Real Advantage Title Insurance Company v. Barker

1. CASE # CASE NAME HEARING NAME REAL ADVANTAGE MOTION FOR SUMMARY CVPS2302950 TITLE INSURANCE JUDGMENT COMPANY VS BARKER

Tentative Ruling:

Moving party: Plaintiffs/Cross-Defendants Real Advantage Title Insurance Company and Orange Coast Title Company of Southern California Represented by: Brower Law Group, APC

Responding party: Defendant/Cross-Complainant Janice Barker, Special Administrator of the Estate of Michael Barker, deceased Represented by: Buchalter

In 2018, non-party BOBS LLC (“BOBS”) loaned $27 million to Sunniva Production Campus, LLC (“Sunniva”), owned and/or controlled by Defendant Michael Barker (“Barker”) regarding a construction project in Cathedral City. Plaintiff Orange Coast Title Company of Southern California (“OCTCSC”) provided BOBS with escrow and title services and BOBS required title insurance through Plaintiff Real Advantage Title Insurance Company (“RATIC”) (collectively “Plaintiffs”). Barker executed an Indemnity Agreement both on behalf of Sunniva, and Barker individually (“2018 Indemnity Agreement”).

In 2019, BOBS agreed to loan Sunniva an additional $6 million, and Barker executed an additional indemnity agreement (“2019 Indemnity Agreement.”) Plaintiffs allege that in the two executed indemnity agreements (the “Indemnity Agreements”), Barker promised to prevent any mechanic’s liens from being recorded; clear and/or neutralize any mechanic’s liens that were recorded; and indemnify, defend, and hold Plaintiffs harmless from the effects of mechanic’s liens. But when mechanic’s liens were recorded against the Property, and Plaintiffs’ demanded for Barker’s performance, he refused to fulfill his contractual obligations.

On February 28, 2020, Orr Builders filed a mechanics’ lien foreclosure action. On July 27, 2020, Orr Builders named BOBS as a defendant. On September 1, 2020, BOBS foreclosed on the property and became its owner. In 2021, BOBS filed BOBS LLC v. Orange County Title Insurance Company, et al. (Case No. CVPS 2101103) (the “BOBS Case”) for closing escrow contrary to its escrow instructions, asserting causes of action for negligence, breach of fiduciary duty, and breach of the escrow agreement. On November 15, 2023 the jury returned a verdict in favor of Lender, finding OCTCSC and RATIC liable for breach of contract and negligence for closing escrow contrary to BOBS’ closing instructions.

The trial in the BOBS Case was bifurcated, and Phase Two of the trial was on breach of fiduciary duty and damages. The parties entered into a Settlement Agreement whereby OCTCSC and RATIC agreed to pay BOBS $10.5 million.

In the meantime, on June 20, 2023, Plaintiffs filed their complaint against Barker alleging a single cause of action for breach of contract – 2019 Indemnity Agreement.

Barker filed a cross-complaint against RATIC. On June 22, 2026, pursuant to stipulation and order, Barker filed the operative Second Amended Cross-Complaint (“SAXC”) alleging the

following causes of action: 1) breach of contract; 2) negligence; 3) breach of fiduciary duty; 4) rescission; and 5) declaratory relief.

Trial is set for October 2, 2026.

Plaintiffs now move for summary judgment on their breach-of-contract complaint under the 2019 Indemnity Agreement, or in the alternative for summary adjudication of six issues of duty: Barker’s duties to (1) timely pay contractors to prevent mechanics’ liens, (2) cause recorded liens to be released, (3) bond around any recorded liens, (4) deposit funds to protect Plaintiffs or their insureds, (5) cause the mechanics’ lien foreclosure action to be defended by counsel protecting Plaintiffs and their insured, and (6) protect and indemnify Plaintiffs from liabilities arising from the mechanics’ liens at issue in the ML Foreclosure Action and the BOBS Lawsuit.

Plaintiffs also seek summary judgment on Barker’s cross-complaint on the grounds that some or all cross-claims are barred by the statute of limitations, that Barker was not a party to any escrow agreement, that Barker ratified any conduct of which he complains, and that no alleged breach proximately caused his damages. The motion contends the Agreement is unambiguous, that Barker’s breach is undisputed, and that Plaintiffs’ damages flow directly from those breaches.

