Case Name:   SV Construction, Inc. v. Expert Drywall Systems, Inc., et al.

Case No.:       1-13-CV-258000

Currently before the Court is the motion for summary adjudication of Plaintiff SV Construction, Inc. dba Silicon Valley Construction (“SV”) regarding its claim against defendant Expert Drywall Systems, Inc. (“Expert”).  SV seeks summary adjudication of the issue of whether Expert “is liable for property damage and cost of repair under a Subcontractor’s Hold Harmless Agreement for an electrical explosion caused by said defendant’s employee when his drill struck an electrical busway on a job site where Plaintiff was the general contractor.”

The motion is DENIED.

Code of Civil Procedure section 437c, subdivision (f)(1) provides that “[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,” and a motion for summary adjudication shall be granted only if it completely disposes of such issue.  With respect to an issue of duty, a party may seek summary adjudication as to whether a defendant “either owed or did not owe a duty” to a plaintiff.  (Code Civ. Proc., § 437c, subd. (f)(1).)  Breach of a duty is not an appropriate issue for summary adjudication absent a stipulation by the parties and order by the court (see Code Civ. Proc., § 437c, subd. (s) [establishing circumstances under which a party may move for summary adjudication of a legal issue that does not completely dispose of a cause of action, an affirmative defense, or an issue of duty]), and “Code of Civil Procedure section 437c makes no provision for a partial summary judgment as to liability” (Department of Industrial Relations v. UI Video Stores, Inc. (1997) 55 Cal.App.4th 1084, 1097; see also Paramount Petroleum Corporation v. Super. Ct. (Building Materials Corp. of America) (June 20, 2014, B253290) ___ Cal.Rptr.3d ___ [2014 WL 2803449, *10] [plaintiff may not “seek summary adjudication of liability only, leaving the resolution of damages to a later trial”]), which would require findings concerning both duty and breach.

Here, SV does not seek an order resolving its claim for breach of contract entirely, because it does not seek any ruling on the issue of damages or submit any evidence concerning its damages other than a statement as to their “approximate” amount.  (See Plaintiff’s Separate Statement of Material Facts (“PUF”), Issue 1, No. 8.)  Nor does SV seek an order solely resolving the issue of whether Expert “owed or did not owe a duty” to it.  Rather, SV asks the Court to adjudicate the issue of whether Expert “is liable for property damage and cost of repair under a Subcontractor’s Hold Harmless Agreement …” (italics added), which is not an appropriate subject for summary adjudication.  (See Department of Industrial Relations v. UI Video Stores, Inc., supra, 55 Cal.App.4th at p. 1097; Paramount Petroleum Corporation v. Super. Ct. (Building Materials Corp. of America), supra [p. *10].)

To the extent SV would ask the Court to grant its motion in part by adjudicating only the issue of duty under the agreements at issue, SV fails to define the asserted duty or duties at issue with enough specificity to enable the Court to resolve this issue.  (Cf. Linden Partners v. Wilshire Linden Associates (1998) 62 Cal.App.4th 508, 515 [trial court correctly resolved on summary judgment the issue of whether “defendants [(sellers of real property)] had a duty to deliver to plaintiffs [(the buyers)] an ‘estoppel certificate’ that correctly stated the current monthly rent”].)

As to Expert’s objections to evidence, objection numbers 1, 2, and 3 are OVERRULED, while objection numbers 4-9 are SUSTAINED on the grounds that the statements at issue are hearsay, speculative, and lack foundation.