Diane Baeker, et al. v. City of Arroyo Grande, et al.

Diane Baeker, et al. v. City of Arroyo Grande, et al., 24CV-0184

Hearing: Motion for Summary Adjudication

Date: June 24, 2026

Diana Baeker, individually and as successor-in-interest to James Baeker, Lara Baeker and Jennifer Vernallis (Plaintiffs) filed this action for wrongful death and survivor damages on March 22, 2024. A first amended complaint (FAC) was filed on May 8, 2024.

Plaintiffs allege that on September 22, 2025, decedent James Baeker was riding his bicycle on eastbound Grand Avenue in the City of Grover Beach/City of Arroyo Grande in the designated bike line. The lane ended and the roadway turned into a chaotic construction zone, causing James Baeker’s front tire to go into an unguarded section of wet cement in a manmade hole in the roadway, resulting in his bike flipping over. James suffered serious injuries, and after being hospitalized, he ultimately succumbed to his injuries and died. (FAC, ¶¶ 14-15.)

Multiple cross-complaints were filed in this action. The City of Arroyo Grande (the City) filed a cross-complaint on July 22, 2024, against cross-defendants FORM Design + Build, Inc. (FORM) and Provident Company, LLC (Provident).

The City now moves for summary adjudication of its sixth cause of action in its cross-complaint for express contractual indemnity against FORM and Provident. FORM and Provident each oppose the motion.

The City’s notice of motion states that it seeks adjudication of the following issues:

Issue 1: The City is entitled to judgment in its favor as a matter of law as to the Sixth Cause of Action of the City’s Cross-Complaint for Express Contractual Indemnity alleged against cross-defendant FORM Design + Build.

Issue 2: The City is entitled to judgment in its favor as a matter of law as to the Sixth Cause of Action of the City’s Cross-Complaint for Express Contractual Indemnity alleged against cross-defendant Provident Company LLC.

The City’s notice of motion states that the motion is made pursuant to “subdivision (t) of Section 437c(f)(1) of the Code of Civil Procedure.”

Summary adjudication may be had as to one or more causes of action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, where the motion completely disposes of the cause of action, affirmative defense, claim for damages, or issue of duty. (Code Civ. Proc., § 437c, subd. (f)(1).)

Code of Civil Procedure section 437c, subdivision (t) provides that a party may move for summary adjudication of a legal issue or a claim for damages other than punitive damages that does not completely dispose of a cause of action, affirmative defense, or issue of duty pursuant to this subdivision if the party follows certain specified procedures.

The City did not follow the procedures set forth in subdivision (t). Therefore, the Court considers the motion pursuant to subdivision (f)(1).

Here, the City contends that it issued Engineering Encroachment Permit #ROW23-000109 for the construction work at or near 1185 Grand Avenue, Arroyo Grande, California 93420. The City contends that a representative of FORM, the contractor, signed the permit, and that Provident is bound as the permitee property owner. The permit includes an indemnity agreement and a dutyto-defend provision.

As stated by the City, a cause of action for express indemnity requires proving “(1) a contractual relationship between the parties; (2) the indemnitee’s performance of that portion of the contract which gives rise to the indemnification claim; (3) a showing of a loss within the meaning of the parties’ indemnification agreement; and (4) the amount of damages sustained.” (Four Star Electric, Inc. v. F & H Construction (1992) 7 Cal.App.4th 1375, 1380.)

FORM opposes the motion on multiple grounds, including that the City’s own active negligence defeats the indemnity provision and that indemnity for acts outside the permitted work is not available. Provident opposes the motion on multiple grounds as well, including that there is no determination of liability such that summary adjudication of the express indemnification claim is premature, and that the City has not met its burden of showing damages.

Provident is correct that the City has not provided evidence of damages (nor could it at this stage). The City has therefore not met its burden to show that it is entitled to summary adjudication as to its sixth cause of action as a whole.

In addition, upon reviewing the City’s replies to the oppositions filed to its motions, the City seeks summary adjudication not of the sixth cause of action, but of two issues of duty within that cause of action: the duty to defend, and the duty to indemnify. While issues of duty can be the proper subject of summary adjudication under Code of Civil Procedure section 437c, subdivision (f)(1), those issues of duty were not identified in the City’s notice of motion, and FORM and Provident therefore were not provided notice and the opportunity to respond.

“If summary adjudication is sought, whether separately or as an alternative to the motion for summary judgment, the specific cause of action, affirmative defense, claims for damages, or issues of duty must be stated specifically in the notice of motion and be repeated, verbatim, in the separate statement of undisputed material facts.” (Cal. Rules of Court, rule 3.1350, subd. (b); see also Maryland Casualty Co. v. Reeder (1990) 221 Cal.App.3d 961, 974, fn. 4 [moving party did not identify coverage provided by particular policies as discrete issues on which it was seeking summary adjudication, so appellate court did not have power to direct trial court to enter an order as to the coverage provided by particular policies].)

ORDER

The City’s motion for summary adjudication of its sixth cause of action in its cross-complaint is denied.

The motion is denied without prejudice as to the City bringing a motion for summary adjudication on the issues of duty.

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