On 12/09/2016 BESS WILEY filed a Personal Injury - Other Personal Injury lawsuit against CATALINA MEDIA DEVELOPMENT, LLC. This case was filed in Los Angeles County Superior Courts, Burbank Courthouse located in Los Angeles, California. The Judges overseeing this case are LAURA A. MATZ, CURTIS A. KIN and PATRICIA D. NIETO. The case status is Pending - Other Pending.
Pending - Other Pending
Los Angeles County Superior Courts
Los Angeles, California
LAURA A. MATZ
CURTIS A. KIN
PATRICIA D. NIETO
THE WORTHE REAL ESTATE GROUP INC
CATALINA MEDIA DEVELOPEMNT LLC
CORPRATION THYSSENKRUPP ELEVATOR
DOES 1 THROUGH 100
CATALINA MEDIA DEVELOPMENT LLC
WORTHE REAL ESTATE GROUP INC. THE
THYSSENKRUPP ELEVATOR CORPORATION(DOE 51)
THYSSENKRUPP ELEVATOR CORPORATIONDOE 51
THYSSENKRUPP ELEVATOR CORPORATION (DOE51)
THYSSENKRUPP ELEVATOR CORPORATION DOE51
L.A. DEPOSITIONS INC.
THYSSENKRUPP ELEVATOR CORPORATION
THYSSENKRUPP ELEVATOR CORPRATION
GAMBARDELLA STEVEN C. ESQ.
GAMBARDELLA STEVEN C. LAW OFFICES OF
GAMBARDELLA STEVEN CARMINE ESQ.
HEIMANSON & WOLF LLP
OLSEN CHRISTOPHER TED
GARY L. HOFFMAN ESQ.
HOFFMAN GARY LEE ESQ.
HOFFMAN GARY L. ESQ.
PLESE MARIA K.
CLINTON & CLINTON
HOFFMAN GARY L. ESQ.
CLINTON & CLINTON
BONINO MARK GIOVANNI
7/11/2018: Minute Order - MINUTE ORDER ENTERED: 2018-07-11 00:00:00
7/25/2019: Notice of Ruling
9/6/2019: Order Appointing Court Approved Reporter as Official Reporter Pro Tempore - ORDER APPOINTING COURT APPROVED REPORTER AS OFFICIAL REPORTER PRO TEMPORE LISA DIGIOVANNI, CSR 11969
2/7/2020: Minute Order - MINUTE ORDER (HEARING ON MOTION FOR SUMMARY JUDGMENT; HEARING ON MOTION TO ...)
2/7/2020: Motion for Protective Order
4/15/2020: Minute Order - MINUTE ORDER (NON-APPEARANCE CASE REVIEW)
5/19/2020: Notice of Filing of Notice of Appeal (Unlimited Civil)
7/30/2020: Memorandum of Costs (Summary) - AMENDED MEMORANDUM OF COSTS (SUMMARY)
8/10/2020: Declaration - DECLARATION OF MARK G. BONINO IN OPPOSITION TO TKES AMENDED MOTION FOR ATTORNEYS FEES AND COSTS
11/16/2020: Notice of Filing of Notice of Appeal (Unlimited Civil) - NOTICE OF FILING OF NOTICE OF APPEAL (UNLIMITED CIVIL) "U"
11/25/2020: Appeal - Ntc Designating Record of Appeal APP-003/010/103 - APPEAL - NTC DESIGNATING RECORD OF APPEAL APP-003/010/103 "U"
12/15/2016: Legacy Document - LEGACY DOCUMENT TYPE: First Amended Complaint
11/17/2017: THYSSENKRUPP ELEVATOR CORPORATION'S OPPOSITION TO MOTION FOR SUMMARY JUDGMENT/ADJUDICATION BY DEFENDANTS CATALINA MEDIA DEVELOPMENT, LLC AND THE WORTHE REAL ESTATE GROUP, INC.
