Search

Attributes

This case was last updated from Los Angeles County Superior Courts on 03/26/2021 at 05:20:33 (UTC).

WHITE MEMORIAL MEDICAL CENTER VS BERNARDS BROS, INC. , ET AL.

Case Summary

On 09/30/2019 WHITE MEMORIAL MEDICAL CENTER filed a Property - Construction Defect lawsuit against BERNARDS BROS, INC . This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is RICHARD L. FRUIN. The case status is Disposed - Dismissed.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    *******4642

  • Filing Date:

    09/30/2019

  • Case Status:

    Disposed - Dismissed

  • Case Type:

    Property - Construction Defect

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

RICHARD L. FRUIN

 

Party Details

Plaintiffs and Cross Defendants

WHITE MEMORIAL MEDICAL CENTER DBA ADVENTIST HEALTH WHITE MEMORIAL

D'AUTREMONT-HELMS & ASSOCIATES INC. DBA DHA+CALPEC

MARTIN MECHANICAL

TGR GEOTECHNICAL INC.

SWA ARCHITECTS

SCORPIO ENTERPRISES DBA AIREMASTERS AIR CONDITIONING

ROES 1-100 INCLUSIVE

CHAMBERLAIN BACKHOE SERVICE INC.

HEAT TECHNOLOGY PRODUCTS

THERMAL PIPE SYSTEM INC.

SCORPIO ENTERPRISES ROE 32

BERNARDS BROS INC. ROE 31

THERMAL PIPE SYSTEM INC. ROE 46

Defendants, Cross Plaintiffs and Cross Defendants

D'AUTREMONT-HELMS & ASSOCIATES INC. DBA DHA+CALPEC

MARTIN MECHANICAL

TGR GEOTECHNICAL INC.

BERNARDS BROS INC.

SWA ARCHITECTS

SCORPIO ENTERPRISES DBA AIREMASTERS AIR CONDITIONING

ROES 1-100 INCLUSIVE

D'AUTREMONT-HELMS & ASSOCIATES INC.

D'AUTREMONT-HELMS & ASSOCIATES INC. DBA DHA-CALPEC

10 More Parties Available

Attorney/Law Firm Details

Plaintiff and Cross Defendant Attorney

RALLS JOHN W.

Cross Defendant, Defendant and Cross Plaintiff Attorneys

DUNN BRIAN C.

PRASAD SUSAN

JOHNSON MATTHEW W.

DAWLEY KIM LOAN THI

BRAZIER JOHN T.

DAWLEY KIM L. T.

DUNN BRIAN CHRISTOPHER

CHOI PETER YOUNG

JOHNSON MATTHEW

BRAZIER JOHN

CHOI PETER J.

LAWRENCE LISA

FELDMAN MARC STEPHAN

FELDMAN MARC S.

Plaintiff, Cross Defendant and Cross Plaintiff Attorneys

RALLS JOHN W.

BARRERA RAY R

DUNN BRIAN C.

PRASAD SUSAN

JOHNSON MATTHEW W.

DAWLEY KIM LOAN THI

LARIN MICHAEL J.

BRAZIER JOHN T.

DAWLEY KIM L. T.

 

Court Documents

Complaint

9/30/2019: Complaint

Stipulation and Order - STIPULATION AND ORDER TO AMEND THE CASE MANAGEMENT ORDER NO. 1

10/22/2020: Stipulation and Order - STIPULATION AND ORDER TO AMEND THE CASE MANAGEMENT ORDER NO. 1

Separate Statement

10/9/2020: Separate Statement

Proof of Service (not Summons and Complaint)

10/9/2020: Proof of Service (not Summons and Complaint)

Notice - NOTICE OF ORDER REGARDING MOTION OF SUMMARY ADJUDICATION

10/13/2020: Notice - NOTICE OF ORDER REGARDING MOTION OF SUMMARY ADJUDICATION

Opposition - OPPOSITION CROSS-DEFENDANT SCORPIO ENTERPRISES DBA AIREMASTERS AIR CONDITIONING'S OPPOSITION TO BERNARDS BROS.' MOTION FOR SUMMARY ADJUDICATION

