2014-00173068-CU-BT

Inflective, Inc. vs. Aerojet Rocketdyne, Inc.

Nature of Proceeding: Motion for Summary Judgment and/or Adjudication

Filed By: Ramsey, Jay T.

Defendant Aerojet Rocketdyne, Inc. (“Aerojet”) moves for summary judgment or, in the alternative, summary adjudication on all of the causes of action alleged in Plaintiff Satish Rachaiah’s (“Plaintiff”) Second Amended Complaint (“SAC”).

Aerojet’s motion for summary judgment is DENIED; its alternative motion for summary adjudication is DENIED in part, and GRANTED in part, as follows.

Plaintiff filed a supplemental declaration in support of his opposition on February 23,

2018. The Court did not consider the supplemental declaration since it was untimely filed. (See Code Civ. Proc., § 437c, subd. (b)(2).)

Factual Background

This action arises out of work Plaintiff performed as a software engineer on Aerojet’s enterprise resource planning software package called “ProjectOne.” ProjectOne is a company-wide program designed to keep Aerojet’s various departments and activities operating in sync.

Aerojet began implementing ProjectOne in late 2010. In 2011, Aerojet hired Inflective, Inc. (“Inflective”) as a consultant on the project. Around January 2013, Plaintiff entered into a consulting agreement (the “Consulting Agreement”) with Inflective, who had a purchase order (“Purchase Order”) with Aerojet to supply Plaintiff’s services on the project. As amended and extended by various change orders, the Purchase Order was in effect through December 2013. Per the referenced agreements, Aerojet paid Inflective for all work Plaintiff performed on the project, and Inflective paid Plaintiff. Plaintiff did not have a direct working relationship with Aerojet, and the Consulting Agreement contained a non-solicitation clause, which prohibited Plaintiff from “directly or indirectly . . . solici[ing] . . . any of [Inflective’s] customers . . . to do business [directly] with [Plaintiff] or any person or entity other than [Inflective].”

Plaintiff filed a declaration in support of his opposition, in which he avers as follows: In mid-December 2013, Aerojet’s Director of Procurement, Ken Hansen, approached Plaintiff and informed him that Aerojet was not going to renew its Purchase Order with Inflective. Hansen told Plaintiff he could not continue working on ProjectOne through Inflective beginning January 2014, but Hansen invited and encouraged Plaintiff to continue to work with Aerojet through another vendor. Hanson told Plaintiff Aerojet did not have a non-solicitation agreement with Inflective and that Plaintiff should not be

concerned about breaching his non-solicitation agreement because Aerojet, not Plaintiff, was the solicitor. Relying on Hansen’s representations, Plaintiff signed an agreement to work for Aerojet as an independent contractor through vendor Athena Inc. (Plaintiff continued to work at Aerojet through Athena and another vendor through May 2015.) Notwithstanding Hansen’s representations, Aerojet subsequently denied it ever solicited Plaintiff and instead claimed Plaintiff solicited Aerojet. (Decl. of Satish Rachaiah ISO Pl.’s Opp’n (“Pl.’s Decl.”) ¶¶ 3-4, 7; see also Pl.’s Depo 30:14-36:23, Ex. 3 to Decl. of Lubna Jahangiri ISO Pl.’s Opp’n (“Jahangiri Decl.”).)

The relationships between Plaintiff, Inflective, and Aerojet subsequently deteriorated, and several legal proceedings ensued.

On July 7, 2014, Plaintiff filed a lawsuit against Inflective in Contra Costa County Superior Court, alleging breach of the Consulting Agreement for the non-payment of $33,262 in services Plaintiff rendered on ProjectOne in December 2013 and breach of an oral agreement to pay Plaintiff certain referral fees. The parties stipulated to arbitrate Plaintiff’s claims related to the breach of the Consulting Agreement because the Consulting Agreement contains an arbitration clause and to stay the non-arbitrable claims. Inflective filed a counterclaim in the arbitration proceedings against Plaintiff, alleging, inter alia, breach of the Consulting Agreement’s non-solicitation clause. Inflective claims Plaintiff solicited Aerojet to hire him directly or via another vendor, and as a result, Inflective lost approximately $250,000 worth of business.

