Case Name: Israel Gomez v. Vansandt Plastering, et al.
Case No.: 2015-1-CV-282265

I. Background

Israel Gomez (“Plaintiff”) alleges he suffered unspecified injuries when he fell off an unstable scaffolding within the control of defendants Vansandt Plastering (“Vansandt”) and Dagle Construction, Inc. (“Dagle”). (Compl. at pp. 4-5.)

Plaintiff asserts causes of action against Dagle and Vansandt for general negligence and premises liability. In Plaintiff’s form complaint, he marked boxes indicating he asserts two counts of premises liability, particularly (1) negligence and (2) willful failure to warn.

Currently before the Court is Dagle’s motion for summary judgment, or in the alternative, summary adjudication of the first and second causes of action. Additionally, Dagle and its insurer, Hannover International Insurance Company (“Hannover”), move for summary adjudication of the first and second causes of action and several “issues,” particularly the issues of whether: (1) Vansandt has a duty to indemnify Dagle; (2) Vansandt has a duty to defend Dagle; and (3) Hannover is entitled to equitable subrogation. (Not. of Mot. at p. 2.)

II. Standard of Review

A. Summary Judgment

“A party may move for summary judgment in an action or proceeding if it is contended that the action has no merit [ ].” (Code Civ. Proc., § 437c, subd. (a)(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, subd. (p)(2).) To carry this burden, the defendant must present evidence, such as “affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice shall or may be taken.” (Code Civ. Proc., § 437c, subd. (b)(1).)

“Once the defendant [ ] has met that burden, the burden shifts to the plaintiff [ ] to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” (Code Civ. Proc., § 437c, subd. (p)(2).) “The party opposing the summary judgment must make an independent showing by a proper declaration or by reference to a deposition or another discovery product that there is sufficient proof of the matters alleged to raise a triable question of fact if the moving party’s evidence, standing alone, is sufficient to entitle the party to judgment.” (Wiz Technology, Inc. v. Coopers & Lybrand LLP (2003) 106 Cal.App.4th 1, 10-11; Code Civ. Proc., § 437c, subd. (b)(2); see also Code Civ. Proc., § 437c, subd. (p)(2) [“The plaintiff [ ] shall not rely upon the allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action or a defense thereto.”].)

The moving party’s evidence is strictly construed and viewed in the light most favorable to the opposing party, while evidence presented by the opposing party is given a liberal construction. (Scalf v. D.B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.) “The motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Code Civ. Proc., § 437c, subd. (c).)

B. Summary Adjudication

“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.” (Code Civ. Proc., § 437c, subd. (f)(1).)

“A motion for summary adjudication may be made by itself or as an alternative to a motion for summary judgment and shall proceed in all procedural respects as a motion for summary judgment.” (Code Civ. Proc., § 437c, subd. (f)(2).) “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).)

III. Dagle’s Motion for Summary Judgment and/or Summary Adjudication

Dagle moves for summary judgment and/or summary adjudication on the ground the first cause of action for negligence and second cause of action for premises liability lack merit. Dagle asserts the causes of action lack merit because Plaintiff cannot establish the element of duty, which is an essential element of a negligence claim, including a claim for premises liability (a specific type of negligence). (Melton v. Boustred (2010) 183 Cal.App.4th 521, 529-30.)

With that said, Dagle does not actually discuss whether a duty exists in its memorandum of points and authorities. Although the duty owed for purposes of a premises liability claim is somewhat different from the duty owed for purposes of a general negligence claim, Dagle does not separately address these theories of liability and treats them as though they are one and the same. (See Melton, supra, 183 Cal.App.4th at pp. 529-30.)

