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This case was last updated from Los Angeles County Superior Courts on 08/15/2019 at 09:24:40 (UTC).

GUNDRY PARTNERS, L.P. VS MAVERICK DECATUR GEORGIA, LLC

Case Summary

On 08/29/2017 GUNDRY PARTNERS, L P filed a Property - Other Real Property lawsuit against MAVERICK DECATUR GEORGIA, LLC. This case was filed in Los Angeles County Superior Courts, Governor George Deukmejian Courthouse located in Los Angeles, California. The Judges overseeing this case are MICHAEL P. VICENCIA and MARK C. KIM. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****1354

  • Filing Date:

    08/29/2017

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Property - Other Real Property

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Governor George Deukmejian Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

MICHAEL P. VICENCIA

MARK C. KIM

 

Party Details

Plaintiffs, Cross Plaintiffs and Cross Defendants

GUNDRY PARTNERS L.P. A CALIFORNIA LTD

ZOES 1-50

LEGACY INTERIORS

INTERNATIONAL FIDELITY INSURANCE COMPANY

LEGACY INTERIORS MOE 2

DUCROS ELECTRICAL CONTRACTING & DESIGN

INC. AGGRESSIVE

RICHMOND PLASTERING INC. A CA CORP.

ARI-THANE FOAM PRODUCTS INC.

K & S AIR CONDITIONING MOE 1

K&S AIR CONDITIONING

MAJOR LEAGUE PLUMBING

PRODUCTION PLUMBING INC. DBA MAJOR LEAGUE PLUMBING

AGRESSIVE WELDING INC. AGRESSIVE WELDING INC.

Defendants and Cross Plaintiffs

LIMITED LIABILITY COMPANY

MAVERICK DECATUR GEORGIA LLC A GEORGIA

DOES 1 TO 50 INCLUSIVE

ZOES 1-50

MOES 1 THROUGH 100

FITNESS LBC LLC A CALIFORNIA LIMITED LIABILITY COMPANY

DEFENDANT HOWARD CDM CROSS

Defendants, Cross Plaintiffs and Cross Defendants

MAVERICK DECATUR GEORGIA LLC A GEORGIA

GUNDRY PARTNERS L.P. A CALIFORNIA LTD

DUCROS ELECTRICAL CONTRACTING & DESIGN

ARI-THANE FOAM PRODUCTS INC.

PRODUCTION PLUMBING INC. DBA MAJOR LEAGUE PLUMBING

10 More Parties Available

Attorney/Law Firm Details

Plaintiff Attorney

LAW OFFICES OF CRAIG D. WEINSTEIN

Defendant and Cross Plaintiff Attorneys

KINLEY LAW PRACTICE

KINLEY MATTHEW LANE

MOORE DONNA ELAINE

BOOTH EILEEN THERESA

KENNEDY KEVIN PETER

LUCAS TIMOTHY D

MENESES ELISEU VAL

WEINSTEIN CRAIG DOUGLAS

MARTINI ELISABETH E.

HERNANDEZ ROSARIO ANTONIA

SMALL HENSTRIDGE CABODI & PYLES LLP

Defendant and Cross Defendant Attorneys

MOORE DONNA ELAINE

SMALL HENSTRIDGE CABODI & PYLES LLP

WALKER JOHN JOSEPH

BOGGS JOSIAH C. IV

BOOTH HILLARY ARROW

BONOLI MICHELLE RENEE

GAGNE CARLA JENNIFER

 

Court Documents

Minute Order

6/26/2019: Minute Order

Proof of Service by Mail

8/3/2018: Proof of Service by Mail

Ex Parte Application

8/13/2018: Ex Parte Application

Proof of Service of Summons and Complaint

8/16/2018: Proof of Service of Summons and Complaint

Notice of Rejection

8/31/2018: Notice of Rejection

Notice of Posting of Jury Fees

8/31/2018: Notice of Posting of Jury Fees

Notice of Rejection - Pleadings

8/31/2018: Notice of Rejection - Pleadings

Notice

10/10/2018: Notice

Case Management Statement

10/12/2018: Case Management Statement

Objection

10/26/2018: Objection

Answer

11/2/2018: Answer

Separate Statement

11/13/2018: Separate Statement

Other -

11/27/2018: Other -

Case Management Statement

12/4/2018: Case Management Statement

Notice of Ruling

12/19/2018: Notice of Ruling

Minute Order

3/5/2019: Minute Order

Declaration

6/5/2019: Declaration

Case Management Statement

6/11/2019: Case Management Statement

132 More Documents Available

 

Docket Entries

  • 02/10/2020
  • Hearingat 08:30 AM in Department S27 at 275 Magnolia, Long Beach, CA 90802; Jury Trial

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  • 02/06/2020
  • Hearingat 08:30 AM in Department S27 at 275 Magnolia, Long Beach, CA 90802; Final Status Conference

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  • 11/06/2019
  • Hearingat 08:30 AM in Department S27 at 275 Magnolia, Long Beach, CA 90802; Case Management Conference

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  • 08/02/2019
  • DocketAmendment to Cross-Complaint (Fictitious/Incorrect Name); Filed by GUNDRY PARTNERS, L.P., A CALIFORNIA LTD (Cross-Complainant)

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  • 07/02/2019
  • Docketat 08:30 AM in Department S27, Mark C. Kim, Presiding; Hearing on Motion to Continue Trial - Held - Advanced and Heard

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  • 07/02/2019
  • Docketat 08:30 AM in Department S27, Mark C. Kim, Presiding; Hearing on Motion for Leave (to Deem Case Complex and Issue Case Management Order) - Held - Advanced and Heard

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  • 06/28/2019
  • DocketDeclaration (OF SERVICE); Filed by GUNDRY PARTNERS, L.P., A CALIFORNIA LTD (Legacy Party)

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  • 06/28/2019
  • DocketNotice of Ruling; Filed by GUNDRY PARTNERS, L.P., A CALIFORNIA LTD (Legacy Party)

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  • 06/26/2019
  • Docketat 08:30 AM in Department S27, Mark C. Kim, Presiding; Case Management Conference - Held - Continued

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  • 06/26/2019
  • DocketMinute Order ( (Case Management Conference)); Filed by Clerk

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175 More Docket Entries
  • 12/07/2017
  • DocketRequest for Entry of Default / Judgment; Filed by GUNDRY PARTNERS, L.P., A CALIFORNIA LTD (Legacy Party)

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  • 11/13/2017
  • Docketat 08:30 AM in Department S26; Order to Show Cause Re: Failure to File Proof of Service (OSC-Failure to File Proof of Serv.; OSC Discharged) -

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  • 11/13/2017
  • DocketMinute order entered: 2017-11-13 00:00:00; Filed by Clerk

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  • 09/14/2017
  • DocketRtn of Service of Summons & Compl; Filed by GUNDRY PARTNERS, L.P., A CALIFORNIA LTD (Legacy Party)

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  • 08/29/2017
  • DocketNotice of Case Assignment - Unlimited Civil Case

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  • 08/29/2017
  • DocketComplaint; Filed by GUNDRY PARTNERS, L.P., A CALIFORNIA LTD (Legacy Party)

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  • 08/29/2017
  • DocketCivil Case Cover Sheet

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  • 08/29/2017
  • DocketOrder (To Show Cause Hearing)

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  • 08/29/2017
  • DocketOrder (To show cause hearing)

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  • 08/29/2017
  • DocketSummons; Filed by GUNDRY PARTNERS, L.P., A CALIFORNIA LTD (Legacy Party)

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Tentative Rulings

Case Number: NC061354    Hearing Date: April 6, 2021    Dept: S27

  1. Background Facts

    Plaintiff, Gundry Partners, LP filed this action against Defendants, Maverick Decatur Georgia, LLC and Does 1-50 for breach of contract, common counts, and to enforce mechanic’s lien release bond. Plaintiff filed its complaint on 8/29/17. Maverick filed a cross-complaint against Gundry for breach of contract and warranty, negligence, and recovery on license bond. Maverick also filed a cross-complaint (and subsequently FACC) against various sub-contractor entities, all of which have filed cross-complaints against one another.

    Gundry filed a cross-complaint against Richmond on 4/03/18. Gundry and Richmond had various settlement discussions, and Gundry’s attorney represented that Richmond need not file an answer, as the parties would likely settle. The Court, however, instructed Gundry to take the default of any parties who had not answered the cross-complaint. Once that happened, Gundry and Richmond continued to have settlement discussions, and Gundry represented to Richmond that, in the event default was entered, Gundry would set aside the default. On 8/24/18, at Gundry’s request, the Clerk entered Richmond’s default. The next day, Richmond filed an answer and cross-complaint. The Clerk rejected the pleadings because Richmond was in default, but Richmond did not realize the pleadings had been rejected. All parties to the action have, at all times, litigated the case as though Richmond is an active party in the case; this includes, but is not limited to, answering the Richmond cross-complaint, participating in discovery and litigating on Richmond’s motion for summary judgment.

  2. Prior Relevant Rulings

    On 8/20/20, the Court heard and granted Richmond’s motion for leave to file an amended cross-complaint. The Court’s ruling included the following language:

    Gundry seeks a ruling that its default of Richmond remains in place, and also a ruling that the cross-complaint being filed is the original, not amended, cross-complaint, such that the statute of limitations would act as a bar to the causes of action asserted therein. The Court will not make either ruling at this time. The Court does not typically grant affirmative relief in connection with opposition papers. Doing so would be difficult here, as Gundry did not actually brief the statutes of limitations that apply to the causes of action asserted in the cross-complaint. Additionally, the Court would prefer to address these arguments, if at all, by way of demurrer to the cross-complaint. The Court encourages Counsel to meet and confer, in good faith, and to consider Gundry’s prior attorney’s affirmative representations, references in Richmond’s counsel’s reply declaration, that Gundry would set aside any default entered against Richmond, prior to filing and pursuing demurrer relief.

    Additionally, on 2/18/21, the Court granted Richmond’s motion to vacate the default on the Gundry cross-complaint. The Court found the motion to vacate was based on an attorney affidavit of fault, and therefore relief was mandatory.

  3. Demurrer and Motion to Strike

    Gundry demurs to the First Amended Cross-Complaint and moves to strike the FACC. The essence of Gundry’s demurrer and motion to strike is the position that the cross-complaint improperly purports to be a “First Amended” Cross-Complaint, when it should just be the original cross-complaint. This is important because of statute of limitations ramifications.

    As noted above, the Court expressly instructed Gundry, if it were to seek this relief, to analyze and address its prior attorney’s representations that it would set aside any default. Gundry did not address this, and did not address the fact that it answered the original cross-complaint. Even though the Court struck the original cross-complaint, it would not make sense to file an original cross-complaint after the hearing granting leave, as there was already an answer to an original cross-complaint on file.

    The Court finds Gundry is judicially estopped from denying the existence of the original cross-complaint. Gundry answered the original cross-complaint and litigated on the original cross-complaint. Gundry indicated, through its attorney, that it would set aside any default entered, but then it refused to honor its promise to do so.

    The demurrer is overruled. The motion to strike is denied. Gundry is ordered to file an answer to the FACC within ten days.

    Gundry is ordered to give notice.

    Parties who intend to submit on this tentative must send an email to the court at gdcdepts27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar. If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative. If the parties do not submit on the tentative, they should arrange to appear remotely.

Case Number: NC061354    Hearing Date: February 18, 2021    Dept: S27

  1. Background Facts

    Plaintiff, Gundry Partners, LP filed this action against Defendants, Maverick Decatur Georgia, LLC and Does 1-50 for breach of contract, common counts, and to enforce mechanic’s lien release bond. Plaintiff filed its complaint on 8/29/17. Maverick filed a cross-complaint against Gundry for breach of contract and warranty, negligence, and recovery on license bond. Maverick also filed a cross-complaint (and subsequently FACC) against various sub-contractor entities, all of which have filed cross-complaints against one another.

  2. Motion to Vacate Default

  1. Relief Sought

    Richmond seeks an order vacating the default the Clerk entered on Gundry’s cross-complaint. Richmond seeks the order pursuant to CCP §§473(b) and (d).

  2. Law Governing CCP §473(b) Relief

    Whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney’s sworn affidavit of fault attesting to his/her mistake, inadvertence, surprise or neglect, the court “shall” vacate the resulting default, default judgment or dismissal. (CCP §473(b).) The only limitation is that the court may deny relief if it finds that the default, default judgment or dismissal was not in fact caused by the attorney’s mistake, inadvertence, surprise or neglect, but that the attorney is attempting to “cover up” for his/her client. (Rogalski v. Nabers Cadillac (1992) 11 Cal.App.4th 816.) If the attorney is willing to take the blame and pay the costs, the court must set aside the entry of default, default judgment or dismissal.

  3. Analysis

    Gundry filed a cross-complaint against Richmond on 4/03/18. Gundry and Richmond had various settlement discussions, and Gundry’s attorney represented that Richmond need not file an answer, as the parties would likely settle. The Court, however, instructed Gundry to take the default of any parties who had not answered the cross-complaint. Once that happened, Gundry and Richmond continued to have settlement discussions, and Gundry represented to Richmond that, in the event default was entered, Gundry would set aside the default. On 8/24/18, at Gundry’s request, the Clerk entered Richmond’s default. The next day, Richmond filed an answer and cross-complaint. The Clerk rejected the pleadings because Richmond was in default, but Richmond did not realize the pleadings had been rejected. All parties to the action have, at all times, litigated the case as though Richmond is an active party in the case; this includes, but is not limited to, participating in discovery and ruling on Richmond’s motion for summary judgment.

