Harris vs. Shops at Mission Viejo, LLC

TENTATIVE RULINGS August 31, 2026

# Case Name Tentative

101 2023-01351239 Motion for Summary Judgment and/or Adjudication

Harris vs. Shops at Cross-Complainant Shops at Mission Viejo, LLC’s (“Shops”) motion for summary Mission Viejo, LLC adjudication as to its 6th cause of action for declaratory relief in its Cross-Complaint against Cross-Defendant Welltower Mission Viejo Medical Center JV, LLC (“Welltower”) is denied.

Where plaintiff (or cross-complainant) seeks summary judgment/adjudication, the burden is to produce admissible evidence on each element of a “cause of action” entitling him or her to judgment. (CCP § 437c(p)(1); see Hunter v. Pacific Mechanical Corp. (1995) 37 CA4th 1282, 1287, 44 CR2d 335, 337 (citing text) (disapproved on other grounds in Aguilar v. Atlantic Richfield Co. (2001) 25 C4th 826, 107 CR2d 841); S.B.C.C., Inc. v. St. Paul Fire & Marine Ins. Co. (2010) 186 CA4th 383, 388, 112 CR3d 40, 44.)

This means that plaintiffs who bear the burden of proof at trial by a preponderance of evidence must produce evidence that would require a reasonable trier of fact to find any underlying material fact more likely than not. “(O)therwise, he would not be entitled to judgment as a matter of law.” (Aguilar v. Atlantic Richfield Co. (2001) 25 C4th 826, 851, 107 CR2d 841, 862 (emphasis in original); LLP Mortg. v. Bizar (2005) 126 CA4th 773, 776, 24 CR3d 598, 601—burden is on plaintiff to persuade court there is no triable issue of material fact.)

Defendant has no evidentiary burden until plaintiff produces admissible (and undisputed) evidence on each element of a cause of action. Until that time, plaintiff has not met its burden of producing evidence, and defendant therefore has no burden to oppose. (See CCP § 437c(p)(1)).

Shops and Welltower are parties to a lease agreement, which includes the following pertinent provision:

Section 11.6 Indemnification.

(a) Indemnification by Tenant. Except as provided in Section 11.3 and except to the extent due to the negligence of Landlord or Landlord's agents or employees, Tenant shall indemnify, hold harmless, and, defend Landlord, its agents, employees and mortgagee, if any, from and against any and all liability, liens, claims, demands, damages, expenses, fees, costs, reasonable attorney's fees and litigation costs, fines, penalties, suits, proceedings, actions and causes of action of any and every kind and nature (excluding consequential damages, special damages or punitive damages) arising or growing out of or in any way connected with Tenant's use, occupancy, management or control of the Premises or Tenant's operations, conduct or activities in the Center.

(Cross-Complaint, ¶ 9 [Emphasis added].)

Shops states that on 3/22/24, pursuant to the Lease, it requested Welltower defend Shops in this action. (SSUF No. 16.) Despite repeated follow-up efforts, Welltower has failed to

accept Shops’ tender of defense. (SSUF No. 17.)

Shops argues that because it was sued by Plaintiff, stemming from an incident at the Subject Premises leased and controlled by Welltower, it is entitled to a defense by Welltower pursuant to Section 11.6 of the Lease.

In opposition, Welltower notes that Section 11.6(a) of the Ground Lease obligates Welltower to indemnify and defend Shops "except to the extent due to the negligence of Landlord or Landlord's agents or employees." (SSUF 8.)

Shops submitted no evidence with its motion that forecloses the possibility of a finding of its own negligence, or that of its agents/employees. Plaintiff Gina Harris’ First Amended Complaint alleges that Shops negligently owned, controlled, managed, and maintained the Subject Premises and failed to warn of a dangerous condition. (FAC, Prem.L-2, Prem.L-3.) While Shops denies these allegations, Welltower correctly argues that this is not sufficient evidence to negate this specific carve out in the lease agreement. (Shops SSUF #14.)

In Reply, Shops argues that the carve out in the lease provision for its own negligence limits its right to indemnity, but not its right to a defense, citing UDC-Universal Dev., L.P. v. CH2M Hill (2010) 181 Cal.App.4th 10, in which the Court of Appeal held that the duty to defend arose when the claims were stated against the indemnitee and was not limited to an ultimate finding of negligence (as opposed to a duty to indemnify. (Id. at 21-22.)

