ROBERT MINAEZADEH, ET AL., VS. NSHAN POGOSYAN, ET AL.,

Tentative Rulings

Case Number: EC062634    Hearing Date: January 24, 2020    Dept: NCD

TENTATIVE RULING

Calendar: 22

Case Number: EC 062634

Date: 1/24/19 Trial date: March 18, 2020

Case Name: Minaezadeh, et al. v. Pogosyan, et al.

MOTION FOR SUMMARY ADJUDICATION

[CCP § 437c; CRC 3.1350 et seq.]

Moving Party: Plaintiff Mesa Underwriters Specialty Insurance Company

Responding Party: Defendant Kookmin Best Insurance Co., Ltd.

Defendant Nshan Pogosyan

Relief Requested:

Summary adjudication that Mesa owes no duty to indemnify its insureds Joven Sales & Service, Inc. and Joven Lactaoen

Causes of Action from Complaint

1) Declaratory Relief

SUMMARY OF COMPLAINT:

The lead action is brought by plaintiffs Robert Minaezadeh and Artin Minaezadeh alleging that defendant Nshan Pogasyan dba MGM Cleaners owned, operated, maintained and controlled a unit of property on Glendale which caused a structure fire.

The matter has been consolidated with several other actions arising out of the same fire.

The moving party, Mesa Underwriters has filed a complaint for declaratory relief, LASC Case No. BC 708621, against various defendants, including Joven Sales & Service, Inc. and Joven Lactaoen, seeking a declaration that it has no duty to defend or indemnify Joven Sales & Service, Inc., or defendant Lactosoen in connection with the various pending actions.

ANALYSIS:

CCP § 437c (p): Burdens of Proof

Procedural

Motion for Summary Adjudication—Not Entire Cause of Action

Plaintiff Mesa Underwriters Specialty Insurance Company seeks summary adjudication that it owes no duty to indemnify its insureds, Joven Sales & Service, Inc. and Joven Lactaoen in connection with the matters now pending in relation to the subject fire.

The motion is for summary adjudication, apparently because it does not impact all of the named defendants to the Mesa Complaint, and also because it does not request that the court address Mesa’s duty to defend its insureds, which is also the subject of the complaint for declaratory relief.

The motion accordingly does not dispose of an entire cause of action.

CCP § 437c(f) provides that “a motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.”

The summary judgment statute was amended in 2011 to add a subdivision permitting summary adjudication of other issues only under specified circumstances. That subdivision currently reads, in pertinent part:

“(t) Notwithstanding subdivision (f), a party may move for summary adjudication of a legal issue or a claim for damages other than punitive damages that does not completely dispose of a cause of action, affirmative defense, or issue of duty pursuant to this subdivision.

(1)(A) Before filing a motion pursuant to this subdivision, the parties whose claims or defenses are put at issue by the motion shall submit to the court both of the following:

(i) A joint stipulation stating the issue or issues to be adjudicated.

(ii) A declaration from each stipulating party that the motion will further the interest of judicial economy by decreasing trial time or significantly increasing the likelihood of settlement.

(B) The joint stipulation shall be served on any party to the civil action who is not also a party to the motion.

(2) Within 15 days of receipt of the stipulation and declarations, unless the court has good cause for extending the time, the court shall notify the stipulating parties if the motion may be filed. In making this determination, the court may consider objections by a nonstipulating party made within 10 days of the submission of the stipulation and declarations.

(3) If the court elects not to allow the filing of the motion, the stipulating parties may request, and upon request the court shall conduct, an informal conference with the stipulating parties to permit further evaluation of the proposed stipulation. The stipulating parties shall not file additional papers in support of the motion.

(4)(A) A motion for summary adjudication made pursuant to this subdivision shall contain a statement in the notice of motion that reads substantially similar to the following: “This motion is made pursuant to subdivision (t) of Section 437c of the Code of Civil Procedure. The parties to this motion stipulate that the court shall hear this motion and that the resolution of this motion will further the interest of judicial economy by decreasing trial time or significantly increasing the likelihood of settlement.”

(B) The notice of motion shall be signed by counsel for all parties, and by those parties in propria persona, to the motion.

(5) A motion filed pursuant to this subdivision may be made by itself or as an alternative to a motion for summary judgment and shall proceed in all procedural respects as a motion for summary judgment.