11/22/2017: REPLY OF CROSS-COMPLAINANTS', CATALINA MEDIA DEVELOPMENT, LLC AND THE WORTHE REAL ESTATE GROUP, INC. TO CROSS-DEFENDANT'S OPPOSITION TO MOTION FOR SUMMARY ADJUDICATION; ETC
12/1/2017: Legacy Document - LEGACY DOCUMENT TYPE: Order
5/1/2018: Legacy Document - LEGACY DOCUMENT TYPE: Miscellaneous-Other
8/16/2018: Separate Statement -
8/17/2018: Motion for Summary Judgment
DocketAppeal - Ntc Designating Record of Appeal APP-003/010/103 ("U"); Filed by THYSSENKRUPP ELEVATOR CORPRATION (Appellant); THYSSENKRUPP ELEVATOR CORPRATION (Cross-Defendant)Read MoreRead Less
DocketNotice of Filing of Notice of Appeal (Unlimited Civil) ("U"); Filed by ClerkRead MoreRead Less
DocketAppeal - Notice of Appeal/Cross Appeal Filed ("U"); Filed by THYSSENKRUPP ELEVATOR CORPRATION (Appellant)Read MoreRead Less
DocketAppeal - Notice Court Reporter to Prepare Appeal Transcript (;B306012, NOA 5/12/20;); Filed by ClerkRead MoreRead Less
DocketNotice of Ruling; Filed by Catalina Media Development, LLC (Cross-Defendant); The Worthe Real Estate Group, Inc (Cross-Defendant)Read MoreRead Less
DocketNotice of Ruling; Filed by Catalina Media Development, LLC (Defendant); The Worthe Real Estate Group, Inc (Defendant)Read MoreRead Less
DocketNotice of Ruling; Filed by THYSSENKRUPP ELEVATOR CORPRATION (Cross-Defendant)Read MoreRead Less
Docketat 10:00 AM in Department E, Curtis A. Kin, Presiding; Hearing on Motion for Attorney Fees - HeldRead MoreRead Less
DocketOrder Appointing Court Approved Reporter as Official Reporter Pro Tempore (Mark Schweitzer, CSR 10514); Filed by THYSSENKRUPP ELEVATOR CORPORATION(DOE 51) (Defendant)Read MoreRead Less
DocketMinute Order ( (Hearing on Motion for Attorney Fees)); Filed by ClerkRead MoreRead Less
DocketDefendant's Claim and Order to Go to Small Claims Court (Small Claims)Read MoreRead Less
DocketFirst Amended Complaint; Filed by Plaintiff/PetitionerRead MoreRead Less
DocketFirst Amended Complaint; Filed by Attorney for Plaintiff/PetitionerRead MoreRead Less
DocketSummons; Filed by Plaintiff/PetitionerRead MoreRead Less
DocketSummons Filed (First Amended Summons ); Filed by Attorney for Plaintiff/PetitionerRead MoreRead Less
DocketComplaintRead MoreRead Less
DocketComplaintRead MoreRead Less
DocketSummons; Filed by Plaintiff/PetitionerRead MoreRead Less
DocketComplaint; Filed by BESS WILEY (Plaintiff); RONALD GROSS (Plaintiff); RONALD GRESS (Plaintiff)Read MoreRead Less
DocketSummons Filed; Filed by Attorney for Plaintiff/PetitionerRead MoreRead Less
Case Number: BC641595 Hearing Date: August 21, 2020 Dept: E
MOTION FOR ATTORNEY FEES/COSTS
[CCP §1033.5(c)(5), Civil Code § 1717]
Date: 8/21/20 (10:00 a.m.)
Case: Wiley, et al. v. Catalina Media Development, LLC, et al. (BC 641595)
Thyssenkrupp Elevator Corp.’s (“TKE”) Motion for Attorney Fees and Costs is GRANTED IN PART. TKE’s requests for judicial notice as to Exhibits A through D are GRANTED, pursuant to Evidence Code § 452(d).
As an initial matter, the Court notes TKE initially filed its motion on March 3, 2020, to which Catalina Media Development (“Catalina”) and The Worthe Real Estate Group, Inc. (“Worthe”) filed an opposition on May 11, 2020. Rather than file a Reply Brief, TKE instead filed an “Amended Motion” nearly three months later, making a different request for attorney’s fees (albeit a reduced amount) and providing additional documents in support thereof (notably including numerous billing records that appear to have existed when TKE filed its motion originally). Having styled this brief as an Amended Motion, TKE essentially side-stepped the problems that might be presented by a Reply Brief with a different theory of recovery and additional evidence the party failed to include with the motion. Nonetheless, Catalina and Worthe filed another opposition, which afforded TKE the ability to file yet another brief it styled as a Reply—though it is effectively a Sur-Reply. Notwithstanding TKE’s fast and loose (if not outright violative) approach to the rules and procedures governing law and motion practice, the Court will deem the “Amended Motion” as the operative motion but will consider all the briefing and supporting documentation and exhibits submitted by the parties with respect to TKE’s request for attorney’s fees and costs.
