This case was last updated from Los Angeles County Superior Courts on 06/05/2019 at 03:57:35 (UTC).

BESS WILEY VS CATALINA MEDIA DEVELOPMENT, LLC

Case Summary

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, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are OTHER DISTRICT JUDGE, LAURA A. MATZ, CURTIS A. KIN and PATRICIA D. NIETO. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****1595

  • Filing Date:

    12/09/2016

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Personal Injury - Other Personal Injury

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

OTHER DISTRICT JUDGE

LAURA A. MATZ

CURTIS A. KIN

PATRICIA D. NIETO

 

Party Details

Plaintiffs and Petitioners

GROSS RONALD

WILEY BESS

GRESS RONALD

Defendants, Respondents and Cross Plaintiffs

DOES 1 THROUGH 100

THE WORTHE REAL ESTATE GROUP INC

CATALINA MEDIA DEVELOPMENT LLC

WORTHE REAL ESTATE GROUP INC. THE

THYSSENKRUPP ELEVATOR CORPORATION(DOE 51)

CATALINA MEDIA DEVELOPEMNT LLC

THYSSENKRUPP ELEVATOR CORPORATIONDOE 51

THYSSENKRUPP ELEVATOR CORPORATION (DOE51)

THYSSENKRUPP ELEVATOR CORPORATION DOE51

Defendants and Respondents

DOES 1 THROUGH 100

THE WORTHE REAL ESTATE GROUP INC

CATALINA MEDIA DEVELOPMENT LLC

THYSSENKRUPP ELEVATOR CORPORATION (DOE51)

Defendants, Cross Defendants and Cross Plaintiffs

WORTHE REAL ESTATE GROUP INC. THE

CATALINA MEDIA DEVELOPEMNT LLC

THYSSENKRUPP ELEVATOR CORPRATION

CORPRATION THYSSENKRUPP ELEVATOR

11 More Parties Available

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

GAMBARDELLA STEVEN C. ESQ.

GAMBARDELLA STEVEN C. LAW OFFICES OF

HEIMANSON ILAN

GAMBARDELLA STEVEN CARMINE ESQ.

HEIMANSON & WOLF LLP

Defendant and Respondent Attorneys

OLSEN CHRISTOPHER TED

GARY L. HOFFMAN ESQ.

HOFFMAN GARY LEE ESQ.

HOFFMAN GARY L. ESQ.

Cross Defendant and Cross Plaintiff Attorney

CLINTON & CLINTON

 

Court Documents

Unknown

12/15/2016: Unknown

Unknown

2/7/2017: Unknown

THYSSENKRUPP ELEVATOR CORPORATION'S ANSWER FIRST AMENDED COMPLAINT

4/19/2017: THYSSENKRUPP ELEVATOR CORPORATION'S ANSWER FIRST AMENDED COMPLAINT

Unknown

4/27/2017: Unknown

CROSS-DEFENDANT THYSSENKRUPP ELEVATOR CORPORATION'S 1). ADDITIONAL UNDISPUTED MATERIAL FACTS; AND; ETC.

11/17/2017: CROSS-DEFENDANT THYSSENKRUPP ELEVATOR CORPORATION'S 1). ADDITIONAL UNDISPUTED MATERIAL FACTS; AND; ETC.

THYSSENKRUPP ELEVATOR CORPORATION'S OPPOSITION TO MOTION FOR SUMMARY JUDGMENT/ADJUDICATION BY DEFENDANTS CATALINA MEDIA DEVELOPMENT, LLC AND THE WORTHE REAL ESTATE GROUP, INC.

11/17/2017: THYSSENKRUPP ELEVATOR CORPORATION'S OPPOSITION TO MOTION FOR SUMMARY JUDGMENT/ADJUDICATION BY DEFENDANTS CATALINA MEDIA DEVELOPMENT, LLC AND THE WORTHE REAL ESTATE GROUP, INC.