No such stipulation was filed, or court determination evidently obtained here, and the notice does not conform with this subdivision. The oppositions argue that there was a representation that this motion would in fact dispose of the entire declaratory relief cause of action, determining both the duty to defend and the duty to indemnify, which is not what the motion actually does, as it does not address the duty to defend. To the extent the motion is one to establish an issue of duty, the motion does not submit legal authority under which the

particular duty, to indemnify, can be separately adjudicated here. In fact, as pointed out in the oppositions, in contrasting the duty to indemnify with the duty to defend in insurance coverage cases, while it is recognized that the duty to defend may ordinarily be determined on a declaratory relief basis prior to a determination of whether indemnity is actually owed, the duty to indemnify is generally recognized to not arise until after liability is established. See Buss v. Superior Court (1997) 16 Cal.4^th 35, 45

The Kookmin opposition cites to Aerojet-General Corp. v. Transport Indem. Co. (1997) 17 Cal.4^th 38, in which the California Supreme Court observed:

“In pertinent part, standard comprehensive or commercial general liability insurance policies provide that the insurer has a duty to indemnify the insured for those sums that the insured becomes legally obligated to pay as damages for a covered claim. (E.g., Buss v. Superior Court, supra, 16 Cal.4th at p. 45.) By definition, this duty entails the payment of money (e.g., id. at p. 46), which is expressly limited in amount (see Croskey et al., Cal. Practice Guide: Insurance Litigation 2, supra, ¶ 7:354, p. 7A-76), in order to resolve liability (e.g., Buss v. Superior Court, supra, 16 Cal.4th at p. 46). It is not narrowly confined to money that the insured must give under law as compensation to third parties, but may also include money that the insured must itself expend in equity in order to provide relief of the same sort. (AIU Ins. Co. v. Superior Court, supra, 51 Cal.3d at pp. 818-843.) It runs to claims that are actually covered, in light of the facts proved. (E.g., Buss v. Superior Court, supra, 16 Cal.4th at pp. 45-46.) It arises only after liability is established and as a result thereof. (E.g., id. at p. 46; see Montrose Chemical Corp. v. Admiral Ins. Co., supra, 10 Cal.4th at p. 659, fn. 9.)”

Aerojet-General Corp., at 56.

The argument in this case seems particularly compelling, as the indemnity obligation will be determined in the underlying actions, which are currently stayed so that factual development concerning matters relevant to the indemnity determination, including the cause or causes of the fire, has not yet been completed. It also appears that one of the parties with respect to which a declaration is sought, Joven Sales & Service, Inc., has not been named a party to the complaint for declaratory relief. [See Complaint ¶ 9]. The motion may be denied on the ground it does not dispose of an entire cause of action. Also, the motion is also not denied on the ground that it concerns an issue which is subject to partial adjudication.

Substantive

Under CCP § 437c(p)(1), with respect to summary judgment motions, a plaintiff “has met his or her burden of showing that there is no defense to a cause of action if that party has proved each element of the cause of action entitling the party to judgment on that cause of action. Once the plaintiff…has met that burden, the burden shifts to the defendant… to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto.”

CCP § 437c(f) provides that “a motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.”

The issue raised in connection with all claims here is whether plaintiff Mesa Underwriters owes a duty to indemnify its insured with respect to the various lawsuits in connection with the fire. Such matters may sometimes involve strict matters of contract interpretation which can be decided appropriately on summary judgment.

"The question whether an indemnity agreement covers a given case turns primarily on contractual

interpretation, and it is the intent of the parties as expressed in the agreement that should control. When the parties knowingly bargain for the protection at issue, the protection should be afforded. This requires an inquiry into the circumstances of the damage or injury and the language of the contract; of necessity, each case will turn on its own facts.' [Citation.] "'The intention of the parties is to be ascertained from the "clear and explicit" language of the contract. [Citation.] And, unless given some special meaning by the parties, the words of a contract are to be understood in their "ordinary and popular sense.' [Citation.] "In interpreting an express indemnity agreement, the courts look first to the words of the contract to determine the intended scope of the indemnity agreement.' [Citation.]" [Citation.]'"

Centex Golden Construction Co. v. Dale Tile Co. (2000) 78 Cal.App.4th 992, 996-997. The argument here is that the policy in question exempts work completed prior to the inception date of the policy period. The policy provides, “This insurance does not apply to: ‘property damage.”…arising out of or in any way related to ‘your work’ completed prior to the earlier of the following: The inception date of the policy to which this endorsement is attached.” [UMF No. 33, and evidence cited]. The argument is that the policy was for the term May 28, 2013 to May 28, 2014, and the insureds installed the boiler in 2008. [UMF Nos. 1, 32]. Plaintiff also relies on discovery responses from one other party to these numerous cases, which states that the fire occurred “As a result” of the insureds’ “negligent installation” of the boiler. [UMF No. 31, and evidence cited.