As a further preliminary matter, the Court notes that TKE is not disentitled from seeking attorney fees or costs. As this Court found previously in its April 17, 2020 ruling on Catalina and Worthe’s motion for new trial, Catalina and Worthe failed to demonstrate TKE willfully violated any particular court order, which is a precursor to application of the disentitlement doctrine. (See 4/17/20 Minute Order [citing In re E.M., 204 Cal.App.4th 467, 476-77].) Thus, as before, the disentitlement doctrine presents no barrier to TKE’s requested relief.
I. ATTORNEY’S FEES
Both Catalina and Worthe contend TKE is not entitled to any attorney’s fees in connection with TKE’s defense of plaintiffs Bess Wiley and Ronald Gress’s tort claims. The Court agrees. Only fees relating to TKE’s defense against indemnity claims in Catalina and Worthe’s cross complaint are recoverable. Paragraph 14(a) of the Service Agreement allows for fees incurred in connection with “any action or proceeding against the other party relating to this Agreement.” The Service Agreement pertains to TKE’s agreement to indemnify Catalina for any losses. Fees incurred in defending against plaintiffs’ negligence claims do not render such claims “on a contract.” (Plemon v. Nelson (1983) 148 Cal.App.3d 720, 724-25 [when a cross-complaint is defensive, it is not an action on a contract].) Thus, to the extent TKE is entitled to any attorney’s fees from Catalina, they would be limited to fees in connection with defending against Catalina and Worthe’s cross-complaint for indemnity. TKE now appears to implicitly acknowledge this limitation on recoverable fees in this action, as the Amended Motion only seeks attorney’s fees accruing after August 30, 2019, the date on which TKE, Catalina, and Worthe settled with plaintiffs Wiley and Gress. Nonetheless, this distinction also still applies to fees accruing after the settlement with the plaintiffs and may thus bar recovery of any such fees insofar as they are not for work relating to Catalina and Worthe’s cross-complaint.
Ultimately, the Court concludes TKE is not entitled to any attorney’s fees under Civil Code § 1717, because the Court does not find TKE is a prevailing party. “Where neither party achieves a complete victory, the trial court has discretion to determine ‘which party prevailed on the contract or whether, on balance, neither party prevailed sufficiently to justify an award of attorney fees.’” (Zintel Holdings, LLC v. McLean (2012) 209 Cal.App.4th 431, 439–440.) “[I]n deciding whether there is a ‘party prevailing on the contract,’ the trial court is to compare the relief awarded on the contract claim or claims with the parties’ demands on those same claims and their litigation objectives as disclosed by the pleadings, trial briefs, opening statements, and similar sources. The prevailing party determination is to be made only upon final resolution of the contract claims and only by ‘a comparison of the extent to which each party ha[s] succeeded and failed to succeed in its contentions.’” (Hsu v. Abbara (1995) 9 Cal.4th 863, 876.)
Here, neither TKE, on the one hand, nor Catalina and Worthe, on the other hand, should be considered the “absolute or complete winner” in the Court’s view. (Zintel, 209 Cal.App.4th at pp. 439-440.) The objective of TKE, Catalina, and Worthe in bringing their respective cross-complaints was to have the other party held liable for any damages awarded to plaintiffs. When plaintiffs settled their claims with TKE, Catalina, and Worthe, none of these cross-complaining parties fully achieved their litigation objectives. (See Hoffman Decl. ¶ 9 [indicating TKE paid $44,000 and Catalina/Worthe paid $11,000 to settle with plaintiffs].) Indeed, in connection with granting TKE’s motion for summary judgment as to Catalina and Worthe’s cross-complaint, the Court found that Catalina and Worthe had not established any negligence on the part of TKE. Likewise, having dismissed its cross-complaint against Catalina and Worthe, TKE never achieved its litigation objective to establish Catalina and Worthe were liable for indemnification.
