This case was last updated from Los Angeles County Superior Courts on 12/17/2020 at 01:02:50 (UTC).

GREENWICH INSURANCE COMPANY VS ARGONAUT GROUP INC ET AL

Case Summary

On 06/07/2010 GREENWICH INSURANCE COMPANY filed a Contract - Other Contract lawsuit against ARGONAUT GROUP INC. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are ELIZABETH ALLEN WHITE, DEIRDRE HILL, COLEMAN A. SWART and LAURA A. SEIGLE. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****9212

  • Filing Date:

    06/07/2010

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Contract - Other Contract

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

ELIZABETH ALLEN WHITE

DEIRDRE HILL

COLEMAN A. SWART

LAURA A. SEIGLE

 

Party Details

Plaintiff

GREENWICH INSURANCE COMPANY

Defendants and Cross Plaintiffs

AGI PROPERTIES INC.

ARGO GROUP US INC. FKA ARGONAUT GROUP IN

ARGONAUT GROUP INC.

DOES 1 THROUGH 10

ROCK-LOMITA LLC

ARGO GROUP US INC. ESA ARGONAUT GROUP INC.

Cross Defendants

MAGNETEK INC.

PATTON SALES CORP.

Attorney/Law Firm Details

Plaintiff Attorneys

LIPSMAN WALTER J. ESQ.

PALMER PAMELA A. ESQ.

BRANDON DAVID L.

Defendant and Cross Plaintiff Attorneys

DAVITT VINCENT J.

DAVITT VINCENT JOHN

HOGIN BRADLEY R.

MCNEIL RICHARD J.

 

Court Documents

Response - RESPONSE DEFENDANTS AGI PROPERTIES, INC.S AND ARGO GROUP US, INC.S RESPONSE TO PLAINTIFF GREENWICH INSURANCE COMPANYS EX PARTE APPLICATION FOR ORDER SPECIALLY SETTING HEARING FOR MOTION

11/27/2019: Response - RESPONSE DEFENDANTS AGI PROPERTIES, INC.S AND ARGO GROUP US, INC.S RESPONSE TO PLAINTIFF GREENWICH INSURANCE COMPANYS EX PARTE APPLICATION FOR ORDER SPECIALLY SETTING HEARING FOR MOTION

Proof of Service (not Summons and Complaint)

1/15/2020: Proof of Service (not Summons and Complaint)

Proof of Service (not Summons and Complaint)

1/15/2020: Proof of Service (not Summons and Complaint)

Declaration - DECLARATION OF COUSINEAU

1/15/2020: Declaration - DECLARATION OF COUSINEAU

Proof of Service (not Summons and Complaint)

2/19/2020: Proof of Service (not Summons and Complaint)

Proof of Service (not Summons and Complaint)

2/19/2020: Proof of Service (not Summons and Complaint)

Order Appointing Court Approved Reporter as Official Reporter Pro Tempore - ORDER APPOINTING COURT APPROVED REPORTER AS OFFICIAL REPORTER PRO TEMPORE (JANE HONG-ELSEY, CSR #11975)

10/2/2020: Order Appointing Court Approved Reporter as Official Reporter Pro Tempore - ORDER APPOINTING COURT APPROVED REPORTER AS OFFICIAL REPORTER PRO TEMPORE (JANE HONG-ELSEY, CSR #11975)

Stipulation - No Order - Stipulation - No Order stipulation to extend time to bring action to trial

1/23/2019: Stipulation - No Order - Stipulation - No Order stipulation to extend time to bring action to trial

Minute Order -

10/24/2011: Minute Order -

REQUEST FOR DISMISSAL -

9/17/2012: REQUEST FOR DISMISSAL -

Minute Order -

3/4/2016: Minute Order -

PLAINTIFF GREENWICH INSURANCE COMPANY'S SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS AND EVIDENCE IN SUPPORT OF ITS MOTION FOR SUMMARY ADJUDICATION OF ISSUES [C.C.P., SECTION 437C]