Instead, Dagle’s sole argument in support of its motion is that it is not liable under the peculiar risk doctrine based on the limitation thereof established by Privette v. Superior Court (1993) 6 Cal.4th 666 and its progeny. What has come to be known as the “Privette doctrine” is traditionally raised and treated as a defense. (See Madden v. Summit View, Inc. (2008) 165 Cal.App.4th 1267, 1270; see also Tvberg v. Fillner Construction, Inc. (2012) 202 Cal.App.4th 1439, 1443-44; Ray v. Silverado Constructors (2002) 98 Cal.App.4th 1120, 1129.) It appears, based on Dagle’s presentation as described above and its use of terms such as “disallowed,” that it is in fact raising and treating the Privette doctrine as a defense as well. (Mem. of Pts. & Auth. at p. 4:8.) Consequently, a more apt characterization of Dagle’s position is that the first and second causes of action lack merit because it has a complete defense thereto based on the Privette doctrine.

A. The Peculiar Risk Doctrine and Privette

The peculiar risk doctrine is an exception to a general, common law “rule of nonliability.” (Privette, supra, 6 Cal.4th at p. 693.) “At common law, a person who hired an independent contractor generally was not liable to third parties for injuries caused by the contractor’s negligence in performing the work.” (Ibid.) Under the peculiar risk doctrine, a person who hired an independent contractor could, nevertheless, be liable for injuries to third parties resulting from “contracted work that poses some inherent risk of injury to others.” (Ibid.)

In Privette, the California Supreme Court considered the appropriate scope of the peculiar risk doctrine in the context of an injured construction worker’s claims against a duplex owner for injuries he sustained while carrying buckets of hot tar up a ladder at the direction of the roofing contractor who employed him. (Privette, supra, 6 Cal.4th at p. 702.) The Court held that when “the injuries resulting from an independent contractor’s performance of inherently dangerous work are to an employee of the contractor, and thus subject to workers’ compensation coverage, the doctrine of peculiar risk affords no basis for the employee to seek recovery of tort damages from the person who hired the contractor but did not cause the injuries.” (Ibid.) On that basis, the Court concluded the roofing employee could not sue the duplex owner who contracted with his employer to fix the roof. (Ibid.)

Courts have since considered the rule announced in Privette in the context of modern construction projects in which there are often many layers of contractors and subcontractors performing work. (See Hooker v. Dept. of Transportation (2002) 27 Cal.4th 198, 203-09; see also Gonzalez v. Mathis (Feb. 6, 2018, B272344) __ Cal.App.5th __ [228 Cal.Rptr.3d 832] [compiling cases].) They have held that, subject to two exceptions, Privette shields general contractors, like landowners, from liability for injuries sustained by employees of the subcontractors they hire. (See Toland v. Sunland Housing Group, Inc. (1998) 18 Cal.4th 253, 258-62; see also Hooker, supra, 27 Cal.4th at pp. 210-13, citing Kinney v. CSB Construction, Inc. (2001) 87 Cal.App.4th 28, 33-34.)

Here, it is undisputed a developer, nonparty Cuesta Development, LLC, owned land in Los Altos, California and hired Dagle as the general contractor to construct a luxury home. (Dagle Sep. Stat., ¶ 1; Carroll Decl., Ex. A [construction contract].) In turn, Dagle hired subcontractors Vansandt Plastering “to provide plastering and scaffolding work” and nonparty Insight Remodeling “to provide framing work.” (Dagle Sep. Stat., ¶¶ 3, 6; Mark Dagle Decl., ¶ 4; Noel Dagle Decl., ¶ 3.) Insight Remodeling employed Plaintiff as a carpenter. (Dagle Sep. Stat., ¶ 9; Carroll Decl., Ex. E; see also Carroll Decl., Ex. C, Gomez Dep. at p. 13.)

Thus, the evidence shows Plaintiff is the employee of a subcontractor and seeks to recover damages from Dagle, the general contractor. Dagle is therefore correct that Privette is implicated here. Accordingly, the Court next considers Dagle’s argument that Plaintiff’s claims are barred by Privette because they do not fall within a recognized exception.