In finding there is no prevailing party for purposes of awarding attorney’s fees pursuant to section 1717, the Court recognizes TKE obtained summary judgment against Catalina and Worthe’s cross-complaint. (RJN Ex. C.) But that was hardly a complete or absolute victory under the circumstances. When TKE’s summary judgment motion was heard, all parties had already settled with plaintiffs with no admission of any liability. Moreover, with respect to Catalina and Worthe’s claim for “Breach of Contract to Defend,” Catalina and Worthe had previously obtained a ruling that TKE had a duty to defend them, which came over TKE’s vigorous objection. (Hoffman Decl. ¶ 4 & Ex. B-024). Ultimately, on summary judgment, the Court found Catalina and Worthe could not prove TKE owed any particular amount pursuant to that duty to defend because the Service Agreement limits TKE’s share of defense costs to its proportion of fault and because, as discussed above, none of the cross-complainants have adduced any evidence of each other’s respective fault. In the Court’s view, TKE, Catalina, and Worthe have obtained entirely mixed results. The Court accordingly declines to find TKE is the prevailing party entitled to fees and costs under section 1717.
Lastly, even if TKE were a prevailing party entitled to some or all of its attorney’s fees pursuant to Civil Code § 1717 and the Service Agreement, the Court finds TKE has failed to meet its burden to prove reasonable fees to which it is entitled, let alone the over $140,000 it seeks for work from September 2019 through June 2020 in the Amended Motion. An attorney’s declaration as to the number of hours worked may be sufficient under certain circumstances. (See Steiny & Co., Inc. v. California Electric Supply Co. (2000) 79 Cal.App.4th 285, 293), Here, however, the barebones declarations of two attorneys stating the total amount of attorney fees purportedly expended and appending billing records thereto are patently insufficient, particularly as TKE provides no meaningful explanation for the work completed, the reasonably necessity for such work, or its relation to the Catalina and Worth Cross-Complaint. (See 7/30/20 Olsen Decl. ¶¶ 6-8; 7/30/20 Tilner Decl. ¶ 3.) Indeed, the Tilner declaration provides no explanation for the work performed, and the Olsen declaration is wholly unreliable in its one-sentence explanation, in that Olsen refers to fees for “extensive discovery,” “depositions,” and “multiple witnesses.” That explanation is too vague to be helpful, does not appear to match any of the work listed in the attached billing records, and would not seem to be for the type of work logically required after settling with the plaintiffs. In short, TKE fails to provide a sufficient basis for the Court to determine what, if any, amount of attorney fees would be reasonable here. On this basis alone, the Court denies TKE’s request in its entirety.
As for the $13,927.31 in costs (minus attorney fees) set forth in TKE’s Memorandum of Costs, filed March 3, 2020 (and again sought in the Amended Memorandum of Costs, filed July 30, 2020), the Court finds TKE is entitled to these costs under CCP §§ 1032(a)(4) and 1032(b), because TKE obtained a dismissal in its favor as to Catalina and Worthe’s cross-complaint. (RJN Ex. C.) “Except as otherwise expressly provided by statute [e.g. Civil Code §1717], a prevailing party is entitled as a matter of right to recover costs in any action or proceeding.” (CCP § 1032(b).) While the Court does not find TKE is a prevailing party entitled to attorney fees and costs under Civil Code §1717 as discussed above, the Court does find that TKE is entitled to costs under CCP §1032 as a prevailing party under that section. (Goodman v. Lozano (2010) 47 Cal.4th 1327, 1335, fn. 3 [“[W]e reject their contention that we must construe [CCP] section 1032(a)(4) in light of Civil Code section 1717”].)
Accordingly, pursuant to CCP § 1032(b), TKE is awarded $13,927.31 in costs against Catalina and Worthe, jointly and severally.