9/16/2016: PLAINTIFF GREENWICH INSURANCE COMPANY'S SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS AND EVIDENCE IN SUPPORT OF ITS MOTION FOR SUMMARY ADJUDICATION OF ISSUES [C.C.P., SECTION 437C]

DEFENDANTS' EVIDENCE IN OPPOSITION TO PLAINTIFF'S MOTION FOR SUMMARY ADJUDICATION VOLUME 1 OF 4

11/1/2016: DEFENDANTS' EVIDENCE IN OPPOSITION TO PLAINTIFF'S MOTION FOR SUMMARY ADJUDICATION VOLUME 1 OF 4

GREENWICH INSURANCE COMPANY'S REPLY OBJECTIONS TO EVIDENCE CITED BY ARGO/AGI IN ITS OPPOSITION TO GREENWICH'S MOTION FOR SUMMARY ADJUDICATION

11/9/2016: GREENWICH INSURANCE COMPANY'S REPLY OBJECTIONS TO EVIDENCE CITED BY ARGO/AGI IN ITS OPPOSITION TO GREENWICH'S MOTION FOR SUMMARY ADJUDICATION

Minute Order -

11/14/2016: Minute Order -

GREENWICH INSURANCE COMPANY'S OBJECTIONS TO DEFENDANTS' PROPOSED JUDGMENT

12/20/2016: GREENWICH INSURANCE COMPANY'S OBJECTIONS TO DEFENDANTS' PROPOSED JUDGMENT

PROOF OF SERVICE

5/11/2017: PROOF OF SERVICE

250 More Documents Available

 

Docket Entries

  • 05/17/2021
  • Hearing05/17/2021 at 10:30 AM in Department 48 at 111 North Hill Street, Los Angeles, CA 90012; Jury Trial

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  • 05/03/2021
  • Hearing05/03/2021 at 08:30 AM in Department 48 at 111 North Hill Street, Los Angeles, CA 90012; Final Status Conference

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  • 10/13/2020
  • DocketNotice of Ruling; Filed by Greenwich Insurance Company (Plaintiff)

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  • 10/02/2020
  • DocketOrder Appointing Court Approved Reporter as Official Reporter Pro Tempore ((Jane Hong-Elsey, CSR #11975)); Filed by AGI Properties, Inc. (Defendant); Argo Group US, Inc. Erroneously Sued As Argo Group US, Inc. (Defendant); Rock-Lomita LLC (Defendant)

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  • 10/01/2020
  • Docketat 10:00 AM in Department 48, Laura A. Seigle, Presiding; Hearing on Motion for Summary Judgment (or, in the Alternative, for Summary Adjudication - Reservation ID #341263667837) - Held

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  • 10/01/2020
  • Docketat 10:00 AM in Department 48, Laura A. Seigle, Presiding; Hearing on Motion for Summary Adjudication (- Reservation ID #606200219196) - Held

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  • 10/01/2020
  • DocketCertificate of Mailing for ((Hearing on Motion for Summary Adjudication - Reservation ID #...) of 10/01/2020); Filed by Clerk

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  • 10/01/2020
  • DocketMinute Order ( (Hearing on Motion for Summary Adjudication - Reservation ID #...)); Filed by Clerk

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  • 09/28/2020
  • Docketat 1:30 PM in Department 48, Laura A. Seigle, Presiding; Hearing on Motion for Summary Adjudication (- Reservation ID #606200219196) - Not Held - Continued - Court's Motion

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  • 09/28/2020
  • Docketat 1:30 PM in Department 48, Laura A. Seigle, Presiding; Hearing on Motion for Summary Judgment (or, in the Alternative, for Summary Adjudication - Reservation ID #341263667837) - Not Held - Continued - Court's Motion

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462 More Docket Entries
  • 07/01/2010
  • DocketNOTICE OF SERVICE OF SUMMONS AND COMPLAINT AS TO ARGO GROUP US, INC.

