at pp. 17-22.) Moreover, these issues directly address the prior motion’s Issue No. 2 (adjudication based on “contractual obligations under the construction/development contract”) and Issue No. 3 (“prevent any indemnification, express or implied, from Y&Y to I-Park”).

Issue No. 7 asserts that the seventh cause of action for breach of implied contract “is barred because (i) the court lacks subject matter jurisdiction to hear this claim as the alleged breach would have occurred more than two years from the date of the Cross-Complaint’s filing; (ii) the labor and services duties cited were not the responsibilities of Y&Y, but rather I-Park; and (iii) the Construction Contracts were the final agreements between the parties affecting the Property, expressly stating the parties’ obligations.” This too addresses an issue raised in the prior motion: adjudication based on “contractual obligations under the construction/development contract.” As to the ground that the Court “lacks subject matter jurisdiction,” Y&Y does not further argue this point in its briefing, and the separate statement’s undisputed facts for Issue No. 7 do not support the issue.

Issue No. 8 asserts that the eighth cause of action for negligence “is barred because (i) Y&Y did not breach its duty of payment owed to I-Park during and following the construction of the Property; (ii) I-Park cannot provide evidence to support that Y&Y was the proximate cause of the labor and services leading to the damages and defects to the Property, which I-Park and its subcontractors were responsible for; and (iii) Y&Y took steps to mitigate and minimize costs and expenses I-Park allegedly suffered.” The Cross-Complaint does not allege any breach of duty of payment. For the other grounds, Y&Y argues that the duty to use reasonable care in the construction “rested solely in the hands of I-Park. I-Park was responsible for the construction of the Property and Y&Y was to make payment to I-Park for the construction completion. . . . As to exercising reasonable care and diligence to avoid loss and minimize and mitigate damages, I-Park, not Y&Y, was responsible for the construction and actions of subcontractors and the overall construction performance.” (Motion at pp. 10-11.) This too is based on the prior motion’s Issue No. 2 for “contractual obligations under the construction/development contract.”

Issue Nos. 9, 10, and 11 address the Cross-Complaint’s ninth, tenth, and eleventh causes of action for declaratory relief as to indemnity and contractual obligations. These issues are dependent on Issue Nos. 2 and 3 from the prior motion.

Issue No. 12 seeks a determination of “Y&Y’s Relief prayer for the court to order I-Park to act on behalf of an provide proper defense [for] Y&Y should be granted because I-Park explicitly and expressly agreed to provide a defense against a third-party action arising from the construction of the Property at issue including Plaintiff’s construction defects claim against Y&Y as defendant in the original action.” I Park’s alleged duty of defense was raised in Issue No. 1 of the prior motion. Additionally, as stated in the order denying the prior motion, this issue is outside the scope of I Park’s Cross-Complaint.

After setting forth the enumerated issues in the Notice of Motion, Y&Y asks, “In the unlikely event that this Court were to deny Y&Y’s motion for adjudication on only one but not all of I-Park’s causes of action, then this Court should also enter an order finding, as a matter of law, that I-Park cannot seek as ‘damages’ or reimbursements any payments made by I-Park to Plaintiff resulting from Plaintiff’s original civil action against both parties.” A motion directed at a “claim for damages” arguably is limited to a claim for punitive damages, but there is some ambiguity about whether the motion may be directed toward any “claim for damages.” (Macy’s California, Inc. v. Superior Court (1995) 41 Cal.App.4th 744, 748, fn. 2.) Even under a broader interpretation, Defendants’ motion does not completely dispose of the claim for damages. (See Code Civ. Proc., § 437c, subd. (f)(1).) “Code of Civil Procedure section 437c, subdivision (f)(1), does not permit summary adjudication of a single item of compensatory damage which does not dispose of an entire cause of action.” (DeCastro West Chodorow & Burns, Inc. v. Superior Court (1996) 47 Cal.App.4th 410, 422.)

A court may grant a continuance of trial upon a showing of good cause. (California Rules of Court, rule 3.1332(c).) The court must consider all the facts and circumstances that are relevant to the determination. (California Rules of Court, rule 3.1332(d).)

Horizon moves to continue the January 8, 2024 trial date. Horizon was named as a cross-defendant in an amendment on December 7, 2022, and its insurance carrier assigned the file to counsel in October 2023. Horizon needs more time to analyze other parties’ responses, conduct discovery, and possibly amend its cross-complaint. Counsel for all parties stipulated to a trial continuance from January 8, 2024 to April 22, 2024, or a date thereafter convenient for the Court. (Motion, Ex. A.)

The Final Status Conference scheduled for 12/19/2023 at 9:00 AM is advanced to this date and continued to __________.

The Jury Trial (5 day estimate) scheduled for 01/08/2024 at 9:00 AM is advanced to this date and continued to __________.

The Court cannot find any record of a Motion to Sever New Parties being filed, despite it being calendared. Nevertheless, the Court finds that any such motion is now moot in light of the continued trial and other dates.

The Motion to Sever New Parties is DENIED AS MOOT, without prejudice to renewal at a later stage.

Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org indicating intention to submit. If all parties in the case submit on the tentative ruling, no appearances before the Court are required unless a companion hearing (for example, a Case Management Conference) is also on calendar.

Hon. Thomas D. Long

Judge of the Superior Court