B. Exceptions to Privette

There are two exceptions to Privette. (See Khosh v. Staples Construction Co. (2016) 4 Cal.App.5th 712, 716-17.) “One allows a contractor’s employee to sue the hirer of the contractor when the hirer (1) retains control over any part of the work and (2) negligently exercises that control (3) in a manner that affirmatively contributes to the employee’s injury.” (Id. at p. 717.) “Another exception permits recovery when the hirer (1) has a nondelegable legal duty (2) which it breaches (3) in a manner that affirmatively contributes to the injury.” (Ibid.) Dagle argues neither exception applies here.

1. Retained Control

When a hirer “retain[s] control over safety conditions at a worksite and negligently exercises that control in a manner that affirmatively contributes to an employee’s injuries, it is only fair to impose liability on the hirer” because it participated in creating the hazard. (Hooker, supra, 27 Cal.4th at p. 213.) “An affirmative contribution may take the form of directing the contractor about the manner or performance of the work, directing that the work be done by a particular mode, or actively participating in how the job is done.” (Khosh, supra, 4 Cal.App.5th at p. 718.)

Dagle argues it did not retain control of the work or affirmatively contribute to Gomez’s injuries, but does not provide legal analysis to support its argument. For example, Dagle provides lengthy summaries and quotations from several cases discussing Privette and its exceptions, but does not actually provide analysis of those cases to show their applicability here. Additionally, the evidence presented is not sufficient to substantiate its argument and it does not otherwise articulate what inferences it expects the Court to draw from any particular evidence to reach a conclusion in its favor. “[T]he trial court [has] no obligation to undertake its own search of the record backwards and forwards to try to figure out how the law applies to the facts of the case.” (Quantum Cooking Concepts, Inc. v. LV Associates, Inc. (2011) 197 Cal.App.4th 927, 934.) Thus, Dagle’s approach is problematic.

Dagle primarily relies on the conclusory declarations of Mark Dagle, the sole proprietor of Dagle, and his son Noel Dagle, the sole proprietor of Insight Remodeling. Therein, Mark and Noel simply conclude, without elaboration, Dagle “did not direct the manner in which” Vansandt and Insight Remodeling performed their work. (Mark Dagle Decl., ¶ 4; Noel Dagle Decl., ¶ 3.) A declaration in support of a motion for summary judgment must contain “evidentiary facts, not legal conclusions or ‘ultimate’ facts.” (Hayman v. Block (1986) 176 Cal.App.3d 629, 638-39; accord Hope Internat. University v. Super. Ct. (2004) 119 Cal.App.4th 719, 739, fn. 9 [“[C]onclusions of fact are not binding on a summary judgment motion.”].) Thus, the conclusory declarations of Mark and Noel Dagle are of little to no evidentiary value.

Noticeably absent is any evidence of the terms of Dagle’s agreements with Insight Remodeling or Vansandt, which terms are material to the evaluation of whether Dagle retained control over the work performed. (See, e.g., Khosh, supra, 4 Cal.App.5th at p. 719; Toland, supra, 18 Cal.4th at pp. 266-69; Padilla v. Pomona College (2008) 166 Cal.App.4th 661, 666-67.) Thus, the evidence does not show whether and to what extent Dagle relinquished or retained control over the work performed by Insight Remodeling and Vansandt under their agreements.

With that said, courts also consider whether a general contractor retained control and exercised control in a manner that affirmatively contributed to an injury as a matter of actual practice. (See Khosh, supra, 4 Cal.App.5th at pp. 717-19.)

The only other evidence Dagle cites to show it did not retain control over the work performed by Insight Remodeling in particular and did not, thereby, contribute to Plaintiff’s injuries is Plaintiff’s deposition testimony that Noel Dagle gave him instructions at work. (Carroll Decl., Ex. C, Gomez Dep. at p. 68.) But that evidence does not clearly and completely support the conclusion for which it is offered, and it is not otherwise reasonable to infer that conclusion therefrom. Significantly, Dagle cites no case in which a court held such evidence was sufficient to show or support a reasonable inference that a general contractor did not exercise any control over the work or contribute to a plaintiff’s injuries. (Compare Tvberg, supra, 202 Cal.App.4th at pp. 1447-48 with Hooker, supra, 27 Cal.4th at pp. 214-15.)