In December 2014, Inflective filed Case No. 34-2014-00173068 against Aerojet in Sacramento County Superior Court (the “Inflective Action”), alleging among other things that Aerojet breached various agreements with Inflective. Aerojet filed a cross-complaint against Inflective and Hesler in October 2015. The parties to the arbitration proceedings stipulated to stay the arbitration until the Inflective Action resolved.

On December 30, 2015, Plaintiff filed the instant action against Aerojet (the “Rachaiah Action”). On June 10, 2016, the Court consolidated the Inflective Action and the Rachaiah Action. Inflective and Aerojet subsequently settled and dismissed the Inflective Action in the summer of 2017. Accordingly, Plaintiff requested to lift the stay of the arbitration proceedings in January 2018.

Plaintiff’s SAC alleges eight causes of action: 1) Intentional Interference with Contractual Relations, 2) Intentional Interference with Prospective Economic Relations, 3) Negligent Interference with Prospective Economic Relations, 4) Inducing Breach of Contract, 5) Intentional Misrepresentation, 6) Negligent Misrepresentation,

7) Declaratory Relief with respect to Comparative Indemnity, and 8) Unjust Enrichment. In essence, Plaintiff alleges Aerojet’s solicitation and later denial thereof harmed Plaintiff’s existing and prospective business relationships with Inflective and has caused him to have to defend Inflective’s counterclaim in the arbitration proceedings.

Aerojet now moves for summary judgment or, in the alternative, summary adjudication on all eight causes of action.

Legal Standard

In evaluating a motion for summary judgment or summary adjudication, the Court engages in a three step process. First, the Court identifies the issues framed by the

pleadings. The pleadings define the scope of the issues on a motion for summary judgment. (FPI Dev. Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 381-382.) The Court cannot consider an unpleaded issue in ruling on a motion for summary judgment. (Roth v. Rhodes (1994) 25 Cal.App.4th 530, 541.)

Next, the Court must determine whether the moving party has met its burden. A defendant moving for summary judgment or summary adjudication bears the burden of persuasion that one or more elements of the challenged causes of action cannot be established, or that there is a complete defense to the causes of action. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 [quoting Code Civ. Proc., § 437c, subd. (p)(2)].) A defendant is not required to conclusively negate one or more elements of the plaintiff’s causes of action. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 780-781). Rather, to meet its burden, the defendant is only required to show that the plaintiff cannot prove an element of his causes of action, i.e., that the plaintiff does not possess and cannot reasonably obtain evidence necessary to show this element. (Aguilar, supra, 25 Cal. 4th at 853-855.)

Once the moving party has met its burden, the burden shifts to the opposing party to show that a material factual issue exists as to the causes of action alleged or a defense to them. (Code Civ. Proc., § 437c, subd. (p); see, generally, Bush v. Parents without Partners (1993) 17 Cal.App.4th 322, 326-327.)

In ruling on the motion, the Court must consider the evidence and inferences reasonably drawn from the evidence in the light most favorable to the opposing party. ( Aguilar, supra, 25 Cal. 4th at 843.) Summary judgment or summary adjudication is properly granted only if the moving party’s evidence establishes that there is no issue of material fact to be tried. (Lipson v. Super. Ct. (1982) 31 Cal.3d 362, 374.)

Discussion

First through Sixth Causes of Action – Causation/Damages

Aerojet argues “[s]ummary judgment should be entered on [Plaintiff’s] first through sixth causes of action because [Plaintiff] cannot present any evidence of causation or damages.” (Mem. P.&A. ISO Def.’s Mot. for Summ. J. (“Mot.”) 19:4-5.) Specifically, Aerojet contends:

With respect to [Plaintiff’s] allegation that he expected to earn money in connection with his ongoing and future relationship with Inflective, [Plaintiff] cannot present any evidence that he suffered any damage as a result of the termination of his employment relationship with Inflective…. [T]he evidence produced demonstrates that he

earned more after leaving Inflective than he ever would have had he remained with Inflective. He earned $235 per hour for his work at Aerojet after leaving Inflective, and only $207 per hour while with Inflective. . . . Moreover, with respect to lost future profits in connection with the Inflective -[Plaintiff] relationship, [Plaintiff] cannot present any evidence that their relationship would have resulted in any profits at all. The [parties’] Margin Sharing and Collaboration Agreement was never signed and was still

being negotiated, and there is no evidence either (i) that [Plaintiff] and Inflective would have completed those negotiations successfully or on what terms; or (ii) that under any such agreement [Plaintiff] and Inflective would have been able to generate any business at all. As a result, [Plaintiff’s] claim for lost future profits is nothing more than ‘uncertain, contingent and speculative.’

In addition, Aerojet cannot be held responsible to [Plaintiff] for the termination of the Inflective-[Plaintiff] relationship. Even if Aerojet solicited [him] away from Inflective for the purpose of performing work for Aerojet, [Plaintiff] had no obligation to terminate his relationship with Inflective. [Plaintiff] could have remained with Inflective, continued negotiating the Margin Sharing and Collaboration Agreement and proceeded forward with engagements at companies other than Aerojet. Instead, [Plaintiff] chose to leave Inflective and engage with Aerojet through a new vendor. That was [Plaintiff’s] choice, and he must be held accountable for his own actions.

. . . .

With respect to the attorney’s fees and costs associated with [Plaintiff’s] defense of the arbitration [counterclaim] brought against him by Inflective, there is no evidence that those purported damages were caused by Aerojet. Inflective sued [Plaintiff] for [Plaintiff’s] alleged breach of the Inflective-[Plaintiff] contract. If [Plaintiff] breached his contract with Inflective, then [Plaintiff] is the author of his own injury and is responsible for that breach. [Plaintiff] is thus responsible for any attorney’s fees incurred in his defense of the [counterclaim] brought by Inflective and also any liability he incurs to Inflective for that breach….

With respect to ‘Inflective’s failure to pay’ [Plaintiff] for ‘compensation earned’ [citation], . . . it is undisputed that Aerojet paid Inflective for all worked performed by [Plaintiff]. Aerojet’s actions did not cause [Plaintiff] any harm. If Inflective failed to pay [Plaintiff] after Aerojet paid Inflective, [Plaintiff] may have a claim against Inflective for those unpaid monies, and [Plaintiff] is pursuing that very claim in his arbitration against Inflective.

(Mot. 19:19-20:18, 21:6-22:3.)

Plaintiff responds he can show both that he has been damaged and that Aerojet’s conduct caused his harm; accordingly, his first six causes of action should go to a jury. Plaintiff argues:

When [Inflective] learned that [Plaintiff] had switched vendors, [Inflective’s] owner, Tom Hensler, became upset.

[Aerojet] blamed [Plaintiff] for the solicitation. [Inflective] refused to pay [Plaintiff] for [past] services in the amount of $33,262. [Plaintiff] had to commence litigation against [Inflective] to recover this amount, and [Inflective] filed a [counterclaim in the arbitration proceedings] against [Plaintiff] for soliciting [Aerojet]. [Plaintiff] has suffered damages of $126,473.75 in attorneys’ fees [citation], and continues to incur attorneys’ fees. If [Aerojet] had not blamed [Plaintiff], and had admitted its own wrongdoing, [Inflective] would have had no reason to withhold the payment or sue [Plaintiff]. [Plaintiff’s] damages in multiple of thousands of dollars were set in motion as a direct and proximate result of [Aerojet’s] actions and omissions. [Citation.]

(Pl.’s Opp’n 5:4-14.) In support of his opposition, Plaintiff presented unpaid invoices to Inflective totaling $33,262 for services performed in December 2013 on ProjectOne and a spreadsheet documenting Plaintiff’s attorney’s fees and expenses totaling over $125,000.

