Janean Acevedo Daniels et al v. City of Santa Barbara et al

(3) Cross-Complaint by Santa Barbara against Goleta and SBRD On September 9, 2024, Santa Barbara filed a cross-complaint (Santa Barbara CC) against Goleta and SBRD, setting forth two causes of action for equitable indemnification and apportionment of fault. The Santa Barbara CC alleges that any liability Santa Barbara has in this action is derivative of Goleta and SBRD's liability, and that SBRD and Goleta were responsible for the sidewalk condition at the Subject Property.

(4) Cross-Complaint by Oltmans against Toro On October 29, 2024, Oltmans filed a cross-complaint (Oltmans CC) against Toro, setting forth six COAs for breach of contract, express contractual indemnity, comparative equitable indemnity, contribution, declaratory relief regarding as to duty to defend, and declaratory relief as to duty to indemnify. The Oltmans CC alleges that Toro was a subcontractor for Oltmans that provided Construction Activities at or adjacent to the Subject Property including earthwork, concrete, and asphalt services (collectively, Subcontract).

(5) Cross-Complaint by Sares against Oltmans On April 17, 2025, Sares filed a cross-complaint (Sares CC) against Oltmans setting forth nine COAs for express indemnity, breach of express and implied warranties, breach of written contract, negligence, implied indemnity, contribution, declaratory relief as to duty to defend, declaratory relief as to duty to indemnify, and declaratory relief as to contractual duties. The Sares CC alleges that Sares was the owner of the Subject Property and a third party beneficiary of the contract for Construction Activities that Oltmans performed on behalf of SBRD at the Subject Property.

(6) Motion for Summary Judgment by Toro as to Oltmans' Cross-Complaint On February 3, 2026, Toro filed a motion for summary judgment as to the Oltmans CC against Torro. The motion argues that Toro cannot be liable in this action because there are no acts or omissions by Toro which caused injury to the Daniels. Toro argues in its memorandum that it performed its Subcontract in accordance with plans approved by Goleta and specifications provided by SBRD. Toro's motion is opposed by Oltmans and Janean.

Analysis: (1) Standard on Summary Judgment A defendant may move for summary judgment if the defendant contends the action against it has no merit. (Code Civ. Proc., Sec. 437c, subd. (a).) To obtain summary judgment, a defendant must show "there is no triable issue as to any material fact and [the defendant] is entitled to a judgment as a matter of law." (Id., subd. (c).)

A defendant has "met that party's 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, even if not separately pleaded, cannot be established, or that there is a complete defense to the cause of action." (Code Civ. Proc., Sec. 437c, subd. (p)(2).) Once the defendant has met that burden, "the burden shifts to the plaintiff or cross-complainant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto." (Ibid.)

However, "[f]rom commencement to conclusion, the moving party bears the burden of persuasion that there is no genuine issue of material fact and that he is entitled to judgment as a matter of law." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 845 (Aguilar).)

"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." (Code Civ. Proc., Sec. 437c, subd. (f)(1).)

"The supporting papers shall include a separate statement setting forth plainly and concisely all material facts that the moving party contends are undisputed. Each of the material facts stated shall be followed by a reference to the supporting evidence." (Code Civ. Proc., Sec. 437c, subd. (b)(1).)

" 'Material facts' are facts that relate to the cause of action, claim for damages, issue of duty, or affirmative defense that is the subject of the motion and that could make a difference in the disposition of the motion." (Cal. Rules of Court, rule 3.1350(a)(2).) "The separate statement should include only material facts and not any facts that are not pertinent to the disposition of the motion." (Id., rule 3.1350(d)(2).)

Litigants are to "[i]nclude only those facts which are truly material to the claims or defenses involved because the separate statement effectively concedes the materiality of whatever facts are included. Thus, if a triable issue is raised as to any of the facts in your separate statement, the motion must be denied! [Citation.]" (Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 252 (Nazir).)

(2) Triable Issues Re Fact No. 9 Toro moved for summary judgment as to the entire cross-complaint by Oltmans. (Motion, p. 2.) Toro did not move for summary adjudication as to any COA. (Ibid.) Toro's motion for summary judgment rests, in part, on undisputed material fact No. 9 in its separate statement (Fact No. 9). (Nazir, supra, 178 Cal.App.4th at p. 252.) Fact No. 9 states that, "Toro performed its subcontracted work in accordance with plans and specifications provided by Oltmans []." (Toro Sep. Stat., Fact No. 9.)

Oltmans disputes Fact No. 9, stating that, "Toro did not perform its subcontracted work in accordance with plans and specifications provided by Oltmans []. The plans and specifications required Toro to construct the driveway apron lip at a height of 1/2 inch. Toro constructed the apron lip at a height in excess of 1/2 inch, which [the Daniels] allege cause[d] or contributed to the incident. As a result, whether Toro performed under its contractual obligations remain in dispute." (Oltmans Resp. Sep. Stat., p. 3, l. 6 - p. 4, l. 1 [the court notes a typo in the numbering in Oltmans' separate statement].)

