Motion for Summary Adjudication
All of the Subcontractors? evidentiary objections are sustained. The Request for Judicial Notice is granted and the objection to it overruled.?? The Motion is denied in its entirety, as Moving Parties have failed to meet their initial burden of proof.
Item No. 4 of the Motion seeks to adjudicate that Subcontractors are in breach of the Master Subcontract with AGI.???? This is not a proper item for summary adjudication as it does not dispose of an entire Cause of Action (Cal. Civ. Proc. Code ? 437c (f)(1)).? Besides the fact that no present breach has been proven (see below), even if breach were proven, that would not dispose of any cause of action, but would merely prove breach.
Moreover, the Motion fails in its entirety, as it is based only on a portionof the language of the Master Subcontract dealing with the obligations to defend, indemnify and reimburse. Both the Cross Complaint and the Motion quote Section 4.6.1 and only part of Section 4.6.1.2 of the Master Subcontract; they neglect to also quote the last lines of Section 4.6.1.2, which sets forth the following exception to the the obligations: ?Except that this indemnity obligation shall not require that Subcontractor indemnify any of the persons or entities named as indemnitees against claims arising from his, her, or its sole negligence or willful misconduct?.
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The moving parties ? Defendants/Cross Complainants AGI and Smart & Final ? are alleged in the First Amended Complaint to be participants in the wrongdoing. Therefore, in order for them to recover under the Master Subcontract on the duties to defend, indemnify and reimburse, they must prove that the claims did not arise out of their sole negligence or willful misconduct.?? They have not done so; not could they as no trial on the merits has taken place, and there has been no determination or allocation of fault.? The Motion therefore fails as to all items sought to be adjudicated.
Further, ??Cross Defendants are correct that it is against public policy to impose defense and indemnity obligations as to a contractor?s own active negligence (Civil Code Section 2782.05)? and AGI and Smart and Final have not proven that they were not actively negligent.? Additionally, the issue of whether Cross Complainants? negligence was active or passive is a question of fact, not to be summarily adjudicated absent undisputed facts (Rossmoor Sanitation, Inc. v. Pylon, Inc., 13 Cal. 3d 622, 629-30, 532 P.2d 97 (1975)). As Cross Complainants have not even attempted to show their lack of liability, the Motion fails.
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With regard to Item I of the Motion and the duty to indemnify, Cross Defendants argue that the Motion in that regard is seeking an advisory opinion.? The Court disagrees.? Cross Complainants seek an adjudication that the Cross Defendants owe a present duty to indemnify. ??The Motion fails in this regard, however, as no present right to indemnification has arisen, as no liability has been established as to any of the Defendants, including Cross Complainants and Cross Defendants here, as no trial has established liability and against whom, in what allocation.
As to the issue of the Assignment and Standing, Cross Complainants claim that they have an assignment of the rights of ORGIC, so as to seek reimbursement of the defense costs and reimbursements related to the Master Subcontract. First, there is no such assignment alleged in the Cross Complaint. Second, as noted by Cross Defendants, the purported Assignment is invalid, as the Assignor has no present right to reimbursement given the terms of the Master Subcontract, as noted above, so it could not assign a right it did not have.? Neither the Assignor, nor the Assignees under the purported Assignment have a present right to reimbursement.?? Further, there is no evidence before the Court that ORGIC, or Cross Complainants, as purported Assignees, have paid out any monies for which reimbursement could be sought.
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Judicial notice of the filed Court documents may be taken pursuant to ?Evidence Code Section 452 (d).? Cross Defendants are correct, however, that the Original Complaint is irrelevant, as it is superseded by the First Amended Complaint, but that does not mean that the Court cannot take judicial notice of it.? It is properly objected to, however, on relevancy grounds.