220 West Gutierrez LLC vs Goss-Jewett & Co Inc
Case No: 17CV05689
Hearing Date: Wed Mar 20, 2019 9:30

Nature of Proceedings: Motion for Summary Judgment; Case Management Conference

TENTATIVE RULING:

For the reasons set forth herein, the motion of plaintiff and cross-defendant 220 W. Gutierrez, LLC, for summary adjudication is denied in its entirety.

Background:

On March 6, 2019, the court heard argument on the motion of plaintiff for summary adjudication/ summary judgment. The court’s tentative ruling included a discussion of a procedural problem with the notice of motion filed on June 7, 2018. The court did not discuss the amended notice of motion filed on October 31, 2018, leaving the court’s discussion of the notice issues incomplete. The hearing was continued to this date to address the amended notice. The discussion of these issues is set forth below.

The motion is opposed by the Intervenors (representing Goss-Jewett’s interest as insurers of a suspended corporation), Donald George, and Darold Merritt.

Analysis:

(1) Notice Issues

In the original notice of this motion, plaintiff states that plaintiff “will move the court for entry of judgment in favor of Plaintiff on its nuisance, statutory indemnity, and declaratory relief claims against Goss-Jewett & Co., Inc. a/k/a Tri-County Sales, Inc. (‘Goss-Jewett’), and on its third party defense and contribution bar affirmative defenses to the cross-complaints of Intervenors, Donald George, and Darold Merritt.” (Notice, pp. 1-2, fn. omitted.) As discussed in the court’s earlier tentative, the original notice of motion is procedurally faulty because the notice requests only summary judgment and summary judgment is not available here because the entirety of the action cannot be resolved by this motion. (See Code Civ. Proc., § 437c, subds. (a)(1), (f)(1), (f)(2).)

The amended notice states that plaintiff “will move the Court (1) for entry of summary adjudication in favor of Plaintiff on its public nuisance, private nuisance, statutory indemnity, and declaratory relief claims against Goss-Jewett & Co., Inc. a/k/a Tri-County Sales, Inc. (‘Goss-Jewett’), and on its third party and contribution bar affirmative defenses to the cross-complaints of Intervenors, Donald George, and Darold Merritt, and (2) for entry of a permanent injunction compelling Goss-Jewett to perform a remedial investigation/feasibility study (‘RI/FS’) at the site at issue in this litigation as the next step in the process of addressing and eventually abating the nuisance conditions at the site.” (Amended Notice, pp. 1-2, fn. omitted.)

“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., § 437c, subd. (f)(1).)

“If made in the alternative, a motion for summary adjudication may make reference to and depend on the same evidence submitted in support of the summary judgment motion. 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.” (Rules of Court, rule 3.1350(b).)

“The Separate Statement of Undisputed Material Facts in support of a motion must separately identify:

“(A) Each cause of action, claim for damages, issue of duty, or affirmative defense that is the subject of the motion; and

“(B) Each supporting material fact claimed to be without dispute with respect to the cause of action, claim for damages, issue of duty, or affirmative defense that is the subject of the motion.” (Rules of Court, rule 3.1350(d)(1).)

“The separate statement should include only material facts and not any facts that are not pertinent to the disposition of the motion.” (Rules of Court, rule 3.1350(d)(2).)

Plaintiff’s complaint in this action, filed December 18, 2017, asserts seven causes of action: (1) public nuisance; (2) private nuisance; (3) trespass; (4) negligence; (5) ultrahazardous activity; (6) statutory indemnity; and (7) declaratory relief. Following a demurrer sustained with leave to amend as to the causes of action for negligence and ultrahazardous activity, plaintiff filed a voluntary dismissal of these two causes of action on April 18, 2018.

As quoted above, a motion for summary adjudication requires that the specific causes of action and issues to be adjudicated be stated in the notice and repeated verbatim in the separate statement. The separate statement sets forth issues that are not stated verbatim in the notice. Significantly, plaintiff’s separate statement is organized into first a set of “facts” (facts 1 through 29) and then into a set of numbered issues. The separate statement facts set forth under each issue relating to plaintiff’s complaint do not expressly incorporate the initial facts (facts 1 through 29) into any issue. (See, e.g., facts 30 through 47 [issue No. 1].) On the other hand, facts 1 through 16 are incorporated in issue No. 5, related to the cross-complaint issues. The amended notice and separate statement does not comply with rule 3.1350 and this failure makes it uncertain which separate statement facts are applicable to each requested adjudication. The failure to comply with the separate statement requirement is a sufficient basis to deny the motion for summary adjudication. (See Truong v. Glasser (2009) 181 Cal.App.4th 102, 118; Code Civ. Proc., § 437c, subd. (b)(1); Rules of Court, rule 3.1350(d)(1).) The court will deny the motion on this alternative basis.