Oltmans cites evidence in support of its position disputing Fact No. 9, including the deposition testimony of Autum Glaeser, a Goleta person most qualified. (Bell Decl., P. 2; Oltmans Compendium, Ex. 1.) Glaeser testified that the plans for the Construction Activities provided that the driveway apron was not permitted to exceed one-half inch. (Oltmans Compendium, Ex. 1 at p. 30, l. 21 - p. 30, l. 14; p. 32, ll. 4-7.) The plans discussed by Glaeser appear to support her testimony. (Oltmans Compendium, Ex. 9.) Glaeser estimated based on her experience that the apron exceeded one-half inch. (Oltmans Compendium, Ex. 1 at p. 45, l. 21 - p. 46, l. 2; p. 46, ll. 17-24.) Photographs referenced in Glaeser's deposition appear consistent with Glasner's testimony. (Oltmans Compendium, Exs. 10-11.)

Santa Barbara admits that the one or more areas of the driveway apron was greater than three-quarters inch on the date of the alleged Accident. (Bell Decl., P. 5; Oltmans' Compendium, Ex. 4 at p. 5, ll. 13-20.) Janean also disputes Fact No. 9, citing to Oltmans' responses to special interrogatories, Glasner's deposition testimony, and other evidence. (Janean Resp. Sep. Stat., p. 4, l. 22 - p. 5, l. 13.)

Based on the evidence submitted in opposition by Oltmans and Janean, there are triable issues as to Fact No. 9. (Oltmans Resp. Sep. Stat., p. 3, l. 6 - p. 4, l. 1; Janean Resp. Sep. Stat., p. 4, l. 22 - p. 5, l. 13.) Toro has not met its burden to show there is no triable issue as to any material fact. (See Code Civ. Proc., Sec. 437c, subd. (a); Aguilar, supra, 25 Cal.4th at p. 845; Nazir, supra, 178 Cal.App.4th at p. 252.)

(3) Triable Issues Re Fact No. 18 Oltmans also disputes Fact No. 18, which that states, "[u]pon the City of Goleta's acceptance of the public improvements, Toro's responsibilities under its subcontract concluded." (Toro Sep. Stat., Fact No. 13.) Oltmans states in response, "Toro is under a contractual duty to defend, indemnify, and hold harmless Oltmans and Owner from any claims ... resulting from or arising directly or indirectly out of or relating to Toro's performance of the work ...." (Oltmans Resp. Sep. Stat., p. 5, ll. 8-23 [the court notes a typo in the numbering in Oltmans' separate statement].)

Oltmans notes that the contract at issue provides express indemnity obligations that may extend beyond the date the contract was approved by Goleta. Oltmans' position is supported by the express language of the contract. (See Borjon Decl., P. 4; Ex. 1 at p. 6.) There are triable issues as to Fact No. 18.

(4) Toro's Notice of Motion There are a number of other issues that prevent summary judgment in favor of Toro as to the cross-complaint by Oltmans. For example, Torro frames its motion in its notice as follows: "The basis for this motion is that Toro cannot be liable to Plaintiffs ... because there are no acts or omissions by Toro which caused injury to Plaintiffs, therefore Oltmans' Cross-Complaint in the subject action is without merit...." (Motion, p. 2.)

However, as alleged in the Oltmans CC, Torro could be required to indemnify Oltmans under several theories, including contractual express indemnity, that do not turn on whether Toro actually caused injury to the Daniels. (Compare Motion, p. 2 with Oltmans CC, pp. 5-8.) "An indemnitee seeking to recover on an agreement for indemnification must allege the parties' contractual relationship, the indemnitee's performance of that portion of the contract which gives rise to the indemnification claim, the facts showing a loss within the meaning of the parties' indemnification agreement, and the amount of damages sustained." (Four Star Electric, Inc. v. F & H Construction (1992) 7 Cal.App.4th 1375, 1380.)

Liability under express indemnity turns on the parties' contractual arrangement. (Ibid.) The notice, as framed, does not present a basis for summary judgment as to contractual indemnity. (See Code Civ. Proc., Sec. 437c, subd. (a)(2).)

(5) Evidentiary Objections "[T]he court need rule only on those objections to evidence that it deems material to its disposition of the motion." (See Code Civ. Proc., Sec. 437c, subd. (q).) The court overrules the evidentiary objections asserted by Torro as to the testimony on pages 45 and 46 of the Glaeser deposition transcript as to her estimate that the apron appears to exceed 1/2 inch. The court overrules Torro's objections as to the Borjon Declaration as to paragraph 4, exhibit 1. The court has reviewed the other evidentiary objections submitted and does not find they are material to the disposition of this motion.

Accordingly, for all these reasons, the court will deny Toro's motion.

Tentative Ruling: John W Ambrecht vs Marc A DePaco et al Tentative Ruling: John W Ambrecht vs Marc A DePaco et al