Judge: Walter P. Schwarm, Case: 30-2020-01145810, Date: 2022-09-13 Tentative Ruling

Moving Parties’ (Edgar Dyson Worth and Worthy Homes, Inc.) Motion for Summary Adjudication (Motion), filed on 4-15-22 under ROA No. 86, is DENIED.  The Notice for this Motion (Notice) was filed on 4-15-22 under ROA No. 98.

Code of Civil Procedure section 437c, subdivision (p)(2) provides, “A defendant . . . has met his or her burden of showing that a cause of action has no merit if that party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to that cause of action.  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 that cause of action or a defense thereto.” 

Code of Civil Procedure section 437c, subdivision (f)(1), provides, in part, “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 not merit, that there is no affirmative defense to the 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 of damages, or an issue of duty.” 

Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850-851 (Aguilar), states, “Second, and generally, the party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact. Although not expressly, the 1992 and 1993 amendments impliedly provide in this regard for a burden of production as opposed to a burden of persuasion. A burden of production entails only the presentation of ‘evidence.’ (Evid. Code, § 110.) A burden of persuasion, however, entails the ‘establish[ment]’ through such evidence of a ‘requisite degree of belief.’ (Id., § 115.) It would make little, if any, sense to allow for the shifting of a burden of persuasion. For if the moving party carries a burden of persuasion, the opposing party can do nothing other than concede. Further, although not expressly, the 1992 and 1993 amendments impliedly provide for a burden of production to make a prima facie showing.  A prima facie showing is one that is sufficient to support the position of the party in question. [Citation.]”  (Italics in Aguilar; Footnotes 13 and 14 omitted.) 

Moving Parties seek adjudication of the following issues against Defendants (William Fallace and Lori Fallace): (1) “Pursuant to Paragraph 4 B of the Property Management Agreement, Owners have a duty to defend this matter herein on Moving Parties’ behalf, to indemnify Moving Parties for all costs and damages incurred as a result of defending this action.” (Notice; 2:3-5.); and (2) “Owners have a duty Pursuant to California Civil Code § 2778.4 to defend this proceeding brought against the Moving Parties as this matter is embraced by the Property Management Agreement.” (Notice; 2:6-8.)

Defendants’ Opposition to Defendants Edgar Dyson Worth’s and Worthy Homes, Inc.’s Motion for Summary Adjudication (Opposition), states, “However, in the instant case the Worth defendants did not file a cross-complaint making such allegations or putting the Fallace defendants on notice of the basic pleading upon which they were relying in asserting the asserted but unalleged ‘duty to defend.’ ” (Opposition; 9:14-16.)

Code of Civil Procedure section 308 states, “In such action the party complaining is known as the plaintiff, and the adverse party as the defendant.” Code of Civil Procedure section 426.10 states, “As used in this article: . . . [¶] (b) ‘Plaintiff’ means a person who files a complaint or cross-complaint.”  (See also, Code Civ. Proc., §§ 481.180 and 511.080.) Here, Moving Parties have not filed a complaint or cross-complaint against Owners in this action, so they are not “plaintiffs” under section 437c(f)(1).

Aguilar provides, “The purpose of the law of summary judgment 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. [Citation.] [¶] Under summary judgment law, any party to an action, whether plaintiff or defendant, ‘may move’ the court ‘for summary judgment’ in his favor on a cause of action (i.e., claim) or defense (Code Civ. Proc., § 437c, subd. (a))—a plaintiff ‘contend[ing] . . . that there is no defense to the action,’ a defendant ‘contend[ing] that the action has no merit’ (ibid.). The court must ‘grant[]’ the “motion” ‘if all the papers submitted show’ that ‘there is no triable issue as to any material fact’ (id., § 437c, subd. (c))—that is, there is no issue requiring a trial as to any fact that is necessary under the pleadings and, ultimately, the law (see Riverside County Community Facilities Dist. v. Bainbridge 17 (1999) 77 Cal.App.4th 644, 653 [92 Cal.Rptr.2d 29]; Kelly v. First Astri Corp. (1999) 72 Cal.App.4th 462, 470 [84 Cal.Rptr.2d 810])—and that the ‘moving party is entitled to a judgment as a matter of law’ (Code Civ. Proc., § 437c, subd. (c)). (Aguilar, supra, 25 Cal.4th at p. 843.) 

Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242, 1253 (Laabs), provides, “ ‘The pleadings delimit the issues to be considered on a motion for summary judgment. [Citation.]’ [Citation.] Thus, a  ‘defendant moving for summary judgment need address only the issues raised by the complaint; the plaintiff cannot bring up new, unpleaded issues in his or her opposing papers.’ [Citation.] ‘To create a triable issue of material fact, the opposition evidence must be directed to issues raised by the pleadings. [Citation.] If the opposing party's evidence would show some factual assertion, legal theory, defense or claim not yet pleaded, that party should seek leave to amend the pleadings before the hearing on the summary judgment motion. [Citations.]’ [Citation.] ‘[T]he pleadings “delimit the scope of the issues” to be determined and “[t]he complaint measures the materiality of the facts tendered in a defendant's challenge to the plaintiff's cause of action.” [Citation.] [Plaintiff's] separate statement of material facts is not a substitute for an amendment of the complaint. [Citation.]’ [Citation.]”

Here, the First Amended Complaint (FAC), filed on 5-21-21 under ROA No. 28, does not contain allegations regarding Defendants’ duty to defend.  The court’s file does not reflect that Moving Parties have filed a cross-complaint alleging a duty to defend based on the Property Management Agreement or Civil Code section 2778.4.  Although a party can raise the issue of a duty to defend by way of a motion for summary adjudication, the authority cited by Moving Parties demonstrates that the issue was raised by an active pleading that alleged such a duty. court is not aware of any case where the issue was determined without an active pleading alleging such a duty. In Crawford v. Weather Shield Mfg., Inc. (2008) 44 Cal.4th 541, 548 (Crawford), “The cross-complaints asserted, among other things, that under the pertinent subcontract provisions—all of which had been drafted by JMP and were identical on the point—the subcontractors owed JMP duties of indemnity and defense against the homeowners' complaints. The cross-complaints sought declaratory relief with respect to JMP's alleged indemnity and defense rights.” (Footnote 2 omitted.)  Linden Partners v. Wilshire Linden Associates (1998) 62 Cal.App.4th 508, 519 (Linden), states, “We believe it may fairly be concluded from settled authority and upon a reasonable interpretation of legislative intent that if, under the facts and circumstances of a given case, a court finds it appropriate to determine the existence or nonexistence of a duty in the nature of a contractual obligation, it may properly do so by a ruling on that issue presented by a motion for summary adjudication.”  This statement in Linden, however, was made in the context of a complaint that alleged a cause of action for breach of contract. (Id., at p. 516.)

Moving Parties rely on the FAC brought by Plaintiffs (Aaron Hatch, Melissa Hatch, Wyatt Hatch, a minor, by an through his Guardian Ad Litem, Richard Holroyd, and Luke Hatch, a Minor, by and through his Guardian Ad Litem, Richard Holroyd).  The FAC does not contain allegations regarding an issue between the parties as to a duty to defend.  Since the FAC does not allege an issue regarding a duty to defend, the court does not have the authority to determine an unalleged issue by way of summary adjudication.

Therefore, the court DENIES Moving Parties’ (Edgar Dyson Worth and Worthy Homes, Inc.) Motion for Summary Adjudication filed on 4-15-22 under ROA No. 86.

Defendants are to give notice.