Opinion
D049908
10-29-2008
JELD-WEN, INC., Plaintiff and Appellant, v. ACTION IRON WORKS, INC., et al., Defendants and Respondents.
Not to be Published
In a prior lawsuit, Jeld-Wen, Inc., which does business as Summit Window & Patio Door (Jeld-Wen) was found liable to Pardee Construction Company (Pardee) for losses resulting from water that intruded through windows that Jeld-Wen installed at a Pardee housing development. In this suit, Jeld-Wen sought to recover the sums for which it was found liable from subcontractors Action Iron Works, Inc. (AIW); Foshay Electric Company, Inc. (Foshay); KAS Supply Company, Inc. (KAS); National Roofing Supply Consultants, Inc. (National Roofing); Pacific Coast Roofing Corporation (Pacific); Southcoast Sheet Metal (Southcoast); Wall Systems, Inc. (Wall); and Western Insulation, Inc. (Western) (collectively Defendants), claiming that those subcontractors also were at fault for the water intrusion.
The trial court entered judgment in favor of Defendants, and Jeld-Wen appeals. Jeld-Wen contends that the trial court erred (1) in granting a motion for judgment on the pleadings on Jeld-Wens cause of action alleging that Defendants are liable for breach of contract under a third party beneficiary theory; (2) in granting summary adjudication in favor of Western on the breach of contract cause of action; and (3) in granting summary judgment in favor of all of the Defendants on the causes of action for equitable indemnity, equitable contribution and declaratory relief.
As we will explain, we conclude that the trial court erred by (1) ruling in favor of KAS, AIW, Southcoast, Pacific, Foshay and Wall on their motion for judgment on the pleadings challenging the breach of contract cause of action; and (2) ruling in favor of National Roofing on its motion for summary judgment with respect to the causes of action for equitable indemnity and declaratory relief. In all other respects we affirm the judgment.
I
FACTUAL AND PROCEDURAL BACKGROUND
Jeld-Wen entered into a contract with Pardee to install windows and sliding glass doors in homes being developed by Pardee in a community known as Regency Hills, in Oak Park, Ventura County (the Project). In December 1997, rainwater began leaking into the homes — around the windows and elsewhere — and Pardee began receiving complaints from homeowners. Pardee implemented repairs, which included removal and repair of the windows.
According to Jeld-Wen there were multiple sources of water intrusion that Pardee incurred costs to remediate, and only some of the water intrusion was related to the leaking windows installed by Jeld-Wen. Jeld-Wen claims that water intrusion was caused by Defendants improper workmanship concerning all of the following: the french doors, the electrical penetrations and electrical fixtures, the building paper and flashing materials, the attic vents and the decorative iron railings. Jeld-Wen also claims that water intrusion resulted from inadequate performance by the independent inspector on the Project, i.e., National Roofing.
A. The Pardee Litigation
In an attempt to recover for the expenses it occurred as a result of the water intrusion remediation, Pardee filed a lawsuit against Jeld-Wen for, among other things, negligence, express indemnity, breach of implied warranty and breach of contract (the Pardee Litigation). After a jury trial, the court entered judgment against Jeld-Wen, awarding Pardee $1,701,543 (taking into account certain offsets, credits and adjustments) plus costs, including expert witness fees (the Pardee judgment). Jeld-Wen appealed, and we reversed the trial courts award of expert witness fees, but otherwise affirmed the Pardee judgment as to Jeld-Wen. According to Jeld-Wen, it has paid the Pardee judgment, which amounted to $2,203,472 plus accrued interest.
The Pardee Litigation and the subsequent appeal also included (1) Pardees claim against another subcontractor, Eagles Plastering, Co., Inc. (Eagles), which was hired by Pardee to apply overlapping building paper, lath and stucco to the homes being constructed; (2) Jeld-Wens cross-complaint against window installer Vision Glazing (Vision) for negligence, breach of contract and indemnity; and (3) Eagles cross-complaint for equitable indemnity against Jeld-Wen and Vision. As relevant here, Eagles was awarded $10,461.90 against Jeld-Wen, and Jeld-Wen was awarded $160,650 against Vision, and those awards were affirmed on appeal. Further, in a special verdict form, the jury apportioned the fault of the various parties for Pardees injuries as follows: Jeld-Wen, 15 percent; Eagles, 75 percent; and Pardee, 10 percent. The jury found that "Other person[s]" were zero percent responsible for the damage to Pardee. In another special verdict, relating to Jeld-Wens claims against Vision, the jury apportioned fault for Jeld-Wens injuries as follows: Vision, 27 percent; Jeld-Wen, 73 percent; and "Others," zero percent. These jury findings are the basis for the collateral estoppel argument raised by some of the Defendants.
B. Jeld-Wen Files This Litigation
After the Pardee judgment was entered, Jeld-Wen filed this action against Defendants, all of whom Jeld-Wen alleged had worked as subcontractors on the Project.
Evidence in the record shows that the Defendants performed the following work at the Project: National Roofing acted as an inspector of certain aspects of the construction; Southcoast provided sheet metal work, including attic vents; Pacific performed roofing work; KAS performed the finish carpentry work, including installing french doors and exterior shutters; Western installed insulation; AIW installed ornamental metal; Wall installed drywall; and Foshay was an electrical subcontractor.
Jeld-Wen contended that the water intrusion at the Project was due to Defendants acts or omissions, and that the Pardee judgment "includes costs incurred by Pardee to repair construction defects caused by each Defendant." The operative amended complaint (the complaint) asserted causes of action for (1) negligence; (2) equitable subrogation to Pardees right to express indemnity; (3) equitable indemnity; (4) equitable contribution; (5) breach of contract on a third party beneficiary theory; and (6) declaratory relief as to whether Jeld-Wen was entitled to indemnification and/or contribution from Defendants.
C. National Roofings Motion for Summary Judgment on the Negligence and Breach of Contract Causes of Action
National Roofing brought a motion for summary judgment, or in the alternative for summary adjudication, challenging all of the causes of action in the complaint. The trial court granted summary adjudication on the negligence, equitable subrogation and breach of contract causes of action in favor of National Roofing, and denied it as to the remaining causes of action.
D. Motions for Judgment on the Pleadings on the Breach of Contract and Negligence Causes of Action
KAS, Pacific and AIW brought motions for judgment on the pleadings directed at the negligence and breach of contract causes of action, and Southcoast brought a motion for judgment on the pleadings directed only at the breach of contract cause of action. The trial court granted the motions.
We note that KAS earlier brought an unsuccessful motion for summary judgment, in which the trial court denied each of KASs arguments, including that Jeld-Wen could not prevail on the negligence and breach of contract causes of action.