Case Number: BC641595 Hearing Date: April 17, 2020 Dept: E
MOTION FOR NEW TRIAL AND MOTION TO VACATE AND ENTER A NEW AND DIFFERENT JUDGMENT
[CCP §§ 657, 663]
Case: Wiley, et al. v. Catalina Media Development, LLC, et al. (BC 641595)
Cross-complainants Catalina Media Development, LLC (“Catalina”) and The Worthe Real Estate Group, Inc. (“Worthe”) have filed a Motion for New Trial and Motion to Vacate and Enter a New and Different Judgment. The matter is set for hearing on April 17, 2020. In light of court closures, the need for social distancing, and concerns for public health and safety due to the ongoing COVID-19 pandemic, the matter will be heard in Department 1 of the Glendale Courthouse at the scheduled date and time. Having reviewed the motion and all related filings by the parties, the Court concludes that the matter “shall be submitted without oral argument” at the close of the hearing. (CCP § 661.) If the parties do not wish to waive their appearance at the hearing, due to the aforementioned public health and safety concerns, they are hereby ORDERED to make their appearance telephonically and not physically appear at the courthouse or Department 1. (See Avery v. Associated Seed Growers, Inc, (1963) 211 Cal.App.2d 613 627 [“The court may dispense with the argument but, unless waived, it cannot dispense with the hearing”].) By no later than April 16, 2020, each party shall contact the Judicial Assistant in Department 1 at (818) 265-6401 to indicate whether that party wishes to waive its appearance or to make arrangements to appear telephonically at the hearing. Upon submission of the matter, the Court intends to rule as follows:
Cross-complainants Catalina and Worthe’s Motion for New Trial and Motion to Vacate and Enter a New and Different Judgment is DENIED. Cross-defendant Thyssenkrupp Elevator Corp.’s (“TKE”) objections are OVERRULED.
Catalina and Worthe’s motion is based on their contention that the Court erred in its February 7, 2020 decision granting summary judgment in favor of cross-defendant TKE as to Catalina and Worthe’s cross-complaint.
Catalina and Worthe contend TKE was “disentitled” from moving for summary judgment because TKE failed to compensate them for defense costs, in purported violation of the Court’s June 11, 2018 and July 13, 2018 orders finding that TKE had an immediate duty to defend Catalina and Worthe, as well as in violation of the Court’s September 6, 2019 order granting Catalina and Worthe’s motion to enforce the 2018 orders. (In re E.M. (2012) 204 Cal.App.4th 467, 474 [“[T]he disentitlement doctrine prevents a party from seeking assistance from the court while that party is in ‘an attitude of contempt to legal orders and processes of the courts of this state.’”].)
Catalina and Worthe’s invocation of the disentitlement doctrine is entirely new. If an argument was not raised in the opposition to a motion for summary judgment, the Court may decline to consider the argument in a motion for new trial. (Jacobs v. Retail Clerks Union, Local 1222
(1975) 49 Cal.App.3d 959, 967.) In their opposition to TKE’s motion for summary judgment, Catalina and Worthe contended that TKE failed to provide an immediate defense in violation of court orders, but they never argued expressly that TKE waived the right to seek summary judgment based on its failure to indemnify cross-complainants for any defense costs. Nor did they mention the disentitlement doctrine or cite any authority for the proposition that TKE could not move for summary judgment pursuant to that doctrine.
Even if the Court were to consider the disentitlement doctrine, the Court does not find TKE violated any court order, because the Court never ordered immediate reimbursement of defense costs. Neither the July 13, 2018 Order Granting Motion for Summary Adjudication nor the June 11, 2018 minute order incorporated therein ordered TKE to immediately reimburse Catalina or Worthe for post-tender attorney fees and costs. (See Hoffman Decl. Ex. 3.) In those orders, the Court only found that TKE had the immediate contractual duty to defend Catalina and Worthe. Absent from those orders is any finding regarding the extent to which TKE was liable to Catalina or Worthe pursuant to the duty the Court found therein. Further, the September 6, 2019 order granting Catalina and Worthe’s motion to enforce court order expressly stated, “[T]he Court does not order, as Catalina and Worthe request, the immediate reimbursement by TKE of unknown fees and costs at this point.” (Hoffman Decl. Ex. 5 at 067.) Thus, Catalina and Worthe do not demonstrate TKE willfully violated any court orders, which is a precursor to application of the disentitlement doctrine. (In re E.M., 204 Cal.App.4th at pp. 476-77 [disentitlement doctrine applies to “willful disobedience or obstructive tactics”].) Accordingly, TKE was entitled to move for summary judgment.
