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Shane Alan Cahill v. San Diego Gas & Electric Company

April 27, 2011

[5]     SHANE ALAN CAHILL, PLAINTIFF AND RESPONDENT,
v.
SAN DIEGO GAS & ELECTRIC COMPANY, DEFENDANT, CROSS-COMPLAINANT AND APPELLANT; MAURICE MAIO ET AL., CROSS-DEFENDANTS AND RESPONDENTS.



[6]     Super. Ct. No. 37-2008-00095892-CU-PO-CTL APPEAL from an order of the Superior Court of San Diego County, Steven R. Denton, Judge. Affirmed.

[8]     The opinion of the court was delivered by: McDONALD, J.

[9]      CERTIFIED FOR PUBLICATION

[10]     Defendant and cross-complainant San Diego Gas & Electric Company (SDGE) appeals an order dismissing its cross-complaint for equitable indemnity against cross-defendants Maurice Maio, David Zeiger, and Nantasket Court Condominium Association (collectively Owners) after the trial court found that Owners' $25,000 settlement with plaintiff Shane Cahill was made in good faith within the meaning of Code of Civil Procedure section 877.6.*fn1 On appeal, SDGE contends the trial court abused its discretion by granting Owners' section 877.6 motion and dismissing its cross-complaint because, applying the relevant factors set forth in Tech-Bilt, Inc. v. Woodward-Clyde & Associates (1985) 38 Cal.3d 488 (Tech-Bilt), no rational trial court could conclude the settlement was made in good faith and insufficient evidence supports the trial court's findings. SDGE also asserts the trial court erred by denying its separate motion for summary judgment against Cahill.

[11]     FACTUAL AND PROCEDURAL BACKGROUND

[12]     Maio owns 3566 Bayside Walk and Zeiger owns 3568 Bayside Walk, residences that constitute a two-unit Mission Beach condominium project (Property) built in 1984. Nantasket Court Condominium Association (Association) is the homeowners association that manages Property. Apparently after 1984, Owners installed glass railings around the perimeter of Property's roof and also installed several air conditioning units on the roof. In 1999, Zeiger installed a Jacuzzi whirlpool tub with a surrounding deck on the northwest corner of the roof. In 2005, SDGE apparently replaced an existing utility pole with a new pole in the alley directly adjacent to Property.

[13]     On September 3, 2008, Cahill, an employee of Lily's Window Cleaning (Employer), suffered severe burns and other injuries when his metal window-washing pole made contact with the SDGE 12,000-volt electrical line located in the alley, higher than and adjacent to Property's roof. At the time of the incident, Cahill was preparing to wash the glass railing on the southwest corner of the roof, while standing with one foot on a metal air conditioning unit and his other foot on the bottom of the glass railing.

[14]     On November 13, 2008, Cahill filed a personal injury action against SDGE, alleging it was negligent per se for constructing and maintaining electrical lines too close to Property in violation of state law (i.e., Cal. Pub. Utilities Com. General Order No. 95).*fn2 In December, SDGE filed an answer denying Cahill's allegations and asserting various affirmative defenses.

[15]     In April 2009, Cahill and Owners entered into a settlement agreement pursuant to which Owners paid Cahill $25,000 in exchange for the release of all claims he may have had against them arising out of his September 3, 2008, injury. In May, SDGE filed a cross-complaint against Owners for apportionment of fault and equitable indemnification, alleging Owners should be held legally responsible for their comparative negligence in causing Cahill's injuries. Owners subsequently filed a cross-complaint against SDGE for indemnity and other relief.

[16]     In July, Delos Insurance Company filed a complaint-in-intervention against SDGE for recovery of workers' compensation benefits it paid to Cahill as a result of SDGE's alleged negligence. In August, SDGE filed a motion for summary judgment against Cahill. The trial court issued an order denying that motion. We summarily denied SDGE's writ petition challenging that order. (San Diego Gas & Electric Co. v. Superior Court (Feb. 23, 2010, D056719).)

[17]     In November, Owners filed a motion for a section 877.6 determination that their settlement with Cahill was made in good faith, and for an order dismissing with prejudice SDGE's cross-complaint against them for equitable indemnity or other relief. SDGE opposed the motion. On January 22, 2010, the trial court heard arguments of counsel and then issued a minute order confirming its tentative ruling granting Owners' motion. On January 29, the court issued a written order granting Owners' motion, determining the settlement was made in good faith within the meaning of section 877.6, and dismissing with prejudice all claims against Owners for equitable indemnity or other relief arising out of the incident (e.g., SDGE's cross-complaint against Owners). On March 15, the trial court issued an order dismissing Owners' cross-complaint against SDGE. On March 19, we summarily denied SDGE's writ petition challenging the trial court's order granting Owners' section 877.6 motion. (San Diego Gas & Electric Co. v. Superior Court (Mar. 19, 2010, D056875).)