Thereafter, Jeld-Wen entered into a stipulation with Foshay, Southcoast and Wall, agreeing that the trial courts ruling on KASs motion for judgment on the pleadings with respect to both the negligence and breach of contract causes of action would apply as if each of the Defendants entering into the stipulation had filed its own motion for judgment on the pleadings on those two causes of action (the Stipulation). The trial court approved the Stipulation.
Although the trial court had granted judgment on the pleadings in favor of Southcoast on the breach of contact cause of action, Southcoast apparently entered into the Stipulation in order to dispose of the negligence cause of action. Western did not enter into the Stipulation, and instead, as we will explain, successfully challenged the causes of action for negligence and breach of contract through its motion for summary judgment. There was no need for National Roofing to enter into the Stipulation because the trial court already had granted summary adjudication in its favor on the negligence and breach of contract causes of action.
E. Motions for Summary Judgment on the Remaining Causes of Action
Each of the Defendants brought motions for summary judgment on the remaining causes of action.
In filing their motions for summary judgment, none of the parties addressed the equitable subrogation cause of action. We accordingly infer that the equitable subrogation cause of action previously was resolved as to each Defendant, although the appellate record does not fully reflect the applicable rulings.
In their motions for summary judgment, Defendants challenged the causes of action for equitable indemnity, equitable contribution and declaratory relief by focusing on what they asserted to be an undisputed fact: the Pardee judgment encompassed only Pardees repair costs related to repair of the leaking windows, and not the cost of repairs relating to any other source of water intrusion. Defendants argued that it was undisputed that none of them were at fault for the leaking windows, and thus Jeld-Wen could not establish that Defendants were responsible under a theory of equitable indemnity or equitable contribution for a portion of the Pardee judgment. Defendants also challenged the equitable contribution cause of action on the ground that they were not co-obligors with Jeld-Wen on the Pardee judgment.
Not all of the Defendants asserted this argument in the trial court. Defendants separate challenge to the equitable contribution argument has been refined and developed in their appellate briefing.
In their motions, Foshay, Pacific and KAS presented a further ground for summary judgment. They argued that because of the Pardee judgment, Jeld-Wen was collaterally estopped to argue that other subcontractors were responsible for any of the damages encompassed in the Pardee judgment.
The other Defendants — Wall, AIW, National Roofing, Southcoast and Western — did not move for summary judgment on the basis of collateral estoppel.
Western, which had not earlier filed a demurrer to the negligence and breach of contract causes of action, moved for summary judgment with respect to those causes of action, along with the causes of action targeted in the other Defendants summary judgment motions.
After reviewing the evidence presented by the parties, the trial court concluded that "Jeld-Wen has not met its burden of establishing a triable issue of material fact as to whether Jeld-Wen paid for non-window related water intrusion repair costs," and that "[t]he subcontractors have established that all of the costs incurred by Pardee in repairing the subcontractors allegedly improper work were excluded from the costs sought and paid by Jeld-Wen in the underlying trial." The trial court concluded that "[a]bsent evidence that Jeld-Wen paid for non-window related water damage intrusion repair costs," Jeld-Wen could not prevail on its causes of action for equitable indemnity, equitable contribution and declaratory relief, because each of those causes of action depended on the allegation that Jeld-Wen had made payment to Pardee for repair costs caused by the Defendants improper work.
Ruling on the collateral estoppel argument raised by Foshay, Pacific and KAS, the trial court concluded that the causes of action for equitable indemnity, equitable contribution and declaratory relief also failed because they were barred by the doctrine of collateral estoppel.
Ruling on Westerns motion for summary judgment, which also challenged the causes of action for negligence and breach of contract, the trial court granted Western a judgment in its favor.
F. Jeld-Wens Appeal
The trial court entered judgment in favor of Defendants on February 15, 2007. Jeld-Wen appeals from the judgment, challenging three categories of rulings by the trial court.
Jeld-Wen filed its notice of appeal before the judgment was entered in this action but after the trial court ruled on the dispositive motions for summary judgment. We treat the notice of appeal as having been filed immediately after entry of the judgment. (Cal. Rules of Court, rule 8.104(e)(1); Mukthar v. Latin American Security Service (2006) 139 Cal.App.4th 284, 288.)
First, Jeld-Wen challenges the trial courts rulings on the motions for judgment on the pleadings with respect to the breach of contract action as to those Defendants who brought such motions or entered into the Stipulation.
Thus, we review the rulings on the motions for judgment on the pleadings as to the breach of contract causes of action with respect to defendants KAS, AIW, Southcoast, Pacific, Foshay and Wall.
Second, Jeld-Wen challenges the trial courts ruling on Westerns summary adjudication motion regarding the breach of contract cause of action.
In Jeld-Wens opening brief, two footnotes contain Jeld-Wens challenge to the summary judgment ruling in favor of Western on the breach of contract cause of action. In those footnotes, Jeld-Wen does not set forth any separate legal argument as to why that ruling should be reversed, and instead states that it will rely on its argument for reversal of the ruling on the other Defendants motion for judgment on the pleadings.
As we have explained, National Roofing obtained summary adjudication on the breach of contract cause of action. However, Jeld-Wens appellate briefing does not mention that ruling. As Jeld-Wens briefing contains no specific argument challenging the ruling on the breach of contract cause of action as to defendant National Roofing, we consider the argument waived. (See Julian v. Hartford Underwriters Ins. Co. (2005) 35 Cal.4th 747, 761, fn. 4 [waiver of argument not asserted in briefs].)
Third, Jeld-Wen challenges the trial courts rulings on the summary judgment motions brought by all of the Defendants with respect to the causes of action for equitable indemnity, equitable contribution and declaratory relief.
II
DISCUSSION
A. Jeld-Wens Challenge to the Ruling Granting Judgment on the Pleadings on the Breach of Contract Cause of Action
We first consider Jeld-Wens argument that the trial court erred in granting judgment on the pleadings as to the cause of action for breach of contract with respect to KAS, AIW, Southcoast, Pacific, Foshay and Wall.
1. Standards Applicable to a Motion for Judgment on the Pleadings
"A motion for judgment on the pleadings is akin to a general demurrer; it tests the sufficiency of the complaint to state a cause of action. [Citation.] The court must assume the truth of all factual allegations in the complaint, along with matters subject to judicial notice. [Citation.] Appellate courts review judgments on the pleadings de novo." (Wise v. Pacific Gas & Electric Co. (2005) 132 Cal.App.4th 725, 738.) "Presentation of extrinsic evidence is . . . not proper on a motion for judgment on the pleadings." (Cloud v. Northrop Grumman Corp. (1998) 67 Cal.App.4th 995, 999.)