Dagle does not present any other arguments or evidence to support its position on the theory of retained control with respect to Insight Remodeling in particular. For example, the evidence shows Plaintiff had to go out onto the scaffolding to add additional framing to extend a second-story wall that had otherwise already been completed. (Carroll Decl., Ex. C, Gomez Dep. at pp. 56-57.) Dagle does not address its role in the decision about if, under what conditions, and how to complete this addition, which appears to have resulted from an error or change in the construction plan.

In opposition, Plaintiff presents additional deposition testimony showing he primarily relied on his only coworker, Edgar, to translate instructions from English into Spanish because Noel spoke very little Spanish. (See McKasson Decl., Ex. B, Noel Dagle Dep. at pp. 79:19-80:13.) Thus, it is reasonable to infer that Mark and Plaintiff did not communicate due to a language barrier and not necessarily due to a lack of control and involvement on the part of Dagle.

Plaintiff also presents evidence about Mark Dagle’s involvement in the project. When asked about his employment, Plaintiff stated “them — I always work[ed] for them” and identified Mark and Noel as individuals he worked for and encountered on the job site. (McKasson Decl., Ex. A, Gomez Dep. at p. 37:13-20.) Mark Dagle was at the job site when Plaintiff fell and had spoken with Noel throughout that day. (McKasson Decl., Ex. A, Gomez Dep. at p. 64:9-25.) Mark was the sole proprietor of Dagle; no other employees worked with him. (McKasson Decl., Ex. B, Noel Dagle Dep. at p. 56:16-22.) Mark Dagle was the “acting supervisor/superintendent” on the day of the accident. (Mark Dagle Decl., ¶ 7.)

Thus, the evidence shows that, even if Mark and Plaintiff did not directly communicate, perhaps due to a language barrier, Mark communicated with Noel frequently and was in charge of the site on the day of Plaintiff’s injuries such that there are triable issues of material fact with respect to whether Dagle retained control over any of the work and exercised that control in a manner that contributed to Plaintiff’s injuries.

With respect to Vansandt in particular, Dagle presents evidence about the scaffolding that Plaintiff was standing on when he fell, presumably, to show it did not retain control over Vansandt’s work. It cites excerpts of the deposition of proprietor Timothy Gene Vansandt. (Carroll Decl., Ex. C, Vansandt Dep. at pp. 20-21, 25.) At best, the evidence shows the scaffolding was initially erected by two employees of Vansandt, not Dagle. The evidence does not show whether Dagle retained control over the type, placement, or any particular aspect of the scaffolding. (See, e.g., Tverberg, supra, 202 Cal.App.4th at p. 1447-48 [triable issue existed as to responsibility for placement of canopy near large holes].) When asked about whether he supervised his employees, Vansandt indicated he did not because they were “scaffold guys” and had been assembling scaffolding on their own for many years. (Carroll Decl., Ex. C, Vansandt Dep. at p. 20.) Vansandt stated he did not know if the scaffolding had been completely or properly set up at the time of the accident. (Ibid.) Furthermore, the evidence does not show who maintained and used the scaffolding from the time Vansandt’s employees erected it until Plaintiff used it some weeks later. (McKasson Decl., Ex. B, Noel Dagle Dep. at pp. 15-16.)

