Jeffery Scott Stephens vs. Sutter Valley Hospitals

34-2020-00289599-CU-PO-GDS: Jeffery Scott Stephens vs. Sutter Valley Hospitals 09/01/2026 Hearing on Motion for Summary Adjudication Against Old Village in Department 16D

Tentative Ruling

NOTICE: Consistent with Local Rule 1.06(B), any party requesting oral argument on any matter on this calendar must comply with the following procedure: To request limited oral argument, on any matter on this calendar, you must call the Department 16D Oral Argument Request Line at (916) 874-3056 by 4:00 p.m. the court day before the hearing and advise opposing counsel. At the time of requesting oral argument, the requesting party shall leave a voice mail message (a) identifying themselves as the party requesting oral argument; (b) indicating the specific matter/motion for which they are requesting oral argument; and (c) confirming that it has notified the opposing party of its intention to appear and that opposing party may appear via Zoom using the Zoom link and Meeting ID indicated below.

If no request for oral argument is made, the tentative ruling becomes the final order of the Court. Unless ordered to appear in person by the Court, parties may appear remotely either telephonically or by video conference via the Zoom video/audio conference platform with notice to the Court and all other parties in accordance with Code of Civil Procedure §367.75. Although remote participation is not required, the Court will presume all parties are appearing remotely for non-evidentiary civil hearings.

The Department 16D Zoom Link is https://saccourt-ca-gov.zoomgov.com/j/16146506749 and the Zoom Meeting ID is 161 4650 6749. To appear on Zoom telephonically, call (833) 568-8864 and enter the Zoom Meeting ID referenced above. NO COURTCALL APPEARANCES WILL BE ACCEPTED. Parties requesting services of a court reporter will need to arrange for private court reporter services at their own expense, pursuant to Government code §68086 and California Rules of Court, Rule 2.956. Requirements for requesting a court reporter are listed on the Court Reporter Services webpage available on the Sacramento Superior Court website at https://saccourt.ca.gov/general-information/court-reporter-services-transcripts.

Parties may contact Court- Approved Official Reporters Pro Tempore by utilizing the list of Court Approved Official Reporters Pro Tempore available at https://saccourt.ca.gov/home/showpublisheddocument/227/639084034465370000. A Stipulation and Appointment of Official Reporter Pro Tempore (CV/E-206) is required to be signed by each party, the private court reporter, and the Judge prior to the hearing, if not using a reporter from the Court’s Approved Official Reporter Pro Tempore list. Once the form is signed it must be filed with the clerk.

If a litigant has been granted a fee waiver and requests a court reporter, the party must submit a Request for Court Reporter by a Party with a Fee Waiver (CV/E-211) and it must be filed with the clerk at least 10 days prior to the hearing or at the time the proceeding is scheduled if less than 10 days away. Once approved, the clerk will forward the form to the Court Reporter’s Office and an official reporter will be provided. *** EFFECTIVE APRIL 13, 2026, THIS DEPARTMENT HAS MOVED TO THE TANI G.

CANTIL-SAKAUYE COURTHOUSE LOCATED AT 500 G STREET IN SACRAMENTO, CA

34-2020-00289599-CU-PO-GDS: Jeffery Scott Stephens vs. Sutter Valley Hospitals 09/01/2026 Hearing on Motion for Summary Adjudication Against Old Village in Department 16D

95814. ALL HEARINGS NOTICED FOR DEPARTMENT 53 WILL BE HEARD IN DEPARTMENT 16D OF THE NEW COURTHOUSE. PARTIES MAY CONTINUE TO APPEAR REMOTELY IN DEPARTMENT 16D UNLESS SPECIFICALLY ORDERED OTHERWISE. ***

TENTATIVE RULING

Defendant/cross-complainant/cross-defendant Roseville Medical Office Building Associates’ (“RMOBA”) motion for summary adjudication as against cross-defendant Old Village Landscaping (“Old Village”) is ruled upon as follows.