    Richmond’s motion is based on its attorney’s affidavit of fault, wherein Richmond’s attorney declares that he did not file an answer due to the representations of Gundry’s attorney, did not realize default had been entered, and acted promptly upon discovery that default had been entered. Gundry, despite its own attorney’s repeated statements, in writing, that it would set aside any default entered against Richmond, and despite its full participation in the litigation with Richmond to date, opposes the motion. Gundry argues the motion is not timely per CCP §473(b), as it was filed more than six months after entry of default.

    Richmond, in its moving papers, relies on Sugasawara v. Newland (1994) 27 Cal.App.4th 294, 297 to support its position that a §473(b) motion based on an attorney affidavit of fault is timely so long as it is filed no more than six months after default JUDGMENT is entered, and the date of entry of default is irrelevant. Gundry fails to address the holding of Sugasawara in its opposition, instead relying on cases decided based on the discretionary, rather than mandatory, provision in §473(b). The Rutter Guide on Civil Procedure succinctly summarizes Sugasawara’s holding as follows:

    a) [5:305.1] Time runs from entry of judgment: The wording of the statute makes clear that the 6-month period runs from entry of the default judgment, not the original default. [Sugasawara v. Newland (1994) 27 CA4th 294, 297, 32 CR2d 484, 486]

    A motion made within that period is timely although the attorney neglect predated the entry of default. [See Sugasawara v. Newland, supra, 27 CA4th at 296, 32 CR2d at 485]

    b) [5:305.2] No deadline if no judgment entered? If no default judgment has been entered, there appears to be no time limit on a motion for relief based on an attorney affidavit of fault.

    Absent contrary authority in the opposition, the Court finds the motion for relief is timely, and is fully supported with an attorney affidavit of fault. Relief is therefore mandatory, and the motion for relief is granted. The Court declines to rule on the issue of whether the motion should also be granted per §473(d), as doing so is not necessary to a resolution of the merits of the motion.

    Richmond is ordered to give notice.

    Parties who intend to submit on this tentative must send an email to the court at gdcdepts27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar. If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative. If the parties do not submit on the tentative, they should arrange to appear remotely.

Case Number: NC061354    Hearing Date: January 21, 2021    Dept: S27

  1. Background Facts

    Plaintiff, Gundry Partners, L.P. initiated this action against Defendant, Maverick Decatur Georgia, LLC (“Maverick”) for breach of contract and foreclosure of a mechanic’s lien. Maverick hired Gundry as its general contractor for a project called “Olympix Fitness.” After Gundry filed it action against Maverick, Maverick cross-complained against Gundry alleging deficiencies in the work performed.

    Gundry in turn cross-complained against a number of sub-contractors, including Luis Daniel Alvarez dba Alvarez Construction, alleging the sub-contractors had performed deficiently and that they had a duty under their respective sub-contracts to defend and indemnify Gundry. As to Alvarez, specifically, Gundry alleges Alvarez deficiently performed framing work, which led to water intrusion.

  2. Motion for Summary Adjudication

  1. Issues Presented

    On calendar today is Gundry’s motion for summary adjudication directed at Alvarez. Gundry seeks adjudication that (a) Alvarez has a contractual obligation to defend Gundry in this action, and (b) the duty to defend arose on 3/20/20 when Gundry tendered the defense. Because the arguments for and against each issue are substantially the same, the Court will consider the issues together.

  2. CRC 3.1110(f)(4)

    As an initial note, both parties failed to comply with the general order for electronic filing insofar as it requires proper electronic tabbing of exhibits. CRC 3.1110(f)(4) provides, “(4) Electronic exhibits must meet the requirements in rule 2.256(b). Unless they are submitted by a self-represented party, electronic exhibits must include electronic bookmarks with links to the first page of each exhibit and with bookmark titles that identify the exhibit number or letter and briefly describe the exhibit.”

    The Court has previously admonished Gundry to ensure compliance with this rule. Gundry’s papers are voluminous, and meaningful review of the papers is nearly impossible without compliance. Notably, the Court previously advised Gundry it would be inclined to deny a future motion solely due to failure to comply with this rule. The Court will rule on the motion on its merits, but again admonishes Gundry’s attorneys to ensure compliance with the rule in the future in connection with this and other actions.

  3. Crawford

    Crawford v. Weather Shield (2008) 44 Cal.4th 541 is the seminal case on the issue of whether and when a subcontractor owes a general contractor a duty to defend in light of an indemnification provision in the parties’ contract. In Crawford the court considered whether an indemnity provision in an agreement between a contractor and subcontractor included a separate duty to defend the contractor where a subcontractor’s indemnification obligation was potentially triggered by the allegations in the underlying action. The Court held that Civil Code § 2778, subdivision 4, mandated a separate and immediate duty to defend, stating that “unless the parties' agreement expressly provides otherwise, a contractual indemnitor has the obligation, upon proper tender by the indemnitee, to accept and assume the indemnitee's active defense against claims encompassed by the indemnity provision.” Crawford, supra at 555. Thus, even though the subcontractor was found to be without fault for negligence at trial, the mere allegations by plaintiff were sufficient to trigger the obligation to immediately defend the contractor in the negligence action under the indemnity agreement.

  4. Moving Burden

    In June of 2016, Gundry and Alvarez entered into a Master Subcontractor Agreement. The Master Subcontractor Agreement includes ¶4B, which is an indemnification provision. The agreement is signed by both Gundry and Alvarez, and is attached as Exhibit 2 to the moving papers.

    In April of 2016, before they signed the Master Subcontractor Agreement, Gundry and Alvarez entered into a project specific subcontract agreement, which contains very few provisions and mostly sets out the work Alvarez is to perform and the compensation to be paid.

    Gundry’s undisputed fact 28 establishes that the list of defects found in Maverick’s cross-complaint against it include “framing issues.” Alvarez does not dispute this fact. Additionally, fact 35 states, “Van Dijk is critical of aspects of various decking…resulting in roofing leaks at multiple locations with resultant damage identified above that arises out of, in part Alvarez’s scope of work at the Project.” Alvarez also does not dispute this fact. Gundry therefore met its moving burden to show it is entitled to adjudication of the issues sought.

  5. Opposing Arguments

    Alvarez opposes the motion. He argues:

  1. April and June Contracts

    The first issue is whether the June Master Subcontract agreement’s indemnification provision applies to work completed prior to June, but deemed to be defective after June. The contract contains a provision that states, “This indemnification shall extend to claims occurring after this Agreement is terminated as well as while it is in force.”

    Alvarez cites various cases holding that (a) an unsigned indemnification agreement is not enforceable, and (b) an indemnification agreement that purports to seek indemnification for a past wrong cannot be enforced. Neither of those situations applies here. In this case, the claims that were made were made on or about 1/26/18, when Maverick filed its cross-complaint against Gundry. The claims therefore “arose” well after the parties entered into the Master Subcontract.”

  2. Framing Implicated

    Alvarez also argues Gundry failed to show Alvarez’s framing work is implicated by Maverick’s defect allegations. However, as noted above, Alvarez does not dispute facts 28 and 35 in the separate statement. Fact 35, in particular, makes clear that Maverick is alleging damage arising out of the framing work, and Alvarez concedes this fact is undisputed.

    Alvarez’s arguments in opposition to the motion raise triable issues of material fact concerning whether or not Alvarez was actually negligent. That is not, however, the issue under Crawford. The issue under Crawford is whether Alvarez’s work is “implicated by” the Maverick complaint. Because Alvarez admits it is, Alvarez necessarily failed to raise a triable issue of material fact concerning whether its work is implicated.

  3. Conclusion

    Gundry met its moving burden to show that the parties’ master contact, entered into in June of 2016, contains an indemnification provision that obligates Alvarez to provide a defense in this action for any “claims” arising out of its framing work. Alvarez failed to show that the contract does not apply to work already done, or that its work is not implicated in the Maverick cross-complaint. The motion for summary adjudication is therefore granted.

  1. Trial Setting Conference

    The parties are reminded that there is a trial setting conference on calendar concurrently with the hearing on the above motion. The Court asks Counsel to make arrangements to appear remotely at the hearing on the motions and the TSC.

Case Number: NC061354    Hearing Date: December 03, 2020    Dept: S27

  1. Background Facts

    Plaintiff, Gundry Partners, L.P. initiated this action against Defendant, Maverick Decatur Georgia, LLC (“Maverick”) for breach of contract and foreclosure of a mechanic’s lien. Maverick hired Gundry as its general contractor for a project called “Olympix Fitness.” After Gundry filed it action against Maverick, Maverick cross-complained against Gundry alleging deficiencies in the work performed.

    Gundry in turn cross-complained against a number of sub-contractors, including Proulx Contracting, Inc., alleging the sub-contractors had performed deficiently and that they had a duty under their respective sub-contracts to defend and indemnify Gundry. As to Proulx, specifically, Gundry alleges Proulx deficiently performed water-proofing work, which led to water intrusion. Gundry also cross-complained against B&G Sheet Metal, Inc., which performed sheet metal work on the project; Gundry contends B&G’s sheet metal work is also implicated in connection with Maverick’s water intrusion claims.

  2. Prior Gundry Motions for Summary Adjudication

    Gundry has previously filed similar motions for summary adjudication against various subcontractors in this case. On 9/12/19, Gundry filed MSAs against Ducros Electrical Contracting & Design, Inc., K&S Air Conditioning, Inc., Production Plumbing, Inc., Ari-Thane Foam Products, Inc., Richmond Plastering, Inc., and Aggressive Welding, Inc. The motions were set for hearing on various dates in January and February of 2020.

    All of the motions concerned the various subcontractors’ duties to defend Gundry in this litigation. Some of the motions were taken off calendar. On 2/04/20, the Court granted the motion directed at Ari-Thane. On 2/18/20, the Court granted a motion against Durcos as to a duty to defend upon tender, but denied the motion as to an ongoing duty to defend, finding Gundry ceased making allegations against Durcos during the course of litigation. Also on 2/18/20, the Court granted the motion against K&S.

    On 2/20/20, the Court denied the motion as to Production Plumbing, finding the subject indemnification provision violated Civil Code §2782.05(a), and also there were triable issues of material fact concerning the parties’ intent. The same day, the Court granted the motion against Aggressive Welding, noting Aggressive failed to oppose the motion.

  3. Motion for Summary Adjudication against Cross-Defendant, Proulx Contracting, Inc.

  1. Issues Presented

    On calendar today is Gundry’s motion for summary adjudication directed at Proulx. Gundry seeks adjudication that (a) Proulx has a contractual obligation to defend Gundry in this action, and (b) the duty to defend arose on 10/21/19 when Gundry tendered the defense. Because the arguments for and against each issue are substantially the same, the Court will consider the issues together.

  2. CRC 3.1110(f)(4)

    As an initial note, Gundry failed to comply with the general order for electronic filing insofar as it requires proper electronic tabbing of exhibits. CRC 3.1110(f)(4) provides, “(4) Electronic exhibits must meet the requirements in rule 2.256(b). Unless they are submitted by a self-represented party, electronic exhibits must include electronic bookmarks with links to the first page of each exhibit and with bookmark titles that identify the exhibit number or letter and briefly describe the exhibit.”

    The Court has previously admonished Gundry to ensure compliance with this rule. Gundry’s papers are voluminous, and meaningful review of the papers is nearly impossible without compliance. Notably, the Court previously advised Gundry it would be inclined to deny a future motion solely due to failure to comply with this rule. The Court will rule on the motion on its merits, but again admonishes Gundry’s attorneys to ensure compliance with the rule in the future in connection with this and other actions.

  3. Crawford

    Crawford v. Weather Shield (2008) 44 Cal.4th 541 is the seminal case on the issue of whether and when a subcontractor owes a general contractor a duty to defend in light of an indemnification provision in the parties’ contract. In Crawford the court considered whether an indemnity provision in an agreement between a contractor and subcontractor included a separate duty to defend the contractor where a subcontractor’s indemnification obligation was potentially triggered by the allegations in the underlying action. The Court held that Civil Code § 2778, subdivision 4, mandated a separate and immediate duty to defend, stating that “unless the parties' agreement expressly provides otherwise, a contractual indemnitor has the obligation, upon proper tender by the indemnitee, to accept and assume the indemnitee's active defense against claims encompassed by the indemnity provision.” Crawford, supra at 555. Thus, even though the subcontractor was found to be without fault for negligence at trial, the mere allegations by plaintiff were sufficient to trigger the obligation to immediately defend the contractor in the negligence action under the indemnity agreement.

  4. RJN

    Proulx seeks judicial notice of the entire contents of the file in this case, as well as the Court’s 2/20/20 ruling on Gundry’s motion directed at Production Plumbing. The RJN is granted.

  5. Evidentiary Objections

    Proulx submitted objections with its opposition papers. The objections are overruled.

  6. Moving Burden

    In February of 2015, Howard CDM, Inc. and Proulx entered into a Master Subcontractor Agreement. Gundry’s fact 15, which is undisputed, establishes that “Gundry Partners LP dba Howard CDM was the only general contractor on the project”; thus, for purposes of this motion, the Court finds Howard CMD and Gundry are one and the same.

    The Master Subcontractor Agreement includes ¶4B, which is an indemnification provision. The agreement is signed by both Gundry and Proulx, and is attached as Exhibit 2 to the moving papers. In April of 2016, Gundry and Proulx entered into a subsequent subcontract agreement, which contains very few provisions and mostly sets out the work Proulx is to perform and the compensation to be paid. The 2016 subsequent contractor agreement repeatedly references the parties’ Master Agreement. It indicates the Master Agreement is attached as an appendix, and then instructs the parties to initial the appendices; at the end of the agreement, there is a statement that parties are to sign the agreement and initial the appendices, and that the document must be signed by an owner, officer, or partner of the entity. The April 2016 document is signed by Proulx, but not by Gundry. There are no appendices with the agreement.