[18]     SDGE timely filed a notice of appeal, challenging the trial court's order granting Owners' section 877.6 motion and dismissing its cross-complaint against them.*fn3 Owners filed a motion to dismiss SDGE's appeal. Cahill filed a "motion to dismiss" SDGE's request that, in conjunction with its appeal of the section 877.6 order, we review the trial court's order denying its motion for summary judgment against him.

[19]     DISCUSSION

[20]     I Cahill's "Motion to Dismiss"

[21]     On June 14, 2010, SDGE filed its opening appellant's brief, asserting the trial court erred by denying its motion for summary judgment against Cahill and that the order was reviewable pursuant to section 906 in conjunction with its appeal of the court's order granting Owners' section 877.6 motion. On July 27, 2010, Cahill filed a "motion to dismiss" SDGE's appeal of the trial court's order denying its motion for summary judgment against him. He asserts: (1) the order denying SDGE's motion for summary judgment is not appealable until a final judgment is entered; and (2) section 906 does not allow review of that order in conjunction with SDGE's appeal of the order granting Owners' section 877.6 motion. SDGE filed an opposition, conceding the order denying its motion for summary judgment against Cahill is not appealable, but arguing section 906 applies and requires us to review that order in conjunction with its appeal of the order granting Owners' section 877.6 motion and dismissing its cross-complaint against Owners. On August 16, 2010, Cahill then filed a request for leave to file a reply in support of his motion to dismiss. We hereby grant the request for leave, deem the reply to have been filed, and consider its substance.

[22]     We agree with the parties that the trial court's order denying SDGE's motion for summary judgment against Cahill is not appealable. (Federal Deposit Ins. Corp. v. Dintino (2008) 167 Cal.App.4th 333, 343 ["An order denying a motion for summary judgment or summary adjudication is not an appealable order.].)" Nevertheless, as SDGE notes, if a decision (e.g., final judgment) is properly appealed pursuant to section 904.1 or 904.2, section 906 allows us to "review" certain "intermediate" orders or other rulings not otherwise directly appealable. Section 906 provides in pertinent part:

[23]     "Upon an appeal pursuant to Section 904.1 or 904.2, the reviewing court may review the verdict or decision and any intermediate ruling, proceeding, order or decision which involves the merits or necessarily affects the judgment or order appealed from or which substantially affects the rights of a party . . . ." (Italics added.)

[24]     SDGE argues that because it properly appealed the trial court's order dismissing its cross-complaint for equitable indemnity against Owners, section 906 requires us to review the court's intermediate order denying its motion for summary judgment against Cahill (even though that motion did not directly affect Owners). Although we agree (as we discuss below) SDGE may properly appeal the trial court's order dismissing its cross-complaint against Owners, we disagree with SDGE's assertion that section 906 applies in the circumstances of this case to allow (or require) us to review the trial court's non-appealable order denying SDGE's motion for summary judgment against Cahill.

[25]     We conclude none of section 906's three alternative prerequisites to allowing review of a non-appealable, intermediate order apply in this case. First, the order denying SDGE's motion for summary judgment against Cahill does not "involve[] the merits" of the order appealed from (i.e., the order dismissing SDGE's cross-complaint for equitable indemnity against Owners). (§ 906.) The order appealed involves the question whether the trial court erred in determining whether Owners' settlement with Cahill was made in good faith. The order denying SDGE's motion for summary judgment against Cahill does not involve the merits of that appealed order, but instead involves the question whether there are any triable issues of material fact precluding summary judgment on Cahill's personal injury claims against SDGE.*fn4 SDGE does not cite any case showing, or otherwise persuade us, that this prerequisite is satisfied in the circumstances of this appeal.

