Fidelity National Title Insurance Company vs. Cal-Tex Acquisition IV, LLC

Finally, the Case Management Conference is VACATED. The jury trial date of June 25, 2027, remains.

Fadly to give notice.

8. Fidelity National Title Motion for Summary Judgment and/or Adjudication Insurance Company vs. Cal-Tex Acquisition IV, Plaintiff Fidelity National Title Insurance Company’s motion for LLC summary judgment, or alternatively, summary adjudication, is DENIED. (Code Civ. Proc., § 437c [authorizing motion].)

Summary adjudication is denied because moving party’s separate statement does not “separately identify ... [e]ach cause of action ... that is the subject of the motion,” or “[e]ach supporting material fact claimed to be without dispute with respect to the cause of action ... that is the subject of the motion.” (Cal. Rules of Court, Rule 3.1350, subd. (d); emphasis added; see also Cadlo v. Owens-Illinois, Inc. (2004) 125 Cal.App.4th 513, 523 [court’s discretion to deny summary adjudication based on failure to comply with separate statement requirements].)

Moving party’s requests to consider its “Amended Separate Statement” filed with the Reply (ROA 198), and/or to continue the hearing for a response, are DENIED. (Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537-1538 [ordinarily, new arguments / evidence presented for the first time on Reply are not considered, unless the opposing party has notice and an opportunity to respond]; Code Civ. Proc., § 437c, subds. (a)(2) [motion for summary judgment / adjudication requires 81 days’ notice], (a)(3) [hearing must be within 30 days of 9-4-26 trial absent good cause, not present here]; Robinson v.

Woods (2008) 168 Cal.App.4th 1258, 1262 [“trial courts do not have authority to shorten the minimum notice period for summary judgment hearings”].)

Summary judgment is denied due to triable issues regarding causation and damages, which are essential elements of each cause of action in moving plaintiff’s First Amended Complaint. (Code Civ. Proc., § 437c, subd. (p)(1) [burden].)

As to the 1st cause of action for breach of [implied] contractual indemnity and 2nd cause of action for breach of contract for benefit of third person, moving plaintiff’s evidence indicates the existence and breach of an indemnity obligation on defendants’ part, based on defendants’ execution of an “Owner’s Declaration” and “Owner’s Affidavit (Commercial)” denying knowledge of any “pending court action affecting the title,” and/or any “persons or entities that assert an ownership interest in the Land” (Exs. J and K to moving papers), despite knowledge of a pending action entitled NQR Corp. v. Caltex Acquisition IV, LLC, Orange County Superior Court Case No. 2020-

01159135 [“NQR Action”], which included a claim for specific performance arising out of a prior alleged purchase contract and failed sale of the subject property. (Bailey v. Safeway, Inc. (2011) 199 Cal.App.4th 206, 212 [indemnity elements]; Four Star Electric, Inc. v. F & H Construction (1992) 7 Cal.App.4th 1375, 1379 [“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”]; Oasis West Realty, LLC v.

Goldman (2011) 51 Cal.4th 811, 821 [breach of contract elements]; Moving Party Separate Statement, Fact Nos. 3 [NQR Action filed 9-4-20], 4 [responding parties’ 9-14-20 appearance in NQR Action], 6 [10-22-20 motion to expunge Lis Pendens 1], 15 [“Owner’s Declaration” dated 4-14-20], 18 [failure to disclose], 20 [“Owner’s Affidavit (Commercial)” dated 4-19-21], 21- 23 [MP reliance], 28-31 [intervention in NQR Action and settlement with NQR], and evidence cited in support thereof.)

However, there are triable issues as to causation, and the extent of plaintiff’s damages incurred in connection with the NQR Action.

[W]hen the indemnitee settles without trial ... the indemnitee must show the liability is covered by the contract, that liability existed, and the extent thereof. The settlement is presumptive evidence of liability of the indemnitee and of the amount of liability, but it may be overcome by proof from the indemnitor that the settlement was unreasonable (e.g., unreasonable in amount, entered collusively or in bad faith, or entered by an indemnitee not reasonable in the belief that he or she had an interest to protect). (Peter Culley & Associates v. Superior Court (1992) 10 Cal.App.4th 1484, 1497; emphasis added.)

While moving party’s evidence of settlement creates a rebuttable presumption of responding parties’ liability and amount thereof (Id.), responding parties have presented evidence sufficient to rebut this presumption, and accordingly create triable issues of material fact as to the essential elements of causation and damages; specifically, evidence disputing not just the validity of Lis Pendens 2, but NQR’s claims generally, due to NQR’s own failure to comply with numerous aspects of the parties’ agreements regarding the subject property, including failure to provide financial information sufficient for Cal- Tex to serve as lender, and failure to make timely escrow deposits. (Defendants’ Separate Statement, Response to Fact Nos. 30, 31, 35- 40, as well as Additional Fact Nos. 50 and 52, and evidence cited in support thereof.) This is sufficient to rebut the presumptions established by MP’s settlement in the NQR Action, as such evidence

creates triable issues as to whether the “settlement was unreasonable.” (Peter Culley & Associates v. Superior Court, supra at 1497.)

The same triable issues as to causation and damages, which are also essential elements of plaintiff’s other causes of action, likewise defeat the motion as to plaintiff’s remaining claims. (Lazar v. Superior Court (1996) 12 Cal.4th 631, 638 [intentional misrepresentation elements]; Small v. Fritz Companies, Inc. (2003) 30 Cal.4th 167, 173- 174 [negligent misrepresentation elements]; Roddenberry v. Roddenberry (1996) 44 Cal.App.4th 634, 665-666 [concealment elements]; Rutherford Holdings, LLC v. Plaza Del Rey (2014) 223 Cal.App.4th 221, 231 [unjust enrichment may be construed as quasicontract claim seeking restitution]; Professional Tax Appeal v. Kennedy-Wilson Holdings, Inc. (2018) 29 Cal.App.5th 230, 238 [unjust enrichment elements].)

Moving party’s request for judicial notice is GRANTED, limited to the fact that the documents were recorded, but not of the truth of their contents. (Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, 264-265 [judicial notice of recorded documents]; Poseidon Development, Inc. v. Woodland Lane Estates, LLC (2007) 152 Cal.App.4th 1106, 1117 [“the fact a court may take judicial notice of a recorded deed, or similar document, does not mean it may take judicial notice of factual matters stated therein”].)

Responding defendants’ request for judicial notice is GRANTED. (Evid. Code, § 452, subd. (d) [court records].) However, “while courts are free to take judicial notice of the existence of each document in a court file, including the truth of results reached, they may not take judicial notice of the truth of hearsay statements in decisions and court files.” (In re Vicks (2013) 56 Cal.4th 274, 314; emphasis in original; internal citation omitted.) The truth of matters in court records is ordinarily limited to “documents such as orders, statements of decision, and judgments.” (Williams v. Wraxall (1995) 33 Cal.App.4th 120, 130, FN 7.)

Moving party’s request for judicial notice submitted with the Reply is DENIED, as defendants have not had an opportunity to respond. (Evid. Code, § 453, subd. (a) [“The trial court shall take judicial notice of any matter specified in Section 452 if a party requests it and ... [g]ives each adverse party sufficient notice of the request, through the pleadings or otherwise, to enable such adverse party to prepare to meet the request”].)

Defendants shall give notice.