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

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

Unknown

12/1/2017: Unknown

Minute Order

1/25/2018: Minute Order

Unknown

5/1/2018: Unknown

Unknown

8/16/2018: Unknown

Request for Judicial Notice

8/16/2018: Request for Judicial Notice

Memorandum of Points & Authorities

8/17/2018: Memorandum of Points & Authorities

Memorandum of Points & Authorities

8/17/2018: Memorandum of Points & Authorities

Motion for Summary Judgment

8/17/2018: Motion for Summary Judgment

Declaration

8/17/2018: Declaration

Notice of Ruling

10/30/2018: Notice of Ruling

Ex Parte Application

12/17/2018: Ex Parte Application

122 More Documents Available

 

Docket Entries

  • 05/31/2019
  • Reply (THYSSENKRUPP ELEVATOR CORPORATION'S REPLY TO PLAINTIFFS' OPPOSITION TO MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION); Filed by THYSSENKRUPP ELEVATOR CORPORATION (DOE51) (Defendant)

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  • 05/31/2019
  • Reply (To Plaintiff's Evidentiary Objections In Support); Filed by CATALINA MEDIA DEVELOPEMNT, LLC (Defendant); The Worthe Real Estate Group, Inc (Defendant)

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  • 05/31/2019
  • Reply (To Plaintiffs Response); Filed by CATALINA MEDIA DEVELOPEMNT, LLC (Defendant); The Worthe Real Estate Group, Inc (Defendant)

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  • 05/31/2019
  • Objection (To Plaintiff's Opposition); Filed by CATALINA MEDIA DEVELOPEMNT, LLC (Defendant); The Worthe Real Estate Group, Inc (Defendant)

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  • 05/31/2019
  • Opposition (To Plaintiffs Opposition); Filed by CATALINA MEDIA DEVELOPEMNT, LLC (Defendant); The Worthe Real Estate Group, Inc (Defendant)

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  • 05/31/2019
  • Response (To Plaintiffs Additional Undisputed Material Facts); Filed by CATALINA MEDIA DEVELOPEMNT, LLC (Defendant); The Worthe Real Estate Group, Inc (Defendant)

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  • 05/31/2019
  • Objection (THYSSENKRUPP ELEVATOR CORPORATION'S OBJECTIONS TO DECLARATION OF MICHAEL THOMAS IN SUPPORT OF PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION); Filed by THYSSENKRUPP ELEVATOR CORPORATION (DOE51) (Defendant)

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  • 05/24/2019
  • Declaration (Of Michael Thomas In Support Of Opposition); Filed by BESS WILEY (Plaintiff); RONALD GROSS (Plaintiff)

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  • 05/24/2019
  • Declaration (Of Ilan Heimanson In Support Of Opposition); Filed by BESS WILEY (Plaintiff); RONALD GROSS (Plaintiff)

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  • 05/24/2019
  • Declaration (Of Bradley A. Rutledge, Ms Pe In Support Of Plaintiffs' Opposition); Filed by BESS WILEY (Plaintiff); RONALD GROSS (Plaintiff)

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198 More Docket Entries
  • 12/15/2016
  • Defendant's Claim and Order to Go to Small Claims Court (Small Claims)

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  • 12/15/2016
  • First Amended Complaint; Filed by Attorney for Plaintiff/Petitioner

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  • 12/15/2016
  • First Amended Complaint; Filed by Plaintiff/Petitioner

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  • 12/15/2016
  • Summons Filed (First Amended Summons ); Filed by Attorney for Plaintiff/Petitioner

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  • 12/15/2016
  • Defendant's Claim and Order to Go to Small Claims Court (Small Claims)

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  • 12/09/2016
  • Complaint

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  • 12/09/2016
  • Summons; Filed by Plaintiff/Petitioner

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  • 12/09/2016
  • Complaint; Filed by BESS WILEY (Plaintiff); RONALD GROSS (Plaintiff); RONALD GRESS (Plaintiff)

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  • 12/09/2016
  • Complaint

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  • 12/09/2016
  • Summons Filed; Filed by Attorney for Plaintiff/Petitioner

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Tentative Rulings

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]

Date: 4/17/20

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.]

Date: 2/7/20

Case: Bess Wiley, et al. v. Catalina Media Development, LLC, et al. (BC 641595)

TENTATIVE RULING:

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.