2. The Relevant Allegations of the Complaint
The basis for Jeld-Wens cause of action for breach of contract was a purported contractual provision appearing in the relevant contracts between Pardee and the Defendants, which Jeld-Wen contends made it a third party beneficiary to those contracts. According to the complaint,
"Defendants, and each of them, entered into a written contract with Pardee to perform their work at the [Project] free of defects and in a good and workmanlike manner and to review other subcontractors work at the [Project] and notify Pardee of faulty substandard and negligent work of other subcontractors at the [Project] prior to commencing their own scope of work."
More generally, the complaint also alleged that "the parties to the contract[s] intended to benefit other individual subcontractors conducting work at the [Project]," and that Jeld-Wen "was an intended third party beneficiary to the Contract between Defendants and Pardee." The relevant contracts were not attached as exhibits to the complaint.
3. Applicable Legal Principles
We next turn to a review of the law concerning a claim for breach of contract under a third party beneficiary theory. The authority for a third party to enforce a contractual provision is set forth in Civil Code section 1559, which provides that "[a] contract, made expressly for the benefit of a third person, may be enforced by him at any time before the parties thereto rescind it." "[I]t is well settled that Civil Code section 1559 excludes enforcement of a contract by persons who are only incidentally or remotely benefited by it." (Jones v. Aetna Casualty & Surety Co. (1994) 26 Cal.App.4th 1717, 1724 (Jones).) " `The fact that the third party is only incidentally named in the contract or that the contract, if carried out to its terms, would inure to the third partys benefit is insufficient to entitle him or her to demand enforcement. " (Bancomer, S. A. v. Superior Court (1996) 44 Cal.App.4th 1450, 1458.) Instead, " `[a] third party may qualify as a beneficiary under a contract where the contracting parties must have intended to benefit that third party and such intent appears on the terms of the contract. [Citation.] . . . [¶] . . . Whether a third party is an intended beneficiary or merely an incidental beneficiary to the contract involves construction of the parties intent, gleaned from reading the contract as a whole in light of the circumstances under which it was entered. " (Johnson v. Superior Court (2000) 80 Cal.App.4th 1050, 1064 (Johnson).)
Although "it is a question of fact whether a particular third person is an intended beneficiary of a contract" (Prouty v. Gores Technology Group (2004) 121 Cal.App.4th 1225, 1233 (Prouty)), "where . . . the issue can be answered by interpreting the contract as a whole and doing so in light of the uncontradicted evidence of the circumstances and negotiations of the parties in making the contract, the issue becomes one of law that we resolve independently." (Ibid.)
4. The Parties Arguments and the Trial Courts Ruling
In their motions for judgment on the pleadings, KAS, Pacific, AIW and Southcoast each argued that according to the relevant contractual provisions described in the complaint, Jeld-Wen was at most an incidental beneficiary. They made this argument solely by focusing on the complaints one-sentence description of the provisions that Jeld-Wen contends were intended to benefit it and other subcontractors on the Project. They argued that based on the complaints description of the contractual provisions, Jeld-Wen had not pled facts sufficient to state a cause of action for breach of contract based on a third party beneficiary theory.
In opposition, Jeld-Wen argued, among other things, that because the resolution of the third party beneficiary issue required a review of the relevant contracts, the matter would have to be decided in a motion for summary judgment rather than in a motion for judgment on the pleadings.
The trial court ruled against Jeld-Wen. It stated that ". . . Jeld-Wen has not alleged facts sufficient to establish that it is a third-party beneficiary to the [relevant contract with Pardee]. [Citation.] The obligations in the contract to perform in a workmanlike manner, and to notify of defective work, inured to the benefit of Pardee and not [the] other subcontractors." The trial court expressed similar reasoning in ruling on Southcoasts and AIWs motions. Further the trial court stated that the fact that the moving parties "did not provide a copy of [their] contract[s] with Pardee is not dispositive as a motion for judgment on the pleadings is based on the contents of the pleading."
We conclude that the trial court erred in granting judgment on the pleadings on the breach of contract cause of action without having the relevant contracts before it. In an action based on a written contract, a plaintiff may plead the legal effect of the contract rather than its precise language. (Construction Protective Services, Inc. v. TIG Specialty Ins. Co. (2002) 29 Cal.4th 189, 198-199.) Jeld-Wen followed this approach by plainly alleging that the effect of the contract was to make it a third party beneficiary of Defendants contracts with Pardee. As we have explained, "it is a question of fact whether a particular third person is an intended beneficiary of a contract" (Prouty, supra, 121 Cal.App.4th at p. 1233), and " `[w]hether a third party is an intended beneficiary or merely an incidental beneficiary to the contract involves construction of the parties intent, gleaned from reading the contract as a whole in light of the circumstances under which it was entered. " (Johnson, supra, 80 Cal.App.4th at p. 1064, italics added.) The trial court did not base its ruling on a reading of the whole of the relevant contracts. Indeed, the trial court did not have before it any of the relevant language from the contracts. All that was contained in the pleadings was Jeld-Wens one-sentence description of the contractual provisions that it contended were intended to confer a benefit upon it. Thus, without the relevant contractual language before it, the trial court had no proper basis upon which to rule that Jeld-Wen was not a third party beneficiary to the contracts, and it accordingly erred in so ruling.
Several of the Defendants argue that Burnett v. Chimney Sweep (2004) 123 Cal.App.4th 1057 establishes that a court may decide, in the context of a judgment on the pleadings, whether the plaintiff is a third party beneficiary of a contract. Burnett is not applicable here. In that case, an unsigned copy of the relevant contract was attached as an exhibit to the complaint, and the moving party, without objection, submitted a signed copy of the contract along with its motion for judgment on the pleadings. (Id. at pp. 1063-1064.) Because the court in Burnett had before it the complete contract, it was able to decide, as a matter of law, whether the plaintiff was a third party beneficiary. Here, in contrast, the relevant contracts were not before the trial court when it ruled on the motions for judgment on the pleadings. The trial court thus necessarily and improperly based its decision on the brief description of the contracts that appeared in the complaint.
Similarly, in its opposition briefing Southcoast cites Eastern Aviation Group, Inc. v. Airborne Express, Inc. (1992) 6 Cal.App.4th 1448, 1452-1453, as a example of a case in which a court held that a party was not a third party beneficiary. That case is not applicable because it was decided on summary judgment, with the relevant contract before the court.