Shops additionally cites to Crawford v. Weather Shield Mfg., Inc. (2008) 44 Cal.4th 541, in which the general contractor (GC) hired Weather Shield (“WS”) to make windows for the project. The contract included a provision requiring WS “to indemnify and save [GC] harmless against all claims for damages ... growing out of the execution of [WS’s] work,” and “at [its] own expense to defend any suit or action brought against [GC] founded upon the claim of such damage...” (Id. at 547-548; italics in Opinion.)

The California Supreme Court ruled that a contract under which a sub agreed “to defend any suit or action” against a developer “founded upon” any claim “growing out of the execution of the work” requires the sub to provide a defense to the developer even if the subcontractor was not negligent. (Id. at 568.)

The indemnity language in the contracts in both the UDC-Universal case and Crawford are different and broader than the language contained within the lease in this case.

In UDC-Universal, the Agreement separated the indemnity and defense obligations, stating with respect to the duty to defend that “Consultant agrees, at his own expense and upon written request by Developer or Owner of the Subject Property, to defend any suit, action or demand brought against Developer or Owner on any claim or demand covered herein.” (UDC-Universal Development, L.P., supra, 181 Cal.App.4th at 18–19.)

While there is a negligence carve out for the indemnity provision, there is no such carve out for the defense provision.

Similarly in Crawford, the subcontract contained no carve-out for the indemnitee's own negligence. The duty-to-defend clause there was unqualified, as cited above. (Crawford, supra, 44 Cal.4th at 557–559.)

Section 11.6(a) here contains an express exception for claims arising from Landlord's own negligence for both the duty to indemnify and the duty to defend: “except to the extent

due to the negligence of Landlord or Landlord's agents or employees, Tenant shall indemnify, hold harmless, and, defend Landlord...”

As the Court in Crawford states, the parties “may agree that the promisor's indemnity and/or defense obligations will apply only if the promisor was negligent, or, conversely, even if the promisor was not negligent,” and that in interpreting such a provision, “[e]ffect is to be given to the parties' mutual intent [], as ascertained from the contract's language if it is clear and explicit...” (Crawford, 44 Cal.4th at 551–552.)

The lease language here is not vague, unclear or subject to multiple interpretations. On the contrary, it is straightforward and provides that if Shops/its agents/its employees are negligent, then Welltower does not have an unequivocal duty to defend it from claims resulting from that negligence.

Based on this, the motion for summary adjudication is denied as there is a triable issue of material fact as to whether Shops’ negligence contributed to Plaintiff’s alleged damages thus alleviating Welltower of its duty to defend.

Cross-Defendant Welltower shall give notice.

103 2019-01083328 Application

Tian vs. Feng Plaintiff and Judgment Creditor Li Tian’s application for issuance of an order to show cause why an order should not issue for the sale of the residential real property known as 3334 Nearbrook Lane, Riverside, CA 92503, APN: 138-460-044-8 (the “property” or “dwelling”) is granted. [ROA #358.]

The Court will issue the proposed OSC submitted by Judgment Creditor and set the OSC for October 5, 2026 at 2:00 p.m. in Department C27.

Facts In this action, the Court entered an amended judgment in Judgment Creditor’s favor against defendants and judgment debtors Jingtao Feng and Juan Cao. [ROA #329.]

An abstract of the judgment was recorded in Riverside County real property records on October 1, 2025. [Cheng Decl. (ROA #358), ¶3 and Ex. 2.]

A writ in the amount of $456,067.43 was levied against the property by the Orange County Sheriff’s Civil Process Department. [Cheng Decl., Exs. 4 and 5.] The Orange County Sheriff’s Office provided notice to the Judgment Debtors of the levy on 5/1/26. [Cheng Decl., Ex. 5.]

Judgment Creditor filed her application for sale on 5/20/26 – within 20 days of notice to Judgment Creditors. [ROA #364.]

Judgment Creditor’s application is supported by the Cheng Declaration, which sets forth that:

-The records of the Tax Assessor of the County in which the Subject Property is located indicate that there is no current homeowner's exemption or disabled veteran's exemption for the dwelling. [Cheng Decl., ¶ 10.]

-on information and belief, the property is not currently being used as a homestead as Debtor testified at trial that he moved back to China with no intention of returning, a