    The Court, in connection with other motions by Gundry, has found that the agreement, to the extent it is ambiguous, can be supplemented with extrinsic evidence to explain the meaning of the agreement. The Court has repeatedly accepted the Declaration of Martin Howard, principal of Gundry, who explains that the master contract was intended to be incorporated into the subsequent subcontract. Notably, the subsequent subcontract does not make sense without the prior master contract. The Court will, therefore, again accept the Howard Declaration in this regard and find Gundry met its moving burden to show the master contract governs, such that the indemnification provision binds the parties.

    The Maverick complaint alleges, among other defects, leaking windows. Proulx was the subcontractor that performed water-proofing work on the project, such that its work is necessarily implicated in Maverick’s complaint concerning water intrusion.

  7. Opposing Arguments

    Proulx opposes the motion. It argues:

  1. Civil Code §2872.05(a)

    Proulx, similar to Production Plumbing, argues the subject indemnification agreement violates Civil Code §2782.05(a), which provides:

    Except as provided in subdivision (b), provisions, clauses, covenants, and agreements contained in, collateral to, or affecting any construction contract and amendments thereto entered into on or after January 1, 2013, that purport to insure or indemnify, including the cost to defend, a general contractor, construction manager, or other subcontractor, by a subcontractor against liability for claims of death or bodily injury to persons, injury to property, or any other loss, damage, or expense are void and unenforceable to the extent the claims arise out of, pertain to, or relate to the active negligence or willful misconduct of that general contractor, construction manager, or other subcontractor, or their other agents, other servants, or other independent contractors who are responsible to the general contractor, construction manager, or other subcontractor, or for defects in design furnished by those persons, or to the extent the claims do not arise out of the scope of work of the subcontractor pursuant to the construction contract. This section shall not be waived or modified by contractual agreement, act, or omission of the parties. Contractual provisions, clauses, covenants, or agreements not expressly prohibited herein are reserved to the agreement of the parties. This section shall not affect the obligations of an insurance carrier under the holding of Presley Homes, Inc. v. American States Insurance Company (2001) 90 Cal.App.4th 571, nor the rights of an insurance carrier under the holding of Buss v. Superior Court (1997) 16 Cal.4th 35.

    As noted above, Exhibit 2 to the moving papers is the parties’ contract containing the indemnification provision. The provision appears at ¶4B of the contract. Unlike the contract governing the relationship between Gundry and Production Plumbing, the contract between Gundry and Proulx clearly does NOT require Proulx to indemnify Gundry for Gundry’s own ACTIVE negligence. Indeed, the provision states, “The indemnity shall apply regardless of any passive negligent act or omission of Owner or Contractor…”

    Proulx, in its additional fact 28, states that the agreement includes language stating, “The indemnity shall apply regardless of any active and/or passive negligent act or omission or Owner or Contractor…” Proulx cites Exhibit 2, ¶4B to the moving papers in this regard. The Court, however, has reviewed ¶4B, and it simply does not contain the language Proulx contends it contains. This argument therefore fails.

    The Court went back to Gundry’s papers against Production Plumbing, which were filed on 9/12/19. The Master Subcontractor Agreement entered into between Gundry and Production was dated January of 2012, and §4B expressly included the language “regardless of any active and/or passive negligent act or omission of Owner or Contractor.” That language is NOT present in the contract between Gundry and Proulx, likely because §2782.05(a) governs contracts entered into after January of 2013, and the Gundry/Production agreement pre-dates January of 2013, but the Gundry/Proulx contract does not. The Court harshly admonishes Proulx’s counsel not to rely on documents and arguments relating to other parties to the case where those documents and arguments do not apply to Proulx; due to the extremely voluminous papers filed in this case, locating documents relating to motions filed over a year ago is very difficult.

    Proulx failed show the agreement is barred by §2782.05(a), and its argument in this regard fails.

  2. Incorporation of 2015 Master Subcontract Agreement into 2016 Subsequent Subcontract Agreement

    Proulx argues there are triable issues of material fact concerning whether Proulx intended to operate only under the 2016 subsequent contract and not under the 2015 master contract. Proulx argues the subsequent agreement fails to properly incorporate the prior master agreement by reference. Proulx fails to show, as an initial note, that the subsequent agreement in any way obviates the master agreement, even if the subsequent agreement does not properly incorporate the master agreement. Proulx notes that the subsequent agreement refers to the 2015 agreement as the “Master Contract” instead of “Master Subcontractor Agreement”; the subsequent agreement does, however, include the date of the master contract, such that there is no ambiguity about the meaning of the reference.

    Proulx also argues that the deposition testimony of Vivian Proulx shows that Proulx did not intend to incorporate the master agreement into the subsequent agreement. Again, as noted above, even if it is not incorporated, Proulx fails to show that is ceased governing the parties’ obligations, as both parties clearly signed it. Additionally, Proulx points to a portion of Vivian Proulx’s testimony where Gundry asked her, “So is it your understanding that you were agreeing, on behalf of your company, to also work in accordance with the provisions of the master contract”,” and she responded, “Yes.” Proulx argues this question was somehow vague, but it is in no way vague. There is no conflicting evidence; both Howard (on behalf of Gundry) and Vivian Proulx (on behalf of Proulx) have testified to the same understanding: that the master agreement governed the parties’ relationship.

  3. No Duty to Defend

    Proulx next argues that, even if the master agreement controls, the parties’ agreement makes clear that they did not intend for an obligation to defend to arise under the circumstances. Proulx cites Civil Code §2778, which requires a party who has agreed to indemnify another party to also provide a defense, “unless a contrary intention appears.” Proulx argues that, in contrast to Crawford, the indemnification provision in this case did not include language about defending; Proulx has mis-read Crawford, as the crux of the holding in Crawford was that, regardless of whether language concerning a duty to defend appears in the contract, an indemnification provision automatically triggers a duty to defend.

    Proulx next argues that provision 4W of the master agreement, entitled attorneys’ fees, gives rise to a different intention concerning defense fees. ¶4W of the agreement provides that, in the event the general contractor and any subcontractor initiate suit against the other, the party who prevails is entitled to recover attorneys’ fees. This provision does not conflict with ¶4B, and does not express a contrary intent.

  4. Proper Tender

    Proulx next argues Gundry did not make proper tender of the defense. However, this argument merely restates the arguments discussed and rejected above. Proulx adds nothing new in this section of its argument.

  5. Defer Ruling Until Trial

    Proulx’s final argument is that, if the Court is otherwise inclined to grant the motion, the Court should defer on ruling on the motion until after trial. The Court has, however, already granted motions as to numerous other subcontractors, and finds the subcontractors can determine, among themselves, the appropriate amount of defense costs to be paid. The Court is, at this time, ruling only on the issue of duty.

  6. Failure to Prove Up Amount of Fees

    Proulx argues that, pursuant to Paramount Petroleum Corp. v. Superior Court (2014) 227 Cal.App.4th 226, when a plaintiff makes a motion for summary judgment, the plaintiff must prove up the amount of damages incurred, as damages are an element of the causes of action in the complaint. Gundry is not, however, seeking summary judgment on its complaint. It is seeking summary adjudication of the issue of duty, which does not require a showing of an amount of damages.

  7. Conclusion

    Gundry met its moving burden to show that the parties’ master contact, entered into in February of 2015, contains an indemnification provision that obligates Proulx to provide a defense in this action. Proulx failed to show that the 2016 contract obviates the 2015 contract, or that the 2016 contract fails to incorporate the 2015 contract by reference. Proulx failed to show that any other defense to its duty to defend exists. The motion for summary adjudication is therefore granted.

  1. Motion for Summary Adjudication Against B&G Sheet Metal, Inc.

  1. RJN

B&G seeks judicial notice of documents establishing that Howard CDM, Inc. and Gundry Partners, LP are separate entities. The RJN is granted.

  1. Evidentiary Objections

CCP §437c(q) permits the Court to decline to rule on objections if the rulings would not change the outcome of the ruling on the motion.

B&G submitted objections with its opposition. A ruling on the objections would not change the outcome of the motion, and the Court declines to rule on them. The Court will, however, discuss below the expert evidence and its sufficiency to meet the moving burden on summary judgment.

Gundry submitted objections with its reply papers. A ruling on the would not change the outcome of the motion, and therefore the Court declines to rule on them.

B&G submitted objections to Gundry’s evidence in reply. Again, a ruling on the objections would not change the outcome of the motion, and the Court declines to rule on them.

The Court will discuss the relevant evidence, including whether or not the Court has considered the evidence, in its analysis below.

  1. Relief Sought

Gundry seeks adjudication of two issues of duty. First, it seeks a finding that B&G owes it a duty to defend, and second, it seeks a finding that the duty arose on 12/11/19, upon tender. Because the issues are substantially the same, the Court will consider them together.

  1. Moving Burden

Gundry provides Exhibit 2, the Master Subcontract Agreement, and Exhibit 3, the Project Subcontract Agreement, in support of its motion. Gundry again failed to properly tab the exhibits, and is again admonished to do so in the future.

Exhibit 2 is a Master Subcontract Agreement, and is entered into between Howard CDM, Inc. and B&G Sheet Metal, Inc. It is dated July of 2008. At ¶4B, it includes a comprehensive indemnification agreement. It is signed by Robert Ellingsworth on behalf of B&G and Karl Kreutziger on behalf of Howard CDM.

Exhibit 3 is the Project Subcontract Agreement. It expressly incorporates the 7/07/08 Master Contract by reference. It is entered into between Howard CDM and B&G Sheet Metal, Inc. It is signed by Robert Ellingsworth on behalf of B&G and Jordan Korczak on behalf of Howard.

The foregoing is sufficient to establish that Howard CDM entered into an indemnification agreement with B&G. The Court has concerns, however, with the moving papers’ showing that Gundry is entitled to the benefits of the contract entered into with Howard. These concerns will be discussed further below.

Gundry made the showing, through the declarations of Russell Pond that B&G’s work is implicated in connection with the dispute. Pond is a licensed architect, and has sufficiently established his expert credentials to opine on the matter. Pond explains which documents he reviewed, and Pond therefore adequately sets forth a foundation for his opinions. Pond explains the basis for his opinions, and opines that B&G’s work is implicated in Maverick’s claims against Gundry.

  1. Issues Raised by Way of Opposition

B&G argues the motion must be denied. It argues there is no contract between Gundry and B&G, Gundry has not shown third party beneficiary status, Gundry has not alleged or shown it is entitled to the benefits of the agreement as an agent, and it cannot simply put “dba” between its name and Howard’s name in order to render the two entities one and the same. It argues, to the extent this is a claim for implied indemnity, it fails. Finally, it argues Gundry failed to show its work is implicated in connection with the project.

  1. Relationship Between Gundry and Howard

As noted above, both of the agreements that form the basis of Gundry’s claim were entered into between B&G and “Howard CDM, Inc.” (hereafter “Howard”). B&G shows, in opposition to the motion (see B&G RJN), that Gundry and Howard are two entirely different corporate entities. B&G therefore argues that it has no agreement with Gundry, only an agreement with Howard, and Gundry cannot enforce the agreement.

Gundry, in reply, argues (a) it is undisputed that Gundry was the only general contractor with whom B&G worked on the project, (b) the project agreement expressly incorporated the terms of the Master Subcontractor Agreement, and (c) the Master Subcontractor Agreement includes indemnification language requiring B&G to indemnify not only the “Owner,” but also the “Contractor,” as well as their agents and employees.

The problem with Gundry’s argument is that the parties’ contract does not define “Contractor” as Gundry. Indeed, the term “Contractor” is never defined. Instead, the contract defines “General Contractor” as “Howard CDM, Inc.” Gundry, in reply, explains that Howard CDM, Inc. is the general partner and Gundry is the limited partner. Gundry cites to the Howard Declaration, page 4, lines 13-16 to support this position. The Howard Declaration, page 4, lines 13-16 does not mention general or limited partner status and does not explain the parties’ relationship. Gundry makes arguments, in reply, that Howard, as general partner, was able to enter into contracts on behalf of Gundry, its limited partner, and also that Gundry, as a limited partner, is entitled to the benefit of the contract entered into by Howard. The problem with this argument, however, is the lack of evidence in the moving papers showing Gundry is a limited partner of Howard.

Gundry also explains that Ellingsworth, in deposition, admitted that the general contractor on the project was Gundry. This is true. This does not, however, change the fact that the agreement was with Howard and not with Gundry. At most, this is parole evidence that can be admitted to interpret an ambiguity in the contract. This evidence, however, would have to be submitted to the jury, as Ellingsworth is taking the position, in his declaration, that he entered into an indemnification contract with Howard and not with Gundry. The Court finds the Ellingsworth declaration submitted with the opposition does not directly contradict Ellingsworth’s deposition testimony, and it therefore can be considered.

It was Gundry’s burden, in the moving papers, to show that Gundry is entitled to the benefit of the parties’ contract. Gundry failed to do so. The motion for summary adjudication is therefore denied.

  1. B&G’s Negligence Implicated

The Court also has concerns about whether or not B&G’s negligence is implicated in connection with the project. The Pond Declaration, submitted with the moving papers, is sufficient to meet the moving burden in this regard. The Pond Declaration is, however, very weak in this regard. It does not detail exactly how or why sheet metal work would be implicated in the water intrusion or other damage claimed by Maverick in connection with the project.