Barker opposes the motion and argues it raises the same factual disputes the court previously found triable when it denied Barker’s own MSJ on February 10, 2026, and that Plaintiffs’ motion characterizes the Indemnity as a “guaranty” to pay mechanics’ liens regardless of whether RATIC ever faced potential liability under the title policy it issued, a reading Barker contends is superficial, internally inconsistent, contrary to controlling California indemnity law, and absurd. Substantively, Barker contends the Indemnity does not cover Plaintiffs’ own active fault under Crawford/Rossmoor principles, that the BOBS jury found Plaintiffs liable for their own escrow negligence and failure to issue the coverage the lender demanded (not for breaching the policy), and that Barker acted only as escrow depositor whose Indemnity was never properly delivered because OCTCSC closed despite conflicting lender/borrower instructions.

Barker asserts triable issues on voidness/lack of delivery, waiver, ratification, proximate causation, and the statute of limitations; asserts affirmative cross-claims for negligence, breach of fiduciary duty, and breach of implied contract based on his depositor status and the Biakanja factors; and urges denial of summary adjudication for failure to comply with California Rules of Court, rule 3.1350(b) and (d).

Plaintiffs reply that the Agreement’s meaning is a pure question of law and that paragraphs 5–7 mean what they say, Barker promised to pay contractors, pay or bond mechanics’ liens, and defend actions relating to them, such that Barker’s conditioning reading would rewrite the contract and render paragraphs 5–7 mere surplusage duplicative of paragraph 9. Plaintiffs further contend Barker's extrinsic and expert evidence is inadmissible, his affirmative defenses lack merit, and his cross-complaint is untimely and substantively deficient because Plaintiffs owed him no independent duty.

Analysis

I. Standard

A motion for summary judgment shall be granted when no triable issue of material fact exists or the issue is one of law and the action can be terminated in favor of the moving party without the necessity of trial. (C.C.P., § 437c; Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) Where plaintiff (or cross-complainant) seeks summary judgment, the burden is to

produce admissible evidence on each element of a “cause of action” entitling plaintiff to judgment. (C.C.P., § 437c(p)(1); see Hunter v. Pacific Mechanical Corp. (1995) 37 Cal.App.4th 1282, 1287, (citing text) (disapproved on other grounds by Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826); S.B.C.C., Inc. v. St. Paul Fire & Marine Ins. Co. (2010) 186 Cal.App.4th 383, 388.) A defendant (or cross-defendant) has met his or her burden under C.C.P., § 437c(p)(2) of showing a cause of action has no merit if that party has shown that one or more of the elements of the cause of action cannot be established, or that there is a complete defense to that cause of action.

Once that burden has been met, the burden shifts to the opposing party to produce admissible evidence showing a triable issue of material fact exists. (C.C.P., § 437c(p)(2); Arcienaga v. Bank of San Bernardino (1997) 52 Cal.App.4th 213, 231.) Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.)

Code of Civil Procedure section 437c(f)(1) permits the court to grant summary adjudication as to one or more causes of action, affirmative defenses, claims for damages, or issues of duty if that cause of action, defense, or issue has no merit or cannot be maintained as a matter of law. The same burden-shifting framework and record-construction rules that govern summary judgment apply with equal force to summary adjudication: the moving party must first produce evidence sufficient to negate an essential element or establish a complete defense as to the targeted claim or issue, whereupon the burden shifts to the opposing party to raise a triable issue of material fact on that discrete claim or issue.

II. Merits

A. Summary Judgment on the Complaint (Breach of the 2019 Indemnity Agreement)

The motion is DENIED. Plaintiffs have not shown that the Agreement unambiguously imposes independent contractual duties on Barker, that paragraph 9 covers the indemnitees’ own active negligence, that causation of the $10.5 million settlement is established as a matter of law, or that the pleaded affirmative defenses are negated.

At the outset, the Court notes that on February 10, 2026, it denied Barker’s own motion for summary judgment on the same 2019 Indemnity Agreement, finding that the parties’ separate statements revealed multiple material disputes precluding judgment, including the intended scope of the indemnity, whether Plaintiffs’ liability arose out of mechanics’ liens, the basis for the $10.5 million settlement, and the nature of the lender’s claims. The scope and causation disputes that precluded judgment for Barker equally preclude judgment for Plaintiffs on this mirror-image motion.