*** If oral argument is requested, the parties are directed to notify the clerk and opposing counsel at the time of the request which of the moving party’s 33 Undisputed Material Facts, which of opposing party’s 21 Additional Material Facts, and/or which of opposing party’s written objections to evidence will be addressed at the hearing. The parties should be prepared to point to specific admissible evidence which is claimed to show the existence or non-existence of a triable issue of material fact. ***

Moving counsel failed to comply with CRC Rule 3.1350(b), which expressly require that each issue presented for summary adjudication be stated in the notice of motion and repeated verbatim in the separate statement. (See, Issues 2-3 in Not. of Mot. and in Mov. Sep. Stm.)

Both moving and opposing counsel failed to comply with CRC Rule 3.1113(f), requiring a table of contents and a table of authorities when the memorandum of points & authorities exceeds 10 pages.

Opposing counsel failed to comply with CRC Rule 3.1350(g), requiring a single volume of evidence (including all declarations) with a table of contents when the evidence exceeds 25 pages.

Opposing counsel failed to comply with CRC Rule 3.1350(f)(2), requiring an opposing party who contends that a fact is disputed not only to describe “the nature of the dispute” but also provide citation to the supporting evidence by exhibit, title, page and line numbers, and Rule 3.1350(f)(3), requiring each additional material fact offered in opposition include citation to the supporting evidence by exhibit, title, page and line numbers.

Opposing counsel failed to comply with CRC Rule 3.1354(b), expressly prohibiting objections to evidence from being “restated or reargued in the separate statement.”

Factual Background

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2020-00289599-CU-PO-GDS: Jeffery Scott Stephens vs. Sutter Valley Hospitals 09/01/2026 Hearing on Motion for Summary Adjudication Against Old Village in Department 16D

This 2020 action arises out of the personal injuries sustained by plaintiff Stephens in the course of his employment with American Caulking Services (“ACS”), an independent contractor retained to perform certain services at a medical office building in Roseville, California. In brief, plaintiff Stephens claims to have suffered injuries when he fell due to an uncovered, unmarked hole in the lawn which was obscured from view by grass. Trial is currently set for 12/21/2026.

Moving Papers. Defendant RMOBA, “on behalf of itself, and its agents, Defendants/Cross-Defendants The Three Tower Corporation, Inc. and Separovich Domich Real Estate Development,” now moves for “summary adjudication of issues as to the Third, Fourth and Fifth Causes of Action [in RMOBA’s cross-complaint] for Express Indemnity, Declaratory Relief and Breach of Contract for Failure to Defend” as against cross-defendant Old Village.” (Not. of Mot., p.2:3-9.) More specifically, RMOBA seeks summary adjudication of the following three (3) issues:

1. As a matter of law, Old Village has an express contractual duty to indemnify RMOBA, and its agents, in this lawsuit, meaning this Court should summarily adjudicate RMOBA’s third cause of action as to Old Village.

2. As a matter of law, Old Village has a duty to defend RMOBA, and its agents Old Village’s duty to defend RMOBA, and its agents, arose when Plaintiff filed his Complaint against RMOBA. The Complaint alleges harm resulting from deficient work that was within Old Village’s related work. Therefore, Old Village has an immediate duty to defend the RMOBA, and its agents, and this duty began on the day Plaintiff filed his Complaint and shall continue until such time as any claims arising out of or related to Old Village’s work is no longer at issue. Therefore, this Court should summarily adjudicate RMOBA’s Fourth Cause of Action for Declaratory Relief regarding Duty to Defend as to Old Village.

3. As a matter of law, Old Village has a contractual duty to defend RMOBA, and its agents Old Village’s failure to defend RMOBA, and its agents, in this matter constitutes a breach of contract, meaning this Court should summarily adjudicate RMOBA’s Fifth Cause of Action for Breach of Contract for Failure to Defend as to Old Village. (Not. of Mot., p.2:9-27.)