B&G, in opposition, submits the deposition testimony of Jan Robert Van Dijs, who was asked, during deposition, “Let’s short-circuit this. On Exhibit 297 there is sheet metal shop drawings being presented in a revised fashion by B&G Sheet Metal, who was the sheet metal subcontractor trade at the Olympix Fitness project. In the detail submitted, are you aware of any construction at the site that deviated from these submittals?” Van Dijs responded, “To my knowledge, no.”

Gundry objects to consideration of the Van Dijs testimony. Gundry argues Van Dijs was part of the Maverick construction team for Maveric (sic), and Van Dijk & Associates, Inc. is Maverick’s construction expert. The objection is overruled. Gundry relies at length on the Van Dijk & Associates, Inc. inspection and recommendations report in an attempt to meet its moving burden to show B&G’s negligence is implicated in Maverick’s claims. Gundry cannot rely on the report but also contest B&G’s ability to rely on the deposition testimony of the principal person who created the report.

The Van Dijs testimony raises triable issues of material fact concerning whether B&G’s work is even implicated in connection with Maverick’s construction defect claims. The Court understands that the issue is not whether B&G was ultimately negligent, but whether its negligence is “implicated.” However, if Maverick’s own construction expert has testified that B&G performed to specifications, then B&G’s work does not appear to be implicated. The motion for summary adjudication is denied on this ground as well.

  1. Trial Setting Conference

    The parties are reminded that there is a trial setting conference on calendar concurrently with the hearing on the above motions. The Court asks Counsel to make arrangements to appear remotely at the hearing on the motions and the TSC.

Case Number: NC061354    Hearing Date: August 20, 2020    Dept: S27

  1. Background Facts

    Plaintiff, Gundry Partners, LP filed this action against Defendants, Maverick Decatur Georgia, LLC and Does 1-50 for breach of contract, common counts, and to enforce mechanic’s lien release bond. Plaintiff filed its complaint on 8/29/17. Maverick filed a cross-complaint against Gundry for breach of contract and warranty, negligence, and recovery on license bond. Maverick also filed a cross-complaint (and subsequently FACC) against various sub-contractor entities, all of which have filed cross-complaints against one another.

  2. Motion for Leave to Amend Cross-Complaint

  1. Relief Sought

    Richmond is one of the subcontractors against whom Maverick cross-complained. Richmond filed a cross-complaint against Gundry and other cross-defendants on 8/31/18. Richmond seeks leave to file a First Amended Cross-Complaint for two reasons. First and foremost, despite the fact that the parties have been litigating the cross-complaint, the cross-complaint was marked “canceled” by the Clerk’s office. Additionally, Richmond seeks leave to file its FACC because it has claims against Gundry for breach of contract and quantum meruit, which claims it chose not to pursue originally in the hope that the litigation would be settled by way of its summary judgment motion; its MSJ was denied, and therefore it wishes to pursue these claims at this time.

  2. Scheduling of Hearing/Notice

    Richmond filed its moving papers on 7/24/20 with a hearing date of 8/20/20. Richmond’s proof of service indicates it served all parties to the action, by mail, on 7/24/20. Notice of the hearing is therefore sufficient.

  3. Law Governing Leave to Amend

    The court may, in furtherance of justice, and on such terms as may be proper, allow a party to amend any pleading. CCP §§473 and 576. Judicial policy favors resolution of all disputed matters between the parties and, therefore, leave to amend is generally liberally granted. The application for leave to amend should be made as soon as the need to amend is discovered. The closer the trial date, the stronger the showing required for leave to amend. If the party seeking the amendment has been dilatory, and the delay has prejudiced the opposing party, the Court has the discretion to deny leave to amend. Hirsa v. Superior Court (1981) 118 Cal.App.3d 486, 490.

    Prejudice exists where the amendment would require delaying the trial, resulting in loss of critical evidence, or added costs of preparation such as an increased burden of discovery. Magpali v. Farmers Group, Inc. (1996) 48 Cal.App.4th 471, 486-488.

  4. Analysis

    In light of the strong policy in favor of granting leave to amend, the motion for leave to amend is granted. Notably, trial is not scheduled in this case, and there is a trial setting conference on calendar concurrently with the hearing on this motion; therefore there will be no prejudice as a result of the granting of this motion. Richmond is ordered to file a separate copy of its First Amended Cross-Complaint within ten days.

Case Number: NC061354    Hearing Date: February 20, 2020    Dept: S27

MOTION FOR SUMMARY ADJUDICATION: MAJOR LEAGUE PLUMBING

TR:

Gundry’s motion for summary adjudication (issues #1 and #2) is DENIED.

INTRODUCTION

This action arises out of alleged unpaid services for a construction project. Plaintiff Gundry Partners, L.P. (“Gundry”) entered into a contract with Defendant Maverick Decatur Georgia, LLC (“Maverick”) to complete construction for tenant improvements. Plaintiff Gundry acted as the general contractor. One of the subcontractors Gundry hired for the project was Production Plumbing, Inc. dba Major League Plumbing (“MLP”) In the complaint, Gundry alleges Maverick failed to pay for all services rendered.

On January 26, 2018, Maverick filed a cross-complaint against Gundry. The cross-complaint alleges some of the construction work was defective.

On April 3, 2018, Gundry filed a cross-complaint against MLP, and other subcontractors, for duty to defend and indemnify, among other causes of action.

EVIDENTIARY OBJECTIONS

“In granting or denying a motion for summary judgment or summary adjudication, the court need rule only on those objections to evidence that it deems material to its disposition of the motion. Objections to evidence that are not ruled on for purposes of the motion shall be preserved for appellate review.” (CCP § 437c(q).) Here, no objections are material to disposition of motion.

SUMMARY JUDGMENT

Legal Standard

The purpose of a motion for summary judgment or summary adjudication “is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal. 4th 826, 843.) “Code of Civil Procedure section 437c, subdivision (c), requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal. App. 4th 1110, 1119.)

“On a motion for summary judgment, the initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact.” Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal. App. 4th 1510, 1519. A defendant moving for summary judgment or summary adjudication “has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action . . . cannot be established, or that there is a complete defense to the cause of action.” (CCP § 437c(p)(2).) “Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” CCP § 437c(p)(2). “If the plaintiff cannot do so, summary judgment should be granted.” Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal. App. 4th 463, 467.

“When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment.” Avivi, 159 Cal. App. 4th at 467; CCP §437c(c).)

Discussion

Plaintiff Gundry Partners, L.P. (“Gundry”) moves for summary adjudication of issues against Production Plumbing, Inc. dba Major League Plumbing (“MLP”) based on Gundry’s duty to indemnify cause of action in its cross-complaint against MLP.

Issue 1: Cross-Defendant MLP has an immediate duty to provide a defense to GUNDRY in the Underlying Action pursuant to the Terms and Conditions of the Subcontract requirements.

Issue 2: Cross-Defendant MLP's Duty to Defend GUNDRY arose on August 16, 2018 when GUNDRY tendered the contractual Duty to Defend to MLP.

In opposition, MLP contends the subject indemnity provision is void and unenforceable under Civil Code section 2782.05(a).

Civil Code section 2782.05(a) provides in-part:

provisions, clauses, covenants, and agreements contained in, collateral to, or affecting any construction contract and amendments thereto entered into on or after January 1, 2013, that purport to insure or indemnify, including the cost to defend, a general contractor, construction manager, or other subcontractor, by a subcontractor against liability for claims of death or bodily injury to persons, injury to property, or any other loss, damage, or expense are void and unenforceable to the extent the claims arise out of, pertain to, or relate to the active negligence or willful misconduct of that general contractor, construction manager, or other subcontractor, or their other agents, other servants, or other independent contractors who are responsible to the general contractor, construction manager, or other subcontractor, or for defects in design furnished by those persons, or to the extent the claims do not arise out of the scope of work of the subcontractor pursuant to the construction contract.

The subject indemnity provision states:

General Indemnity - All work covered by this Agreement done at the "Project" or in preparing or delivering materials or equipment, or any of the aforementioned, to the "Project" shall be at the risk of SUBCONTRACTOR exclusively. To the fullest extent permitted by law, Subcontractor shall indemnify and hold harmless Owner and Contractor and their agents and employees from claims, demands, causes of actions and liabilities of every kind and nature whatsoever arising out of or in connection with Subcontractor's operations performed under this Agreement. This indemnification shall extend to claims occurring after this Agreement is terminated· as well as while It is in force. The indemnity shall apply regardless of any active and/or passive negligent act or omission of Owner or Contractor, or their agents or employees, but Subcontractor shall not be obligated to indemnify any party for claims arising from the sole negligence or willful misconduct of Owner or Contractor or their agents or employees or caused solely by the designs provided by such parties. The indemnity set forth in this section shall not be limited by Insurance requirements or by any other provision of this Agreement. All work covered by this Agreement done at the site or in preparing or delivering materials or equipment to the site shall be the sole risk of Subcontractor until the completed work is accepted by Contractor.

(Lodgement of Master Set of Exhibits (“Gundry’s Exhibits”), Exh. 2, p. 2.)

Section 2782.05(a) makes provisions, clauses, covenants, and agreements void and unenforceable when they indemnify claims for damages to the extent the claims arise out of or relate to active negligence. Here, the Project Subcontract was a construction contract entered into after January 2013 (it was entered into in 2016). The subject indemnity provision applies regardless of any active negligence by Gundry. And, in the underlying action, which is only brought against Gundry, Maverick alleges Gundry committed active negligence by affirmative acts, such as construction a roof. (See e.g., Gundry’s Exhibits, Exh. 10 [Maverick Cross-complaint] ¶ 15.) Thus, on the face of the provision, it appears barred by section 2782.05(a).

In reply, Gundry does not address this argument or section 2782.05(a). Also, the Court notes Gundry’s quotation of the subject indemnity provision in the moving papers omitted the material term “active”. (Mot. 4:10-11.) This omission coincidently relates to the merits of whether the provision is void and unenforceable under section 2782.05(a).

Based on the foregoing, Gundry does not meet its burden to show, as a matter of law, that the indemnity provision obligates MLP to defend Gundry because Gundry has not shown the indemnity provision is enforceable, despite Civil Code section 2782.05(a).

Accordingly, the motion as to issues #1 and #2 is DENIED.

The Court is not determining now that the provision is void and unenforceable under Civil Code section 2782.05(a). Instead, the extent of the Court’s ruling is that Gundry did not meet its burden.

MOTION FOR SUMMARY ADJUDICATION: AGGRESSIVE WELDING, INC.

TR:

Gundry’s motion for summary adjudication (issues #1 and #2) against Aggressive Welding, Inc. is GRANTED.

INTRODUCTION

This action arises out of alleged unpaid services for a construction project. Plaintiff Gundry Partners, L.P. (“Gundry”) entered into a contract with Defendant Maverick Decatur Georgia, LLC (“Maverick”) to complete construction for tenant improvements. Plaintiff Gundry acted as the general contractor. One of the subcontractors Gundry hired for the project was Aggressive Welding, Inc. (“Aggressive Welding”) the complaint, Gundry alleges Maverick failed to pay for all services rendered.

On January 26, 2018, Maverick filed a cross-complaint against Gundry. The cross-complaint alleges some of the construction work was defective.

On April 3, 2018, Gundry filed a cross-complaint against Aggressive Welding, and other subcontractors, for duty to defend and indemnify, among other causes of action.

SUMMARY JUDGMENT

Legal Standard

The purpose of a motion for summary judgment or summary adjudication “is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal. 4th 826, 843.) “Code of Civil Procedure section 437c, subdivision (c), requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal. App. 4th 1110, 1119.)

“On a motion for summary judgment, the initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact.” Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal. App. 4th 1510, 1519. A defendant moving for summary judgment or summary adjudication “has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action . . . cannot be established, or that there is a complete defense to the cause of action.” (CCP § 437c(p)(2).) “Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” CCP § 437c(p)(2). “If the plaintiff cannot do so, summary judgment should be granted.” Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal. App. 4th 463, 467.

“When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment.” Avivi, 159 Cal. App. 4th at 467; CCP §437c(c).)

Discussion

Plaintiff Gundry Partners, L.P. (“Gundry”) moves for summary adjudication of issues against Aggressive Welding, Inc. (“Aggressive Welding”) based on Gundry’s duty to indemnify cause of action in its cross-complaint against Aggressive Welding.

Issue 1: Cross-Defendant Aggressive Welding has an immediate duty to provide a defense to GUNDRY in the Underlying Action pursuant to the Terms and Conditions of the Subcontract requirements.

Issue 2: Cross-Defendant Aggressive Welding’s Duty to Defend GUNDRY arose on August 16, 2018 when GUNDRY tendered the contractual Duty to Defend to Aggressive Welding.

Because Issues #1 and #2 share facts and authorities, the Court considers them together.

Civil Code § 2778, which provides that “[i]n the interpretation of a contract of indemnity, the following rules are to be applied, unless a contrary intention appears: . . .

3. An indemnity against claims, or demands, or liability, expressly, or in other equivalent terms, embraces the costs of defense against such claims, demands, or liability incurred in good faith, and in the exercise of a reasonable discretion;

4. The person indemnifying is bound, on request of the person indemnified, to defend actions or proceedings brought against the latter in respect to the matters embraced by the indemnity, but the person indemnified has the right to conduct such defenses, if he chooses to do so….”