B. Jeld-Wens Challenge to the Ruling on the Portion of Westerns Summary Judgment Motion Concerning the Breach of Contract Cause of Action
We next examine the trial courts ruling on Westerns motion for summary judgment as to the breach of contract cause of action. As we will explain, we conclude that the trial court properly granted summary judgment in favor of Western on that cause of action.
1. Standards Applicable to a Motion for Summary Judgment
Code of Civil Procedure section 437c, subdivision (c) provides that summary judgment or summary adjudication is to be granted when there is no triable issue of material fact and the moving party is entitled to judgment as a matter of law. A defendant "moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 (Aguilar).) A defendant may meet this burden either by showing that one or more elements of a cause of action cannot be established or by showing that there is a complete defense. (Ibid.) "[A]ll that the defendant need do is to show that the plaintiff cannot establish at least one element of the cause of action[;] the defendant need not himself conclusively negate any such element. . . ." (Id. at p. 853.) "A defendant moving for summary judgment may establish that an essential element of the plaintiffs cause of action is absent by reliance on the pleadings, competent declarations, binding judicial admissions contained in the allegations of the plaintiffs complaint, responses or failures to respond to discovery, and the testimony of witnesses at noticed depositions." (Eisenberg v. Alameda Newspapers, Inc. (1999) 74 Cal.App.4th 1359, 1375.) "A prima facie showing is one that is sufficient to support the position of the party in question." (Aguilar, at p. 851.)
If the defendants prima facie case is met, the burden shifts to the plaintiff to show the existence of a triable issue of material fact with respect to that cause of action or defense. (Aguilar, supra, 25 Cal.4th at p. 849; Silva v. Lucky Stores, Inc. (1998) 65 Cal.App.4th 256, 261.) " `When opposition to a motion for summary judgment is based on inferences, those inferences must be reasonably deducible from the evidence, and not such as are derived from speculation, conjecture, imagination, or guesswork. " (Waschek v. Department of Motor Vehicles (1997) 59 Cal.App.4th 640, 647.)
Ultimately, the moving party "bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law." (Aguilar, supra, 25 Cal.4th at p. 850.)
We review a summary judgment or summary adjudication ruling de novo to determine whether there is a triable issue as to any material fact and whether the moving party is entitled to judgment as a matter of law. (Certain Underwriters at Lloyds of London v. Superior Court (2001) 24 Cal.4th 945, 972.) "In practical effect, we assume the role of a trial court and apply the same rules and standards which govern a trial courts determination of a motion for summary judgment." (Lenane v. Continental Maritime of San Diego, Inc. (1998) 61 Cal.App.4th 1073, 1079.) "[W]e are not bound by the trial courts stated reasons for its ruling on the motion; we review only the trial courts ruling and not its rationale." (Gafcon, Inc. v. Ponsor & Associates (2002) 98 Cal.App.4th 1388, 1402.)
2. The Trial Court Properly Granted Summary Judgment in Favor of Western on the Breach of Contract Cause of Action
To meet its initial burden on summary judgment on the breach of contract cause of action, Western submitted a copy of its contract with Pardee (the Western subcontract). The Western subcontract is a preprinted form contract with the blanks filled in to indicate that its subject matter is Westerns provision of insulation for the Project. Attached to the Western subcontract are several pages of specifications describing the work to be performed and the materials to be supplied by Western. Western argued that Jeld-Wen was not an express or intended beneficiary of the Western subcontract because that agreement contained no language suggesting that any party other than Pardee was intended to receive a benefit.
In opposing Westerns motion for summary judgment, Jeld-Wen also relied on the Western subcontract. It argued that "the [Western subcontract] specifically states that Western is to install insulation in a good and workmanlike manner with zero defects in workmanship." Jeld-Wen argued that the other subcontractors on the Project were third party beneficiaries of the Western subcontract because Westerns promise to provide defect-free work "creates a direct benefit to those subcontractors whose work would be impacted by Western."
Jeld-Wen was apparently referring to the provisions in the contract stating that "Subcontractor . . . agrees to . . . perform in a good and workmanlike manner all of the insulation . . . in accordance with the plans and specifications . . . attached hereto[,]" and ". . . Subcontractors work shall be completed free of defects."
When no dispute exists as to the facts, we may resolve as a matter of law whether a party is an intended third party beneficiary of a contract "by interpreting the contract as a whole and doing so in light of the uncontradicted evidence of the circumstances and negotiations of the parties in making the contract." (Prouty, supra, 121 Cal.App.4th at p. 1233.) Our inquiry is whether the " `parties . . . intended to benefit that third party " and " `such intent appears on the terms of the contract " (Johnson, supra, 80 Cal.App.4th at p. 1064), or whether, in contrast, the third party is "only incidentally or remotely benefited." (Jones, supra, 26 Cal.App.4th at p. 1724.)
Focusing on the terms of the Western subcontract, as do the parties, we conclude that Jeld-Wen did not meet its burden to establish that there is a triable issue of material fact as to whether it is a third party beneficiary of that agreement. We find no indication in the terms of the Western subcontract that Pardee and Western intended the other subcontractors on the Project to benefit from their agreement. As we interpret the Western subcontract, Westerns agreement to perform its work without defects is intended to benefit Pardee alone, and any benefit to the subcontractors impacted by the quality of Westerns work is remote and purely incidental.
The trial court thus properly granted summary judgment in favor of Western on the breach of contract cause of action.
C. Jeld-Wens Challenge to the Ruling on the Motions for Summary Judgment Concerning the Causes of Action for Equitable Indemnity, Equitable Contribution and Declaratory Relief
We next consider Jeld-Wens challenge to the ruling on Defendants summary judgment motions with respect to the causes of action for equitable indemnity, equitable contribution and declaratory relief.
As we have explained, each of the Defendants premised their motions for summary judgment on the same argument. They argued that the undisputed evidence showed that the Pardee judgment encompassed only Pardees losses arising out of repairs necessitated by the leaking windows. They argued that even if, as Jeld-Wen claimed, Defendants were at fault for other types of water intrusion at the Project, the Pardee judgment did not include any of Pardees losses arising out of the remediation of those other sources of water intrusion. Based on these purportedly undisputed facts, Defendants argued that Jeld-Wen could not prevail on its causes of action for equitable indemnity, contribution and declaratory relief. Defendants also argued that the cause of action for equitable contribution failed because they were not were not co-obligors with Jeld-Wen on the Pardee judgment.
As we have explained, Foshay, Pacific and KAS also argued that the collateral estoppel arising out of the Pardee judgment was an additional basis for summary judgment on the equitable indemnity, equitable contribution and declaratory relief causes of action. Because we will affirm the trial courts summary judgment ruling as to those parties on other grounds, we need not and do not reach the collateral estoppel issue.
