Judge Timothy B. Taylor, Case 37-2021-00051726-CU-PO-CTL 2023-10-10 Tentative Ruling

Judge: Timothy B. Taylor, Case: 37-2021-00051726-CU-PO-CTL, Date: 2023-10-10 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - September 28, 2023

09/29/2023 01:30:00 PM C-72 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Timothy Taylor

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Civil - Unlimited PI/PD/WD - Other Summary Judgment / Summary Adjudication (Civil) 37-2021-00051726-CU-PO-CTL COURNEDE VS WAVE CREST RESORTS II LLC [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion for Summary Judgment and/or Adjudication, 07/14/2023

Tentative Ruling on Quality Cabinet Motion for Summary Adjudication Cournede v. Wave Crest Resorts, Case No. 2021-51726 Sept. 29, 2023, 1:30 p.m., Dept. 72 1. Overview and Procedural Posture.

This is a premises liability case involving two minors who were injured in March 2019 when a 'sink apron' in a Carlsbad hotel bathroom fell on them. The complaint was filed in late 2021, and the case was slow to get off the ground. ROA 30, 44. The first answers were not filed until well into 2022. ROA 15, 56, 59. Cross-complaints have also been filed.

The case has been set and re-set for trial several times, and is presently set for November, 2023. ROA 69, 87, 101-107.

Presently, Quality Cabinet seeks summary adjudication on its cross-complaint against Dale Hinrichs Custom Installations (Hinrichs). Quality Cabinet contends Hinrichs owes Quality Cabinets a duty of defense and indemnification pursuant to their subcontract. Hinrichs filed opposition to the MSJ. ROA 143-147. Quality Cabinets filed reply. ROA 148. The court has reviewed the papers, and no further submissions are authorized in connection with this motion.

Hinrichs also seeks summary judgment on the complaint, and on the cross-complaint filed by Wave Crest. ROA 113-119. Hinrichs contends plaintiffs 'cannot prove all the necessary elements of any of their claims against Hinrichs' and that it is entitled to judgment based on the 'affirmative defense of the completed and accepted doctrine.' The hearing on that motion is set for October 20, 2023.

2. Applicable Standards.

A. '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 that party contends that the cause of action has no merit or that there is no affirmative defense thereto, or that there is no merit to an affirmative defense as to any cause of action, or both, or 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 Calendar No.: Event ID: TENTATIVE RULINGS

2977986 40 CASE NUMBER: CASE TITLE: COURNEDE VS WAVE CREST RESORTS II LLC [IMAGED] 37-2021-00051726-CU-PO-CTL either owed or did not owe a duty to the plaintiff or plaintiffs[.]' Code Civ. Proc. 437c(f)(1).

B. Summary adjudication motions are 'procedurally identical' to summary judgment motions. Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, 859. A three-step analysis is employed in ruling on such motions. Kline v. Turner (2001) 87 Cal.App.4th 1369, 1373. First, the court identifies the issues framed by the pleadings. Pierson v. Helmerich & Payne Internat. Drilling Co. (2016) 4 Cal.App.5th 608, 617. Second, the court determines whether the moving party has established facts justifying judgment in its favor. Id. Third, if the moving party has carried its initial burden, the court decides whether the opposing party has demonstrated the existence of a triable issue of material fact. Id. at 618. To satisfy this burden, the opposing party must present admissible evidence and may not rely upon the allegations or denials of its pleading. Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849. Summary judgment may only be granted when a moving party establishes the right to the entry of judgment as a matter of law. Code Civ. Proc. § 437c(c).

C. 'Indemnity is a contract by which one engages to save another from a legal consequence of the conduct of one of the parties, or of some other person.' Civ. Code § 2772. Civil Code section 2778 sets forth general rules for the interpretation of indemnity contracts 'unless a contrary intention appears.' As relevant here, subdivision 4 of section 2778 provides that '[t]he person indemnifying is bound, on request for the person indemnified, to defend actions or proceedings brought against the latter in respect to the matters embraced by the indemnity[.]' 3. Discussion and Ruling.

The motion for summary adjudication is granted in part and denied in part.