9/24/2020: Opposition - OPPOSITION CROSS-DEFENDANT SCORPIO ENTERPRISES DBA AIREMASTERS AIR CONDITIONING'S OPPOSITION TO BERNARDS BROS.' MOTION FOR SUMMARY ADJUDICATION

Amendment to Cross-Complaint (Fictitious/Incorrect Name)

9/25/2020: Amendment to Cross-Complaint (Fictitious/Incorrect Name)

Request for Dismissal

10/6/2020: Request for Dismissal

Proof of Service - No Service

7/22/2020: Proof of Service - No Service

Answer

6/15/2020: Answer

Answer

5/29/2020: Answer

Case Management Statement

2/10/2020: Case Management Statement

Answer - ANSWER TO CROSS-COMPLAINT

1/30/2020: Answer - ANSWER TO CROSS-COMPLAINT

Proof of Personal Service

1/9/2020: Proof of Personal Service

Summons - SUMMONS ON COMPLAINT

12/30/2019: Summons - SUMMONS ON COMPLAINT

Summons - SUMMONS CROSS-COMPLAINT

11/5/2019: Summons - SUMMONS CROSS-COMPLAINT

Notice - NOTICE OF CASE MANAGEMENT CONFERENCE

11/7/2019: Notice - NOTICE OF CASE MANAGEMENT CONFERENCE

Proof of Service by Substituted Service

10/15/2019: Proof of Service by Substituted Service

100 More Documents Available

 

Docket Entries

  • 03/23/2021
  • DocketStipulation and Order (TO DISMISS CASE AND ALL CAUSES OF ACTION); Filed by White Memorial Medical Center (Plaintiff)

    Read MoreRead Less
  • 03/03/2021
  • DocketRequest for Dismissal (- NOT ENTERED); Filed by White Memorial Medical Center (Plaintiff)

    Read MoreRead Less
  • 02/04/2021
  • DocketRequest for Dismissal (- NOT ENTERED); Filed by White Memorial Medical Center (Plaintiff)

    Read MoreRead Less
  • 01/25/2021
  • Docketat 09:30 AM in Department 15, Richard L. Fruin, Presiding; Jury Trial ((8-10 day breach of contract/construction)) - Not Held - Continued - Stipulation

    Read MoreRead Less
  • 01/15/2021
  • Docketat 08:30 AM in Department 15, Richard L. Fruin, Presiding; Final Status Conference - Not Held - Continued - Stipulation

    Read MoreRead Less
  • 01/12/2021
  • Docketat 09:15 AM in Department 15, Richard L. Fruin, Presiding; Hearing on Motion for Summary Adjudication (by Deft Scorpio Enterprises dba AireMasters Air Conditioning re Sixth Cause of Action and Duty to Defend Against Deft/XDeft Martin Mechanical [066998261203]*-) - Not Held - Taken Off Calendar by Party

    Read MoreRead Less
  • 01/06/2021
  • Docketat 09:15 AM in Department 15, Richard L. Fruin, Presiding; Hearing on Motion for Summary Adjudication (by Cross-Co d'Autremon-Helms & Associates re Fifth Cause of Action and Duty to Defend Against Cross-Deft Bernards Bros [854333762708]*-) - Not Held - Vacated by Court

    Read MoreRead Less
  • 01/06/2021
  • DocketMinute Order ( (Hearing on Motion for Summary Adjudication by Cross-Co d'Autr...)); Filed by Clerk

    Read MoreRead Less
  • 12/23/2020
  • Docketat 10:00 AM in Department 15, Richard L. Fruin, Presiding; Hearing on Motion for Summary Adjudication (by Deft Scorpio Enterprises dba AireMasters Air Conditioning Against Deft/XDeft Martin Mechanical [066998261203]*-) - Not Held - Rescheduled by Court

    Read MoreRead Less
  • 12/21/2020
  • Docketat 08:30 AM in Department 15, Richard L. Fruin, Presiding; Hearing on Motion for Summary Adjudication (by Cross-Co d'Autremon-Helms & Associates re Fifth Cause of Action and Duty to Defend Agains Cross-Deft Bernards Bros [854333762708]*-) - Not Held - Rescheduled by Court

    Read MoreRead Less
102 More Docket Entries
  • 10/15/2019
  • DocketProof of Service by Substituted Service; Filed by White Memorial Medical Center (Plaintiff)