Catalina and Worthe also argue this Court’s grant of summary judgment in favor of TKE was inconsistent with the June 11, 2018 and July 13, 2018 orders finding that TKE owed Catalina and Worthe an immediate contractual duty to defend. This argument misapprehends the June 11, 2018 and July 13, 2918 orders and likewise misconstrue the Court’s rationale for granting summary judgment in favor of TKE. (See Mtn. at 11 [“[T]he law nonetheless required vacating Judge Kin’s finding of no duty to defend . . . .”]; see also Mtn. at 13 [arguing the “earlier orders are irreconcilable with Judge Kin’s February 7 order finding no duty to defend”].) As noted above, the 2018 orders found that TKE had a duty to defend Catalina and Worthe pursuant to the Service Agreement but recognize that the Service Agreement also provides “that when there is more than one party in the case, it shall be handled so that each party shall be responsible for its share of the damages, (including all defense costs), in proportion to its share of negligence (liability) as found by the trier of fact.” (Hoffman Decl. Ex. 3 at 041, 047 [emphasis added].)
Consistent with the 2018 orders, in the Court’s February 7, 2020 order granting summary judgment in favor of TKE, the Court explicitly recognized that “the Court determined that TKE had a duty to defend CATALINA and WORTHE” and that “the Court has previously found in CATALINA’s and WORTHE’s favor as to the issue of having a contractual duty to defend.” (Hoffman Decl. Ex. 10 at 128 [2/7/20 Order].) With that understanding, the Court then interpreted paragraph 7(2) of the Service Agreement to conclude that, “while TKE had the immediate duty to defend, once liability for plaintiffs’ injuries was determined, the costs of defense would be apportioned between the multiple parties based on their respective fault.” (Hoffman Decl. Ex. 10 at 129.) In other words, the Court found that, pursuant to the terms of the Service Agreement, “if TKE is not liable to plaintiffs, then TKE is not liable for defense costs to
CATALINA or WORTHE, even though TKE has a duty to defend under the Service Agreement.” (Hoffman Decl. Ex. 10 at 129.) Put another way, if TKE’s liability to plaintiffs is zero, then its share of defense costs owed to Catalina and Worthe is zero. Thus, because Catalina and Worthe ultimately raised no triable issue of fact as to TKE’s liability to plaintiff (which Catalina and Worthe neither disputed on the merits at the time nor dispute presently), the Court granted summary judgment in favor of TKE on that issue and consequently found TKE had no liability to Catalina or Worthe for their defense costs as a result. (Hoffman Decl. Ex. 10 at 127-129.) Those conclusions fully embrace the prior 2018 Orders finding TKE had a contractual duty to defend and interpret the Service Agreement consistent therewith.
Relatedly, Cataline and Worthe continue to press the position that paragraph 7(2) of the Service Agreement only acts to reduce TKE’s responsibility to pay all defense costs by the proportion of fault assigned to other entities. (Mtn. at 2 [“[I]t allows TKE to share the costs, if another entity is found at fault.” (emphasis in original); see also Mtn. at 11-12; Hoffman Decl. Ex. 8 at 097-098 [similar argument at summary judgment hearing].) But that is not what paragraph 7(2) says. Paragraph 7(2) plainly states: “[A]ny claim involving more than one party shall be handled so each party is responsible and liable for its share of the damages (and defense costs associated therewith) in proportion to its share of acts, actions, omissions, or negligence.” (Hoffman Decl. Ex. 2 at 18.) It does not distinguish between indemnitors and indemnitees, and it does not necessarily presuppose the contractor (TKE) is 100% responsible for all defense costs, subject to a reduction based on a finding of fault as to others. Rather, it provides that the contractor (TKE) is responsible for payment of defense costs co-extensive with its share of liability for the underlying claim. And while the Court recognizes this may lead to a situation in which the contractor’s immediate obligation and duty to defend ultimately turns out to mean the contractor pays nothing for the defense if no liability is ultimately established (or is entitled to reimbursement of defense costs the contractor advanced prior thereto), that is what the Service Agreement explicitly provides, which is not an absurd result. (Civ. Code § 1638 [“The language of a contract is to govern its interpretation, if the language is clear and explicit, and does not involve an absurdity”].) Indeed, our Supreme Court has clearly held that, with respect to indemnity agreements, “parties have great freedom to allocate such responsibilities as they see fit.” (Crawford v. Weather Shield Mfg., Inc. (2008) 44 Cal.4th 541, 551.) “Hence, they may agree that the promisor’s indemnity and/or defense obligations will apply only if the promisor was negligent, or, conversely, even if the promisor was not negligent.” (Ibid.) This particular indemnity agreement ties the extent to which TKE must pay defense costs pursuant to its duty to defend to the extent to which TKE is negligent.