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  • 07/01/2010
  • DocketNotice; Filed by Greenwich Insurance Company (Plaintiff)

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  • 07/01/2010
  • DocketNotice; Filed by Greenwich Insurance Company (Plaintiff)

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  • 06/17/2010
  • DocketAMENDMENT TO COMPLAINT (FICTITIOUS I INCORRECT NAME)

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  • 06/17/2010
  • DocketAmendment to Complaint; Filed by Greenwich Insurance Company (Plaintiff)

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  • 06/11/2010
  • DocketNotice of Case Management Conference; Filed by Clerk

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  • 06/11/2010
  • DocketNOTICE OF CASE MANAGEMENT CONFERENCE

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  • 06/07/2010
  • DocketComplaint; Filed by Greenwich Insurance Company (Plaintiff)

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  • 06/07/2010
  • DocketCOMPLAINT FOR: (1) BREACH OF CONTRACT; ETC.

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  • 06/07/2010
  • DocketSUMMONS

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Tentative Rulings

Case Number: BC439212    Hearing Date: October 01, 2020    Dept: 48

[TENTATIVE] ORDER RE: DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION; PLAINTIFF’S MOTION FOR SUMMARY ADJUDICATION

The Court discloses that many years ago Judge Seigle was employed at or a partner of Irell & Manella during the time counsel for Defendant Argo Group US, Inc., Richard McNeil, and counsel for Defendant AGI Properties, Inc., Shaunt Arevian, were also employed at or a partner of Irell & Manella. Also, it appears that Richard McNeil handled matters concerning issues in dispute here while he was a partner at Irell & Manella. Judge Seigle did not work on or have any knowledge of those matters while at Irell & Manella. This will not affect the Court’s ability to handle this case fairly and impartially.

On November 3, 2010, Plaintiff Greenwich Insurance Company (“Plaintiff”) filed its first amended complaint (“FAC”) against Argonaut Group, Inc. and AGI Properties, Inc. (collectively, “Defendants”), asserting causes of action for (1) breach of contract; (2) subrogation; (3) private nuisance; (4) trespass; (5) negligence; (6) negligence per se; and (7) declaratory relief. On September 17, 2010, Plaintiff dismissed its third through sixth causes of action.

On September 16, 2016, Defendants moved for summary judgment, or in the alternative, summary adjudication, as to Plaintiff’s first, second, and seventh causes of action. On the same date, Plaintiff also moved for summary adjudication of six issues. On November 18, 2016, the Court granted Defendants’ motion and denied Plaintiff’s motion for summary adjudication. On January 18, 2017, the Court entered judgment in favor of Defendants.

Plaintiff appealed, and on August 6, 2018, the Court of Appeal reversed the judgment and order granting Defendants’ motion for summary judgment. The Court of Appeal directed this Court to enter a new and different order denying the motion for summary judgment. Remittitur issued on October 9, 2018.

On November 9, 2018, the Court set aside the order granting Defendants’ motion for summary judgment, set aside the related judgment, and entered a new order denying Defendants’ motion for summary judgment.

On January 15, 2020, Defendants filed this motion for summary judgment, or in the alternative, summary adjudication, and Plaintiff filed this motion for summary adjudication.

DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

REQUEST FOR JUDICIAL NOTICE

Defendants request that the Court take judicial notice of the declaration of Mark Cousineau and 13 records of the City of Torrance Planning Commission, the City of Torrance Department of Toxic Substances, and Regional Water Quality Control Board. The request is granted.

Plaintiff requests that the Court take judicial notice of 11 documents filed in connection with the parties’ prior motions. The request is granted, but the Court does not take notice of the truth of the contents of the documents.

EVIDENTIARY OBJECTIONS

The Court does not rule on Defendants’ Objection to the Declaration of P. Mesard because the objected-to paragraphs are not material to the Court’s decision. The Court does not rule on Plaintiff’s objections because the evidence objected to is not material to the Court’s decision. (See Code Civ. Proc., § 437c, subd. (q).)

FACTUAL BACKGROUND

The Court will not repeat the lengthy factual background included in the Court of Appeal decision. Here are some highlights.