Gundry cites to Crawford vs Weather Shield, Mfg., Inc., where the California Supreme Court discussed a developer’s cross-complaint for indemnification against a subcontractor arising from a suit brought against developer for a building defect. Crawford v. Weather Shield Mfg., Inc. (2008) 44 Cal. 4th 541, 547. The Court held that

the case law has long confirmed that, unless the parties' agreement expressly provides otherwise, a contractual indemnitor has the obligation, upon proper tender by the indemnitee, to accept and assume the indemnitee's active defense against claims encompassed by the indemnity provision. Where the indemnitor has breached this obligation, an indemnitee who was thereby forced, against its wishes, to defend itself is entitled to reimbursement of the costs of doing so.

Id. at 555.

Gundry submits as evidence a June 9, 2016 Master Subcontractor Agreement (“Master Agreement”) that was signed by Gundry and Aggressive Welding. (Lodgement of Master Set of Exhibits (“Gundry’s Exhibits”), Exh. 2.) The Master Agreement includes the following indemnity provision:

“To the fullest extent permitted by law, Subcontractor shall indemnify and hold harmless Owner and Contractor and their agents and employees from claims, demands, causes of actions and liabilities of every kind and nature whatsoever arising out of or in connection with Subcontractor's operations performed under this Agreement. This indemnification shall extend to claims occurring after this Agreement is terminated as well as while it is in force. The indemnity shall apply regardless of any passive negligent act or omission of Owner or Contractor, or their agents or employees, but Subcontractor shall not be obligated to indemnify any party for claims arising from the sole negligence

or willful misconduct of Owner or Contractor or their agents or employees or caused solely by the designs provided by such parties. The indemnity set forth in this Section shall not be limited by insurance requirements or by any other provision of this Agreement….”

(UMF 8; Gundry’s Exhibits, Exh. 2, p. 2.)

The type of work and operations covered by the Master Agreement are “Projects”, which the Master Agreement refers to as “construct[ion] [of] Tenant Improvements for individual tenant premises within various buildings[,] [and] [t]he Tenant Improvements for each separate tenant premises shall be termed a ‘Project’….” (Gundry’s Exhibits, Exh. 2, p. 1.)

Gundry presents evidence that it subcontracted Aggressive Welding to perform work to complete tenant improvements on property owned by Maverick. (See UMF [Issue #1] 1, 4.) Thus, Gundry shows Aggressive Welding’s subcontract work falls within the scope of the Master Agreement.

Gundry presents evidence that Aggressive Welding performed work on the Maverick project was to supply and install metals and finish carpentry work throughout the Project including but not limited to the roof, canopies, and decking. (See UMF [Issue #1] 5, 11-14.) Gundry then shows the underlying action brought by Maverick against Gundry arises in-part by defects on construction work with the roof, among other things. (UMF [Issue #1] 19, 26.) Thus, Gundry shows Aggressive Welding’s subcontract works falls within the scope of the allegations against Gundry in the underlying action.

Next, Gundry contends the Master Agreement, including its indemnity provision, is incorporated into the 2016 Project Subcontract Agreement (“Project Subcontract”) between Gundry and Aggressive Welding. (Gundry’s Exhibits, Exh. 3 [Project Subcontract].) But, the Project Subcontract does not expressly reference the Master Agreement.

Nevertheless, Gundry submits extrinsic evidence that the Project Subcontract incorporates the Master Agreement and its indemnity provision. (Howard Decl. ¶ 11.)

“A contract must be so interpreted as to give effect to the mutual intention of the parties as it existed at the time of contracting, so far as the same is ascertainable and lawful.” (Civ. Code, § 1636.) “The language of a contract is to govern its interpretation, if the language is clear and explicit, and does not involve an absurdity.” (Civ. Code, § 1638.) “When a contract is reduced to writing, the intention of the parties is to be ascertained from the writing alone, if possible ....” (Civ. Code, § 1639.)

Parol or extrinsic evidence is admissible to resolve an ambiguity. [citations] In such cases, the court engages in a two-step process: “First, the court provisionally receives (without actually admitting) all credible evidence concerning the parties' intentions to determine 'ambiguity,' i.e., whether the language is 'reasonably susceptible' to the interpretation urged by a party. If in light of the extrinsic evidence the court decides the language is 'reasonably susceptible' to the interpretation urged, the extrinsic evidence is then admitted to aid in the second step-interpreting the contract. [Citation.]” (Winet v. Price (1992) 4 Cal.App.4th 1159, 1165 [6 Cal.Rptr.2d 554].) (3) The trial court's determination of whether an ambiguity exists is a question of law, subject to independent review on appeal. (Ibid.) The trial court's resolution of an ambiguity is also a question of law if no parol evidence is admitted or if the parol evidence is not in conflict. However, where the parol evidence is in conflict, the trial court's resolution of that conflict is a question of fact and must be upheld if supported by substantial evidence. (Id. at p. 1166.) Furthermore, “[w]hen two equally plausible interpretations of the language of a contract may be made ... parol evidence is admissible to aid in interpreting the agreement, thereby presenting a question of fact which precludes summary judgment if the evidence is contradictory.”

(WYDA Associates v. Merner (1996) 42 Cal.App.4th 1702, 1710.)

Here, the Court would find the Project Subcontract has an ambiguity as to whether the parties intended to incorporate the Master Agreement, i.e., the 2016 Master Subcontractor Agreement, into it because the Project Subcontract does not specifically reference the Master Agreement. On the first page of the Project Subcontract, the agreement states, “In accordance with the provisions of the Master Contract dated:”, but there is no date provided.

Thus, the Court provisionally receives into evidence the declaration of Martin Howard because it is credible evidence to resolve the ambiguity of the parties’ intent to incorporate the operative Master Subcontractor Agreement. The Court finds language of the Project Subcontract is reasonably susceptible to the interpretation urged by Gundry because the Master Agreement and the Project Subcontract were signed by Aggressive Welding on the same day (June 8, 2016).

Accordingly, the Court would find Howard’s declaration is sufficient to show the Project Subcontract incorporates the indemnity provision from Master Agreement.

Next, as mentioned above, Code Civ. Proc. § 2778(4) imposes a duty to defend on the person indemnifying “on request of the person indemnified.” On June 23, 2018, Gundry sent Aggressive Welding a letter as a “formal demand to defend and indemnify Gundry Partners, LP dba Howard COM pursuant to the master contract…. Aggressive Welding Inc. entered into a master contract agreement with Howard COM whereby Aggressive Welding Inc. was to provide defense and indemnity to Howard COM, Gundry Gundry Partners, L.P and Maverick Decatur Georgia, LLC as owner.” (McConville Decl. Exh. 10, p. 2.)

Based on the foregoing, Gundry has made an evidentiary showing that various defects in the project were attributable to work performed by Aggressive Welding, and the Master Agreement requires Aggressive Welding to “indemnify and hold harmless Owner and Contractor and their agents and employees from claims, demands, causes of actions and liabilities of every kind and nature whatsoever arising out of or in connection with Subcontractor's operations” under the master agreement. (Howard Decl. Exh. 2, p. 2.) Therefore, pursuant to Code Civ. Proc. § 2778(4), Aggressive Welding, as “[t]he person indemnifying,” is “bound, on request of the person indemnified, to defend actions or proceedings brought against the latter in respect to the matters embraced by the indemnity.”

Accordingly, the Court determines Gundry meets its burden MSA Issues #1 and #2.

Next, the burden shifts to Aggressive Welding to show a triable issue of material fact. The Court is not in receipt of an opposition from Aggressive Welding. On January 21, 2020, Gundry filed a notice of non-receipt of opposition. Thus, Aggressive Welding does not meet its burden.

Accordingly, the motion is GRANTED as to MSA issues #1 and #2.

Case Number: NC061354    Hearing Date: February 18, 2020    Dept: S27

MOTION FOR SUMMARY JUDGMENT (K&S)

TR:

Gundry’s motion for summary adjudication (issues #1 and #2) is DENIED.

No reply has been filed yet. It is due Thursday, February 13, 2020. (Code Civ. Proc., § 437c(b)(4) [reply due “not less than five days preceding the notice or continue hearing date”].)

INTRODUCTION

This action arises out of alleged unpaid services for a construction project. Plaintiff Gundry Partners, L.P. (“Gundry”) entered into a contract with Defendant Maverick Decatur Georgia, LLC (“Maverick”) to complete construction for tenant improvements. Plaintiff Gundry acted as the general contractor. One of the subcontractors Gundry hired for the project was K&S Air Conditioning, Inc. (“K&S”) In the complaint, Gundry alleges Maverick failed to pay for all services rendered.

On January 26, 2018, Maverick filed a cross-complaint against Gundry. The cross-complaint alleges some of the construction work was defective.

On April 3, 2018, Gundry filed a cross-complaint against K&S, and other subcontractors, for duty to defend and indemnify, among other causes of action.

EVIDENTIARY OBJECTIONS

“In granting or denying a motion for summary judgment or summary adjudication, the court need rule only on those objections to evidence that it deems material to its disposition of the motion.” (Code Civ. Proc., § 437c(q).) Here, none of K&S’s evidentiary objections are material to the Court’ disposition of the motion because Gundry failed to meet its burden.

SUMMARY JUDGMENT

Legal Standard

The purpose of a motion for summary judgment or summary adjudication “is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal. 4th 826, 843.) “Code of Civil Procedure section 437c, subdivision (c), requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal. App. 4th 1110, 1119.)

“On a motion for summary judgment, the initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact.” Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal. App. 4th 1510, 1519. A defendant moving for summary judgment or summary adjudication “has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action . . . cannot be established, or that there is a complete defense to the cause of action.” (CCP § 437c(p)(2).) “Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” CCP § 437c(p)(2). “If the plaintiff cannot do so, summary judgment should be granted.” Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal. App. 4th 463, 467.

“When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment.” Avivi, 159 Cal. App. 4th at 467; CCP §437c(c).)

Discussion

Plaintiff Gundry Partners, L.P. (“Gundry”) moves for summary adjudication of issues against K&S Air Conditioning, Inc. (“K&S”) based on Gundry’s duty to indemnify cause of action in its cross-complaint against K&S.

Issue 1: Cross-Defendant K&S has an immediate duty to provide a defense to GUNDRY in the Underlying Action pursuant to the Terms and Conditions of the Subcontract requirements.

Gundry contends the obligations under the 2017 Subcontract Agreement, i.e., the “PROJECT subcontract” (See Gundry’s Lodgement of Master Set of Exhibits (“Exhibits”), Exh. 3 [project subcontract agreement]), include an express indemnity provision that imposes a duty to defend on K&S. (UMF 7.)

The subject express indemnity provision is as follows:

“To the fullest extent permitted by law, Subcontractor shall indemnify and hold harmless Owner and Contractor and their agents and employees from claims, demands, causes of actions and liabilities of every kind and nature whatsoever arising out of or in connection with Subcontractor's operations performed under this Agreement. This indemnification shall extend to claims occurring after this Agreement is terminated as well as while it is in force. The indemnity shall apply regardless of any passive negligent act or omission of Owner or Contractor, or their agents or employees, but Subcontractor shall not be obligated to indemnify any party for claims arising from the sole negligence

or willful misconduct of Owner or Contractor or their agents or employees or caused solely by the designs provided by such parties. The indemnity set forth in this Section shall not be limited by insurance requirements or by any other provision of this Agreement….”

(UMF 8.)

This indemnity provision is written in the 2012 Master Subcontractor Agreement. (Gundry’s Exhibits, Exh. 2 [master subcontractor agreement], § 4, B [page 2 of agreement].) But, it is not written in the PROJECT subcontract.

Thus, a premise of Gundry’s argument that K&S owes a duty to defend, based on the indemnity provision, is that the terms of the 2012 Master Subcontract Agreement, or at least the indemnity provision alone, are incorporated into the PROJECT subcontract.

Here, Gundry fails to present sufficient evidence that the PROJECT subcontract incorporates the subject indemnity provision from the 2012 Master Subcontractor Agreement. A review of the PROJECT subcontract shows it incorporates the 1996 Master Contract. (Gundry’s Exhibits, Exh. 3, p. 1 [“In accordance with the provisions of the Master Contract dated: October 07, 1996”].) But, it does not show it incorporates the 2012 version. Gundry does not include the 1996 Master Contract in its evidence.

Gundry does not contend that the 2012 Master Subcontractor Agreement, which is signed by K&S, sufficiently supports, by itself, the existence of K&S’s duty to defend Gundry against Maverick.

While Gundry provides declaration evidence that it was Gundry’s custom and practice to obtain full indemnity from its subcontractors and that the terms of the 2016 Master Subcontractor Agreement were fully incorporated into the 2016 Subcontract Agreement (See McConville Decl. ¶ 8; Howard Decl. ¶ 13), Gundry provides no points and authorities to show the declarations are sufficient evidence to show the PROJECT subcontract incorporates the terms of the 2012 Master Subcontractor Agreement. Gundry’s section of legal arguments presume the indemnity provision was incorporated into the PROJECT subcontract. This is insufficient to obtain summary adjudication on the issue of duty to defend based on the defect described the previous paragraphs.

Based on the foregoing, Gundry does not sufficiently show the indemnity provision, which it has identified as the operative one, applies to K&S in connection with its work on the project for Maverick.

Accordingly, Gundry does not meet its burden to show K&S has an immediate duty to defend Gundry against Maverick’s action.

Issue 2: Cross-Defendant K&S's Duty to Defend GUNDRY arose on August 16, 2018 when GUNDRY tendered the contractual Duty to Defend to K&S.

The motion is denied as to issue #2 for the same reasons.