Significantly, Dagle does not explain and it is not otherwise obvious how this evidence shows or is reasonably susceptible to an inference that it did not control any work and affirmatively contribute to Plaintiff’s injuries. For example, in its general statement of law, Dagle cites McKown v. Wal-Mart Stores, Inc. (2002) 27 Cal.4th 219, in which the California Supreme Court considered a forklift accident and held: “when a hirer of an independent contractor, by negligently furnishing unsafe equipment to the contractor, affirmatively contributes to the injury of an employee of the contractor, the hirer should be liable to the employee for the consequences of the hirer’s own negligence.” Nevertheless, Dagle does not thereafter discuss McKown or argue it is inapplicable here either based on the evidence presented or because the facts of that case are somehow distinguishable.

In summary, Dagle does not present evidence or legal analysis sufficient to show it did not retain control of any of the work performed, by either Insight Remodeling or Vansandt, and did not exercise such control in a manner that contributed to Plaintiff’s injuries. Furthermore, Plaintiff raises triable issues of material fact with respect to this retained control theory.

2. Nondelegable Duty

“The nondelegable duties doctrine prevents a party that owes a duty to others from evading responsibility by claiming to have delegated that duty to an independent contractor hired to do the necessary work.” (SeaBright Insurance Co. v. US Airways, Inc. (2011) 52 Cal.4th 590, 600.) “The doctrine applies when the duty preexists and does not arise from the contract with the independent contractor.” (Id. at pp. 600-01.) For example, a nondelegable duty might arise by statute or regulation. (Ibid.)

Here, Dagle cites SeaBright and appears to take the position Plaintiff cannot rely on the nondelegable duties doctrine as an exception to the general limitation of liability established by Privette. But Dagle’s supporting argument is not particularly clear. For example, while Dagle cites SeaBright, in which the California Supreme Court considered whether duties based on California workplace safety regulations could be delegated, it is not obvious Plaintiff is relying on the specific “Cal-OSHA” regulations addressed therein. (See SeaBright, supra, 52 Cal.4th at p. 601.) It is unclear, and Dagle does not explain, how the Court’s conclusion in SeaBright that a particular duty was delegable and had been delegated applies to the claims here. To the extent Dagle’s argument is that, as a matter of fact, it delegated all of its duties to subcontractors, it does not present any contracts or other evidence to support this assertion.

Thus, Dagle does not substantiate its position that Plaintiff cannot rely on this doctrine.

C. Conclusion

For the reasons set forth above, Dagle does not carry its initial burden and there are triable issue of material fact such that it is not entitled to judgment or adjudication of the first and second causes of action as a matter of law. Accordingly, the motion for summary judgment and/or summary adjudication is DENIED.

IV. Dagle and Hannover’s Motion for Summary Adjudication

Dagle and Hannover filed a joint motion for summary adjudication. First, Hannover seeks summary adjudication of the first cause of action for negligence and the second cause of action for premises liability as asserted against Vansandt. Second, Dagle and Hannover seek summary adjudication of: (1) Vansandt’s duty to indemnify Dagle; and (2) Vansandt’s duty to defend Dagle. Finally, Hannover seeks summary adjudication of the “issue” of its entitlement to equitable subrogation. (Not. of Mot. at p. 2:7.) There are many problems with Dagle and Hannover’s motion, each of which will be addressed in turn.

First, while the notice of motion states Hannover seeks summary adjudication of the first and second causes of action as asserted against Vansandt, these causes of action are not addressed in the memorandum of points and authorities. “‘Where a point is merely asserted by counsel without any argument of or authority for its proposition, it is deemed to be without foundation and requires no discussion.’ [Citation.]” (People v. Dougherty (1982) 138 Cal.App.3d 278, 282; Cal. Rules of Court, rule 3.1113(b) [required contents of supporting memorandum]; see also Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-85.) Thus, with respect to the first and second causes of action as asserted against Vansandt, the motion is without foundation and need not be discussed any further.