1. The Cause of Action for Equitable Contribution Fails Because No Money Judgment Was Entered Against Any of the Defendants Jointly with Jeld-Wen
As an initial matter we consider the challenge to the cause of action for equitable contribution. Jeld-Wens cause of action for equitable contribution appears to be based on the theory that Defendants are joint tortfeasors responsible for Pardees damages, and thus should be required to contribute to Jeld-Wens payment of the Pardee judgment. Recovery for equitable contribution among joint tortfeasors is governed by Code of Civil Procedure section 875. (See Coca-Cola Bottling Co. v. Lucky Stores, Inc. (1992) 11 Cal.App.4th 1372, 1378 (Coca-Cola Bottling) ["Contribution . . . is a creature of statute and distributes the loss equally among all tortfeasors [and] requires a showing that one of several joint tortfeasor judgment debtors has paid more than a pro rata share of a judgment" (fn. omitted)].)
Code of Civil Procedure section 875 provides: "Where a money judgment has been rendered jointly against two or more defendants in a tort action there shall be a right of contribution among them as hereinafter provided." (Id., subd. (a).) The statute provides that "[s]uch right of contribution shall be administered in accordance with the principles of equity." (Id., subd. (b).) Thus, the right to equitable contribution does not arise unless, as the statute plainly provides, a money judgment has been rendered jointly against the party seeking contribution and the party from whom contribution is sought. (Coca-Cola Bottling, supra, 11 Cal.App.4th at p. 1378 ["A right of contribution can come into existence only after rendition of a judgment declaring more than one defendant jointly liable to the plaintiff"]; Winzler & Kelly v. Superior Court (1975) 48 Cal.App.3d 385, 395; 5 Witkin, Summary of Cal. Law (10th ed. 2005) Torts, § 108, p. 205 [explaining necessity of joint judgment for recovery of contribution].)
Here, the undisputed evidence shows that none of the Defendants is a party to a money judgment rendered jointly against it and Jeld-Wen. Accordingly, the cause of action for equitable contribution fails as to each of the Defendants. We therefore affirm the trial courts ruling on the motion for summary judgment on the equitable contribution cause of action with respect to all of the Defendants.
2. The Causes of Action for Equitable Indemnity and Declaratory Relief Required Jeld-Wen to Establish that Defendants Share Fault for the Damages to Pardee Encompassed in the Pardee Judgment
We next examine the trial courts rulings with respect to the causes of action for equitable indemnity and declaratory relief.
"Equitable indemnity principles govern the allocation of loss or damages among multiple tortfeasors whose liability for the underlying injury is joint and several. [Citations.] Such principles are designed, generally, to do equity among defendants who are legally responsible for an indivisible injury by providing a basis on which liability for damage will be borne by each joint tortfeasor ` "in direct proportion to [its] respective fault." " (Expressions at Rancho Niguel Assn. v. Ahmanson Developments, Inc. (2001) 86 Cal.App.4th 1135, 1139-1140.) "The elements of a cause of action for indemnity are (1) a showing of fault on the part of the indemnitor and (2) resulting damages to the indemnitee for which the indemnitor is contractually or equitably responsible." (Id. at p. 1139.) In short, to prevail on a equitable indemnity claim against Defendants, Jeld-Wen would have to establish that Defendants shared fault for the injuries for which it was found liable in the Pardee judgment. Defendants argued that because they were not responsible for the window leaks, Jeld-Wen could not establish that they shared fault for the damage for which Pardee recovered from Jeld-Wen through the Pardee judgment.
Jeld-Wens claim for declaratory relief seeks a declaration that Defendants are obligated to indemnify it. Jeld-Wen concedes that in order for Jeld-Wen to defeat the Defendants summary judgment motions on the declaratory relief cause of action "it was required to show that it paid for some portion of the [Pardee judgment] which was more than its equitable share or responsibility." In short, if the cause of action for equitable indemnity fails on the ground that Defendants are not equitably required to make payment for some of the Pardee judgment, the declaratory relief cause of action necessarily fails as well.
In sum, Defendants motions for summary judgment on the causes of action for equitable indemnity and declaratory relief turn on whether Jeld-Wen can establish that Defendants share fault for the damages that are encompassed in the Pardee judgment.
3. The Evidence Presented in the Motions for Summary Judgment
a. Two Separate Factual Issues Are Presented: (1) Whether the Pardee Judgment Encompassed Non-window-related Costs and (2) Whether Defendants Are at Fault for the Leaking Windows
Before we examine the evidence that the parties relied upon in connection with the summary judgment motions, it is important to clarify that, as a matter of logic, there are two separate facts that Defendant must establish to succeed in their argument that they are not legally responsible, along with Jeld-Wen, for the damages encompassed in the Pardee judgment. First, Defendants must establish that the damages encompassed in the Pardee judgment were limited to those costs attributable solely to remediation of the leaking windows, rather than to any other source of water intrusion. Second, Defendants must establish that they were not at fault for the leaking windows. Only if both of these factual predicates are established would it be the case that Defendants are not legally responsible for the losses to Pardee underlying the Pardee Litigation. We now turn to a discussion of the two factual issues.
b. Evidence that Defendants Were Not a Cause of the Leaking Windows
We first discuss the evidence relating to whether Defendants were at fault for the leaking windows.
In their summary judgment motions, none of the Defendants focused on establishing their lack of fault for the leaking windows. Instead, they all appeared to assume that their lack of fault was undisputed. At most, they all pointed to evidence showing that they were involved in trades other than window installation.
Except for in its briefing opposing National Roofings motion for summary judgment, Jeld-Wen also treated the matter as undisputed and did not attempt to establish that the Defendants were at fault for the leaking windows. Thus (except as to defendant National Roofing) we also treat the matter as undisputed.
Because Jeld-Wen claimed that National Roofing was at fault for the leaking windows, we now turn to an evaluation of the evidence presented on that issue. We begin with the evidence submitted by National Roofing as to the scope of its work on the Project.
In support of its motion for summary judgment, National Roofing submitted a declaration from its president, Mark Clonts. Clonts stated that National Roofing entered into a professional services contract with Pardee "to provide inspection service during the application of roofing, sheet metal and lathing as scheduled by Pardee during the construction of [the Project]." As an exhibit, Clontss declaration attached National Roofings contract with Pardee (the National Roofing contract). Clonts did not expressly address whether National Roofings scope of work encompassed inspection of window installation.