In February 2003, AGI Properties, Inc. (“AGI”) sold the property to Grae Ventures, LLC (“Grae Ventures”), with Gray Lomita, LLC (“Gray Lomita”) listed as the closing buyer in the Purchase Agreement. (Undisputed Material Facts “UMF” 1.) Section 8.20 of the Purchase Agreement required Gray Lomita to submit to AGI a copy of all site environmental reports and a plan of action for review, approval, or conditional approval or disapproval for remediation of hazardous materials. (UMF 4.) The parties entered into an indemnity agreement on November 29, 2005. (UMF 6.) The indemnity agreement designated a March 4, 2005 Soil Remedial Action Work Plan as the approved action plan pursuant to Section 8.20 (the “Plan”). (UMF 8.) The Court of Appeal decision quotes material provisions from these agreements.

In March 2006, Rock-Lomita, LLC (“Rock-Lomita”) purchased the Property from Grae Lomita. (UMF 19.) In May 2006, Grae Lomita assigned its rights, duties, and obligations under the Indemnity Agreement to Rock-Lomita, and Argonaut Group, Inc. consented to this assignment. (UMF 20-21.) In June 2006, Rock-Lomita obtained an insurance policy from Plaintiff. (UMF 23.)

In November 2006, Rock-Lomita submitted an application to the California Department of Toxic Substances Control (“DTSC”) under the California Land Reuse and Revitalization Act of 2004 (“CLRRA”). (UMF 30.) Rock-Lomita’s CLRRA application states, “The CLRRA program is a voluntary program afforded to qualifying Persons.” (AMF 32.) Rock-Lomita undertook groundwater remediation activities in connection with the CLRRA application. (AMF 66.)

Rock-Lomita sold the Property to Costco in 2014, and Costco obtained approval for, built, and opened in 2016 a Costco store and gas station at the Property. (UMF 26.)

DISCUSSION

For each claim in the complaint, the defendant moving for summary judgment or summary adjudication must satisfy the initial burden of proof by showing that one or more elements of a cause of action cannot be established or that there is a complete defense to a cause of action. (Code Civ. Proc., § 437c, subd. (p)(2); Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520 (Scalf).) Then the burden shifts to the plaintiff to show that a triable issue of material fact exists as to that cause of action or a defense. (Code Civ. Proc., § 437c, subd. (p)(2); Scalf, supra, 128 Cal.App.4th at p. 1520.) To establish a triable issue of material fact, the party opposing the motion must produce “substantial responsive evidence.” (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 162-163.)

Successive Motions for Summary Judgment

In Defendants’ September 16, 2016 motion for summary judgment, Defendants contended that Rock-Lomita (Plaintiff’s insured) took voluntary and unilateral action in breach of the contract and therefore was not entitled to indemnity, reimbursement, or subrogation. In the current motion, as stated in the notice of motion, Defendants contend, “Rock-Lomita took voluntary and unilateral action to investigate and remediate groundwater contamination in breach of the various covenants and conditions in the applicable contract, and is not entitled to indemnity or reimbursement as alleged in Plaintiff’s claim for relief.” Defendants therefore contend that the breach of contract cause of action has no merit, and thus the causes of action for subrogation and declaratory relief also fail for the same reason. Thus, the two motions for summary judgment seek the same ruling based on the same issue.

A party who files a second or subsequent motion for summary judgment based on issues asserted in a prior motion must establish newly discovered facts or circumstances or a change of law supporting the issues reasserted in the summary judgment motion.¿¿(Code Civ. Proc., § 437c, subd. (f)(2).) Defendants do not identify any newly discovered fact or circumstances or new law upon which they base the second summary judgment motion. None of the evidence appears to be new. Defendants’ legal authority is at least nine years old. Many of the arguments in the two motions are nearly identical. This is grounds to deny the second motion. In the event that this second motion is based on newly discovered facts or circumstances, the Court addresses Defendants’ arguments.