MOTION FOR SUMMARY JUDGMENT (DUCROS ELECTRICAL)

TR:

Gundry’s motion for summary adjudication (issues #1 and #2) is DENIED.

INTRODUCTION

This action arises out of alleged unpaid services for a construction project. Plaintiff Gundry Partners, L.P. (“Gundry”) entered into a contract with Defendant Maverick Decatur Georgia, LLC (“Maverick”) to complete construction for tenant improvements. Plaintiff Gundry acted as the general contractor. One of the subcontractors Gundry hired for the project was Ducros Electrical Contracting & Design, Inc. (“DEC”). In the complaint, Gundry alleges Maverick failed to pay for all services rendered.

On January 26, 2018, Maverick filed a cross-complaint against Gundry. The cross-complaint alleges some of the construction work was defective.

On April 3, 2018, Gundry filed a cross-complaint against DEC, and other subcontractors, for duty to defend and indemnify, among other causes of action.

PROCEDURE

DEC argues the motion is procedurally defective because Gundry failed to repeat verbatim the issues in the notice of motion in the separate statement. Such is required by CRC, Rule 3.1350(b). A review of the separate statement shows Gundry sufficiently repeated the issues described in the notice of motion. Gundry left out the points and authorities from the separate statement. Including the points and authorities is not required by Rule 3.1350(b). Thus, the motion is not procedurally defective.

Next, DEC argues the motion is procedurally defective because the separate statement and memorandum of points and authorities contain different facts. There is no authority provided to deny the motion on this ground, under the circumstances. Thus, this argument lacks merit.

EVIDENTIARY OBJECTIONS

DEC’s objections (nos. 1-5) to the declaration of Kevin McConville are OVERRULED.

DEC’s objections (nos. 1-6) to the declaration of Russell Pond are OVERRULED.

SUMMARY JUDGMENT

Legal Standard

The purpose of a motion for summary judgment or summary adjudication “is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal. 4th 826, 843.) “Code of Civil Procedure section 437c, subdivision (c), requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal. App. 4th 1110, 1119.)

“On a motion for summary judgment, the initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact.” Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal. App. 4th 1510, 1519. A defendant moving for summary judgment or summary adjudication “has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action . . . cannot be established, or that there is a complete defense to the cause of action.” (CCP § 437c(p)(2).) “Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” CCP § 437c(p)(2). “If the plaintiff cannot do so, summary judgment should be granted.” Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal. App. 4th 463, 467.

“When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment.” Avivi, 159 Cal. App. 4th at 467; CCP §437c(c).)

Discussion

Plaintiff Gundry Partners, L.P. (“Gundry”) moves for summary adjudication of issues against Ducros Electrical Contracting & Design, Inc. (“DEC”) based on Gundry’s duty to indemnify cause of action in its cross-complaint against DEC.

Issue 1: Cross-Defendant DEC has an immediate duty to provide a defense to GUNDRY in the Underlying Action pursuant to the Terms and Conditions of the Subcontract requirements.

Gundry contends the following indemnity provision applies in connection with DEC’s subcontract work for Maverick.

To the fullest extent permitted by law, Subcontractor shall indemnify and hold harmless Owner and Contractor and their agents and employees from claims, demands, causes of actions and liabilities of every kind and nature whatsoever arising out of or in connection with Subcontractor's operations performed under this Agreement. This indemnification shall extend to claims occurring after this Agreement is terminated as well as while it is in force. The indemnity shall apply regardless of any passive negligent act or omission of Owner or Contractor, or their agents or employees, but Subcontractor shall not be obligated to indemnify any party for claims arising from the sole negligence

or willful misconduct of Owner or Contractor or their agents or employees or caused solely by the designs provided by such parties, or to the extent the claim arises out of such parties' active negligence or defective design, or to the extent the claim does not arise out of the scope of work of Subcontractor.

(Gundry’s Exhibits, Exh. 2 [2006 Master Subcontractor Agreement], § 4, B [page 2]; see UMF 8.)

Gundry agues that under this indemnity provision DEC owes a duty to defend Gundry against Maverick’s cross-complaint.

A premise of Gundry’s argument is that the 2016 Subcontract Agreement (Gundry’s Exhibits, Exh. 3), i.e., the “PROJECT subcontract”, which is an agreement between Gundry and DEC and was specifically made for DEC’s subcontract work on the project for Maverick, incorporates the terms of the 2016 Master Subcontractor Agreement. (UMF 5.) The above-quoted indemnity provision is a term of the 2016 Master Subcontractor Agreement. (UMF 8; Gundry’s Exhibits, Exh. 2 [2016 Master Subcontractor Agreement], § 4, B [indemnity provision on page 2].) Indeed, Gundry argues the “PROJECT subcontract” includes the subject indemnity provision. (See UMF 7, 8.)

However, Gundry fails to sufficiently show the PROJECT subcontract incorporates the terms of the 2016 Master Subcontractor Agreement, including its broad indemnity provision. The PROJECT subcontract, itself, does not include an express provision incorporating the 2016 Master Subcontractor Agreement. Even though page 1 of the PROJECT subcontract provides: “In accordance with the provisions of the Master Contract dated:”, no date is stated.

Gundry does not contend that the 2016 Master Subcontractor Agreement, which is signed by DEC, sufficiently supports, by itself, the existence of DEC’s duty to defend Gundry against Maverick.

While Gundry provides declaration evidence that it was Gundry’s custom and practice to obtain full indemnity from its subcontractors and that the terms of the 2016 Master Subcontractor Agreement were fully incorporated into the 2016 Subcontract Agreement (See McConville Decl. ¶ 8; Howard Decl. ¶ 12), Gundry provides no points and authorities to show the declarations are sufficient evidence to show the PROJECT subcontract incorporates the terms of the 2016 Master Subcontractor Agreement. Gundry’s legal arguments presume the indemnity provision was incorporated into the PROJECT subcontract. This is insufficient to obtain summary adjudication on the issue of duty to defend based on the defect described the previous paragraphs.

Based on the foregoing, Gundry does not sufficiently show the indemnity provision, which it has identified as the operative one, applies to DEC in connection with its work on the project for Maverick.

Accordingly, Gundry does not meet its burden to show DEC has an immediate duty to defend Gundry against Maverick’s action.

Issue 2: Cross-Defendant DEC's Duty to Defend GUNDRY arose on June 23, 2018 when GUNDRY tendered the contractual Duty to Defend to DEC.

The motion is denied as to issue #2 for the same reasons.

Case Number: NC061354    Hearing Date: February 04, 2020    Dept: S27

TENTATIVE RULING

Gundry’s Motion for Summary Adjudication of ATFP’s duty to defend against Maverick’s cross-complaint is GRANTED.

BACKGROUND

The underling complaint is by Gundry Partners, LP, (“Gundry”), as Plaintiff, against Maverick Decatur Georgia, LLC (“Maverick”) for breach of contract and foreclosure of a mechanic’s lien.

Maverick hired Gundry as its general contractor for a project called “Olympic Fitness.”

Gundry sub-contracted with Richmond for lath and plaster services on the exterior of the building (there were other duties, but the court declines to follow the parties in over complicating what should have been a straight-forward motion.)

After Gundry filed its’ action against Maverick, Maverick cross—complained against Gundry alleging deficiencies in the work performed.

Gundry in turn cross—complained against a number of sub-contractors, including Ari-Thane Foam Products, Inc. (“ATFP”), alleging the sub-contractors had performed deficiently and that they had a duty under their respective sub—contracts to defend and indemnify Gundry.

As to Richmond, specifically, Gundry alleges water intrusion into the building due to sub-standard performance.

EVIDENTIARY OBJECTIONS

ATFP objects to the declaration of Kevin McConville submitted in support of Gundry’s MSA. The Court does not rule on the objections as immaterial to disposition of this Motion. (Code Civ. Proc. § 437c(q).)

ATFP objects to the declaration of Russell Pond submitted in support of Gundry’s MSA. The objection to paragraph 14 of the Pond Declaration is OVERRULED.

DISCUSSION

Overview of Relevant Law

The purpose of a motion for summary judgment or summary adjudication “is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” Aguilar v. Atl. Richfield Co. (2001) 25 Cal.4th 826, 843. “Code of Civil Procedure section 437c, subdivision (c), requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.

“On a motion for summary judgment, the initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact.” Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519. Once the moving party has met that burden, section 437c shifts the burden to the opposing party to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. If the opposing party cannot do so, summary judgment should be granted. Avivi v. Centro Medico Urgente Med. Ctr. (2008) 159 Cal.App.4th 463, 467.

When deciding whether to grant summary judgment, the court must consider all evidence set forth in the papers, except evidence to which the Court has sustained an objection, as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment. Avivi, supra at 467.

ANALYSIS

Gundry moves the Court for summary adjudication of ATFP’s duty to defend Gundry against Maverick’s cross-complaint alleging various defect in the construction project.

Gundry cites to Civil Code § 2778, which provides that

[i]n the interpretation of a contract of indemnity, the following rules are to be applied, unless a contrary intention appears: . . .

3. An indemnity against claims, or demands, or liability, expressly, or in other equivalent terms, embraces the costs of defense against such claims, demands, or liability incurred in good faith, and in the exercise of a reasonable discretion;

4. The person indemnifying is bound, on request of the person indemnified, to defend actions or proceedings brought against the latter in respect to the matters embraced by the indemnity, but the person indemnified has the right to conduct such defenses, if he chooses to do so;

. . .

Gundry contends that ATFP “agreed to indemnify GUNDRY against all liabilities, claims, demands, damages, expenses and causes of action arising out of or relating to ATFP's PROJECT work,” but that ATFP has refused. (MSA 11:2-4.) Gundry submits a copy of the written contract entered into between Gundry and Maverick for tenant improvements for a Long Beach fitness complex. (Howard Decl. Exh. 1.) Gundry “contracted with approximately 45 various subcontractor trades in order to complete the necessary PROJECT work. One of the PROJECT subcontractors completing work at the PROJECT was ATFP. (MSA 2:23-25; Howard Decl. Exhs. 2-3.)

Gundry cites to Crawford vs Weather Shield, Mfg., Inc., where the California Supreme Court discussed a developer’s cross-complaint for indemnification against a subcontractor arising from a suit brought against developer for a building defect. Crawford v. Weather Shield Mfg., Inc. (2008) 44 Cal. 4th 541, 547. The Court held that

the case law has long confirmed that, unless the parties' agreement expressly provides otherwise, a contractual indemnitor has the obligation, upon proper tender by the indemnitee, to accept and assume the indemnitee's active defense against claims encompassed by the indemnity provision. Where the indemnitor has breached this obligation, an indemnitee who was thereby forced, against its wishes, to defend itself is entitled to reimbursement of the costs of doing so. Id. at 555.

an express promise “to defend” another against claims “founded upon” the promisor's acts or omissions inherently incorporates the characteristics they insist must be set forth in additional explicit terms. And if the parties intended only to give the indemnitee a right to after the fact reimbursement of its legal expenses as a component of any indemnity otherwise owed by the indemnitor, they would need no language to say so. That right is already included in every indemnity contract, unless otherwise specifically provided, under subdivision 3 of section 2778 Id. at 567.

Gundry likens the Crawford facts to those at hand. Gundry argues that ATFP agreed to indemnify Gundry for claims arising from ATFP’s performance under the contract, and as such has a duty to defend pursuant to Code Civ. Proc. § 2778(4) as the “person indemnifying.”

The 2006 “Master Subcontractor Agreement” entered into by ATFP and Gundry provides as follows:

[t]o the fullest extent permitted by law, Subcontractor shall indemnify and hold harmless Owner and Contractor and their agents and employees from claims, demands, causes of actions and liabilities of every kind and nature whatsoever arising out of or in connection with Subcontractor's operations performed under this Agreement. This indemnification shall extend to claims occurring after this Agreement is terminated as well as while it is in force. The indemnity shall apply regardless of any passive negligent act or omission of Owner or Contractor, or their agents or employees, but Subcontractor shall not be obligated to indemnify any party for claims arising from the sole negligence or willful misconduct of Owner or Contractor or their agents or employees or caused solely by the designs provided by such parties. The indemnity set forth in this Section shall not be limited by insurance requirements or by any other provision of this Agreement.

(Howard Decl. Exh. 2, p. 2.)

In this action, Gundry alleges that Maverick failed to pay for completed work. On January 26, 2018, Maverick answered the Complaint and filed a Cross-Complaint against Gundry alleging that various items had not been completed in accordance with contract. (Maverick X-Compl. ¶ 9.) Gundry submits a copy of an “Inspection and Recommendations Report” prepared by Van Dijk & Associates, Inc., in which are identified various defects, notably leaks, in the construction project. (McConville Decl. Exh. 7.) Gundry also submits the declaration of Russell Pond, “retained expert on behalf of Cross-Defendant/Cross-Complainant, Gundry 2 Partners, L.P. dba Howard CDM,” who declares that

[t]he Van Dijk Report is critical of aspects of various decking, planters, and unsealed penetrations into the roofing and deck systems resulting in roofing leaks at multiple locations with resultant damage that arises out of, in part A TFP' s scope of work at the PROJECT. MAVERICK has claimed defective work consisting of missing supports, numerous cracks in the finished surfaces; damaged coating at curbs, prior ineffective repairs, un-sealed penetrations and ponding and a series of repeated leaks in these areas and other areas at the site.

(Pond Decl. ¶¶ 1, 14.)