(2) Triable Issues of Fact

As an independent and alternative basis for ruling on this motion, there are triable issues of fact which preclude summary adjudication as to any party. For example, separate statement fact 11 is: “Pictures of the tanks being removed revealed the tanks and concrete slab on which they sat were in poor condition.” In support of this fact, plaintiff provides citations to the photograph (Stone decl., ¶ 12 & exhibit 11) and to the declaration of Glenn Wright (Stone decl., ¶11 & exhibit 10). The photo itself gives rise to competing inferences. One characterization of the picture is as stated in the separate statement fact. Another characterization of the picture is that the slab is not in “poor condition.” Wright himself testifies at having seen the slab and the photograph and, referring to the photograph, declares that he “can’t even tell if they’re even cracks or not.” (Wright depo., pp. 97-98.)

“ ‘[W]e accept as true the facts … in the evidence of the party opposing summary judgment and the reasonable inferences that can be drawn from them.’ [Citation.] And we must ‘“view the evidence in the light most favorable to [the opposing party] …’ and “liberally construe [the opposing party’s] evidentiary submissions and strictly scrutinize [the moving party’s] own evidence, in order to resolve any evidentiary doubts or ambiguities in [the opposing party’s] favor.”’ [Citation.]” (Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 254.) Under the standards for summary judgment, the different characterizations of the photograph and the ambiguity existing in the photograph give rise to conflicting inferences and demonstrate the existence of a triable issue of fact.

As another example, separate statement 13 is: “The concrete slab below the tanks was stained, caved in, and cracked.” (Stone decl., ¶ 12 & exhibit 11.) In opposition, opposing parties provide a different photograph from 2015 showing no staining, caving or unusual cracking in the slab. (Bures decl., ¶ 1 & exhibit A.) (Note: The evidentiary objection to the Bures exhibit A is overruled.) The photograph demonstrates that a triable issue of fact exists as to the condition of the concrete slab.

As noted above, the separate statement does not comply with the requirements of Rules of Court 3.1350(d)(1) in identifying which separate statement facts apply to which requested adjudication. As the heading indicates, separate statement facts 1 through 29 are identified as “Plaintiff’s Undisputed Material Facts and Supporting Evidence” without respect to any particular requested adjudication. The court construes separate statement facts 1 through 29 to apply to adjudication issues 1 through 4. Requested adjudication issue Nos. 5 and 6 apply to the cross-complaints rather than plaintiff’s complaint. At the beginning of issue No. 5, plaintiff incorporates separate statement facts 1 through 16. As requested adjudication issue No. 6 also addresses the cross-complaint but does not make clear whether it is incorporating separate statement facts 1 through 29 or only facts 1 through 16, the court will deem issue No. 6 to incorporate separate statement facts 1 through 16 only. It is equally unclear whether requested adjudication issue No. 7 is incorporating separate statement facts 1 through 29 or only facts 1 through 16. The court will deem issue No. 7 to incorporate separate statement facts 1 through 16 only.

“‘[T]he 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!’” (Nazir v. United Airlines, Inc., supra, 178 Cal.App.4th at p. 252, quoting Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2009) ¶ 10:95.1, p. 10-35 (rev. # 1, 2009).) The triable issues of fact as to separate statement facts discussed above preclude summary adjudication as to requested adjudications 1 through 7. Accordingly, the motion for summary adjudication will be denied on this alternative basis.

With respect to requested adjudication No. 7, the requested adjudication is for issuance of a permanent injunction compelling Goss-Jewett to conduct an RI/FS. As noted above, summary adjudication is permitted only where it completely disposes of a cause of action, an affirmative defense, an issue of duty, or punitive damages. Summary adjudication is not separately available to determine the availability of remedies other than punitive damages, including particularly the availability of a permanent injunction. (See Code Civ. Proc., § 437c, subd. (f)(1); Venice Coalition to Preserve Unique Community Character v. City of Los Angeles (2019) 31 Cal.App.5th 42, 54 [“An injunction is a remedy, not a cause of action. Therefore, it may not be issued if the underlying causes of action are not established.”].)

The motion for summary adjudication will be denied for the reasons set forth herein.