“For a breach of an obligation not arising from contract, the measure of damages . . . is the amount which will compensate for all the detriment proximately caused thereby, whether it could be anticipated or not.” (Civ. Code, § 3333; see also CACI Instruction No. 3901 [“The amount of damages must include an award for each item of harm that was caused by [the defendant’s] wrongful conduct, even if the particular harm could not have been anticipated.”].)

“A tort is a legal cause of injury only when it is a substantial factor in producing the injury.” (Soule v. GM Corp. (1994) 8 Cal.4th 548, 572.) “A substantial factor in causing harm is a factor that a reasonable person would consider to have contributed to the harm. It must be more than a remote or trivial factor. It does not have to be the only cause of the harm.” (CACI Instruction No. 430.)

“[A] defendant cannot avoid responsibility just because some other person, condition, or event was also a substantial factor in causing the plaintiff’s harm; but conduct is not a substantial factor in causing harm if the same harm would have occurred without that conduct.” (Yanez v. Plummer (2013) 221 Cal.App.4th 180, 187.) “‘The general rule of law is that whoever does an illegal or wrongful act is answerable for all the consequences that ensue in the ordinary and natural course of events, though those consequences be immediately brought about by intervening agents, provided such agents were set in motion by the primary wrongdoer, or provided those acts causing the damage were the necessary or legal consequence of the wrongful

act….’ [Citation.]” (Kenyon v. Hartford Accident & Indemnity Co. (1927) 86 Cal.App.
269, 273 [emphasis added].)

“However the test is phrased, causation . . . is ultimately a matter of probability and common sense.” (Osborn v. Irwin Mem’l Blood Bank (1992) 5 Cal.App.4th 234, 253.) “‘The fact of causation is incapable of mathematical proof, since no man can say with absolute certainty what would have occurred if the defendant had acted otherwise. If, as a matter of ordinary experience, a particular act or omission might be expected to produce a particular result, and if that result has in fact followed, the conclusion may be justified that the causal relation exists. In drawing that conclusion, the triers of fact

are permitted to draw upon ordinary human experience as to the probabilities of the case.’ [Citation.]” (Ibid.) Also, temporal proximity between the alleged cause and effect can demonstrate causation in some circumstances. (Overhill Farms, Inc. v. Lopez (2010) 190 Cal.App.4th 1248, 1265-1267.)

Here, Plaintiff has presented evidence of his damages, including his unpaid invoices totaling $33,262 and his attorney’s fees and expenses incurred in defending against Inflective’s counterclaim in the arbitration proceedings.

Moreover, Plaintiff has presented evidence from which a reasonable inference can be drawn that Aerojet’s solicitation of Plaintiff to work on ProjectOne through another vendor and misrepresentations to Plaintiff and Inflective concerning that solicitation (whether characterized as intentional interference with contractual relations, inducing breach of contract, negligent misrepresentation, etc.) were a substantial factor in causing those damages. For example, Plaintiff’s declaration supports that: Aerojet, not Plaintiff, solicited the other; Plaintiff agreed to work for Aerojet through another vendor in reliance upon Hansen’s representations; Plaintiff had no other motivation to leave Inflective; Aerojet subsequently denied soliciting Plaintiff; and shortly thereafter, Inflective refused to pay Plaintiff for his December 2013 invoices.

The Court finds this evidence raises a disputed issue of material fact concerning causation and damages. Further, it is immaterial to the Court’s decision that Plaintiff may also have an available claim against Inflective as to some of his damages. (Duff v. Engelberg (1965) 237 Cal.App.2d 505, 507 [“‘A person’s liability in tort for wrongfully inducing the breach of a contract is in no way affected by the fact that the injured party also has a right of action in contract against the defaulting party to the contract.’ (Citation.)”].)

For the stated reasons, Aerojet’s motion for summary judgment/adjudication on Plaintiff’s first through sixth causes of action is DENIED. In light of the foregoing, the Court need not decide whether a triable issue of material fact exists as to causation and damages related to Plaintiff’s claimed future lost profits under the Margin Sharing and Collaboration Agreement.

