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)

    Read MoreRead Less
  • 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)

    Read MoreRead Less
  • 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: 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:

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3.

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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.