1. Ambiguity

Contract interpretation is a question of law when the writing is unambiguous, and the language governs if it is clear, explicit, and not absurd. (Civ. Code § 1638.) The parties’ intent is ascertained from the writing alone if possible, (Civ. Code § 1639) and the whole contract must be read together to give effect to every part, with clauses interpreting one another and repugnancies reconciled subject to the general intent. (Civ. Code §§ 1641, 1652.) Unresolved uncertainty is construed against the drafter. (Civ. Code §§ 1641, 1654.) Where an indemnity is reasonably susceptible to more than one meaning, extrinsic evidence is admissible to resolve the ambiguity. (Rideau v. Stewart Title of California (2015) 235 Cal.App.4th 1286.) The threshold question is

whether the Agreement unambiguously imposes independent duties on Barker to pay contractors, release liens, post bonds, deposit funds, defend actions, and indemnify Plaintiffs for mechanics’ lien losses. Read as a whole, the Agreement is reasonably susceptible to more than one interpretation.

The Agreement recites Barker’s desire that RATIC issue title policies insuring the property as free of mechanics’ liens and insuring RATIC’s insureds against such loss (UMF No. 11). Consideration is expressed as “RATIC’s ISSUANCE of each policy of title insurance RATIC shall decide to issue, insurance against loss by reason of construction/mechanics’ liens or the possibility that such liens affecting the Property may be recorded.” (UMF No. 11.) Paragraph 7(b) limits the defense obligation to counsel who will protect RATIC and any insured “to which RATIC may have possible liability as a result of issuance of a policy or policies of title insurance pursuant to this Agreement.” (UMF No. 32.)

Paragraph 12 permits return of security when RATIC can have “no further construction/mechanics' lien liability under its policy or policies.” Paragraph 15 states that RATIC was undertaking a risk significantly greater than in the normal course of title insurance by entering into the Agreement and issuing policies in reliance on it (UMF No. 12).

These provisions reasonably support Barker’s reading that the Agreement was designed to protect against title-policy exposure arising from mechanics'-lien risk, not to create a freestanding guaranty of every downstream loss. Plaintiffs’ strongest argument is that separate obligations to pay contractors (UMF No. 13), release liens (UMF No. 15), bond liens (UMF No. 28), deposit funds (UMF No. 30), and defend actions (UMF No. 32) would be surplusage if the Agreement merely restated a right to be indemnified for covered title-policy losses.

That argument has force, but paragraphs 5 and 6 do real work if read as preventive and mitigative mechanisms directed at RATIC's title-insurance exposure. The whole-contract canon requires harmonization. (Civ. Code §§ 1641, 1652.) Because both readings are textually plausible, the Agreement is ambiguous on whether the enumerated duties exist independent of title-policy exposure, with the ambiguity strongest as to duty 5 given paragraph 7(b)’s express “possible policy liability” language. Because the Agreement was drafted on a form supplied by RATIC to Barker, unresolved ambiguity is construed against RATIC under Civil Code section 1654.

That canon independently bars summary judgment on any duty whose scope depends on the disputed conditioning question.

2. Paragraph 9 and own-negligence indemnity

An indemnity does not reach the indemnitee’s own active negligence absent express and unequivocal language, and recovery under a contractual indemnity is limited to loss causally attributable to the indemnified risk. (Common Wealth Ins. Sys., Inc. v. Kersten (1974) 40 Cal.App.3d 1014, 1018; Edmondson Prop. Mgmt. v. Kwock (2007) 156 Cal.App.4th 197, 202; Oltmans Constr. Co. v. Bayside Interiors, Inc. (2017) 10 Cal.App.5th 355, 358.)

As the Court recognized in denying Barker’s motion, indemnity provisions covering liabilities "arising out of" a specified condition may apply even where the indemnitee is partially negligent. Broad arising out of language can, in appropriate circumstances, reach losses to which the indemnitee's negligence contributed. (Crawford v. Weather Shield Mfg., Inc. (2008) 44 Cal.4th 541,; and Rossmoor Sanitation, Inc. v. Pylon, Inc. (1975) 13 Cal.3d 622, 628, 633.) Paragraph 9’s “under any theory of recovery as a result of the existence of a claim of right to a construction/mechanics’ lien” language (UMF No. 36) is that kind of broad arising-out-of clause. Even so, breadth alone does not establish, as a matter of law, that paragraph 9 covers OCTCSC’s independent escrow negligence, its failure to read the lender’s final closing instructions, its failure

to issue the coverage the lender required, and its decision to close despite the material conflict between lender and borrower instructions. Paragraph 9 lacks that express language directed to the indemnitees' own active fault, and on this record it does not establish coverage of the indemnitees' escrow-closing misconduct as a matter of law.