As mentioned above, Code Civ. Proc. § 2778(4) imposes a duty to defend on the person indemnifying “on request of the person indemnified.” On June 23, 2018, Gundry sent ATFP a letter as a “formal demand to defend and indemnify Gundry Partners, LP dba Howard COM pursuant to the master contract entered into by Ari-Thane Foam on or about June 12, 2006.” (McConville Decl. Exh. 10, p. 2.)

Based on the foregoing, Gundry has made an evidentiary showing that various defects in the project were attributable to work performed by ATFP, and the subcontractor agreement requires ATFP to “indemnify and hold harmless Owner and Contractor and their agents and employees from claims, demands, causes of actions and liabilities of every kind and nature whatsoever arising out of or in connection with Subcontractor's operations” under the master agreement. (Howard Decl. Exh. 2, p. 2.) Therefore, pursuant to Code Civ. Proc. § 2778(4), ATFP, as “[t]he person indemnifying,” is “bound, on request of the person indemnified, to defend actions or proceedings brought against the latter in respect to the matters embraced by the indemnity.”

The burden shifts to ATFP.

In opposition, ATFP first argues that “[t]he terms in the referenced contractual documents cited to by GUNDRY are vague and do not give rise to an immediate duty to defend under Crawford.” (Opp. 3:12-13.)

Specifically, ATFP takes issue with the absence of language within the Master Subcontractor Agreement to incorporate the 2016 Subcontract Agreement. ATFP notes that the 2006 Master Subcontractor Agreement contains the following language: “[i]t is agreed that this Agreement and Addendum represent the entire agreement.” (Howard Decl. Exh. 2 § 1.) ATFP then notes that the 2016 Subcontractor Agreement references the “Prime Contract.” (Id. Exh. 3, p. 1.)

ATFP is not a signatory to the Master Agreement. ATFP is a signatory to the 2006 Master Subcontractor Agreement, and the 2016 Subcontractor Agreement which pertains specifically to the Long Beach gym complex improvement project. Thus, ATFP is arguing that the indemnification provisions of the 2006 Master Subcontractor Agreement do not apply to ATFP’s performance under the 2016 Subcontractor Agreement because the former is not incorporated into the latter. However, the 2016 Subcontract Agreement reads that it is “[i]n accordance with the provisions or the Master Contract dated: June 12, 2006.” The Master Subcontractor Agreement states that it was “made and entered into at Long Beach, California this 12th of June, 2006.” (Id. Exh. 2, p .1.) Therefore, the 2016 Subcontract Agreement explicitly references the 2006 Master Subcontractor Agreement which imposes a duty to indemnify on ATFP.

ATFP proceeds to argue that “even if the Master Contract was integrated into the Subcontract, the language remains fatally vague as there is no separate duty to defend language in the Master Contract.” (Opp. 4:11-12.) However, as discussed previously, Code Civ. Proc. § 2778(4) provides that “[t]he person indemnifying is bound, on request of the person indemnified, to defend actions or proceedings brought against the latter in respect to the matters embraced by the indemnity . . .”

Similarly, ATFP’s second argument in opposition states that “GUNDRY consistently throughout its motion for summary adjudication indiscriminately interchanged the duty to defend with the duty to indemnify even though the two duties are separate and distinct. The Court is not obligated to interpret the moving papers of GUNDRY in order for there to be clarity of GUNDRY's argument.” (Opp. 4:19-21.) The Court is not required to make any such interpretation as the duty to indemnify (as so-labelled in the Master Subcontractor Agreement) includes a duty defend under Code Civ. Proc. § 2778(4). Again, “the case law has long confirmed that, unless the parties' agreement expressly provides otherwise, a contractual indemnitor has the obligation, upon proper tender by the indemnitee, to accept and assume the indemnitee's active defense against claims encompassed by the indemnity provision.” Crawford, supra at 555.

ATFP makes a third argument in opposition where it contends that the present MSA should be denied because it is procedurally improper as it “does not comply with the California Rules of Court, Rule 3.1350(b) which requires the moving party to sate the specific cause of action, affirmative defense, claims for damages or issues of duty in the separate statement of undisputed material facts as they were stated in the notice motion.” (Opp. 5:21-24.)

However, Code Civ. Proc. § 437c(f)(1) provides that “[a] party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if the party contends . . . that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs.” Here, Gundry moves for summary adjudication “because no triable issues of material fact exist regarding ATFP's immediate duty to defend GUNDRY from and against the operative Cross-Complaint allegations filed by MAVERICK DECATUR GEORGIA, LLC ("MAVERICK").” (MSA 1:16-19.) It is further apparent from the papers that the parties are disputing ATFP’s duty to defend Gundry against Maverick’s cross-complaint.

Nevertheless, ATFP contends that “[a] ruling that ATFP owes GUNDRY a duty to defend GUNDRY without defining what defense expenses are embraced by the contractual indemnity language of the subcontract does nothing to promote the disposition of the actual pending controversy and docs not completely dispose of the issue of duty. Tellingly, this is an improper function of the court and the motion for summary adjudication should be denied.” (Opp. 7:17-21.) It is not clear what argument ATFP is attempting to make. Pursuant to Code Civ. Proc. § 2778(4), as party indemnifying, ATFP “is bound, on request of the person indemnified, to defend actions or proceedings brought against” Gundry. It is not the role of the Court upon summary adjudication of this issue of duty to provide ATFP with an itemized statement of expenses pertaining to the defense of Maverick’s cross-complaint.

ATFP also argues that this MSA should not be granted because it will not fully dispose of the issue of duty as required by Code Civ. Proc. § 437c(f)(1). ATFP argues that “GUNDRY has not produced any statements or invoices evidencing such expenses.” (Opp. 8:15.) “Therefore, GUNDRY lacks standing because it failed to provide evidence showing that it incurred any fees and costs, and in the alternative, has no standing if any fees and costs were paid by its carrier.” (Id. 8:16-18.) This argument is unavailing; ATFP fails to submit any authority or argument that a determination of the duty to defend against suit requires submission of evidence of fees or expenses.

ATFP’s argument that a ruling on this MSA would not dispose of “would not completely dispose of the causes of action pertaining to the issue of duty to defend as factual evidence must be considered in determining the extent of GUNDRY's damages; what amount of those damages arose out of ATFP' work; whether there is joint and several liability with any of the other subcontractors on the job; and, the extent to which GUNDRY's sole negligence caused the damages that MAVERICK claims it has suffered” appears irrelevant. (Opp. 8:26-9:2.) Again, the issue on this MSA is whether ATFP has a duty to defend against the cross-complaint filed by Maverick. This MSA does not make determinations of joint and several liability, damages, nor comparative fault.

Based on the foregoing, ATFP has submitted no evidence creating a triable issue as to whether it has a duty to defend Gundry against the cross-complaint filed by Gundry, nor has it shown that it is entitled to judgment as a matter of law.

Gundry’s Motion for Summary Adjudication of ATFP’s duty to defend against Maverick’s cross-complaint is GRANTED.

Case Number: NC061354    Hearing Date: January 28, 2020    Dept: S27

RELEVANT & BRIEF BACKGROUND

On August 29, 2017, Gundry filed a complaint against Defendant Maverick Decatur Georgia, LLC (“Maverick”), asserting causes of action for foreclosure on mechanic’s lien, breach of contract, reasonable/agreed value, and account stated. Gundry alleged Maverick is the owner of the subject real property. (Complaint ¶5.) Gundry alleged it entered into an agreement with Maverick, whereby Gundry agreed to furnish certain labor, services, equipment and materials for a work of improvement on the subject property, for which Maverick agreed to pay Gundry $4,552,884.00. (Complaint ¶6.) Gundry alleged it duly performed all work required to be performed under the agreement and, after crediting Maverick for progress payments made, Maverick still owes $362,829.21, plus interest. (Complaint ¶7.)

On January 26, 2018, Maverick filed a general denial. Maverick also filed a cross-complaint against Gundry and International Fidelity Insurance Company, asserting causes of action for breach of contract, negligence, and recovery on license bond. Maverick alleged it entered into a written agreement with Gundry, wherein Gundry agreed to act as prime contractor for a work of improvement located on the subject property. (X-C ¶6.) Maverick alleged the contract was for the building of a first-class gym facility in Long Beach. Maverick alleged it agreed to pay Gundry $4,552,884.00 for work performed according to the terms and conditions of the agreement. (X-C ¶6.) Maverick alleged that certain items of work performed by Gundry were not completed in accordance with the agreement’s specifications, including the following: (1) the roof – which leaked during current rains (leaking in cardio area, reception corridor to juice bar, aerobics, and mind body area); (2) windows – windows were not installed as required; (3) planters – planters have not been completed as required under contract; (4) other items not completed – water leaking over patio doors, leaking in separation between deck and office, HVAC – including replacement of ducts, Stucco water proofing, water heaters require pressure relief valves, water foundation needs to be installed, LED light failures, and unfinished stair (Ocean Blvd. entrance). (X-C ¶9.) Maverick alleged it made these defects known to Gundry, who failed and refused to remedy the defects. (X-C ¶9.) Maverick also alleged Gundry failed and refused to pay or resolve all mechanic’s liens on the subject property. (X-C ¶10.)

On April 3, 2018, Gundry filed an answer to Maverick’s cross-complaint. Gundry also filed a cross-complaint against several cross-defendants, including Aggressive Welding Inc. (“AWI”), asserting causes of action for negligence, implied contractual indemnity, total indemnity, equitable indemnity, breach of express and implied warranties, breach of written contract, contribution, strict liability, declaratory relief, and apportionment of fault. Gundry alleged cross-defendants participated in the development, design, and/or construction of an improvement on the subject property, and Gundry entered into written and/or oral agreements with cross-defendants, wherein cross-defendants agreed to provide design and/or construction, including labor, equipment, and/or materials, in accordance with the terms and conditions set forth in the agreements for the project and/or work to be performed at the project pursuant to the prime contract. (X-C ¶¶12-13.) Gundry alleged, among other things, that cross-defendants negligently, carelessly, and wrongfully failed to use reasonable care in the design, development, manufacture, supervision, repair, supply of materials, installation, inspection and/or construction, renovation, and/or maintenance and, as a result, Gundry suffered damages. (X-C ¶¶17-21.) Gundry also alleged, among other things, that cross-defendants breached their agreements with Gundry, and Gundry is entitled to indemnity from cross-defendants. (X-C ¶¶22-46.)

On August 31, 2018, AWI filed an answer to Gundry’s cross-complaint.

On September 19, 2019, Gundry filed a first amended complaint, which includes a cause of action to enforce mechanic’s lien release bond.

INTRODUCTION

Gundry moves for summary adjudication against AWI on the following issues: (1) AWI has an immediate duty to provide a defense to Gundry in the underlying action pursuant to the Terms and Conditions of the Subcontract requirements and (2) AWI’s duty to defend Gundry arose on June 23, 2018, when Gundry tendered the contractual duty to defend to AWI.

STANDARD

“A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if the party contends that the cause of action has no merit, that there is no affirmative defense to the cause of action, that there is no merit to an affirmative defense as to any cause of action, that there is no merit to a claim for damages, as specified in Section 3294 of the Civil Code, or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs. 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.” (C.C.P. §437c(f)(1).)

C.C.P. §437c(p) provides, as follows:

For purposes of motions for summary judgment and summary adjudication:

(1)

(2)

ANALYSIS

The court may properly adjudicate the existence of a duty in the nature of a contractual obligation via a motion for summary adjudication. (See C.C.P. §437c(f)(1).) (See also Linden Partners v. Wilshire Linden Associates (1998) 62 Cal.App.4th 508, 519 (“This court does not intend to paint too broadly. We believe it may fairly be concluded from settled authority and upon a reasonable interpretation of legislative intent that if, under the facts and circumstances of a given case, a court finds it appropriate to determine the existence or nonexistence of a duty in the nature of a contractual obligation, it may properly do so by a ruling on that issue presented by a motion for summary adjudication.”).)

Civil Code §2778 provides, in pertinent part, as follows:

In the interpretation of a contract of indemnity, the following rules are to be applied, unless a contrary intention appears:

***

3.

4.

5.

6.

By virtue of these statutory provisions, the case law has long confirmed that, unless the parties’ agreement expressly provides otherwise, a contractual indemnitor has the obligation, upon proper tender by the indemnitee, to accept and assume the indemnitee’s active defense against claims encompassed by the indemnity provision. Where the indemnitor has breached this obligation, an indemnitee who was thereby forced, against its wishes, to defend itself is entitled to reimbursement of the costs of doing so.” (Crawford v. Weather Shield Mfg., Inc. (2008) 44 Cal.4th 541, 555.)

“[T]he California Supreme Court held [that] a contractual duty to defend under a construction subcontract is triggered merely by allegations that damage or loss was caused by construction defects arising from the subcontractor's negligence, even if a trier of fact later finds the subcontractor was not negligent. [Citation]” (Valley Crest Landscape Development, Inc. v. Mission Pools of Escondido, Inc. (2015) 238 Cal.App.4th 468, 488.) (See also Crawford at 547 (“We consider whether, by their particular terms, the provisions of a pre-2006 residential construction subcontract obliged the subcontractor to defend its indemnitee—the developer-builder of the project—in lawsuits brought against both parties, insofar as plaintiffs’ complaints alleged construction defects arising from the subcontractor’s negligence, even though (1) a jury ultimately found that the subcontractor was not negligent, and (2) the parties have accepted an interpretation of the subcontract that gave the builder no right of indemnity unless the subcontractor was negligent. We conclude that the answer is yes.”).)

As set forth below, Gundry submitted evidence suggesting AWI has an immediate duty to provide a defense to Gundry in the underlying action pursuant to the terms and conditions of the subcontract requirements and AWI’s duty to defend Gundry arose on June 23, 2018, when Gundry tendered the contractual duty to defend to AWI.