Jeld-Wen contended in its opposition to National Roofings motion for summary judgment that as an inspector at the Project, the scope of National Roofings work included inspection of window installation. Two of Jeld-Wens evidentiary submissions are relevant.
First, Jeld-Wen relied on the National Roofing contract in support of its argument. The National Roofing contract describes National Roofings scope of work as "roofing and waterproofing inspection." Attached to the National Roofing contract is a specification containing a detailed description of the work to be performed by National Roofing. Under the heading "Inspections — Sequence" and the subheading "Pre-job Meeting & Release of Lath Before Scratch," the specification states: "(c) Window Installation: Visually inspect for proper materials, sill flashings, nailing requirements, moistop flashing."
Second, Jeld-Wen relied on a declaration from Gordon Woodard, who was employed by a firm hired by Pardee to investigate the causes of water intrusion at the Project and who had primary responsibility for the investigation. Woodard stated that "National Roofing Consultants . . . were hired as independent inspectors at [the Project]. [National Roofing] was required to inspect and certify the waterproofing systems of the residences, including . . . windows and installation . . . ." According to Woodard, he determined that "a number of . . . subcontractors, including the independent inspector, were responsible for defects which caused water intrusion and damages" at the Project. Woodard also stated that his investigation "revealed water leaking where there was [sic] incorrect laps of moistop and tears and cuts in the moistop from the window installation."
In its reply brief, National Roofing pointed to a provision in the National Roofing contract stating that the inspections performed by National Roofing shall be scheduled by Pardee. National Roofing argued that because its inspections were contingent upon scheduling by Pardee, it was not certain that any inspections of the windows occurred. National Roofing also relied on a letter that National Roofings vice president sent to Pardee after the problem with water intrusion arose. In the letter, National Roofings vice president stated, "We were never asked to inspect the windows themselves."
After considering the evidence presented, the trial court ruled, "[National Roofing] has met its burden of establishing the absence of a triable issue of material fact as to whether [National Roofing] was required to or did in fact inspect the windows. Jeld-Wen has offered no admissible evidence to dispute this fact."
We disagree. After reviewing the relevant evidence, we conclude that National Roofing did not meet its initial burden to make a prima facie showing that the scope of its work at the Project did not include inspection of window installations. We reach this conclusion by focusing on the evidence that National Roofing relied upon in making its summary judgment motion.
Significantly, Clontss declaration did not state that National Roofings scope of work excluded inspection of window installations. Clonts vaguely described the work as inspection of roofing, sheet metal and lathing, implying that the scope of work was limited to those items. However, Clonts also referred to the National Roofing contract to define National Roofings scope of work. The contract does not support a prima facie case that National Roofing was not to blame for the leaking windows. On the contrary, the contract specifically identifies inspection of window installation as one service that National Roofing is to perform under its contract with Pardee.
Further, we are not convinced by the arguments in National Roofings reply brief in the trial court. Although the National Roofing contract states that inspections will be performed as scheduled by Pardee, that statement alone does not establish that Pardee failed to schedule any inspections of window installations. Second, the letter written by National Roofings vice president after the water intrusion occurred is inadmissible hearsay, and thus does not establish that National Roofing was never asked to inspect the windows at the Project. Although it could have easily done so (if supported by facts), National Roofing did not submit a declaration stating that it did not inspect the windows at the Project because Pardee never scheduled the inspections.
Accordingly, we conclude that National Roofing failed to make a prima facie showing that it was not involved with the inspection of window installations and thus was not at fault for the leaking windows. The trial court erred in granting summary judgment in favor of National Roofing on the causes of action for equitable indemnity and declaratory relief.
National Roofing did not raise collateral estoppel as a ground for summary judgment in its moving papers. Thus we do not consider whether the judgment in the Pardee Litigation created collateral estoppel on the issue of whether National Roofing was at fault for the losses incurred by Pardee arising out of water intrusion due to the leaking windows.
c. Evidence that the Pardee Judgment Encompassed Only Losses to Pardee Arising Out of Water Intrusion from the Windows
We next turn to the second factual predicate for Defendants summary judgment motions, namely that the Pardee judgment encompassed only those damages arising from remediation of the water intrusion caused by the leaking windows.
i. Defendants Evidence
With little variation, Defendants all relied on excerpts from the same deposition testimony to support their argument that the Pardee judgment only encompassed Pardees losses arising from remediation of water intrusion from the leaking windows.
In its appellate briefing, Jeld-Wen argues that the ruling on the summary judgment motions should be reversed because the appellate record does not contain the evidence that Defendants relied on for their summary judgment motions. That evidence was, for the most part, submitted in notices of lodgment that were not retained in the trial court file and thus did not appear in the clerks transcript. Jeld-Wens argument is without merit, as Defendants have used the procedure set forth in California Rule of Court, rule 8.224, to submit to us the documents contained in their notices of lodgment.
First, Defendants relied on excerpts from the deposition of Robert Carlson, who was Pardees lead trial counsel in the Pardee Litigation. Carlson testified that in the Pardee Litigation, Pardee presented to the jury evidence of damages related only to repairs necessitated by water leakage around the windows. Carlson testified that he specifically instructed Pardee to "take out everything not related to the window repairs from their amount, and thats the amount we presented to the jury."
Second, Defendants submitted excerpts from the deposition of Pardees senior vice president of finance, William Bryan. Bryan testified that during the Pardee Litigation, at the direction of trial counsel, he undertook to remove all costs incurred by Pardee that were not related to window repairs. Bryan explained that the total amount for repair and associated work for the water leakage was approximately $2.8 million. After the items not related to repairing the window leakage were subtracted by Bryan, the jury was presented with the amount of $1,819,770 as a damages figure.
Finally, Defendants submitted excerpts from the deposition of Megan Dorsey. Dorsey, who was also counsel to Pardee in the Pardee Litigation, testified that she specifically instructed Pardee not to include in its calculation of damages items not related to the repair of the leaking windows. She stated that Pardees intent "was to only present damages that related to the windows . . . and thats what was presented to the jury."
Some of the Defendants submitted additional evidence in support of their summary judgment motions. We do not discuss that evidence because it is not necessary to our decision.
Jeld-Wen objected to Carlsons, Bryans and Dorseys deposition testimony, arguing, among other things, that the testimony lacked foundation in personal knowledge and contained inadmissible hearsay. The trial court overruled all of the objections.