For the foregoing reasons, the Court finds that its February 7, 2020 grant of summary judgment and February 18, 2020 entry of judgment in favor of TKE were not in error. Accordingly, the motion is DENIED.
Case Number: BC641595 Hearing Date: February 07, 2020 Dept: E
MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION
[CCP § 437c; CRC 3.1350 et seq.]
Case: Bess Wiley, et al. v. Catalina Media Development, LLC, et al. (BC 641595)
The Court GRANTS Cross-defendant Thyssenkrupp Elevator Corp.’s (“TKE”) Motion for Summary Judgment as to Cross-Complainants Catalina Media Development, LLC’s (“CATALINA”) and The Worthe Real Estate Group, Inc.’s (“WORTHE”) Cross-Complaint, filed February 7, 2017, asserting six causes of action against TKE.
I. REQUEST FOR JUDICIAL NOTICE
TKE’s requests for judicial notice contained in TKE’s points and authorities and separate statement are DENIED. TKE is required to make such requests in a separate filing. (Cal. Rule of Court 3.1113(l) [“Any request for judicial notice must be made in a separate document listing the specific items for which notice is requested and must comply with rule 3.1306(c)”].)
II. THE FIRST, THIRD, FOURTH, FIFTH AND SIXTH CAUSES OF ACTION
CATALINA and WORTHE contend TKE’s motion for summary judgment is moot as to the first cause of action for Breach of Contract to Indemnify, third cause of action for Total Equitable Indemnity, fourth cause of action for Contribution, fifth cause of action for Comparative Indemnity Apportionment of Fault, and sixth cause of action for Declaratory Relief. That contention is based on CATALINA’s and WORTHE’s assertion that they have agreed to dismiss those causes of action in connection with settling with plaintiffs Bess Wiley and Ronald Gress. (See Plese Decl. ¶ 4.) Because CATALINA and WORTHE have not, in fact, dismissed those causes of action, TKE’s motion with respect thereto is not moot.
As for the first, third, fourth, fifth, and sixth causes of action, all such causes of action depend on a finding of liability against cross-complainants. (Cross-Compl. ¶¶ 7, 17, 19, 26, 28; Prince v. Pacific Gas & Electric Co. (2009) 45 Cal.4th 1151, 1159 [no equitable indemnity without liability].) It is undisputed that plaintiffs settled their claims against CATALINA, WORTHE, and TKE without any finding of liability or apportionment of fault amongst any of the parties to this litigation. (UMF 30-37 and 39-40 and evidence cited.) Further, TKE presents evidence in connection with its motion that plaintiffs could not have established liability against any of the defendants (i.e., CATALINA, WORTHE, or TKE) and that CATALINA and WORTHE also cannot do so with respect to TKE.
TKE presents evidence, including the testimony of plaintiffs’ elevator expert, that the elevator at issue operated as intended with appropriate safety mechanisms, including a working elevator door sensor designed to prevent closure when someone is blocking the doors. (UMF 22-27, 29, and 62-72 and evidence cited.) TKE presents cross-complainants’ discovery responses indicating that cross-complainants have no facts to support any contention that TKE or CATALINA were negligent regarding the incident. (UMF 41-49 and evidence cited.) TKE also demonstrated that plaintiff Bess Wiley may bear sole responsibility for her injury because plaintiff had summoned the elevator, with her hands full, raised her right foot to keep the door from closing, pulled her foot back when the elevator closed on her foot, causing her to lose balance and fall. (UMF Nos. 55-61 and evidence cited.)
Because the settlement with plaintiffs provides no admission of apportionment of liability among the parties and because TKE has presented evidence that it may bear no responsibility for plaintiffs’ injuries, TKE argues that cross-complainants cannot prevail on their claims of indemnity in the first, third, fourth, fifth, and sixth causes of action, because TKE did not cause plaintiff’s injury in any manner.
The burden thus shifts to CATALINA and WORTHE to demonstrate a triable issue of material fact. CATALINA and Worth, however, adduce no evidence to raise any issue as to TKE’s liability for plaintiffs’ injuries. Rather, they merely argue that the issue is moot because they intend to dismiss those causes of action eventually, which, as discussed above, is insufficient to keep this Court from addressing TKE’s motion for summary judgment on the merits as to those causes of action. Accordingly, TKE is entitled to summary adjudication as to the first, third, fourth, fifth, and sixth causes of action.
