Case Number: GC047441 Hearing Date: June 13, 2014 Dept: B

Motion for Summary Judgment

Case Management Conference

The Plaintiff issued construction bonds on behalf of the Defendant, B.S. Hand & Sons, Inc. The bonds guaranteed B.S. Hand & Sons, Inc. work on construction projects. The Defendants, Gary Hand, Andrea Hand, and the Gary and Andrea Hand Family Trust, signed written agreements to indemnify the Plaintiff for any losses arising from the bonds.

The Plaintiff was required to pay $1,161,814.96 to satisfy the claims for payments and $195,268.55 in attorney’s fees and costs related to the claims asserted against the bonds. The Plaintiff received $450,000 from P.W. Construction regarding this dispute. The Plaintiff brought this action to seek the remaining amount of $907,084.51 from the Defendants.

The Complaint alleges causes of action for:
1) Statutory Indemnity
2) Breach of Contract
3) Quia Timet
4) Declaratory Relief
5) Specific Performance

Before the Court is Plaintiff’s motion for summary judgment.

Under CCP section 437c, a plaintiff may move for summary judgment if that party contends that there is no defense to the plaintiff’s causes of action or that an affirmative defense has no merit. The Plaintiff’s complaint contains five causes of action. Since the Plaintiff argues that there is no defense to its causes of action, the Plaintiff’s burden of proof is to prove each element of its five causes of action.

The Plaintiff’s notice of motion indicates that it was directed at Defendants, B.S. Hand & Sons, Inc., Gary Hand, Andrea Hand, and the Gary and Andrea Hand Family Trust. A review of the Court file reveals that the Plaintiff dismissed the following parties:

1) Gary Hand on March 26, 2014;
2) Andrea Hand on March 26, 2014; and
2) The Gary and Andrea Hand Family Trust on May 28, 2014.

Accordingly, the motion may be directed only to the claims against Defendant, B.S. Hand & Sons, Inc.

The Plaintiff has the burden of providing evidence that demonstrates that it is entitled to summary judgment with evidence establishing each element of the causes of action in its Complaint. CCP section 437c is a complicated statute and there is little flexibility in the procedural imperatives of the section and, as a result, section 437c is unforgiving. Hawkins v. Wilton (2006) 144 Cal. App. 4th 936, 949-950. A failure to comply with any one of its myriad requirements is likely to be fatal to the offending party. Id.

Section 437c does not furnish the trial courts with a convenient procedural means, to which only “lip service” need be given, by which to clear the trial calendar of what may appear to be meritless or weak cases. Id. Any arbitrary disregard of the statutory commands in order to bring about a particular outcome raises procedural due process concerns. Id. The success or failure of the motion must be determined by application of the required step-by-step evaluation of the moving and opposing papers. Id. Because of the drastic nature of the remedy sought, the moving party is held to strict compliance with the procedural requisites. Id.

Here the Plaintiff has not met its burden of proof because it did not address the first cause of action for statutory indemnity or the fifth cause of action for specific performance. The Plaintiff’s memorandum discusses the second, third, and fourth causes of action in the Complaint, but neglects to offer any arguments or evidence regarding the first and fifth causes of action. The Plaintiff’s motion does not discuss the elements of the first and fifth causes of action. The Plaintiff’s motion does not identify the evidence that establishes each element of the first and fifth causes of action. The Plaintiff did not provide the arguments and evidence needed for the Court to engage in the step-by-step evaluation of the papers so that it can find that the Plaintiff can establish each essential element of each cause of action pleaded in the Complaint.

Accordingly, the Plaintiff is not entitled to summary judgment because it did not meet its burden of proof.

In the alternative, the Plaintiff sought summary adjudication that the Plaintiff is entitled to recover $711,814.96 from the Defendants. This cannot be sought through a motion for summary adjudication.

Under CCP section 437c(f), the Court may grant summary adjudication only if it completely resolves a cause of action, an affirmative defense, a claim for damages, or an issue of duty. Dunn v. County of Santa Barbara (2006) 135 Cal. App. 4th 1281, 1290. The phrase “a claim for damages” in CCP section 437c(f) is limited to a claim for punitive damages. Decastro W. Chodorow & Burns v. Superior Court (1996) 47 Cal. App. 4th 410, 421. The Legislative Intent of CCP section 437c(f) was to stop the practice of adjudication of facts or adjudication of issues that do not completely dispose of a cause of action or a defense. Lilienthal & Fowler v. Superior Court (1993) 12 Cal. App. 4th 1848, 1854.

Accordingly, 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.

Here, the Plaintiff’s motion does not completely dispose of a cause of action, an affirmative defense, a claim for punitive damages, or an issue of duty. Further, on page 15, at lines 13 to 16, the Plaintiff’s memorandum acknowledges that its request for summary adjudication would not completely resolve f any claim when the Plaintiff requests summary adjudication that the Defendants are contractually liable for $711,814.96 and that “the remaining issues to be litigated would be Arch’s entitlement to fees and costs pursuant to the Indemnify Agreement”.

Accordingly, the Court must deny the request for summary adjudication in the alternative.