The Court notes that despite the foregoing express language of the Notice of Motion which for each “issue” begins by claiming the existence of Old Village’s duty to defend or indemnify (an “issue of duty” may be the proper subject of a motion for summary adjudication under Code of Civil Procedure §437c(f)(1)), defendant RMOBA ultimately asserts at the conclusion of each stated “issue” that the Court should “summarily adjudicate” the entirety of RMOBA’s corresponding cause of action as to Old Village. Thus, based its own chosen statement of “issues” in the Notice of Motion, RMOBA must

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

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establish it is entitled to summary adjudication of each of the three referenced causes of action and not simply a determination of the mere existence of a duty, the latter of which can support summary adjudication only if the existence of duty is the sole element necessary to establish the entire cause of action.

Additionally, although defendant RMOBA appears in the Notice of Motion to seek a determination of the existence of a duty to defend and indemnify “RMOBA, and its agents” collectively, the proposed order submitted with the moving papers actually purports to seek independent determinations that Old Village owes separate and distinct contractual duties to defend RMOBA and each of the two identified “agents” and further that Old Village’s failure to defend RMOBA and each of the two identified “agents” constitutes a separate and distinct breach of contract.

For instance, while “Issue 1” as stated in the Notice of Motion is framed as a single issue for summary adjudication, the proposed order reveals that defendant RMOBA actually seeks the determination of three separate sub-issues under “Issue 1” constituting three distinct holdings of “granted” or “denied” pertaining to RMOBA and its two identified agents, each as an individual entity. This same expansion of issues seeking individualized rulings relative to RMOBA and its two identified agents are likewise repeated for “Issue 2” and “Issue 3” in the proposed order.

Such an individualized determination would be impermissible here because it is inconsistent with the statement of issues actually set forth in the Notice of Motion. Notably, if it were the case that individualized (and possibly differing) outcomes were theoretically possible among these three entities, defendant RMOBA’s chosen statement of issues in its Notice of Motion precludes the allowance of such individualized outcomes set forth in the proposed order. Thus, to the extent RMOBA’s proposed order reflects the actual relief which is sought by this motion for summary adjudication, RMOBA’s Notice of Motion is defective on its face.

As support for this motion, RMOBA’s moving separate statement sets forth a total of 33 Undisputed Material Facts (“UMF”), with UMF Nos. 1-9 cited in connection with “Issue 1,” UMF Nos. 10-21 cited in connection with “Issue 2,” and UMF Nos. 22-33 cited in connection with “Issue 3.”

Opposition. Defendant/cross-defendant Old Village opposes, generally arguing that summary adjudication should be denied because RMOBA failed to provide admissible evidence sufficient to satisfy its initial burden of production and because there are numerous triable issues of material fact including but not limited to those relating to the interpretation and scope of the contractual indemnity and defense provisions; whether plaintiff’s claims arise out of Old Village’s work within the meaning of the latter’s subcontract; whether any contractual conditions precedent to indemnity or defense have been satisfied; whether RMOBA’s tender of defense complied with the contractual requirements; and whether the alleged damages and claims fall within the contractual

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2020-00289599-CU-PO-GDS: Jeffery Scott Stephens vs. Sutter Valley Hospitals 09/01/2026 Hearing on Motion for Summary Adjudication Against Old Village in Department 16D

provisions relied upon by RMOBA.

According to Old Village’s separate statement in opposition, the vast majority of the 33 UMFs offered by RMOBA are “disputed” but notably, Old Village also advances a total of 21 of its own Additional Material Facts (“AMF”) which are claimed to preclude summary adjudication on each of the three issues set forth in RMOBA’s Notice of Motion.

Standards for Summary Judgment/Adjudication

In ruling on a motion for summary judgment/adjudication, the Court engages in a threestep process. First, the issues framed by the pleadings must be identified since the pleadings themselves define the scope of what may be addressed via a motion for summary judgment/adjudication (FPI Development Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 381-382) and the evidence submitted in support of or in opposition to the motion must be addressed to the claims and defenses raised in the pleadings. The Court cannot consider an unpleaded issue in ruling on a motion for summary judgment/adjudication. (Roth v. Rhodes (1994) 25 Cal.App.4th 530, 541.) The papers filed in response to such a motion may not create triable issues beyond the scope of the pleadings, nor are they a substitute for filing amended pleadings. (Tsemetzin v. Coast Federal Savings & Loan Assn. (1997) 57 Cal.App.4th 1334, 1342.)

