Cahill v. San Diego Gas & Elec. Co.

• Decision Date: 27 April 2011
• Docket Number: No. D057024.,D057024.
• Citation: 2011 Daily Journal D.A.R. 5871,194 Cal.App.4th 939,11 Cal. Daily Op. Serv. 4888,124 Cal.Rptr.3d 78
• Court: California Court of Appeals Court of Appeals
• Parties: 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.

194 Cal.App.4th 939

124 Cal.Rptr.3d 78

11 Cal. Daily Op. Serv. 4888

2011 Daily Journal D.A.R. 5871

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.

No. D057024.

Court of Appeal, Fourth District, Division 1, California.

April 27, 2011.

Office of the General Counsel Sempra Energy, William A. Calders and Richard H. Benes, San Diego, for Defendant, Cross-complainant and Appellant.

Palomar Advocates and Scott White, San Diego, for Plaintiff and Respondent.

Bremer, Whyte, Brown & O'Meara LLP, Keith G. Bremer, Riverside, Rick L. Peterson, Newport Beach; and Everett L. Skillman for Cross-defendants and Respondents.

McDONALD, J.

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 877.6.¹ 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, 213 Cal.Rptr. 256, 698 P.2d 159( 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.

FACTUAL AND PROCEDURAL BACKGROUND

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.

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.

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).² In December, SDGE filed an answer denying Cahill's allegations and asserting various affirmative defenses.

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.

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).)

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).)

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.³ 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.

DISCUSSION

ICahill's “Motion to Dismiss”

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.

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, 84 Cal.Rptr.3d 38 [“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:

“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.)

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 nonappealable order denying SDGE's motion for summary judgment against Cahill.

We conclude none of section 906's three alternative prerequisites to allowing review of a nonappealable, 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.⁴ SDGE does not cite any case showing, or otherwise persuade us, that this prerequisite is satisfied in the circumstances of this appeal.

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...