[26]     Second, the order denying SDGE's motion for summary judgment against Cahill does not "necessarily affect[]" the order appealed from (i.e., the order dismissing SDGE's cross-complaint for equitable indemnity against Owners). (§ 906.) SDGE argues: "[I]f [SDGE] were entitled to summary judgment, as it contends [citation], it would have no liability to Cahill and no right to seek equitable indemnity from the building owners. [Citations.] Therefore, the correctness of the good faith settlement order would be affected--rendered moot--by the summary judgment to which [SDGE] is entitled." However, in so arguing, SDGE misconstrues and/or misapplies section 906 by essentially arguing the order denying its motion for summary judgment against Cahill could affect its claim for equitable indemnity against Owners and, as a result, the order dismissing its cross-complaint against Owners (i.e., by rendering that claim moot if its motion for summary judgment against Cahill should have been granted). The second alternative section 906 prerequisite for review of a non-appealable order in this case is not whether the order denying SDGE's motion for summary judgment could affect the order dismissing its cross-complaint against Owners, but rather whether it necessarily affects the order dismissing its cross-complaint against Owners. (§ 906.) Contrary to SDGE's assertion, we conclude the trial court's order denying SDGE's motion for summary judgment against Cahill does not "necessarily" affect the order dismissing SDGE's cross-complaint for equitable indemnity against Owners. (§ 906.) If the trial court correctly denied SDGE's motion for summary judgment against Cahill, that decision would not necessarily affect its order dismissing SDGE's cross-complaint for equitable indemnity against Owners. SDGE does not cite any case showing, or otherwise persuade us, that this prerequisite is satisfied in the circumstances of this appeal.

[27]     Finally, SDGE does not present any substantive argument showing the third alternative prerequisite under section 906 is satisfied in the circumstances of this case. Rather, it apparently presumes it is Cahill's burden to show that prerequisite is not satisfied and, by not substantively addressing it in his motion to dismiss, he has not met his burden "to establish that the order is not reviewable on appeal under that third, alternative criterion." Assuming arguendo SDGE is correct that Cahill has the burden to show the prerequisite is not satisfied, Cahill's purported failure to meet that burden cannot bestow jurisdiction on us to review an order not reviewable on appeal under section 906 or otherwise. Accordingly, absent substantive discussion by either party, we independently address whether that prerequisite is satisfied in this case.

[28]     Pursuant to section 906, a non-appealable, intermediate order that "substantially affects the rights of a party" may be reviewed in conjunction with an appeal of a final judgment or appealable order. The clear import of that provision is to allow an appellate court to review rulings, orders, or other decisions that led up to, or directly related to, the judgment or order being appealed to the extent they substantially affected the rights of one of the parties to the appeal. It is implicit within section 906's language that the "intermediate" order or decision that substantially affects the rights of a party must be one that led up to, or directly relates to, the judgment or order being appealed.

[29]     Therefore, non-appealable orders or other decisions substantively and/or procedurally collateral to, and not directly related to, the judgment or order being appealed are not reviewable pursuant to section 906 even though they literally may "substantially affect[]" one of the parties to the appeal. If section 906 were interpreted without that implicit limitation, either party to an appeal could obtain review of various non-appealable, intermediate, and collateral rulings, orders, or other decisions made by the trial court that, in the case of multiple party actions (such as this one), may have no direct relevance to the other party to the appeal or to the issues on appeal. That interpretation could allow one party to the direct appeal to, in colloquial terms, "open the floodgates" and bring into the appeal all sorts of collateral or other unrelated intermediate decisions that do not affect the other party to the appeal or the appealed decision, thereby potentially increasing exponentially the issues to be addressed on appeal and the use of limited judicial resources to decide those issues.

[30]     We do not believe the Legislature intended section 906 to allow review of various non-appealable, intermediate, and collateral rulings, orders, or other decisions that do not directly relate to the judgment or order being appealed, affect only one of the parties to the appeal, and could, as a result, add as cross-respondents to the appeal parties not involved in, or affected by, the judgment or order being directly appealed. SDGE has not cited, nor have we found, any apposite case construing section 906 in such an expansive manner.*fn5 Accordingly, we conclude the order denying SDGE's motion for summary judgment against Cahill does not "substantially affect[] the rights of a party" within the meaning of section 906.

[31]     Because the trial court's order denying SDGE's motion for summary judgment against Cahill is not appealable or otherwise reviewable pursuant to section 906, we grant Cahill's motion and decline to review that order in conjunction with its appeal of the order dismissing its cross-complaint for equitable indemnification against Owners.*fn6 Accordingly, to the extent SDGE's appellate briefs challenge and substantively discuss the order denying SDGE's motion for summary judgment against Cahill, we disregard those portions of its ...


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