Next, the Court must determine whether the moving party has met its initial burden of production. Code of Civil Procedure §437c(p)(1) explains that a plaintiff or crosscomplainant moving for summary judgment/adjudication “[meets] his or her burden of showing that there is no defense to a cause of action if that party has proved each element of the cause of action entitling the party to judgment on the cause of action” and only when “the plaintiff or cross-complainant has met that burden” does the burden shift to the defendant or cross-defendant “to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” A party opposing summary judgment/adjudication has no evidentiary burden unless the moving party has first met his/her initial burden. (Binder v.

Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 840; see also Rubenstein v. Rubenstein (2000) 81 Cal.App.4th 1131, 1151-1152; Thatcher v. Lucky Stores, Inc. (2000) 79 Cal.App.4th 1081, 1085-1086.)

Only where the moving party makes the requisite initial showing does a court need to examine the opposition papers to determine if the latter demonstrate the existence of a triable issue of material fact which precludes summary judgment/adjudication. (Salazar v. Southern Cal. Gas Co. (1997) 54 Cal.App.4th 1370, 1376; Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 840.) The opposing party must present admissible evidence and may not rely upon the allegations or denials of its pleading. (Id.) In ruling

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on the motion, a court must construe the evidence of the opposing party liberally and that of the moving party strictly, resolving any doubts in the opposing party’s favor. (Miller v. Bechtel Corp. (1983) 33 Cal.3d 868, 874; Cortez v. Vogt (1997) 52 Cal.App.4th 917, 925-926; see also, Salazar v. Southern Cal. Gas Co. (1997) 54 Cal.App.4th 1370, 1376; Brown v. FSR Brokerage, Inc. (1998) 62 Cal.App.4th 766, 773.)

While a summary adjudication motion is treated largely the same as one for summary judgment, there are a few important differences. CRC Rule 3.1350(b) explicitly mandates that issues presented for summary adjudication be stated in the notice of motion and repeated verbatim in the separate statement. Another difference is that summary adjudication cannot be granted unless it “completely disposes” of a cause of action, affirmative defense, claim for punitive damages, or question of duty. Code of Civil Procedure §437c(f)(1) provides in its entirety:

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 [punitive] damages, or one or more issues of duty, if that party contends that the cause of action has no merit or that there is no affirmative defense thereto, or that there is no merit to an affirmative defense as to any cause of action, or both, or 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 [punitive] damages, or an issue of duty. (Underline added for emphasis; [brackets] added.)

Finally, before turning to the specific issues raised by this motion, the Court reminds the parties of the “Golden Rule” of summary judgment/adjudication: “If it is not set forth in the separate statement, it does not exist.” (See, Zimmerman, Rosenfeld v. Larson (2005) 131 Cal.App.4th 1466, 1477 (italics in original).) Moreover, according to Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, a moving party’s inclusion of facts in its separate statement effectively concedes each fact’s “materiality,” whether intended or not, and if there is a triable dispute relating to any one of these facts, the motion must be denied. (Nazir, at 252 (citing Weil & Brown, Civil Procedure Before Trial, Ch.10:95.1); see also, Insalaco v. Hope Lutheran Church of West Contra Costa County (2020) 49 Cal.App.5th 506.)

That said, the Court now turns to the specific contentions advanced in support of and opposition to this motion for summary adjudication.

Request for Judicial Notice

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2020-00289599-CU-PO-GDS: Jeffery Scott Stephens vs. Sutter Valley Hospitals 09/01/2026 Hearing on Motion for Summary Adjudication Against Old Village in Department 16D

Defendant RMOBA’s request for judicial notice of plaintiff Stephens’ 2020 complaint and 2025 amended complaint, as well as RMOBA’s 2023 cross-complaint and 2025 Moe Amendment naming Old Village as a cross-defendant, is GRANTED but is limited to only those purposes appropriate for judicial notice. (See, Evid. Code §451(a), §452(b)- (d); see also, Johnson & Johnson v. Superior Court (2011) 192 Cal.App.4th 757, 768 [court may take judicial notice of the existence of court documents but not to the truth of the statements contained therein]; Kilroy v. State of California (2004) 119 Cal.App.4th 140, 145-148; Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1569-70.)