Second, Hannover and Dagle discuss matters in their memorandum of points and authorities that are beyond the scope of the motion noticed for hearing. Specifically, Hannover and Dagle state “a court may summarily adjudicate a declaratory relief cause of action.” (Mem. of Pts. & Auth. at p. 5:5.) Significantly, they do not identify what declaratory relief cause of action they are talking about in any of the documents filed with the Court. Furthermore, to the extent they seek summary adjudication of one or more of the declaratory relief causes of action in Hannover’s complaint-in-intervention, such causes of action are beyond the scope of the motion noticed for hearing. Hannover and Dagle do not identify particular declaratory relief causes of action in their notice of motion or separate statement, and so they are not entitled to summary adjudication of any such causes of action. (See Cal. Rules of Court, rule 3.1350(b); see also Maryland Casualty Co. v. Reeder (1990) 221 Cal.App.3d 961, 974, fn. 4.)

Third, although Hannover and Dagle seek summary adjudication of issues of duty, which are proper subjects of a motion for summary adjudication, they also seek summary adjudication of an “issue” generally, which is not. (Code Civ. Proc., § 437c, subd. (f)(1); see Paramount Petroleum Corp. v. Super. Ct. (2014) 227 Cal.App.4th 226, 238-39.) Thus, the “issue” of whether Hannover is entitled to equitable subrogation is not a proper subject of a motion for summary adjudication.

Additionally, even presuming Hannover intended to move for summary adjudication of the cause of action for equitable subrogation in its complaint-in-intervention, it does not demonstrate the cause of action can be summarily adjudicated at this juncture.

For context, “[s]ubrogation is the ‘substitution of another person in place of the creditor or claimant to whose rights he or she succeeds in relation to the debt or claim.’ [Citation.]” (Interstate Fire and Casualty Insurance Co. v. Cleveland Wrecking Co. (“Cleveland Wrecking”) (2010) 182 Cal.App.4th 23, 32-33.) “‘In the case of insurance, subrogation takes the form of an insurer’s right to be put in the position of the insured in order to pursue recovery from third parties legally responsible to the insured for a loss which the insurer has both insured and paid.’ [Citations.]” (Id. at p. 33.)

“Usually, a general liability insurer that has paid a claim to a third party on behalf of its insured may have an equitable right of subrogation against (1) other parties who contributed to the harm suffered by the third party (joint tortfeasors) under an equitable indemnification theory, and (2) other parties who are legally liable to the insured for the harm suffered by the third party (such as by an indemnification agreement) under a contractual indemnity theory.” (Cleveland Wrecking, supra, 182 Cal.App.4th at p. 32.)

To support its position on entitlement to equitable subrogation, Hannover concludes it is entitled to equitable indemnification and it appears the second type, contractual indemnification, is also implicated because the joint motion addresses an indemnification agreement between Dagle and Vansandt. Nevertheless, Hannover does not substantiate either underlying theory of indemnification. Significantly, there has been no determination as to liability, and there is no evidence Hannover has made any payments on behalf of its insured. (See, e.g., Fireman’s Fund Insurance Co. v. Maryland Casualty Co. (1994) 21 Cal.App.4th 1586, 1592-93 [evaluating the propriety of summary adjudication of equitable subrogation claim after insurer made payments following a settlement of the underlying lawsuit]; see also Smith v. Parks Manor (1987) 197 Cal.App.3d 872, 878.) Furthermore, Hannover provides no legal analysis to support its conclusion that it is entitled to equitable subrogation at this juncture. Consequently, Hannover does not substantiate its position and is not entitled to summary adjudication of the issue of or its claim for equitable subrogation.

