Motion for Summary Judgment and/or Adjudication
the pleadings. Because the pleadings indicate that at least some of Plaintiffs’ claims may fall within the agreement, Brown has not established that the Second Cause of Action fails in its entirety.
Accordingly, the motion as to the Second Cause of Action is DENIED.
Third Cause of Action for Equitable Indemnity
The elements of a cause of action for equitable indemnity are (1) a showing of fault on the part of the indemnitor and (2) resulting damages to the indemnitee for which the indemnitor is equitably responsible. (Prince v. Pacific Gas & Electric Co., supra, 45 Cal.4th at p. 1157.) Equitable indemnity is premised on a joint legal obligation to another for damages, subject to allocation of fault principles and comparative equitable apportionment of loss. (Id. at p. 1158.)
The Cross-Complaint alleges that any liability imposed on 138 is not the result of 138’s own conduct. (Cross-Complaint, Third Cause of Action, ¶ 14.) Instead, it alleges that any such liability arises from Brown’s negligence, carelessness, fraud, conduct, acts, or omissions. (Ibid.) It further alleges that Brown received notice of Plaintiffs’ claims but refused to indemnify 138. (Id., ¶ 15.) Finally, it alleges that Brown is equitably responsible for the losses and expenses 138 incurs in the underlying action. (Id., ¶ 16.)
The SAC alleges that Plaintiffs experienced mold, rodent contamination, and HVAC defects beginning during Brown’s ownership. (SAC, ¶¶ 9–18.) It alleges that Plaintiffs were exposed to mold, rodent urine and feces, and other toxins beginning in at least 2016. (SAC, ¶ 17.) It also alleges that Plaintiffs’ injuries resulted from the conduct of Defendants and their predecessor. (SAC, ¶ 27.) The SAC does not apportion Plaintiffs’ injuries or damages between Brown’s and 138’s respective periods of ownership. Brown was subsequently identified as Doe 1 in the underlying action. (ROA 100.)
On the face of the pleadings, Brown and 138 may be successive tortfeasors whose alleged conduct contributed to the same continuing or indivisible injuries. Whether they share liability presents a factual question that cannot be resolved on the pleadings. Allocating any liability between their respective periods of ownership likewise requires the resolution of factual issues beyond the pleadings.
Brown has therefore not established that equitable indemnity is unavailable as a matter of law. Accordingly, the motion as to the Third Cause of Action is DENIED.
Ambiguity Regarding Claims
Brown alternatively argues that any ambiguity concerning whether Plaintiffs’ claims arose before or after escrow demonstrates that 138 failed to allege a covered loss. However, the pleadings do not establish that Plaintiffs’ claims arose solely after escrow. Any uncertainty may be resolved through discovery.
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Accordingly, the motion for judgment on the pleadings as to the Second and Third Causes of Action is DENIED.
Cross-Complainant is ordered to give notice.
61 Samuel-K vs. Cara Motion for Summary Judgment and/or Adjudication
23-01335192 Defendants Tom Malloy Corp. dba Trench Shoring Company, and Mike Cara’s motion for summary judgment, or, alternatively, summary adjudication is DENIED.
A party may move for summary judgment in an action if it is contended that the action has no merit or that there is no defense to the action. (Code Civ. Proc., § 437c, subd. (a)(1).) Similarly, a party may move for summary adjudication as to one or more causes of action within an action if the party contends that the cause of action has no merit. (Code Civ. Proc., § 437c, subd. (f)(1).)
“A [defendant] 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, even if not separately pleaded, cannot be established, or that there is a complete defense to the cause of action.” (Code Civ. Proc., §437c, subdivision (p)(2).) Once that burden is met, the burden shifts to Plaintiff “to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” (Ibid.)
“[F]rom commencement to conclusion, the party moving for summary judgment bears the burden of persuasion that there is no triable 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 (“Aguilar”), 850.) “A prima facie showing is one that is sufficient to support the position of the party in question.” (Id. at p. 851.)
But, “pointing out the absence of evidence to support a plaintiff’s claim is insufficient to meet the moving defendant’s initial burden.” (Gaggero v. Yura (2003) 108 Cal.App.4th 884, 891.) “The defendant must also produce evidence that the plaintiff cannot reasonably obtain evidence to support his or her claim.” (Ibid, citing Aguilar at p. 855, fn. 23). Thus, if a moving defendant fails to meet their prima facie burden, the burden never shifts to plaintiff to show the existence of a triable issue of material fact.
Here, Defendants move for summary judgment, or, alternatively, summary adjudication in their favor on the grounds that Plaintiff is barred from introducing expert testimony at trial because he failed to designate any experts and it is too late to do so now.
First, pointing out the absence of evidence to support Plaintiff’s claim is insufficient to meet Defendants’ initial moving burden. (Aguilar at p. 854-855; Gaggero v. Yura, supra, 108 Cal.App.4th at p. 891.)
Second, Defendants are incorrect that Plaintiff is barred from introducing expert testimony at trial. Trial in this matter was initially set for trial on 9/16/24. (ROA 24.) Trial and all related deadlines were then continued to 9/16/24 and again to 3/23/26. (ROA 33, 64.) Significantly, on 3/23/26, the Court vacated the jury trial and set a trial setting conference. (ROA 107.) Trial was subsequently set for 3/8/27. (ROA 117.)
When the 3/23/26 trial date was “vacated” all trial related discovery deadlines, including expert discovery deadlines, were reset and calculated from the 3/8/27 trial date. Based on the 3/8/27 trial date, the time to make a demand for expert witness information or designate said experts has not elapsed. (See Code of Civ. Proc. § 2034.210, et seq.) Accordingly, Defendants have failed to establish that Plaintiff is barred from introducing expert testimony at trial set for 3/8/27.
Based upon the foregoing, Defendants have failed to meet their initial moving burden of persuasion. Because Defendants have not met their initial moving burden, the burden does not shift to Plaintiff to show the existence of a triable issue of material fact.
Accordingly, the motion is DENIED.
Moving Defendants to give notice.