First through Fourth Causes of Action – Statute of Limitations

Aerojet alternatively moves for summary judgment/adjudication on Plaintiff’s first through fourth causes of action on the ground that they are barred by a two-year statute of limitations, which commenced from the date of the commission of the wrong (Hansen’s purported December 2013 solicitation of Plaintiff). Aerojet argues:

[I]t is black-letter law that causes of action for interference with contract or prospective economic advantage and inducing breach of contract occurs the moment of the alleged interference. [Citations.]

Here, [Plaintiff] alleges that Aerojet’s alleged wrongful conduct and the disruption of the Inflective-[Plaintiff] relationship occurred in or about December 2013. [Citations.] The documentary evidence further confirms that [Plaintiff] ended his relationship with Inflective on or about December 20, 2013. In emails dated December 20, 2013,

[Plaintiff] notified Aerojet and Inflective that he would be disengaging with Inflective and engaging with Aerojet through another vendor. [Citations.] Similarly, on December 19, 2017, the day before, [Plaintiff] sent an email to Thomas Hensler, Inflective’s principal, stating that he would not agree to execute the draft Margin Sharing and Collaboration Agreement. [Citations.] [Plaintiff’s] original complaint in this action was filed on December 30, 2015, more than two years after the alleged disruption of the Inflective-[Plaintiff] relationship. As a result, [Plaintiff’s] first through fourth causes of action are barred by the applicable statutes of limitations.

(Mot. 24:16-25:9.)

Plaintiff counters:

Aerojet’s statement that the two years’ statute of limitations starts on the date of the commission of the wrong is flagrantly wrong based on established case law. The limitations period runs from the moment a claim accrues. [Citation.] A cause of action accrues when it is complete with all of its elements – those elements being wrongdoing, harm, and causation.

(Opp’n 14:23-26.) Plaintiff argues:

[A]lthough wrongdoing can arguably be said to have existed in or around December 2013, causation and harm, essential elements of a claim, had not yet arisen. The harm to [Plaintiff] would not materialize until at least April 2014, [when Inflective refused to pay Plaintiff’s December 2013 invoices,] which would make [Plaintiff’s] action against AEROJET on December 30, 2015 timely.

(Opp’n 16:14-18.) Plaintiff also disputes whether a two-year statute of limitations (versus three or four-year) applies to each of his first four causes of action. (Opp’n 15:18-24.)

Aerojet replies that according to Plaintiff’s allegations, Plaintiff’s damages occurred on or before December 20, 2013, not in April 2018. Aerojet contends:

[A]ccording to [Plaintiff], based upon Aerojet’s purportedly wrongful solicitation on December 17, 2013, [Plaintiff] terminated his then existing contract with Inflective and any prospective business relationship. That termination took place on or before December 20, 2013. [Citation.] With respect to any monies owed [Plaintiff] for services rendered under the then-existing contract, the Inflective-[Plaintiff] contract provided that those monies were due immediately upon termination . . . . [Citation.] As a result, Inflective’s purported refusal to pay [Plaintiff] caused harm

immediately. . . . As a result, . . . [Plaintiff] suffered some alleged harm on or before December 20, 2013, more than two years before filing this lawsuit. . . .

(Reply 12:14-13:1.)

Assuming a two-year statute of limitations applies to Plaintiff’s first four causes of action, Aerojet has not shown they are barred by the statute of limitations. A material issue of fact exists concerning when Plaintiff first suffered harm as a result of Aerojet’s conduct. Plaintiff declares that he never told Inflective he would leave Inflective and he did not terminate his relationship with Inflective. (Pl.’s Decl. ¶ 5.) Plaintiff avers Inflective (Tom Hensler) called him on December 18, 2013, and left a voicemail message stating that his contract would not be extended. (Ibid.) Plaintiff’s contract with Inflective ran through December 2013. Therefore, even assuming Plaintiff was owed payment for all of his past work on the last day of his contract (December 31, 2013), Plaintiff filed his original complaint within two years thereof on December 30, 2015.

For the stated reasons, Aerojet’s alternative motion for summary judgment/adjudication on Plaintiff’s first through fourth causes of action on statute of limitations grounds is DENIED.