A. The motion for summary adjudication of issue 1 is granted.

The California Supreme Court has interpreted section 2778(4) to mean that, 'unless the parties' agreement expressly provides otherwise, a contractual indemnitor has the obligation, upon proper tender by the indemnitee, to accept and assume the indemnitee's active defense against claims encompassed by the indemnitee provision.' Crawford v. Weather Shield Mfg., Inc. (2008) 44 Cal.4th 541, 555. Claims 'encompassed' or 'embraced' by the indemnity provision include 'those which, at the time of tender, allege facts that would give rise to a duty to indemnify.' Id. at 558.

Here, it is undisputed that the parties entered into a subcontract whereby Hinrichs agreed to install vanity cabinets in the guestroom bathrooms at the Hilton Carlsbad. (UMF 3.) It is further undisputed that the subcontract contains an indemnity provision, which requires Hinrichs to 'indemnify and hold [Quality Cabinet] harmless from and against all claims, losses, costs, and damages, including but not limited to attorney's fees, pertaining to or arising out of the performance of the Subcontract or [Hinrichs's] work on the Project[.]' (UMF 4.) The subcontract, however, does not limit or exclude Hinrichs's duty to defend. (See Ex. B.) Finally, it is undisputed that Quality Cabinet tendered its defense to Hinrichs.

(UMF 11.) In light of the foregoing, the court finds that Hinrichs has a duty to defend Quality Cabinet against claims 'embraced' by the indemnity obligation. See Crawford, 44 Cal.4th at 555, 558; see also Civ. Code § 2778(4). The complaint alleges that plaintiffs were injured in a guestroom bathroom when a 'loose and unsecured' sink apron fell on them. These allegations are sufficient to trigger Hinrichs's duty to defend.

See Davidson v. Welch (1969) 270 Cal.App.2d 220, 235 (indemnitor required to defend where allegations of complaint contained the 'potential for liability'); see also UDC-Universal Development, L.P.

v. CH2M Hill (2010) 181 Ca1.App.4th 10, 21 (general description of project defects implicated indemnitor's work).

Hinrichs argues that it has not 'breached a duty to defend' because plaintiffs' pre-tender claims did not arise out of the performance of its work. This argument is not well taken. First, the issue sought to be summarily adjudicated is that Hinrichs owed Quality Cabinet a contractual duty – not the breach of any Calendar No.: Event ID: TENTATIVE RULINGS

2977986 40 CASE NUMBER: CASE TITLE: COURNEDE VS WAVE CREST RESORTS II LLC [IMAGED] 37-2021-00051726-CU-PO-CTL such duty. Second, it is irrelevant that Hinrichs was not named in the complaint at the time of Quality Cabinet's tender. 'An indemnitee should not have to rely on the plaintiff to name a particular subcontractor or consultant in order to obtain a promised defense by the one the indemnitee believes is responsible for the plaintiff's damages.' UDC-Universal Development, 181 Ca1.App.4th at 21. Third, and perhaps most importantly, Hinrichs confuses the duty to defend with the duty to indemnify. While the imposition of the duty to indemnify may require inquiry into and resolution of disputed facts, the determination of whether Hinrichs has a duty to defend Quality Cabinets is a question of law, based upon the interpretation of the subcontract between the parties and the allegations of the complaint. See Crawford, 44 Cal.4th at 558-59; see also Linden Partners v. Wilshire Linden Associates (1998) 62 Cal.App.4th 508, 519 ('[T]he existence and scope of a contractual duty present questions of law for the court.'). As explained above, the court has answered this question in the affirmative. Accordingly, Quality Cabinets is entitled to summary adjudication on issue 1.

B. The motion for summary adjudication of issue 2 is denied.

Quality Cabinets moves an order that Hinrichs owes a 'contractual duty' to reimburse Quality Cabinets for all attorney fees and costs incurred. Where an indemnitor has breached its obligation to defend, 'an indemnitee who was thereby forced, against its wishes to defend itself is entitled to reimbursement of the costs of doing so.' Crawford, 44 Cal.App.4th at 555. Thus, despite framing the issue as one of duty, Quality Cabinets is actually seeking a ruling that Hinrichs breached its duty to defend. '[T]here is no statutory basis for summary adjudication on the issue of breach.' Paramount Petroleum Corp. v. Superior Court (2014) 227 Cal.App.4th 226, 243. The motion is therefore denied.

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