(Super. Ct. No. SCV24220)
The opinion of the court was delivered by: Hull ,j.
Developers Surety and Indemnity Co. v. Old Auburn 2005
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
After defendant and cross-complainant Developers Surety and Indemnity Company (Developers) paid plaintiff J.D. Pasquetti, Inc. (Pasquetti) $225,000 in settlement of plaintiff's claims against Developers and defendant and cross-defendant Old Auburn 2005, L.P. (Old Auburn), arising out of a construction dispute, Developers sought and obtained summary judgment on its cross-complaint for indemnity against Old Auburn, Greg N. Vincent, Dawn R. Vincent-Tarantino, and Kelvin Homes (collectively Indemnitors). Indemnitors appeal, contending issues of fact exist as to various defenses they had to Pasquetti's underlying claims. In granting summary judgment, the trial court concluded those defenses were not at issue, because Indemnitors failed to raise any affirmative defenses to the cross-complaint.
We reverse. While the answer to the cross-complaint may not have raised any affirmative defenses, the cross-complaint itself alleged only that Developers is entitled to indemnity "[i]n the event Developers is held liable to [Pasquetti]." Because Developers voluntarily agreed to pay the $225,000, it was never "held liable" to Pasquetti. Hence, Developers is not entitled to summary judgment on the cross-complaint as alleged.
On November 20, 2007, Pasquetti entered into a contract with Old Auburn to perform construction work on Woodbridge Estates Unit 2, located at 3605 Old Auburn Road in Roseville (the Project).
On June 13, 2008, Indemnitors executed an indemnity agreement (the Indemnity Agreement) whereby they agreed to indemnify Developers "against any and all liability, loss, claims, demands, costs, damages, attorneys' fees and expenses . . . which [Developers] may sustain or incur by reason of or in consequence of the execution and delivery by [Developers] of any Bond on behalf of [Old Auburn] . . . ."
The following month, Developers issued a labor and materials bond on behalf of Old Auburn for the Project in the amount of $306,288 (the Bond).
On January 16, 2009, Pasquetti filed suit against Old Auburn, Developers and others for, among other things, breach of contract and recovery on the Bond. Pasquetti claimed it was owed $326,117.39 on the Project.
On March 23, 2009, Developers filed a cross-complaint against Indemnitors asserting, among other things, that, "[i]n the event Developers is held liable to J.D. Pasquetti, Inc. under the payment bond, Developers is entitled to complete indemnification from [Indemnitors] under the terms of the Indemnity Agreement."
On May 12, 2009, Old Auburn filed an answer to the complaint asserting six affirmative defenses, including negligence and fault by Pasquetti, failure to mitigate ...