Objections to Evidence

Defendant RMOBA filed no written objections to the evidence offered in opposition by Old Village.

Cross-defendant Old Village’s written objections to the Heather Ingle Gernhardt Declaration (“Gernhardt Declaration”) and Exhibit Nos. 1-4 attached thereto (i.e., Landscape Contract between RMOBA and Old Village for calendar year 2020; 6/23/2022 letter from Travelers Indemnity to Old Village tendering the defense of RMOBA to Old Village; 12/8/2025 letter from Paralegal Samuel to Old Village’s counsel following up on the aforementioned 6/23/2022 letter from Travelers Indemnity; and RMOBA’s 2015 Management Agreement with The Three Tower Corporation) are sustained because attorney Gernhardt’s declaration fails to set forth a sufficient factual foundation to affirmatively establish her personal knowledge necessary to properly authenticate any of the four (4) exhibits. It appears that the only attestation provided in the Gernhardt Declaration that appears intended to address the personal knowledge (and thus, foundation) needed to authenticate these exhibits is the following:

1. I am an attorney at law duly admitted to practice before the courts of the State of California. I am a partner with Lee, Landrum & Ingle, attorneys of record for [RMOBA, et al.] in this action. I know the following facts to be true of my own knowledge and if called to testify, I could competently do so.

However, the mere fact the declarant is an attorney representing RMOBA, et al. in this action does not without more, affirmatively or necessarily establish her own “personal knowledge” sufficient to authenticate these four (4) exhibits, none of which appears to have been authored or otherwise executed by the declarant. Additionally, absent proper authentication, the contents of these documents would be rendered inadmissible under the hearsay rule. With respect to the 6/23/2022 and 12/8/2025 letters, attorney Gernhardt’s declaration fails to set forth a sufficient factual foundation to affirmatively establish they were actually sent by their authors to their intended recipient(s) or were

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

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received by the latter. Nor has attorney Gernhardt provided an adequate factual foundation to establish her own “personal knowledge” that the tender “was made on behalf of RMOBA, and, therefore, would include and its agents, and were [sic] made in connection with claims arising from the landscape maintenance work,” as claimed in Paragraphs 3 and 4. Indeed, attorney Gernhardt is not the signatory of either document. While it is clear that the Gernhardt Declaration fails to set forth the requisite personal knowledge to establish an adequate foundation for any of these documents, the Court also notes that it is extremely uncommon that litigation counsel would be the proper percipient witness to lay the foundation for documents such as the underlying contract or agreement at issue, especially where no facts demonstrate that litigation counsel also prepared or negotiated such transactional documents or was present to their execution.

To the extent Old Village’s opposing separate statement purports to assert objections to certain of RMOBA’s UMFs themselves, such objections are overruled because objections are properly directed at evidence only. (See, CRC Rules 3.1352, 3.1354.)

Discussion

The threshold question here is whether the moving papers are sufficient to satisfy defendant RMOBA’s initial burden of production under Code of Civil Procedure §437c(p)(1) and as will now be shown, the Court finds that the moving papers are not sufficient to carry defendant RMOBA’s initial burden of production, thereby mandating denial of this motion for summary adjudication in its entirety.

Because cross-defendant Old Village’s written objections to RMOBA’s evidence have been sustained, the Court finds that RMOBA’s UMF Nos. 1-7, 10-13, 17-20, 22-28 and 31 are either without any evidentiary support at all or without sufficient evidentiary support for the entirety of the factual assertions in these UMFs. Because RMOBA relies on UMF Nos. 1-9 as support for Issue One, UMF Nos. 10-21 for Issue Two, and UMF Nos. 22-33 for Issue Three, summary adjudication must be denied as to all three issues regardless of whether the opposition has presented evidence sufficient to show the existence of any triable issue of material fact in connection with any of the three issues identified in the Notice of Motion.

In light of the preceding paragraph, the Court need not proceed further but it does so in order to identify additional separate and distinct reasons why the moving papers fail to satisfy RMOBA’s initial burden of production under Code of Civil Procedure §437c(p)(1).