    Read MoreRead Less
  • 10/15/2019
  • DocketProof of Personal Service; Filed by White Memorial Medical Center (Plaintiff)

    Read MoreRead Less
  • 10/15/2019
  • DocketProof of Personal Service; Filed by White Memorial Medical Center (Plaintiff)

    Read MoreRead Less
  • 10/15/2019
  • DocketProof of Service by Substituted Service; Filed by White Memorial Medical Center (Plaintiff)

    Read MoreRead Less
  • 10/15/2019
  • DocketProof of Service by Substituted Service; Filed by White Memorial Medical Center (Plaintiff)

    Read MoreRead Less
  • 09/30/2019
  • DocketComplaint; Filed by White Memorial Medical Center (Plaintiff)

    Read MoreRead Less
  • 09/30/2019
  • DocketNotice of Case Assignment - Unlimited Civil Case; Filed by Clerk

    Read MoreRead Less
  • 09/30/2019
  • DocketAffidavit (Attorneys Certificate of Merit (Code of Civil Procedure 411.35)); Filed by White Memorial Medical Center (Plaintiff)

    Read MoreRead Less
  • 09/30/2019
  • DocketSummons (on Complaint); Filed by White Memorial Medical Center (Plaintiff)

    Read MoreRead Less
  • 09/30/2019
  • DocketCivil Case Cover Sheet; Filed by White Memorial Medical Center (Plaintiff)

    Read MoreRead Less

Tentative Rulings

Case Number: 19STCV34642    Hearing Date: October 08, 2020    Dept: 15

# 11 TENTATIVE RULING 10:00 a.m., Thursday, October 8, 2020

WHITE MEMORIAL MED. CTR. v. BERNARDS BROS, INC., et al. [19STCV34642]

RULING ON MOTION OF DEFENDANT BERNARDS BROS., INC. FOR SUMMARY ADJUDICATION

BACKGROUND: Ins. bad faith action –

TIMELINE:

o/a 10/22/07: def BERNARDS entered into an agreement to serve as general contractor on a construction project for plaintiff WHITE MEMORIAL

o/a 7/16/08: AIREMASTERS entered into a subcontract with BERNARDS, pursuant to which AIREMASTERS agreed to furnish labor/materials for certain aspects of the project, including all HVAC components. The subcontract included an indemnity provision, pursuant to which AIREMASTERS agreed to indemnify the general contractor for any loss/damage/etc. incurred in connection with AIREMASTERS’ work on the project, and to provide a defense to the general contractor “when a claim is asserted against CONTRACTOR in connection with the performance of SUBCONTRACTORS’ scope of work….”

o/a 9/30/19: Plaintiff filed this action against BERNARDS, asserting 5 C/As

[br/K; br/K; br/express warranty; professional negligence; negligence] and based in part on allegations of defective work re the HVAC system

11/5/19: BERNARDS answered the Complaint and filed a X-C asserting 10 C/As v. AIREMASTERS and others: I) Express Indemnity; 2) Breach of Express and Implied Warranties; 3) Breach of Written Contract; 4) Negligence; 5) Contribution; 6) Declaratory Relief re Duty to Defend; 7) Declaratory Relief re Duty to Indemnify; 8) Declaratory Relief re Contractual Duties; 9) Implied and Equitable Indemnity; and 10) Contribution. The same day,

BERNARDS allegedly tendered its defense to AIREMASTERS.

7/22/20: Def BERNARDS filed this motion, seeking SAI of one issue, stated in

the Notice* as follows: “AIREMASTERS has a contractual and statutory duty to defend BERNARDS from Plaintiff WHITE MEMORIAL MEDICAL CENTER, dba Adventist Health White Memorial… [sic] Complaint”

*NOTE: The issue appears in a different form in the separate statement, i.e.:

"ISSUE NO. 1: AIREMASTERS HAS A DUTY TO DEFEND BERNARDS IN THE INSTANT CASE PURSUANT TO CALIFORNIA CIVIL CODE SECTION 2778, SUBDIVISION (4), THE TERMS OF THE PARTIES' SUBCONTRACT, AND THE ALLEGATIONS OF PLAINTIFF'S COMPLAINT." Then, in its Ps/As,defendant

phrases the issue in a couple of additional ways, referencing a purported

“immediate duty to defend.” RP objects, arguing that MP violates CRC

3.1350(b), which requires that the issue be restated “verbatim” in the

separate statement.