In its opening appellate brief Jeld-Wen did not expressly challenge any of the trial courts evidentiary rulings. However, Jeld-Wen indirectly challenged the trial courts evidentiary rulings by contending that "[t]he testimony of Pardees trial counsel lacked personal knowledge of the `facts asserted therein[,]" because their knowledge was purportedly based on conversations with Bryan and "[n]either attorney verified that Mr. Bryan actually removed any monies from Pardees damage claim." To the extent that this argument is intended as a challenge to the trial courts evidentiary rulings, we conclude that the trial court was well within its discretion to rely on the content of Carlsons and Dorseys declarations, despite Jeld-Wens objections. (See People v. Waidla (2000) 22 Cal.4th 690, 717 [appellate court applies an abuse of discretion standard of review to the trial courts ruling on the admissibility of evidence].) Dorsey and Carlson both testified to a subject of which they had personal knowledge, i.e., (1) the instructions that they gave to Bryan that he remove repair costs not related to the leaking windows, and (2) their use at trial of the information that Bryan provided to them.
In its appellate reply brief, Jeld-Wen asserts a more direct challenge to the trial courts evidentiary rulings. However, we decline to consider arguments raised for the first time in a reply brief. (See Reichardt v. Hoffman (1997) 52 Cal.App.4th 754, 764 [points raised in the reply brief for the first time will not be considered unless good reason is shown for failure to present them earlier].)
We conclude that by relying on Dorseys and Carlsons testimony, together with Bryans testimony about how he carried out Dorseys and Carlsons instructions, Defendants provided ample evidence to carry their initial burden on summary judgment to show that the Pardee judgment included only the costs incurred by Pardee to remedy water intrusion caused by the leaking windows.
ii. Jeld-Wens Evidence
In an attempt to establish a triable issue of fact as to whether the damages encompassed in the Pardee judgment were limited to costs relating to the leaking windows, Jeld-Wen submitted several declarations.
First, in opposing all but one of the motions, Jeld-Wen submitted declarations from Woodard, who, as we have explained, was employed by a firm hired by Pardee to investigate the causes of water intrusion at the Project. In his declarations, Woodard stated that his investigation "revealed water intrusion into the homes caused by a number of defects in the original construction of the residences that were unrelated to window products or window installations," and that "a number of other subcontractors . . . were responsible for defects which caused water intrusion and damages at these residences." Specifically, Woodard identified the french doors, the electrical penetrations and electrical fixtures, cuts in the building paper and flashing materials, deficient performance by the independent inspector, the attic vents; and the decorative iron railings as additional sources of water intrusion in the Projects residences. Woodard also stated that the water intrusion caused by the various subcontractors gave rise to other damage, such as damage to framing, drywall, and insulation, and that all of the damage caused by defects in the subcontractors work was repaired during the project-wide repairs.
Jeld-Wen did not file a declaration from Woodard in support of its opposition to Pacifics motion for summary judgment. Although Jeld-Wen stated in its opposition to Pacifics motion for summary judgment that "Pacific failed to properly install the roofs at [the Project]" and that "repairs had to be made to remedy the defective roof," Jeld-Wen cited no evidence that supports those statements.
Also, although Woodard stated that the investigation revealed stained or damaged drywall, he did not state that the drywall contractor, i.e., Wall, was responsible for the water intrusion. In its appellate briefing, Jeld-Wen does not attempt to argue that the quality of Walls workmanship caused water intrusion at the Project. Instead, it merely points out that "there were water intrusion issues at the [Project] and drywall had to be removed and replaced."
We do not find Woodards declarations, standing alone, dispositive of the issue we are considering. The issue before us is whether the Pardee judgment encompassed remediation costs, direct or indirect, for water intrusion from construction defects other than the leaking windows. Woodwards declarations address part of that subject, because Woodard states that there were other construction defects that caused water intrusion at the Project and that those defects were remedied during the project-wide repairs. However, Woodard does not address the crucial question of whether the costs of remediating the water intrusion caused by those other construction defects were included in the Pardee judgment. Thus, Woodards declarations, standing alone, do not serve to rebut Defendants prima facie showing that the Pardee judgment encompassed only costs arising from remediation of water intrusion from leaking windows.
Second, Jeld-Wen submitted an expert declaration from an accountant, Glenn Gelman, who stated that he had reviewed "Job Cost Reports" and associated invoices that had been produced in the Pardee Litigation, and which, on information and belief, he stated were entered as exhibits in the trial of the Pardee Litigation. Gelman stated that (1) $54,223 of the costs reflected in those documents related to replacing or making repairs on the windows; (2) $1,867,131 of the costs were related to specific tasks involved in repairing damage due to water intrusion, but not related to window replacement or repair; (3) $179,523 of the costs did not appear to relate directly to the repair of damage due to water intrusion; and (4) $238,533 of the costs represented settlements to homeowners.
The trial court considered Gelmans declaration, along with excerpts from Gelmans deposition testimony that had been submitted by Defendants. The trial court stated that it "finds Gelmans declaration speculative on the issue of whether Jeld-Wen paid for non-window water intrusion repair costs," and that "Gelman has not provided sufficient foundation for his opinions." As we will explain, we agree with the trial court.
First, in explaining his analytical method, Gelman made clear that he did not attempt to identify all of the costs that Pardee incurred as a result of water intrusion from the leaking windows. Instead, Gelman excluded all costs that were not "strictly replacing a window, cleaning a window, or maintaining a window." For example, he testified that when he saw a cost entry relating to caulking windows, he would not include that as a cost relating to repairing the damage caused by water intrusion from the leaking windows. Similarly, he did not include any costs related to removing stucco so that a window could be removed from a wall, or removing stucco debris due to window repair. Gelman admitted that "not being a contractor or an engineer," he "would have no idea of what goes into a window," and that if he did not know why a certain cost was incurred, he would categorize it as not relating to repairing water intrusion from the leaking windows. Gelman stated that "[i]f the invoice referred to anything other than window, if it had the word `stucco, `drywall, `plaster, `cleanup, `supervise, if it had other wording," he did not categorize it as a cost relating to repairs due to water intrusion from the leaking windows. Thus, Gelmans opinion is not helpful in determining the costs to Pardee in repairing the damage caused by the leaking windows.
Second, Gelman admitted that he did not have the information he needed to properly identify costs incurred as a result of repairing the damage caused by the leaking windows, because some of the entries on the accounting report he was using to prepare his report were not accompanied by invoices. He assumed that those entries unaccompanied by invoices were not related to repairing water intrusion from leaking windows, even where the description on the accounting report stated "window repair."
Third, it is evident from Gelmans deposition testimony that he was not relying for his analysis on the same information that Pardee relied upon to arrive at the damages figure submitted to the jury. Gelman testified during his deposition that he relied for his analysis on a "422 report" from Pardee dated March 23, 2000, indicating total costs of $2,339,409.55. Gelman stated that his client, Jeld-Wen, had informed him that the 422 report was the source of the damages calculation used at trial. However, as Defendants established through Bryans testimony, the total amount spent by Pardee on the repairs arising out of water intrusion was roughly $2.8 million. Gelman, in contrast, was using a report showing $2,339,409.55 in total remediation costs incurred by Pardee.
