Re: ????? ??????????? ??????????? Travelers Property Casualty Company v. Alan Crante

??????????????????????????????????? Superior Court No. 15CECG00300? ? ? ??

Hearing Date: ?????????? Thursday December 21, 2017? ?????? ?(Dept. 502)

Motion: ????????????????????? Plaintiffs? Motion for Summary Judgment or Adjudication?

Tentative Ruling:

To Deny. ?

To Overrule Plaintiffs? Objection #3.? To Decline to Rule on Plaintiffs? remaining objections as they are not material to the disposition of the motion. (Code Civ. Proc., ? 437c, subd. (q).)?

Explanation: ?

Where a Plaintiff seeks summary judgment, the burden is to produce admissible evidence on each element of a cause of action entitling him or her to judgment.

(Code Civ. Proc., ? 437c, subd. (p)(1); Hunter v. Pacific Mechanical Corp. (1995) 37

Cal.App.4th 1282, 1287 disapproved on other grounds in Aguilar v. Atlantic Richfield Co.

(2001) 25 Cal.4th 826; S.B.C.C., Inc. v. St. Paul Fire & Marine Ins. Co. (2010) 186

Cal.App.4th 383, 388.) This means that plaintiffs who bear the burden of proof at trial by a preponderance of evidence must produce evidence that would require a reasonable trier of fact to find any underlying material fact more likely than not. ?(O)therwise, he would not be entitled to judgment as a matter of law.? (Aguilar, supra,

25 Cal.4th 826, 851 emphasis in original; LLP Mortg. v. Bizar (2005) 126 Cal.App.4th 773,

776?burden is on plaintiff to persuade court there is no triable issue of material fact.)

 

COA 5- Equitable Subrogation: The eight elements of an insurer?s cause of action for equitable subrogation are as follows: [1] the insured suffered a loss for which the defendant is liable, either as the wrongdoer whose act or omission caused the loss or because the defendant is legally responsible to the insured for the loss caused by the wrongdoer; [2] the claimed loss was one for which the insurer was not primarily liable; [3] the insurer has compensated the insured in whole or in part for the same loss for which the defendant is primarily liable; [4] the insurer has paid the claim of its insured to protect its own interest and not as a volunteer; [5] the insured has an existing, assignable cause of action against the defendant which the insured could have asserted for its own benefit had it not been compensated for its loss by the insurer; [6] the insurer has suffered damages caused by the act or omission upon which the liability of the defendant depends; [7] justice requires that the loss be entirely shifted from the insurer to the defendant, whose equitable position is inferior to that of the insurer; and [8] the insurer?s damages are in a liquidated sum, generally the amount paid to the insured. (Fireman?s Fund Ins. Co, v. Maryland Cas. Co. (1998) 65 Cal.App.4th 1279, 1292.)

 

Here, Plaintiffs fail to establish element one because the evidence submitted is insufficient to establish that their insured suffered a loss for which Defendant is liable. First, Plaintiffs do not attach the entire agreement, but instead include the following (unsubstantiated) provision as part of their Separate Statement of Undisputed Material Facts:

 

(a). . .?Subcontractor [Art Ramirez] agrees to indemnify, defend, and hold harmless Contractor [West Star], including its officers, agents, employees, affiliated parent and subsidiary companies and each of them (individually ?Indemnified Party? and collectively the ?the ?Indemnified Parties?) from and against any and all claims, causes of action, liabilities, losses, costs, damages and/or expenses in law or equity (including, without limitation, attorneys? fees and expenses) of every kind and nature whatsoever (collectively, the ?Claims?) arising out of or in connection with the Subcontract, the Work hereunder or any or any other work performed by Subcontractor at the Project Site provided that a Claim (i) is attributable to personal or bodily injury to or death of any person or persons, including, without limitation, employees of the Subcontractor, or damage to property of any kind whatsoever, including, without limitation, loss of use thereof, or Violation of Laws, as defined in Paragraph 19, and (ii) is caused in whole or in part by any act or omission to act or willful misconduct by Subcontractor, anyone directly or indirectly employed by Subcontractor or anyone for Whose acts Subcontractor may be liable, regardless of whether such injury, death, or damage is caused or contributed to by any act or omission to act by Contractor, anyone directly or indirectly employed by Contractor, or anyone for whose acts Contractor may be liable. Subcontractor?s obligation to indemnify and hold Contractor harmless shall apply with full force and effect regardless of any active and/or passive negligent act or omission by Contractor or its agents or employees and regardless of any concurrent negligence, whether active or passive, primary or secondary, by Contractor, or by anyone directly or indirectly employed by Contractor, or by anyone for whose acts Contractor may be liable.? (UMF, filed: 10/4/17 ?10 emphasis added.)

 

But summary adjudication requires that all documentary evidence (including contracts) be presented in admissible form. This means that the evidence must be properly identified and authenticated, and that it must also be a complete record, not simply selected portions that favor the moving party’s position. (EHP Glendale v. County of Los Angeles (2011) 193 Cal.App.4th 262, 272 – summary judgment improperly granted where moving party supplied only part of relevant record in support of motion; see also Serri v. Santa Clara Univ. (2014) 226 Cal.App.4th 830, 855.)