As related to this issue, Hannover and Dagle similarly fail to demonstrate Vansandt’s duty to indemnify Dagle can be summarily adjudicated. “The [ ] duty to indemnify runs to claims that are actually covered, in light of the facts proved.” (Buss v. Super. Ct. (1997) 16 Cal.4th 35, 45.) “By definition, it entails the payment of money in order to resolve liability.” (Ibid.) “Put another way, the [ ] obligation to indemnify for ‘damages’ is limited to ‘money ordered by a court.’” (Powerine Oil Co. v. Super. Ct. (2005) 37 Cal.4th 377, 393.) Thus, “[i]t arises only after liability is established.” (Buss, supra, 16 Cal.4th at p. 46.) Again, there has been no determination as to liability in this matter, and there is no evidence any sum of money had been paid to a third party, such as Plaintiff. Accordingly, Hannover and Dagle do not substantiate their motion with respect to the issue of Vansandt’s duty to indemnify Dagle. (See Crawford v. Weather Shield Manufacturing, Inc. (2008) 44 Cal.4th 541, 564-65, fn. 12 [distinguishing duty to indemnify from duty to defend, citing Regan Roofing Co. v. Super. Ct. (1994) 24 Cal.App.4th 425.)

In summary, the procedural flaws and substantive deficiencies set forth above preclude summary adjudication of the first and second causes of action asserted against Vansandt, the issue of Hannover’s entitlement to equitable subrogation, and the issue of Vansandt’s duty to indemnify Dagle. This leaves one final matter to be resolved by the Court: the issue of Vansandt’s duty to defend Dagle.

It is hornbook law that the duty to defend and the duty to indemnify are separate and distinct. (Crawford, supra, 44 Cal.4th at p. 547; Buss, supra, 16 Cal.4th at pp. 45-46.) “The latter duty runs only to claims that are actually covered by the policy, while the duty to defend extends to claims that are merely potentially covered.” (Crawford, supra, 44 Cal.4th at p. 547.) “A contractual promise to ‘defend’ another against specified claims clearly connotes an obligation of active responsibility, from the outset, for the promisee’s defense against such claims.” (Crawford, supra, 44 Cal.4th at p. 554.) “The duty promised is to render, or fund, the service of providing a defense on the promisee’s behalf — a duty that necessarily arises as soon as such claims are made against the promisee, and may continue until they have been resolved.” (Ibid.) Thus, typically, the issue of a party’s duty to defend another can be summarily adjudicated before an underlying determination as to liability. (Id. at pp. 564-65.)
Ordinarily, a duty to defend arises in the context of a relationship between an insurer and an insured. (Atlantic Mutual Insurance Co. v. J. Lamb, Inc. (2002) 100 Cal.App.4th 1017, 1032.) In that context, an insured moving for summary adjudication of an issue of the duty to defend bears the initial burden of showing the third party’s pleading raises a potential for coverage under the insurance policy. (Ibid.) If the insured carries this initial burden, the burden then shifts to the responding insurer to show the claim in fact is not covered such that the insurer owes no duty. (Ibid.) As the California Supreme Court has explained, “the insured need only show that the underlying claim may fall within policy coverage; the insurer must prove it cannot.” (Montrose Chemical Corp. v. Super. Ct. (1993) 6 Cal. 4th 287, 300.)

Here, although insurer Hannover joins in the motion, the motion “concern[s] the contractual duty to defend in a noninsurance context.” (Crawford, supra, 44 Cal.4th at p. 547, original italics.) Specifically, the Court must resolve whether Vansandt is contractually obligated to defend Dagle based, not on an insurance policy, but on a noninsurance indemnity agreement. Nevertheless, California courts evaluating noninsurance indemnity agreements generally follow the same burden-shifting approach applied in the insurance context, which follows the general standard for motions for summary adjudication of entire causes of action and affirmative defenses. (See, e.g., UDC-Universal Development v. CH2M Hill (2010) 181 Cal.App.4th 10, 18-21; Crawford, supra, 44 Cal.4th at p. 547.) Thus, the Court follows that same approach here.