Gundry submitted evidence it entered into a written prime contract with Maverick on or about December 11, 2015, for approximately $4.5 million to complete tenant improvements for construction of the subject project, which is a high-end fitness complex located in Long Beach, California. (Declaration of Howard ¶8; Exhibit 1.) Gundry submitted evidence it acted as the general contractor for the project. (Declaration of Howard ¶9.) Gundry submitted evidence that it, as the general contractor, contracted with approximately 45 various subcontractor trades in order to complete the project work. AWI was one of the project subcontractors. (Declaration of Howard ¶10.) Gundry submitted evidence it entered into a subcontract with AWI, on or about June 8, 2016, wherein AWI agreed to supply and install miscellaneous metals and welding work, rails and miscellaneous carpentry work throughout the project, including, but not limited to, the roof, canopies, and decking. (Declaration of Howard ¶¶11-15; Exhibits 2-3.)

Gundry submitted evidence the subcontract contains the following express indemnity provision:

General Indemnity – All work covered by this Agreement done at the “Project” or in preparing or delivering materials or equipment, or any of the aforementioned, to the “Project” shall be at the risk of SUBCONTRACTOR exclusively. To the fullest extent permitted by law, Subcontractor shall indemnify and hold harmless Owner and Contractor and their agents and employees from claims, demands, causes of action and liabilities of every kind and nature whatsoever arising out of or in connection with Subcontractor’s operations performed under this Agreement. This indemnification shall extend to claims occurring after this Agreement is terminated as well as while it is in force. The indemnity shall apply regardless of any passive negligent act or omission of Owner or Contractor, or their agents or employees, but Subcontractor shall not be obligated to indemnify any party for claims arising from the sole negligence or willful misconduct of Owner or Contractor or their agents or employees or caused solely by the designs provided by such parties, or to the extent the claim arises out of such parties’ active negligence or defective design, or to the extent the claim does not arise out of the scope of work of Subcontractor…

(Declaration of Howard ¶¶11-15; Exhibits 2-3.)

Gundry submitted evidence AWI’s project scope of work included, but was not limited to the following: “[f]abricate, prime, furnish and install all labor, material and equipment necessary to complete the screens, planter at trellis, roof structure, reception desk, juice bar canopy, and trash room enclosure per plans,” “install and paint exterior wood attachments related to the above-described building components,” and “provide and install new wood to the top railing of new guard rails, grab rails and wall mount handrails.” (Declaration of Howard ¶16.) Gundry submitted evidence AWI’s subcontract sum was $124,885.00 and the consideration paid for this work completion was firmly inclusive of compliance with all subcontract terms, including all indemnity and warranty obligations. (Declaration of Howard ¶16.)

Gundry submitted evidence Maverick did not fully pay for the project work and, consequently, Gundry filed a complaint against Maverick to foreclosure on its mechanic’s lien. (Declaration of Howard ¶17; Exhibit 4.) Gundry submitted evidence there remains due and owing at least $362,829.21 under the prime contract. (Declaration of Howard ¶17.) Gundry submitted evidence Maverick answered the complaint on January 26, 2018 and, concurrently, filed a cross-complaint against Gundry for breach of contract, negligence, and recovery on license. (Declaration of Howard ¶18; Exhibit 5.) Gundry submitted evidence the list of alleged defects in Maverick’s cross-complaint includes claimed defects and resultant property damage claims involving the project’s roof, windows, planters, electrical, patio doors, HVAC, plumbing, and stucco. (Declaration of Howard ¶19; Exhibit 5, X-C ¶9.) Gundry submitted evidence Maverick’s cross-complaint appears to implicate the potential work of multiple subcontractor trades and Gundry filed its own cross-complaint against the implicated subcontractors/trades on April 3, 2018. (Declaration of Howard ¶20; Exhibit 6.)

Gundry submitted evidence suggesting Maverick’s defect condition allegations directly and/or indirectly implicate and/or potentially arise out of AWI’s work on the project, at least in part. (Declaration of Howard ¶¶22-28; Exhibits 7-10.) (Declaration of Russell ¶¶3-16; Exhibits 7-10.)

Gundry submitted evidence that it, on June 23, 2018, by and through prior counsel, issued a direct contractual tender for immediate defense and indemnification to AWI. (Declaration of McConville ¶24; Exhibit 11.) Gundry submitted evidence its prior counsel concurrently tendered the defense to AWI’s insurer, The Ohio Casualty Insurance (“Insurer”) under separate cover. (Declaration of McConville ¶25.) Gundry submitted evidence that both AWI and Insurer have failed and refused to honor their immediate defense obligations. (Declaration of McConville ¶25.)

Based on the foregoing, Gundry met its burden on summary adjudication. Therefore, the burden shifts to AWI to create a triable issue of material fact. AWI failed to meet its burden. In fact, AWI did not file opposition to the instant motion. (See Reply Brief & Due Advisement of Non-Receipt of Opposition, filed January 21, 2020.) Consequently, Gundry’s unopposed motion for summary adjudication is granted.

CONCLUSION

Gundry’s unopposed motion for summary adjudication is granted.

Case Number: NC061354    Hearing Date: January 02, 2020    Dept: S27

INTRODUCTION

Cross-Defendant Richmond Plastering, Inc. (Richmond”) moves for Summary Judgment on the Cross-Complaint of Gundry Partners LP (“Gundry”):

1. Negligence

2. Implied Indemnity

3. Total Indemnity

4. Equitable Indemnity

5. Breach of Express and Implied Warranties

6. Breach of Contract

7. Contribution

8. Strict Liability

9. Declaratory Relief

10. Apportionment

BACKGROUND

The underling complaint is by Gundry, as Plaintiff, against Maverick Decatur Georgia, LLC (“Maverick”) for breach of contract and foreclosure of a mechanic’s lien.

Maverick hired Gundry as its general contractor for a project called “Olympic Fitness.”

Gundry sub-contracted with Richmond for lath and plaster services on the exterior of the building (there were other duties, but the court declines to follow the parties in over-complicating what should have been a straight-forward motion.)

After Gundry filed its’ action against Maverick, Maverick cross-complained against Gundry alleging deficiencies in the work performed.

Gundry in turn cross-complained against a number of sub-contractors, including Richmond, alleging the sub-contractors had performed deficiently and that they had a duty under their respective sub-contracts to defend and indemnify Gundry.

As to Richmond, specifically, Gundry alleges water intrusion into the building due to sub-standard performance.

VIOLATION OF GENERAL ORDER RE: ELECTRONIC FILING

Neither party has complied with the general order for electronic filing insofar as it requires:

“Declarations, Proofs of Service, and Exhibits to documents must be text searchable when technologically feasible without impairment of the document's image and must be bookmarked within the document pursuant to California Rules of Court, rule 3.1110(f)(4).” [Emphasis Added]

CRC 3.1110(f)(4):

“(4) Electronic exhibits must meet the requirements in rule 2.256(b). Unless they are submitted by a self-represented party, electronic exhibits must include electronic bookmarks with links to the first page of each exhibit and with bookmark titles that identify the exhibit number or letter and briefly describe the exhibit.”

The failure to follow this rule has greatly impeded the court’s analysis. There are numerous motions pending on the court’s calendar, many by Gundry, and the court cautions that it will enforce the general order in the future.

IMPROPER REQUEST BY THE OPPOSITION

The proposed order denying the motion by Gundry includes purported findings that Richmond has an immediate duty to defend Gundry and that the duty to defend arose on a date certain.

This is entirely improper. Such affirmative relief requires full statutory notice of no less than 75 days. The court takes notice of its docket that Gundry has a motion pending on this very issue.

The only issues before the court are those raised by Richmond. The court will not consider whether there is an immediate duty to defend and Gundry should not seek its own affirmative relief in its oppositions.

DISCUSSION

Although it is not a rules violation, the court notes that reference to the purported undisputed facts rather than to the actual evidence is not helpful. For instance, in arguing waterproofing was not within the scope of Richmond’s work Richmond refers to facts 17, 73, and 79. This requires the court to interrupt its’ consideration of the briefs, find these facts in the separate statement, and then find the multiple pieces of evidence supporting each fact. Gundry is no more helpful than Richmond. At oral argument counsel should be prepared to refer to evidence by exhibit, page and line number.

The heart of this motion is evidence that there were no deficiencies in Richmond’s performance.

Richmond submits the expert declaration of Arnold Rodio. Paragraph 2 of his declaration and the associated curriculum vitae is adequate foundation for rendering expert opinion in this matter.

The court will not reiterate here all of his foundational testimony, but the ultimate conclusion is that Richmond’s work was properly performed and did not cause damage to the building. (Paragraphs 39 and 40)

Richmond submits the declaration of Mark Nevin, Vice-President of Richmond, who testifies to the scope of work in the contract. Although he purports to establish there was no “master contract” between Gundry, the court has sustained the objection that this testimony lacks foundation (and is controverted by the opposing evidence). Although the court has sustained some of the objections to this declaration (as specified below) as Richmond’s “primary contact” on the project the court rejects many objections that he has no “expert foundation.” Mr. Nevin proceeds to describe his opinions about what caused the water intrusion (i.e. work of other contractors and Gundry’s failure to follow advice). Like the expert, he opines that Richmond’s work was not defective and provides a reasoned analysis (to the extent objections are not overruled). He further opines the allegedly defective work was not within the scope of Richmond’s contractual duties.

Richmond appears to be correct that these two declarations shift the burden on negligence and breach of contract.

Richmond argues that absent some defect in its work there is no basis for equitable indemnity, implied contractual indemnity or total indemnity. Richmond is correct that absent defective work on its part there is no basis for any of these theories of indemnity.

Gundry’s Objections

Objections to the Arnold Rodio declaration are overruled. The court notes in particular that the objection “misleading” has no basis in law with respect to a declaration – Gundry does not point to any section of the evidence code in support of such an objection. Likewise, “argumentative” is an objection to a form of a question and not declaratory evidence.

Gundry has also lodged objections to the declaration of Mark Nevin.

The following objections are sustained: 3 (improper opinion), 6 (lacks foundation), 7 (lacks foundation), 14 (lacks foundation), 20 (speculative), 27 (lacks foundation), 28 (lacks foundation), 30 (lacks foundation), 37 (improper legal conclusion), 39 (speculation), 40 (opinion lacks foundation).

All other objections are overruled.

It appears there might be triable issues whether Richmond’s work was properly performed, but there is a question whether the evidence is admissible form.

Gundry appears so eager to prosecute its own pending motions that this opposition is something of an afterthought.

Attorney Kevin McConville purports to incorporate evidence from other motions. Paragraph 3 of his declaration simply states he has reviewed case documents, court records “and am familiar with the applicable voluminous project documents by personal review.” Voluminous is an understatement, neither party has attempted to be concise. “Applicable” is meaningless in this context and McConville’s personal familiarity with documents does not make him a fact witness. At paragraph 5 he again refers to his own pending motions on behalf of Gundry as “voluminous” and he purports to incorporate by reference his sworn testimony” from a different motion. This is improper. Neither the court nor Richmond can be held to search through other “voluminous filings” to corroborate his assertions herein.

Mr. McConville deposed Jan Van Dijs, a general contractor who was Maverick’s construction manager. He quotes the testimony of Jan Vans Dijs (disregarding hearsay issues). A long quote at Paragraph 8, if accurate, identifies three stucco problems. Without detailing these issues, the testimony, if properly presented, would have raised triable issues on potential negligence and breach of contract. If such issues arise, there would also be triable issues on indemnity.

Equally problematical is the declaration of Martin Howard, CEO of Gundry. It is unclear whether this declaration is supposed to be part of this opposition. The face page indicates it is filed with connection with Gundry’s motion for January 21, 2020. Given the proposed order for this motion (which would state there was an immediate duty to defend) it is unclear. Like McConville, Howard refers to his voluminous testimony previously filed in connection with other motions, and purports to incorporate that testimony.

In essence his testimony attempts to establish that the subject sub-contract between Gundry and Richmond incorporates a master subcontract agreement of September 27,2001 between the parties, that this is part of an on-going business relationship between Gundry and Richmond.

The court will take oral argument before reaching a final decision, but the chief concern is whether the opposing evidence has been submitted in an admissible form.

Richmond has lodged objections in reply which appear well- objections to the Pond declaration (improper incorporation by reference), to the Martin Howard Declaration (improper incorporation by reference; legal conclusions; lack of foundation)

As the reply points out, the purported master subcontractor’s agreement is not properly before the court. Even if it was, the absence of any negligence or breach by Richmond would negate culpability for indemnity. Gundry is attempting to raise cross-issues improperly.

Also, in reply Mark Nevin more competently than in his moving declaration negates the existence of a master subcontractors agreement. There is a triable issue on the existence of an indemnity agreement, although the court still is undecided whether the issue is properly raised in the opposition.

Richmond argues that if the court considers Gundry’s incorporated evidence it must also consider Richmond’s opposition to Gundry’s pending motion. The court is not inclined to do either – the parties are tying these issues in knots to the point of incomprehensibility. The court will not review documents.

Th court observes that Gundry’s complaint claims a failure to pay less than $100,000. The Richmond sub-contract has value of less than $100,000. While a trial on construction defect can require voluminous testimony, the function of a summary judgment motion does not require this sort of massive documentation for the relatively simple issues presented. Richmond presented a simple expert declaration. The court is at a loss why Gundry has chosen to over-complicate what could have been achieved with a simple counter-declaration.

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