Unjust Enrichment

In the SAC, Plaintiff alleges Aerojet was unjustly enriched by Plaintiff’s performance of approximately $37,000 in services for which Plaintiff has not been paid. (SAC ¶ 74.)

Aerojet moves for summary judgment/adjudication on Plaintiff’s unjust enrichment cause of action because Aerojet presented evidence that it paid Inflective in full for Plaintiff’s services. (See Decl. of Janine Wong ISO Mot. (“Wong Decl.”) ¶ 2.) Aerojet argues, “where one party contracts with an intermediary for certain services, and that intermediary then contracts with a third person to perform the services, the original party cannot be liable to the third party for nonpayment for services rendered.” (Mot. 22:12-16 [citing Cal. Med. Ass’n, Inc. v. Aetna U.S. Healthcare of Cal., Inc. (2001) 94 Cal.App.4th 151, 174].)

Plaintiff does not respond to Aerojet’s argument in his opposition. Instead, he asserts the following new premise for his unjust enrichment cause of action.

Per its own admission, [Aerojet] paid [Plaintiff] $235 an hour through the new vendor. Evidence shows and will further show that AEROJET paid INFLECTIVE $270 an hour to INFLECTFVE for [Plaintiff]. [Citation.] Thus, it is unjust for AEROJET to retain the benefit conferred by [Plaintiff] in light of the harm caused to [Plaintiff]. This is clear evidence that by treating [Plaintiff] unfairly AEROJET was unjustly enriched, in achieving a savings of $35 an hour. [Citation.]

(Opp’n 13:19-24.)

Plaintiff cannot rely upon this new legal theory, which is not alleged in the SAC, to defeat Aerojet’s motion on his unjust enrichment cause of action. (See, e.g., Roth v.

Rhodes, supra, 25 Cal.App.4th at 541 [“A party cannot successfully resist summary judgment on a theory not pleaded.”].)

Further, Aerojet has shown the absence of a material issue of fact on the theory Plaintiff did allege. Although Plaintiff conferred a benefit upon Aerojet by performing his services, those benefits were not unjustly retained. The benefit conferred was an “incident to [Plaintiff’s] performance of [his] obligations to [Inflective] under the [Consulting Agreement].” (Cal. Med. Ass’n, Inc., supra, 94 Cal.App.4th at 174.) “‘A person who, incidentally to the performance of his own duty . . . has conferred a benefit upon another, is not thereby entitled to contribution.’ [Citation.]” (Ibid.)

Therefore, Aerojet’s motion for summary adjudication on Plaintiff’s eighth cause of action for unjust enrichment is GRANTED.

Declaratory Relief – Equitable Indemnity

In his seventh cause of action for declaratory relief, Plaintiff “desires a judicial determination of . . . whether AEROJET solicited [Plaintiff] and the respective rights and duties of [Plaintiff] and AEROJET with respect to the damages claimed in the Arbitration by Inflective.” (SAC ¶ 71.) “In particular,” Plaintiff “desires a declaration of the comparative liability of [Plaintiff] and AEROJET for these damages, and a declaration of AEROJET’s responsibility for comparative indemnity to Inflective for any sums that [Plaintiff] may be compelled to pay and for which AEROJET is deemed responsible, entirely or in part.” (Ibid.)

Aerojet moves for summary judgment/adjudication on Plaintiff’s declaratory relief cause of action, arguing “nothing obligates Aerojet to indemnity [Plaintiff] for liability he incurs to Inflective.” (Mot. 23:15-16.) Aerojet contends:

First, [Plaintiff] cannot point to any express contractual provision obligating Aerojet to provide [Plaintiff] such indemnity. Second, any claim for non-contractual, equitable indemnity fails because [Plaintiff] and Aerojet are not jointly and severally liable for the same injury to Inflective. . . . As the Court already held in denying [Plaintiff’s] motion seeking an order finding that the settlement between Aerojet and Inflective was made in bad faith, “Inflective does not allege that [Plaintiff] and Aerojet are joint tortfeasors.” (See Court’s Order dated July 6, 2017.)