III. SECOND CAUSE OF ACTION: BREACH OF CONTRACT TO DEFEND
With respect to the second cause of action of Breach of Contract to Defend, in connection with CATALINA’s and WORTHE’s earlier motion for summary adjudication, the Court determined that TKE had a duty to defend CATALINA and WORTHE. (Plese Decl. ¶ 5, Ex. 3.) However, even though the Court has previously found in CATALINA’s and WORTHE’s favor as to the issue of having a contractual duty to defend, whether CATALINA and WORTHE could ultimately prevail on the second cause of action remained undetermined.
Turning to the issue at hand, as the Court observed in its June 11, 2018 ruling on submitted matter, “Paragraph 2 to the Service Agreement merely states that when there is more than one party in a case it shall be handled so that each party shall be responsible for its share of the damages, (including all defense costs), in proportion to its share of negligence (liability) as found by the trier of fact.” Paragraph 7 of the Service Agreement, along with the June 11, 2018 ruling, provide that while TKE had the immediate duty to defend, once liability for plaintiffs’ injuries was determined, the costs of defense would be apportioned between the multiple parties based on their respective fault. (UMF 13 and 38 and evidence cited.) Indeed, parties “may agree that the promisor's indemnity and/or defense obligations will apply only if the promisor was negligent, or, conversely, even if the promisor was not negligent.” (Crawford v. Weather Shield Mfg., Inc. (2008) 44 Cal.4th 541, 551.) Here, if TKE is not liable to plaintiffs, then TKE is not liable for defense costs to CATALINA or WORTHE, even though TKE has a duty to defend under the Service Agreement. Relatedly, to the extent TKE had paid defense costs pursuant to its duty under the Service Agreement, if TKE had been found not negligent or liable to plaintiffs at trial, then TKE would have been entitled to reimbursement, in part or in whole, of its payment of cross-complainants’ defense costs.
As discussed above, CATALINA and WORTHE do not effectively dispute TKE’s contention that it does not have any liability for the incident. Indeed, CATALINA and WORTHE provide no such evidence. Rather, they merely argue that TKE misstates plaintiffs’ expert’s deposition testimony. (UMF 23, 26, 27, 29 and evidence cited.) However, plaintiffs’ expert testified that the elevator’s reopening device exceeded all codes in the United States, no problems were found with the elevator, the elevator did not default to open because the elevator had no problems, and he could not state that TKE was negligent to a reasonable degree of scientific certainty. (Ibid.) Neither CATALINA nor WORTHE present any evidence disputing these assertions. Because cross-complainants do not show a triable issue as to whether TKE could be found liable for plaintiffs’ injuries and therefore responsible for at least a portion of cross-complainants’ costs of defense, summary judgment as to the second cause of action is appropriate.
Finally, even if cross-complainants were able to show that TKE may bear some fault regarding the incident, it would appear that TKE is entitled to summary adjudication on the second of cause of action on the separate and independent ground that cross-complainants cannot establish any damages. Here, cross-complainants themselves submitted evidence with their opposition indicating that their insurer, Travelers Insurance, paid for the cost of defense. (Plese Decl. ¶¶ 8-9, Ex. 6.) Cross-defendants thus incurred no damage regarding their costs of defense and therefore cannot seek reimbursement of these costs under the indemnity provision in the Service Agreement. (Bramalea California, Inc. v. Reliable Interiors, Inc. (2004) 119 Cal.App.4th 468, 473 [when real estate developer in construction defect case had been fully compensated for its loss because subcontractors’ insurers paid for attorney fees, developer could not recover from subcontractor in contract].) Because TKE appears to make this argument for the first time in its Reply Brief (albeit based on evidence provided by cross-complainants in their opposition), the Court will entertain argument by the parties at the hearing on the instant motion as to whether this separate and independent basis for granting summary adjudication as to the second cause of action should apply. (Cf. Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537 [“The general rule of motion practice, which applies here, is that new evidence is not permitted with reply papers. . . . Defendants’ decision to wait until the reply briefs to bring forth any evidence at all, when the limited partners would have no opportunity to respond, was simply unfair”].)
For the foregoing reasons, TKE is entitled to summary adjudication as to all causes of action in CATALINA’s and WORTHE’s cross-complaint, and accordingly the Court hereby grants summary judgment in TKE’s favor.