According to “Issue 1” in the Notice of Motion, defendant RMOBA seeks summary

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

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adjudication of its third cause of action for express contractual indemnity as against Old Village (i.e., “ this Court should summarily adjudicate RMOBA’s third cause of action as to Old Village”). (Not. of Mot., p.2:9-13.) RMOBA’s third cause of action is labelled as one for “express indemnity” and it consists of the following four paragraphs:

9. Should Cross-Complainant herein suffer a recovery in good faith or be found liable to any other party in this action, Cross-Complainant should be entitled to apportionment and contribution, in whole, or in part, from Cross-Defendants MOES 20-30, and each of them, under the theory of express contractual indemnity.

10. Cross-Defendants MOES 20-30, and each of them, orally, in writing, or by other actions, expressly agreed to indemnify Cross-Complainant for a claim and/or liability of the nature and type presented in the ACTION. Thus, Cross- Defendants MOES 20-30, and each of them, are obligated to indemnify Cross- Complainant against any claim and/or liability arising out of the allegations of the ACTION.

11. An actual controversy exists between the parties to this cross-complaint over the rights, liabilities and duties of each of them. Cross-Complainant contends that Cross-Defendants MOES 20-30 and each of them, are responsible, totally or in part, for the damages alleged in the ACTION, and are required to totally or partially indemnify Cross-Complainant as to any and all damages recovered by Plaintiff or any other party.

12. A demand has been made, and is hereby made, that Cross-Defendants MOES 20-30, and each of them, indemnify Cross-Complainant with regard to the claims made in the ACTION and for failure to do so, be judged liable to indemnify Cross-Complainant for said liability. Leave of Court is asked to insert the exact amount of damages when the same has been ascertained. (RMOBA Cr.-Compl., pp.3-4 (underline added for emphasis).)

As explained above, a trial court’s authority to grant summary adjudication is limited to those circumstances where it “completely disposes” of a cause of action, affirmative defense, claim for punitive damages, or question of duty. (Code Civ. Proc. §437c(f)(1), last sentence.) Based on the express allegations of RMOBA’s third cause of action, this Court is under §437c(f)(1) precluded from summarily adjudicating the entirety of this third cause of action insofar as Paragraph 9 effectively contends that in the event RMOBA in the future either “suffer[s] a recovery” or is “found liable to any other party in this action,” then RMOBA “should be entitled to apportionment and contribution, in whole, or in part, from Cross-Defendants MOES 20-30, and each of them, under the

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

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theory of express contractual indemnity.” However, the Court finds no evidence offered with the moving papers which is sufficient to establish RMOBA has to date either “suffer[ed] a recovery” or has been “found liable to any other party in this action.” Indeed, none of the nine (9) UMFs which RMOBA has advanced as support for summary adjudication of this third cause of action asserts either that RMOBA has in fact “suffer[ed] a recovery” or been “found liable to any other party in this action.” Absent a UMF supported by admissible evidence showing such alleged conditions precedent have been satisfied, RMOBA is by virtue of its own express allegations precluded from summary adjudication on the entirety of its third cause of action by virtue of §437c(f)(1)’s limiting language.

Similarly, Paragraph 11 alleges in pertinent part that cross-defendants including Old Village are “required to totally or partially indemnify Cross-Complainant as to any and all damages recovered by Plaintiff or any other party” but none of the nine (9) UMFs cited to show RMOBA is entitled to summary adjudication of its third cause of action indicates that plaintiff or any other party has to date actually recovered any damages from RMOBA for which the latter is allegedly entitled to indemnity, nor do these UMFs tend to show the actual amount of damages for which indemnity is claimed. For these reasons, this Court is without authority to grant summary adjudication on RMOBA’s third cause of action for “express indemnity,” as this claim is currently alleged in the cross-complaint.