Finally, Gelman testified that he did not know the amount of damages that Pardee had claimed at trial. He also testified that he did not attempt to reconcile any amount claimed by Pardee at trial with any invoiced amount he believed was not related to window repair to determine if it was claimed as a part of Pardees damages.
Based on all of this evidence, we conclude, as did the trial court, that Gelman did not have a proper foundation to testify that any particular item of damages contained in the Pardee judgment was not related to repair of the leaking windows, and that any opinion he purported to offer on that issue was speculative. "In adjudicating summary judgment motions, courts are `not bound by expert opinion that is speculative or conjectural. [Citations.] Plaintiffs cannot manufacture a triable issue of fact through use of an expert opinion with self-serving conclusions devoid of any basis, explanation, or reasoning. " (Nardizzi v. Harbor Chrysler Plymouth Sales, Inc. (2006) 136 Cal.App.4th 1409, 1415.) " `The evidence must be of sufficient quality to allow the trier of fact to find the underlying fact in favor of the party opposing the motion for summary judgment. " (Ibid.) "[A]n experts opinion based on assumptions of fact without evidentiary support . . ., or on speculative or conjectural factors . . ., has no evidentiary value. . . ." (Jennings v. Palomar Pomerado Health Systems, Inc. (2003) 114 Cal.App.4th 1108, 1117, citations omitted.) The trial court thus properly disregarded Gelmans opinion as speculative and made without a proper foundation.
Citing Powell v. Kleinman (2007) 151 Cal.App.4th 112, 125, Jeld-Wen argues that a declaration in opposition to a motion for summary judgment " `is entitled to all favorable inferences that may be reasonably derived from that declaration. " This argument fails because even when we derive all favorable inferences, Gelmans declaration cannot be read to lend support to Jeld-Wens case as it is speculative and made without proper foundation.
The third declarant in support of Jeld-Wens opposition to the summary judgment motion was Jeld-Wens trial counsel in the Pardee Litigation, Richard Sieving. Sieving stated that the Pardee judgment included "costs associated with specific repairs to the defective conditions as well as the operational and investigative costs to repair the residences including, but not limited to, the cost of superintendent supervisors, temporary facilities, outside manpower, investigation and testing, cleanup, painting, equipment rental, vandalism, theft, gas, repairs to trucks and settlements to homeowners." The trial court concluded that Sievings declarations did not raise a triable issue of fact as to whether Jeld-Wen was held liable in the Pardee judgment for costs unrelated to water intrusion from the leaking windows.
Some of the Defendants objected to the portion of Sievings declarations that we have quoted above, and the trial court sustained the objections.
Considering the content of Sievings declarations, we conclude it is not sufficient to rebut Defendants prima facie showing that Pardee excluded from the Pardee judgment all damages that did not arise out of the repair of the leaking windows.
As a preface to our discussion, we note that there are two general categories of costs that Pardee incurred in remediating the water intrusion at the Project: (1) direct costs attributable to the performance of a specific task, such as replacing windows, repairing stucco etc.; and (2) indirect overhead costs of a project-wide nature, such as hiring supervisors or investigating the sources of water intrusion. Sieving does not state that the Pardee judgment included any direct costs that were not attributable to remediation of the leaking windows. However, he does identify several categories of costs that could be described as indirect overhead costs of project-wide repairs. Relying on the indirect costs identified by Sieving, Jeld-Wen argues that "Pardees damages consisted of not only repair costs of specific defects but also operational costs needed to effectuate all the repairs[,]" and that "[a]ll of these costs were included in the damages sought by Pardee in the [Pardee Litigation] and included in the [Pardee judgment]." (Italics added.)
These categories include "superintendent supervisors," "temporary facilities," "investigation and testing," "cleanup," "equipment rental," "vandalism" and "theft."
However, Sievings declarations do not contain sufficient information to support Jeld-Wens argument that the trial court judgment included indirect costs that were not attributable to leaking windows. This is because Sieving does not state Jeld-Wen was found liable in the Pardee Litigation for all of the indirect costs in the categories that Sieving identified, and he does not state that Pardee failed to apportion the indirect costs when calculating the amount of damages presented to the jury in the Pardee Litigation. Accordingly, Sievings declarations do not serve to create a triable issue of fact as to whether Jeld-Wen, in paying the Pardee judgment, bore the indirect costs attributable to water damage unconnected to the leaking windows.
We note also that Defendants submitted unrebutted evidence, through Bryans deposition, that all of the supervision costs claimed by Pardee related to the remediation of water intrusion through the windows. Sievings declarations do not address Bryans testimony on that issue.
Further, although Sieving states that the Pardee judgment included "settlements to homeowners," Sieving does not state that any of those settlement payments were to compensate homeowners for damages not arising from water intrusion from the leaking windows.
Jeld-Wen also argues that the trial court "improperly weighed evidence" in that it rejected Gelmans, Woodards and Sievings testimony in favor of the evidence submitted by Defendants. This argument fails because the trial court did not weigh the parties respective evidence. Instead, the trial court properly rejected the evidence submitted by Gelman as speculative and without foundation and rejected Woodards and Sievings testimony because it did not serve to prove that the Pardee judgment included costs, direct or indirect, not attributable to water intrusion from the leaking windows.
In sum, having considered all of the evidence presented in connection with the motions for summary judgment, we conclude that Defendants met their burden to show that Jeld-Wen could not establish that the judgment in the Pardee Litigation included costs other than those that arose from the leaking windows.
Accordingly, the trial court properly granted summary judgment in favor of AIW, Foshay, KAS, Pacific, Southcoast, Wall and Western on the causes of action for equitable indemnity and declaratory relief.
DISPOSITION
The judgment is reversed with respect to (1) the ruling in favor of KAS Supply Company, Inc.; Action Iron Works; Southcoast Sheet Metal; Pacific Coast Roofing Corporation; Foshay Electric Company, Inc.; and Wall Systems, Inc. on their motion for judgment on the pleadings challenging the breach of contract cause of action; and (2) the ruling in favor of National Roofing Supply Consultants, Inc. on its motion for summary judgment challenging the causes of action for equitable indemnity and declaratory relief. In all other respects the judgment is affirmed. Each party is to bear its own costs.
WE CONCUR:
HUFFMAN, Acting P. J.
NARES, J.