 

Nonetheless, Plaintiffs intend to show that Defendant agreed to be liable for any and all claims ?arising from? his work.? They cite to Southgate Recreation & Park District v. California Association for Park and Rec. Ins. (2003) 106 Cal.app.4th 293, 301 and Transport Indemnity Co v. Schnack (1983) 131 Cal.App.3d 149, 152, to support their interpretation that ?arising from? is so broad that it means Defendant is liable for the entirety of their legal fees related to the underlying suit. (Memorandum of points and authorities filed 10/4/17, pp 8-9.) This argument is made to deal with the fact that the underlying complaint contains numerous other allegations of construction defects. (see Statement of Evidence in support of MSJ filed 10/4/17, Ex.12 ?6.) But contrary to Plaintiffs? assertions, neither Southgate nor Transport Indem. stand for the proposition that no link is required. Rather, each stands for quite the opposite: liability exists where there is a link. And here, clearly, there is no link between Defendant and many of the allegations in the underlying suit.

?

Opposition

 

After a Plaintiff meets its burden, Defendant must ?show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto.? (Code Civ. Proc., ? 437c, subd. (p)(1).)

 

Here, Plaintiffs have failed to meet their initial burden. Nonetheless, in opposition, Defendant submits his own declaration (with the entire agreement attached thereto) demonstrating a different understanding of the subject agreement. (Ramirez Dec., filed: 11/17/17 ?4, Ex. A.) He contends he did not understood the terms to mean that he would be liable for any and all construction defects. (Ibid.) And this interpretation is reasonable considering the remainder of the above-cited provision states:

?

?However, Subcontractor shall have no obligation to indemnify any indemnified Party against liability for ? damage or other loss . . . or expense arising solely from the negligence? of such indemnified Party or for defects in design furnished by Contractor, its agents or employees or independent Contractors other than

Subcontractor, who are directly responsible to Contractor.? (Ramirez Dec., filed:

11/17/17 Ex. A ?10.)

 

Accordingly, moving papers fail to provide undisputed evidence that both parties had the same intent, so summary judgment is improper on this grounds as well. (Walter E. Heller Western, Inc. v. Tecrim Corp. (1987) 196 Cal.App.3d 149, 158; see also Walsh v.

Walsh (1941) 18 Cal.2d 439.)

 

Reply

On reply, Plaintiffs also contend that a subcontractor who fails to honor its obligation to defend a general contractor forfeits the right to seek allocation of the claimed attorney fees between the claims related to the subcontractor?s work and unrelated claims. (Reply, filed: 12/14/17 p10 lns 14-23.) In support thereof, Plaintiffs cite to the following cases: Valley Crest Landscaping Dev?t. v. Mission Pools (2015) 238 Cal.App.4th 468, 477; Pac. Tel. & Tel Co. Pac Gas & Elec. Co (1959) 170 Cal.App.2d 387, 392; and United Svs. Auto Ass?n. v. Alaska Ins. Co. (2001) 94 Cal.App.4th 638, 644. (Ibid.) However, none of these cases support Plaintiffs? argument. First, though Valley Crest affirmed the lower Court?s award of attorney fees for the entire amount, the decision resulted only after balancing the equities in that particular case (in other words, the fact that subcontractor failed to honor its obligation was not the only factor taken into consideration). It is impossible then to apply the Valley Crest holding here, because the facts are not identical (e.g. in Valley Crest, though Defendant was ultimately cleared of causation, it still had a strong linkage to the claim; Defendant was a pool subcontractor; and the underlying claim resulted from injuries directly related to the manufacturing of the pool.) Next, Pac. Tel is about the reasonableness of settlement. It holds that where the indemnitor denies liability under the indemnity contract and refuses to assume the defense of the claim, the indemnitee is in full charge of the matter and may make a good faith settlement without assuming the risk of being able to prove absolute legal liability or the actual amount of the damage. (Pac. Tel, supra, 170 Cal.App.2d at 392.) But, it does not discuss or negate relatedness. And no conclusions can even be drawn therefrom because unlike the case at bar, in Pac. Tel, opposing parties were both strongly related to the underlying claim (e.g. wrongful death resulting from an electricity pole that was jointly-owned by both parties). Finally, United Svs. Auto is also about the reasonableness of settlement claims, but between insurers. So it also is clearly not applicable here for the same reasons as in Pac. Tel.; and because Defendant is not an insurer. [See e.g. Herrick Corp. v. Canadian Ins. Co. (1994) 29 Cal.App.4th 753, 763 – subcontractors who sign indemnity contracts are not insurers.]

?

Plaintiffs? Objections

?

Objection #3: Where the agreement sued upon is ambiguous, parol evidence is not only admissible, but is required to aid in interpretation. (Walter E. Heller Western, Inc., supra, 196 Cal.App.3d at 158.)? Here the moving party objects based upon parol evidence, but the terms ?arising out of,? are ambiguous, so parol evidence is admissible.? The objection is overruled.

 

Pursuant to California Rules of Court, rule 3.1312 and Code of Civil Procedure section 1019.5(a), no further written order is necessary.? The minute order adopting this tentative ruling will serve as the order of the court and service by the clerk will constitute notice of the order.

 

Tentative Ruling

Issued By: ???????????????RTM?????????? on 12/19/17

(Judge?s initials) ?????? (Date)