However, the moving papers submit evidence that the fire occurred on February 10, 2014, within the policy term, and after an inspection of the boiler had been conducted and after October of 2013, when Joven Sales & Service, Inc. cleaned and adjusted the boiler, which work also occurred within the policy term. [UMF Nos. 8, 9]. The motion also includes the First Amended Cross-Complaint for Indemnity filed by defendant and Cross-complainant Pogosyan, in which it is clearly alleged that cross-defendant Joven Construction Services, Inc. “provided maintenance, repaired, serviced, and/or was otherwise responsible for the functioning and/or malfunction of equipment,” so that any liability for the fire is attributable to it. [RFJN Ex. 5 ¶¶ 9, 10].

Accordingly, the moving papers themselves suggest that the liability in this matter to third parties may ultimately be based on the work performed on the boiler during the time covered by the subject policy. CCP § 437c(c) provides that “summary judgment shall not be granted by the court based on inferences reasonably deducible from the evidence if contradicted by other inferences or evidence that raise a triable issue as to any material fact.” See also Hepp v. Lockheed-California Co. (1978) 86 Cal.App.3d 714, 718. The moving papers do not establish that all third parties making claims against the insureds have affirmatively disavowed any claim that the provision of the services within the period caused the harm and have not established each element of plaintiff’s claim entitling it to judgment. As argued in the Pogasyan opposition, the moving papers fail to submit evidence sufficient to establish that the fire was due solely to a defect in the installation of the boiler, rather than a condition that developed later and was not corrected by subsequent service or maintenance, which was undertaken by defendants during the policy period, so not subject to the exclusion. Under these circumstances, the moving party has failed to meet its initial burden on summary adjudication. As pointed out in the Kookmin opposition, “the burden is on the insurer to prove a claim covered falls within an exclusion…” Royal Globe Ins. Co. v. Whitaker (1986) 181 Cal.App.3d 532, 537. The initial burden has not been met here, competing inferences have been raised concerning the application of the exclusion, and the motion is accordingly denied.

RULING:

CCP 437c(g): Material facts which do or do not create a triable issue of controversy:

Motion for Summary Adjudication Regarding Duty to Indemnify is DENIED. Procedurally, the motion seeks summary adjudication of a complaint against only two parties, one of which is not a party to the declaratory relief complaint, and is addressed to only part of the single cause of action asserted by plaintiff in that complaint, but the motion does not comply with the statutory requirements for filing such a motion, as the motion would not dispose of any entire cause of action, as required under CCP § 437c(f) (“a motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.”). However, the motion does not clearly explain how the duty being addressed as a separately justiciable issue, and the moving party filed the motion without complying with CCP § 437c(t) by filing the required stipulation and obtaining a determination by the court permitting the filing. Nevertheless, the court is ruling that certain exceptions to the statute are applicable here allowing for the court to adjudicate the issue of plaintiff’s duty to indemnify its insured even though such a determination may not dispose of the entire declaratory relief cause of action.

On its merits, the court finds that the moving papers fail to meet any initial burden of establishing that from the evidence relied upon that the insurer would owe no duty to indemnify, and is entitled to a declaration to that effect, as the moving papers submit evidence that would support a reasonable inference that the liability sought to be imposed on the insured arose from work performed during the term of the subject insurance, as the moving papers submit evidence that the insureds performed service work on the subject boiler during the term period, which could form an independent basis for coverage for one or more of the numerous claims being asserted against the insureds. [UMF Nos. 8, 9, 32; See also RFJN Ex. 5 ¶¶ 9, 10].

Objections by Kookmin Best Insurance Co., Ltd (U.S. Branch) to Evidence Submitted by Mesa Underwriters Specialty Insurance Company are OVERRULED as not in proper format and on their merits.

Mesa’s Objections to Evidence: Since the court’s ruling does not depend on the evidence submitted with the oppositions, the objections are irrelevant.

Case Number: EC062634    Hearing Date: January 01, 2020    Dept: NCD

Calendar Item No.11

Case: EC062634 ROBERT MINAEZADEH, ET AL., VS. NSHAN POGOSYAN

RELIEF REQUESTED:  1) STATUS CONFERENCE RE: CASE MANAGEMENT ORDER; 2) HEARING ON MOTION FOR SUMMARY JUDGMENT OR ALTERNATIVELY MOTION FOR SUMMARY ADJUDICATION FILED 3/18/2019 ON BEHALF OF DEFENDNT MESA UNDERWRITERS INSURANCE

CONTINUED TO 1/24/2020, AT 9:00 A.M., IN DEPARTMENT D

CALENDAR CONGESTION