THE MOTION OF DEFENDANT BERNARDS BROS., INC. FOR SUMMARY ADJUDICATION IS GRANTED. There is no triable issue of material fact, as shown by the evidence proffered in support of movant’s separate statement.

A) Preliminarily, the Court notes that AIREMASTERS’ procedural argument is without merit. CRC 3.1350(b) requires that the issue for adjudication be restated “verbatim” in the separate statement; it doesn’t require that the issue be phrased identically in the separate statement. The Notice states the issue as follows: “AIREMASTERS has a contractual and statutory duty to defend BERNARDS from Plaintiff WHITE MEMORIAL MEDICAL CENTER, dba Adventist Health White Memorial… [sic] Complaint.” Movant’s separate statement puts it slightly differently: “AIREMASTERS HAS A DUTY TO DEFEND BERNARDS IN THE INSTANT CASE PURSUANT TO CALIFORNIA CIVIL CODE SECTION 2778, SUBDIVISION (4), THE TERMS OF THE PARTIES' SUBCONTRACT, AND THE ALLEGATIONS OF PLAINTIFF'S COMPLAINT."

The distinction is one without a difference, and doesn’t prevent the Court from reaching the merits. That defendant, in its Ps/As, references a purported “immediate duty to defend” doesn’t change this result. Under California law, if there is a contractual duty to defend, that duty attaches immediately upon tender. See, e.g., Crawford v. Weathershield Mfg., Inc. (2008) 44 C4th 541, 558. Thus, if the motion is granted, the duty to defend will be deemed to have been owed upon tender of the defense, and whether the issue statement includes the word “immediately” or not is irrelevant.

B) Substantively, the Court agrees with Defendant’s arguments to the effect that: 1) the issue is ripe for adjudication; 2) Defendant has met its burden under Civil Code 2778; and 3) AIREMASTERS’ opposition fails to raise a triable issue of material fact.

As to whether the issue is ripe for adjudication: BERNARDS cites Crawford for the following proposition:

"When a party sues one or more other persons, seeking to establish a contractual right to a defense against litigation not yet concluded, these issues may, if the parties agree, be deferred until the underlying litigation is complete. If any party moves for summary judgment of adjudication…with respect to the duty to defend against litigation still in progress, the court may proceed as it deems expedient. For example, the court may resolve legal issues then ripe for adjudication, such as whether any of the contracts at issue include a duty to defend, and, if so, whether the underlying suit or proceedings as to which a defense is sought falls within the scope of any of the parties' contractual duty to defend."

The Court agrees with this proposition and believes that it is expedient to address this issue now.

In opposition, AIREMASTERS argues that the issue is “premature” because this is a mutli-party case and the duty to defend in such a case “cannot be ascertained without knowing what defense fees and costs are embraced by the indemnity agreement…” AIREMASTERS then requests a continuance to conduct discovery as to the amount of defense fees/costs, “to determine if BERNARDS has incurred or is incurring fees embraced by the indemnity agreement…” As the Reply points out, however, that argument is misplaced here, since the duty to defend “is much broader than the duty to indemnify.” Per Crawford, where there is a contractual duty to defend,

the defense is owed if there is a “potential” for indemnification, and absent “indisputable facts precluding coverage,” the indemnitor owes a duty to provide a defense. Id., 44 C.4th at p. 547.

This motion asks the Court to determine only whether a duty to defend is owed; it does NOT ask the Court to make a determination as to the amount that might ultimately be expended by the indemnitor. BERNARDS submits the declaration of its counsel, who states that BERNARDS has incurred, and is incurring, fees/costs in connection with this action. No more is required. In view of the limited scope of the relief requested, the motion is not premature.

As to defendant’s burden on the motion, CC 2778(4) sets forth a 6- element test, each of which elements are met by BERNARDS here:

(I) a claim against the indemnitee-

It is undisputed that Plaintiff’s Complaint against BERNARDS was filed on September 30, 2019; and that the Complaint includes allegations against BERNARDS relating to purported property damage in connection with the “chilled water line” operated/installed by AIREMASTERS. This establishes the first element.