(Mot. 23:16-24:4.)

Plaintiff clarified in his opposition that he is not alleging express contractual indemnity.

(Opp’n 18:1.) As for equitable indemnity, Plaintiff responds:

In this case, AEROJET argues that the court order states that INFLECTIVE does not allege that [Plaintiff] and AEROJET are joint tortfeasors, therefore, [Plaintiff] does not have a right to seek indemnity from AEROJET. However, that issue had not been litigated in that motion. . .

. Inflective sued Aerojet and [Plaintiff] for the same harm namely breach of the nonsolicitation agreement. Thus,

[Plaintiff] and Aerojet can be jointly and severally liable to INFLECTIVE for the same harm. The motion to determine good faith of the settlement between INFLECTIVE and AEROJET was denied and the good faith was not determined. Therefore, AEROJET has not been relieved of its joint tort liability.

(Opp’n 18:11-23.)

“The test for [equitable] indemnity is . . . whether the indemnitor and indemnitee jointly caused the plaintiff’s injury.” (AmeriGas Propane, L.P. v. Landstar Ranger, Inc. (2010) 184 Cal.App.4th 981, 989.) “It matters not whether the tortfeasors acted in concert to create a single injury, or successively, in creating distinct and divisible injury.” (Blecker v. Wolbart (1985) 167 Cal.App.3d 1195, 1203.) “‘Where the transaction rests upon related facts, either concurrent or successive, joint or several, which legally create a detriment compensable against multiple actors, the right of indemnity should follow . . .

. [Citation.]’” (Yamaha Motor Corp. v. Paseman (1990) 219 Cal.App.3d 958, 964.)

Aerojet’s motion does not address the merits of whether it could be found to be a joint tortfeasor for Inflective’s harm, if any. Instead, Aerojet argues that because Inflective did not allege in its arbitration counterclaim that Aerojet and Plaintiff are joint tortfeasors, Plaintiff is now precluded from seeking declaratory relief regarding equitable indemnity. Aerojet has provided no authority to support such a proposition. To the contrary, equitable indemnity can be sought regardless of whether or not the indemnitor is a party to the proceeding in which his or her liability arose. (See, e.g. CACI Instruction No. 3800, Directions for Use [“This instruction is intended for use in cases where the plaintiff seeks equitable indemnity from another responsible tortfeasor who was not a party to the original action or proceeding from which the liability in question arose.”].)

Equitable indemnity requires a determination of fault on the part of the alleged indemnitor by the trier of fact. Here, no such determination has been made in this action or a related proceeding. The Court’s statement in its July 7, 2017 Order in the Inflective Action that “Inflective does not allege that Plaintiff] and Aerojet are joint tortfeasors” simply reflected the state of Inflective’s allegations. The Court was not asked to, nor did it, make a factual finding concerning Aerojet and Plaintiff’s respective liabilities, if any, to Inflective.

For the stated reasons, Aerojet’s motion for summary judgment/adjudication on Plaintiff’s declaratory relief cause of action is DENIED.

The Court notes that Aerojet made a new argument for the first time in its reply that Plaintiff’s equitable indemnity cause of action should be dismissed as premature since Plaintiff has not yet paid any damages to Inflective. (See Reply 11:10-16.) The Court does not consider this argument since Aerojet’s moving papers do not identify this issue as a basis for summary adjudication of Plaintiff’s declaratory relief cause of action. (See Def.’s Notice of Mot. for Summ. J. 2:18-22.)

Conclusion

Aerojet’s summary judgment motion is DENIED. Aerojet’s alternative motion for

summary adjudication is granted in part, and denied in part, as follows:

Summary adjudication is GRANTED as to Plaintiff’s eighth cause of action for unjust enrichment; summary adjudication is DENIED as to all other causes of action.

Aerojet’s counsel shall prepare an order for the Court’s signature pursuant to Code of Civil Procedure section 437c, subsection (g), and California Rules of Court, rule 3.1312.