Additionally, Paragraph 12 of RMOBA’s cross-complaint requests that the Court award the “exact amount of damages when the same has been ascertained.” Thus, by its third cause of action, RMOBA not only seeks a declaration of Old Village’s duty of express indemnity but also seeks recovery of a specific “amount of damages” as part of the complete and entire adjudication of its third cause of action. Once again, none of the nine UMFs cited in connection with this cause of action support an award of any amount of damages in favor of RMOBA and against Old Village. This is yet another reason why this Court is without authority to grant summary adjudication on RMOBA’s third cause of action for “express indemnity,” as this claim is now alleged.

For essentially the same reasons, RMOBA is not entitled to summary adjudication on its fifth cause of action either. According to the Notice of Motion, defendant RMOBA contends that Old Village’s failure to defend RMOBA and its agents in this lawsuit “constitutes a breach of contract, meaning this Court should summarily adjudicate RMOBA’s Fifth Cause of Action for Breach of Contract for Failure to Defend as to Old Village.” (Not. of Mot., p.2:23-27.) RMOBA’s fifth cause of action consists of the following two paragraphs:

15. Cross-Defendants MOES 20-30 are obligated to defend Cross-Complainant from and against any and all claims asserted in the ACTION. Cross-Complainant

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

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has tendered its defense to Cross-Defendants MOES 20-30, and hereby renews its demand, that Cross-Defendants MOES 20-30 provide a defense to Cross- Complainant. Cross-Defendants MOES 20-30 have not provided a defense to Cross-Complainant.

16. The obligations of Cross-Defendants MOES 20-30 to defend Cross- Complainant from claims brought in this action are shared by other co-obligors, some of whom are defending Cross-Complainant and are incurring costs for attorneys’ fees, expert costs, and other costs and expenses related to the subject litigation, in an amount to be proven at the conclusion of this action. (RMOBA Cr.-Compl., p.5 (underline added for emphasis).)

Although RMOBA has offered UMF Nos. 22-33 as support for summary adjudication of the fifth cause of action for breach of contract, none of these UMFs purports to claim either that RMOBA has in fact incurred any “attorneys’ fees, expert costs, and other costs and expenses” in connection with this litigation and more critically, none sets forth the amount of such damages. Because damages are an essential element of a breach of contract claim and damages must be proven with reasonable certainty (see, e.g., Paramount Petroleum Corporation v.

Superior Court (2014) 227 Cal.App.4th 226, 241; Rutherford Holdings, LLC v. Plaza Del Rey (2014) 223 Cal.App.4th 221, 229; Fields v. Riley (1969) 1 Cal.App.3d 308, 313), RMOBA’s failure to provide in its moving papers UMFs and evidence sufficient to establish the damages it claims were proximately caused by Old Village’s alleged breach of contract, this Court is unable to grant summary adjudication of RMOBA’s fifth cause of action as well.

For the reasons explained above, the present motion for summary adjudication must be denied in its entirety on account of defendant RMOBA’s failure to carry its initial burden of production under Code of Civil Procedure §437c(p)(1). However, even if defendant RMOBA had satisfied its initial burden (which it did not), summary adjudication would still be denied because this Court finds that the evidence proffered by cross-defendant Old Village in its opposition (to which no objections have been asserted) is enough to demonstrate the existence of triable issues of material fact which preclude summary adjudication in favor of defendant RMOBA especially when the evidence in offered in opposition must under current California law be construed liberally while the evidence in support of the motion is construed narrowly. (See, e.g., Miller v.

Bechtel Corp., supra, 33 Cal.3d at 874; Cortez v. Vogt, supra, 52 Cal.App.4th at 925-926; Salazar v. Southern Cal. Gas Co., supra, 54 Cal.App.4th at 1376.) In particular, the Court finds that Old Village’s AMF Nos. 1-4, 6-11, 13-18 and 20-21 along with the evidence cited as support for these AMFs, to which no objections have been asserted, raise triable issues of material fact. Construing this evidence broadly, the Court finds that Old Village has met its burden of producing evidence sufficient to establish triable issues of material fact

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

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which mandate denial of the present motion for summary adjudication.

Disposition

For the reasons explained above, defendant RMOBA’s motion for summary adjudication is DENIED in its entirety.

This minute order is effective immediately. No formal order or other notice is required. (Code Civ. Proc. §1019.5; CRC Rule 3.1312.)