(2) arising out of, or related to, the work of the indemnitor-

It is undisputed that Plaintiff's claims arise, at least in part, out of

allegedly defective work/materials supplied by AIREMASTERS,

relating to conditions associated with the chilled water line. That line

is part of the HVAC system components that AIREMASTERS subcontracted to install. AIREMASTERS does not dispute that the scope its subcontract included the “mechanical and piping work” on the Project. The second element is therefore met.

(3) which claim, as alleged, is encompassed by the parties' agreement-

The indemnity provision includes broad language, requiring AIREMASTERS to indemnify and hold BERNARDS harmless "with respect to all work, which is covered by, or incidental to [AIREMASTERS] scope of work..." Again, Plaintiff's Complaint includes allegations of defective work in connection with the HVAC system. As BERNARDS points out, those allegations “potentially implicate property damage to and surrounding the chilled water line, which is a part of the HVAC system component.” This is sufficient to satisfy movant’s burden re element #3.

The opposition makes an argument to the effect that the Complaint also charges other defendants with wrongdoing. That may be, but it doesn’t affect the outcome here. The question is whether the alleged wrongful conduct by AIREMASTERS is within the scope of the indemnity provision.

It is.

(4) a tender of defense from the indemnitee to the indemnitor-

That BERNARDS tendered the defense of this action to AIREMASTERS is not dispute. BERNARDS did so via letter setting forth the basis for the tender, and via the Cross-Complaint itself. See the evidence proffered in support of MP fact 25.

(5) a lack of acceptance by the indemnitor-

BERNARDS submits that to date, AIREMASTERS “has failed, ignored and/or refused to accept the tender of defense.” See the evidence proffered in support of MP fact 27. Thus, movant’s burden re element #5 is met.

Notably, in its opposition, AIREMASTERS first asserts that the issue is moot because AIREMASTERS “has been advised that its liability carrier has accepted the tender of BERNARDS…” Then, somewhat inconsistently, the opposition goes on to argue that the duty to defend “cannot be performed- and therefore cannot even be owed – until the indemnitor is actually given a bill for the reasonable defense expenses embraced by the indemnity….” Regardless, the Reply points out that AIREMASTERS has provided no evidence that its liability carrier accepted BERNARDS’ tender. The Reply then asserts that if such evidence is provided, BERNARDS “would consider withdrawing the motion.” The Court will therefore inquire of counsel at the hearing as to whether AIREMASTERS is prepared to submit evidence that the tender has been accepted.

(6) the absence of language in the parties' agreement limiting or excluding a duty to defend-

It is undisputed that the language of the subject indemnity provision contains no limitation to the defense duty owed by AIREMASTERS, except

to the extent such duty is limited by statute. Element #6 is therefore met.

The Court notes that in the opposition, AIREMASTERS asserts that the burden of proof to be applied here should be that stated in Peter Culley & Associates v. Sup. Ct. (10 CA4th 1484) – i.e., that the liability is covered by the contract; that the liability exists; and the extent of that liability. The Reply, however, is persuasive in pointing out that AIREMASTERS’ argument confuses the duty to defend with the duty to indemnify, and that the Peter Cully & Associates case is irrelevant here. The Court agrees with the Reply, and with BERNARDS’ argument to the effect that because there is clearly a potential for liability here, it is unnecessary to make a determination as to

the amount of any defense cost that has been or will be incurred herein.

Rather, the fact that ANY amount has been, or may be incurred, is sufficient to trigger the defense obligation. As there is no triable issue in this regard, the motion must be granted.

MP is to serve notice of ruling. This TR shall be the order of the Court, unless changed at the hearing, and shall by this reference be incorporated into the Minute Order.

related-case-search

Dig Deeper

Get Deeper Insights on Court Cases


Latest cases where WHITE MEMORIAL MEDICAL CENTER DBA ADVENTIST HEALTH WHITE MEMORIAL is a litigant

Latest cases where BERNARDS BROS INC. is a litigant

Latest cases where SCORPIO ENTERPRISES DBA AIREMASTERS AIR CONDITIONING is a litigant

Latest cases where CHAMBERLAIN BACKHOE SERVICE INC. is a litigant