First Cause of Action – Breach of Contract

Defendants contend that Rock-Lomita violated the “No Voluntary Action” clause of the indemnity agreement. According to Defendant, Rock-Lomita’s “decision to seek BFP status under the CLRRA and obtain unrestricted use groundwater clearance . . . was unnecessary to the proposed development,” and Rock-Lomita “could have developed the Property for the propose commercial uses without the substantial groundwater expenses incurred to date.” (Motion at p. 19.) These arguments imply that Rock-Lomita did not need to engage in any groundwater remediation and did not need to obtain oversight and closure of groundwater contamination issues from any governmental authority.

Defendants’ evidence does not support the position that Rock-Lomita needed to do nothing regarding groundwater contamination. Defendants did not cite evidence that Rock-Lomita could have bypassed all governmental authorities and skipped any oversight, remediation, or closure of groundwater contamination issues. Rather, the evidence suggests that some governmental oversight, remediation, or closure of groundwater contamination issues was necessary. The Plan “provided for Rock-Lomita to: 1) complete a self-directed assessment of groundwater; 2) provide existing and future groundwater data to the Regional Board, which was identified as the default agency for assessment, remediation and closure of groundwater affected sites; and 3) advise the Regional Board of remediation plans to ensure the development of the site would not interfere with remediation needs.” (Court of Appeal Opinion at p. 23.) Thus, the Plan contemplated a governmental authority requiring assessment, remediation and closure.

As the Court of Appeal stated, Defendants’ “evidence did not conclusively establish that by selecting the CLRRA program, Rock-Lomita was required to remediate groundwater contamination in a way differently or beyond what would be required by a governmental authority under the environmental laws outside the CLRRA program.” (Court of Appeal Opinion at p. 23.) Nor did Defendants’ evidence conclusively establish that Rock-Lomita had no obligation at all to engage in any oversight, remediation, or closure of groundwater contamination issues with governmental authorities, as Defendants suggest in this second motion.

Defendants emphasize statements in a 2010 Final Environmental Impact Report: “The goal of the remediation efforts, which are part of this project, is to remediate the site to an unrestricted use even though the site is planned for commercial development,” and “The DTSC requires that unrestricted land uses be evaluated as a residential land use for risk assessment purposes. The [2008] HHRA indicated that remediation or mitigation would be necessary if the project site were to be developed with residential land uses. However, remediation or mitigation would not be necessary for on-site construction workers or commercial/industrial workers.” (Motion at p. 19.) These statements do not establish that Rock-Lomita could have skipped any governmental oversight or could have selected a different governmental authority which would have required less stringent oversight or remediation.

If this evidence is sufficient to shift the burden, Plaintiff disputed the fact with evidence that remediation of the groundwater was necessary. (See, e.g., Response to UMF 37, 38.) Likewise, the parties’ experts dispute whether Rock-Lomita was required to work with a regulatory agency and whether Defendants’ expert’s comparable sites, which did not require mediation, are actually comparable to the site here. The Court cannot resolve these dispute factual issues on a summary judgment motion.

Defendants also argue, “The CLRRA is a voluntary program . . . .”, and Rock-Lomita can voluntarily withdraw from the program. (Motion at p. 19.) The Court of Appeal previously addressed and rejected the argument about the voluntary nature of CLRRA. (See, e.g., Court of Appeal Opinion at pp. 22, 24.)

Defendants’ last argument is that Rock-Lomita did not abide by the terms of the Indemnity Agreement and incurred costs outside of an approved plan. (Motion at pp.20-21.) This two-paragraph argument is almost word-for-word identical to the same argument in the first motion for summary adjudication. In its de novo review of the order granting the first motion for summary judgment, the Court of Appeal concluded, “Since Argo failed to meet is burden as the moving party to conclusively establish that Rock-Lomita breached the indemnity agreement, the judgment must be reverse and summary judgment denied.” (Court of Appeal Opinion at pp. 20, 26.) In reaching that decision, the Court of Appeal must have concluded this last argument failed and was not an independent basis for summary judgment. This Court cannot second-guess the Court of Appeal.

