Cross-defendant Flood Air, Inc.’s motion for summary judgment as to CSI’s cross-complaint and Wesco’s complaint-in-intervention is DENIED.
On summary judgment, if there is a single triable issue of material fact as to any cause of action, the motion for summary judgment must be denied. See, Zavala v. Arce (1997) 58 Cal.App.4th 915, 926.
First, cross-defendant Flood Air, Inc. did not carry its burden that it had no duty to defend based on the time of the tenders by cross-complainant CSI. See, Valley Crest Landscape Development, Inc. v. Mission Pools of Escondido, Inc. (2015) 238 Cal.App.4th 468, 490 to 491 and Centex Golden Construction Co. v. Dale Tile Co. (2000) 78 Cal.App.4th 992, 1000.
Second, cross-defendant Flood Air, Inc. concedes that Wesco has borne the expense of covering the expenses of litigation following tender, so cross-defendant Flood Air, Inc. did not again carry its burden as to Wesco’s the claim for equitable subrogation in Wesco’s complaint-in-intervention. See, Herrick Corp. v. Canadian Ins. Co. (1994) 29 Cal.App.4th 753, 762 to 763.
Revised Third, even assuming cross-defendant Flood Air, Inc. carried its initial burden as to duty to defend, there are triable issues of material fact as to whether any HVAC materials left by employees of cross-defendant Flood Air, Inc. were a contributing factor to plaintiff Francisco Ferrer’s industrial accident. [See, Cross-Complainant CSI, et al.’s Response to Cross-Defendant’s UMF Nos. 9 and 10.]
Prevailing party to give notice.
Cross-Defendant Flood Air, Inc.’s Request for Judicial Notice: Cross-defendant Flood Air, Inc. requested that this court take judicial notice of the Declaration of Darlene M. McIver that was attached to moving party’s motion for summary judgment earlier in this civil action and attached to the Wesco Insurance Company’s motion for leave to file and serve a cross-complaint in this civil action. GRANTED as to taking judicial notice that the Declaration of Darlene M. McIver was filed with this court in various pleadings, but such notice is limited to the simply filing of this declaration with this court and not as to the truth of any claims or contentions set forth in the declaration of Darlene M. McIver. See, Evidence Code § 452(d) and Kilroy v. State California (2004) 119 Cal. App. 4th 140, 145 citing Lockley v. Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal. App. 4th 875, 882.
Cross-Defendant Flood Air, Inc.’s Evidentiary Objections: Declaration of Osman Castillo: OVERRULED as to Objection No. 1. Declaration of Thomas J. Lincoln, Esq.:
OVERRULED as to Objection Nos. 2 and 3. SUSTAINED as to Objection No. 4 as an expert cannot opine that a legal duty was owed. See, Summers v. A.L. Gilbert Co. (1999) 69 Cal.App.4th 1155, 1178.