For context, “[p]arties to a contract [ ] may define therein their duties toward one another in the event of a third party claim against one or both arising out of their relationship.” (Crawford, 44 Cal.4th at p. 551.) As with an insurance contract, a noninsurance indemnity agreement “may require one party to indemnify the other, under specified circumstances, for moneys paid or expenses incurred by the latter as a result of such claims.” (Ibid., original italics, citing Civ. Code, § 2772 [defining indemnity].) The parties “may also assign one party, pursuant to the contract’s language, responsibility for the other’s legal defense when a third party claim is made against the latter.” (Ibid., original italics.) For example, the parties may use a “duty-to-defend clause” to “clearly and explicitly create a defense duty not dependent on the ultimate resolution of issues, such as [a party’s] fault, that would only be determined after the duty arose.” (Id. at p. 562.) Otherwise, Civil Code section 2778, subdivision (4) “places in every indemnity contract, unless the agreement provides otherwise, a duty to assume the indemnitee’s defense, if tendered, against all claims ‘embraced by the indemnity.’” (Id. at p. 557.)

“Since indemnity agreements are construed under the same rules which govern the interpretation of other contracts, the indemnity agreement must be interpreted so as to give effect to the mutual intention of the parties.” (City of Bell v. Super. Ct. (2013) 220 Cal.App.4th 236, 247.) “In interpreting an express indemnity agreement, the courts look first to the words of the contract to determine the intended scope of the indemnity agreement.” (Id. at pp. 247-48.) “The intention of the parties is to be ascertained from the ‘clear and explicit’ language of the contract, and if possible, from the writing alone. [Citation.]” (Id. at p. 248.) “Unless given some special meaning by the parties, the words of a contract are to be understood in their ‘ordinary and popular sense,’ focusing on the usual and ordinary meaning of the language used and the circumstances under which the agreement was made. [Citations.]” (Ibid.)

Dagle and Hannover present a nearly illegible indemnity agreement executed by Dagle and Central Valley Plastering, Inc., the entity doing business as Vansandt. (Carroll Decl., Ex. F.) Pursuant thereto, Central Valley Plastering, Inc. (hereinafter, “Vansandt”) agreed to indemnify and hold Dagle harmless from claims as well as “liabilities of every kind and nature whatsoever arising [illegible] connection with Vansandt’s operations performed for Dagle Construction under this agreement.” (Carroll Decl., Ex. F.) The indemnity agreement does not explicitly contain a duty-to-defend clause but does not contain any language disclaiming the duty to defend implied in every indemnity contract.

With that said, the duty to defend only extends to claims embraced by the indemnity, and the indemnification obligation is limited. The indemnification agreement embraces only those claims arising in connection with work performed under “this agreement” and specifically excludes claims or liabilities based on the “sole negligence or willful misconduct of the owner or contractor or their [agents] or employees.” (Carroll Decl., Ex. F.) But Dagle and Hannover do not discuss any of the language of the indemnity agreement or otherwise demonstrate the claims may fall within its scope.

For example, it is unclear what constitutes conduct in connection with the work performed for Dagle under “this agreement.” In the context of the sentence in which the term appears, the term “this agreement” suggests there is some agreement describing the scope of Vansandt’s work for Dagle. But Dagle and Hannover do not present any such agreement. Thus, it is not clear that the single-sided document presented, which is entitled “indemnification,” is in fact part of or related to some other agreement about the work to be performed. Looking at the term “this agreement” in the context of the evidence presented, it appears the term simply refers to the indemnification agreement. (Carroll Decl., Ex. F.) In either case, it remains unclear what exactly the scope of the indemnity is.

For these reasons, Dagle and Hannover fail to carry their initial burden of demonstrating Plaintiff’s claims may fall within the scope of the indemnification agreement sufficient to trigger Vansandt’s duty to defend.

In conclusion, Dagle and Hannover do not carry their initial burden with respect to any of the “issues” or claims that are the subject of their motion for summary adjudication, which is therefore DENIED. In reaching this conclusion, it is unnecessary to rule on Vansandt’s objections, many of which are not proper objections, because they are not material to the disposition of the motion. (See Code Civ. Proc., § 437c, subd. (q).)