Accordingly, Defendants have not met their initial burden of showing that they are entitled to summary adjudication of this cause of action, and if they did, Plaintiff established the existence of triable issues of material facts.

Second and Seventh Causes of Action – Subrogation and Declaratory Relief

Defendants’ motion for summary adjudication of the second and seventh causes of action fails for the reasons discussed above.

CONCLUSION

Defendants’ motion for summary judgment, or in the alternative, summary adjudication is DENIED.

PLAINTIFF’S MOTION FOR SUMMARY ADJUDICATION

Plaintiff moves for summary adjudication of it seventh cause of action for declaratory relief and requests an order that Defendants are obligated to indemnify Plaintiff for the costs to remediate contamination at the property pursuant to the indemnity agreement described above and in the Court of Appeal decision.

REQUEST FOR JUDICIAL NOTICE

The parties’ requests for judicial notice are denied as the documents are not relevant to deciding this motion.

EVIDENTIARY OBJECTIONS

The Court does not rule on the parties’ objections because the evidence is not material to the Court’s decision. (See Code Civ. Proc., § 437c, subd. (q).)

DISCUSSION

Plaintiff moves for summary adjudication of its seventh cause of action for declaratory relief based on the Court of Appeal’s decision. The seventh cause of action seeks a declaration that Defendants are obligated to indemnify Plaintiff “for the costs of the investigation and remediation of contaminated groundwater at the Site as required by the Indemnity Agreement.” (FAC ¶ 75.)

A plaintiff moving for summary adjudication must satisfy the initial burden of proof by proving each element of the cause of action. (Code Civ. Proc., § 437c, subd. (p)(1).) Then the burden shifts to the defendant to show that a triable issue of material fact exists as to the cause of action or a defense. (Code Civ. Proc., § 437c, subd. (p)(2).)

Plaintiff relies on the Court of Appeal’s statement that the “terms of the indemnity agreement allowed Rock-Lomita to take the voluntary acts necessary to develop the property, including obtaining closure of groundwater contamination issues consistent with the Arcadis plan.” Plaintiff argues that the Court of Appeal’s interpretation “was necessary to resolve the appeal because the issue before the Court of Appeal was whether there were triable issues of material fact concerning [Plaintiff’s] right to indemnity under the Indemnity Agreement.” (Motion at p. 15.) And Plaintiff argues the Court of Appeal conclusively rejected the argument that Rock-Lomita took a voluntary action that relieved Defendants of their indemnity obligations. (Motion at p. 16.)

Plaintiff misreads the Court of Appeal’s decision. The Court of Appeal did not decide there were no triable issues of material fact concerning Plaintiff’s right to indemnity. Rather, it addressed whether Argo had made a prima facie showing justifying judgment in its favor. (Court of Appeal Opinion at pp. 22-23.) Neither the trial court nor the Court of Appeal reached the stage of considering whether disputed factual issues prevented summary judgment. The Court of Appeal did not conclusively determine whether Rock-Lomita in fact took a voluntary action. Rather, it held Argo’s evidence was insufficient to conclusively establish that Rock-Lomita undertook a voluntary act. (Id. at p. 25.) Defendants’ failure to provide sufficient evidence at the summary judgment stage did not conclusively establish the converse – that Rock-Lomita did not take a voluntary action. The Court of Appeal did not hold that no such evidence exists or that Defendants would not be able to produce evidence of a voluntary act at trial. And, the Court of Appeal did not consider or decide whether Rock-Lomita’s acts in fact were “necessary to develop the property” and were “consistent with the Arcadis plan.”

In sum, the holding that Defendants failed to meet their initial burden on summary judgment does not mean that Plaintiff is entitled to summary judgment. Plaintiff did not satisfy its initial burden on this motion.

CONCLUSION

Plaintiff’s motion for summary adjudication is DENIED.

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org indicating intention to submit. Parties intending to appear are STRONGLY encouraged to appear remotely.