3. Causation and damages

The BOBS jury found OCTCSC and RATIC liable for breach of contract and negligence for closing escrow contrary to BOBS's closing instructions. (Compl. ¶ 28.) The declaratory-relief cause of action tied to the policy had already been dismissed before the December 6, 2022 tender. On this record, the settlement is not established as an undisputed matter to have been attributable to the mechanics’ lien risk Barker agreed to bear rather than to independent escrow-closing conduct. (Oltmans Constr. Co. v. Bayside Interiors, Inc. (2017) 10 Cal.App.5th 355, 358.)

4. Affirmative defenses

Barker pleads voidness/lack of delivery, waiver, and ratification. A moving plaintiff must negate every pleaded affirmative defense. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826.) Ratification requires full knowledge of the material facts constituting the unauthorized conduct; acceptance of benefits without such knowledge does not establish ratification as a matter of law. (Stalberg v. W. Title Ins. (1991) 230 Cal.App.3d 1223, 1225; Common Wealth Ins. Sys., Inc. v. Kersten (1974) 40 Cal.App.3d 1014, 1021.)

An agent’s knowledge is imputed to the principal only when acquired within the scope of the agent's authority, and scope questions can present triable factual issues. (Bergstrom v. Zions Bancorporation, N.A. (2022) 78 Cal.App.5th 387; Triple a Mgmt. Co. v. Frisone (1999) 69 Cal.App.4th 520, 525. Barker’s evidence that OCTCSC closed despite materially conflicting instructions creates a triable dispute over authorized delivery. Barker’s asserted lack of knowledge of the instruction conflict until December 2022 is disputed on this record and precludes ratification as a matter of law.

The Agreement’s waiver clause helps Plaintiffs but does not, standing alone, negate every waiver or ratification theory tied to the escrow-closing circumstances.

B. Summary Adjudication of Issues on Complaint

The notice of the alternative motion for summary adjudication lists out six issues of duty on the complaint under Code of Civil Procedure section 437c(f)(1), as follows: (1) make timely payment to the contractors to prevent any mechanic’s liens from being recorded in the first instance; (2) cause a release of the mechanic’s liens to be filed of record in the county Recorder’s

office; (3) cause to be recorded with respect to any mechanic’s liens a bond or bonds freeing the Property from the effect of the mechanic’s liens; (4) deposit with Plaintiffs an amount to protect Plaintiffs or the insureds against mechanic’s liens; (5) cause the Mechanic’s Liens (ML) Foreclosure Action to be defended in a timely manner by counsel who would protect Plaintiffs and their insured from possible liability as a result of the issuance of the Title Policy; (6) protect and indemnify Plaintiffs from and against any and all liabilities or claims of liability, losses, costs, charges, expenses, and damages of any kind or character whatsoever, including reasonable attorneys’ fees incurred or sustained by Plaintiffs, by reason of or arising out of the mechanics’ lien(s) at issue in the ML Foreclosure Action, or by reason of or arising out of the mechanic’s lien(s) at issue in the BOBS Lawsuit.” (Ntc. of Mtn., 2-3.)

First, California Rules of Court, rule 3.1350(b) requires that where summary adjudication is sought, “the specific . . . issues of duty . . . must be stated specifically in the notice of motion and be repeated, verbatim, in the separate statement of undisputed material facts,” and Rule 3.1350(d) and (h) require that the separate statement separately identify each issue of duty and organize the supporting material facts under that issue. Plaintiffs’ Separate Statement presents 60 undifferentiated undisputed material facts covering background, contract provisions, liens, litigation, and agency, without repeating the six listed duty formulations verbatim and without separate subsections corresponding to duties. Denial on that ground is discretionary. (Truong v. Glasser (2009) 181 Cal.App.4th 102, 118.)

Notwithstanding, the Court elects to reach the merits and treats the rule 3.1350 defect as a supplemental, not sole, ground for denial of the alternative motion, a discussion of the merits follows below:

Duties 1 through 4 are proper issue-of-duty subjects in the abstract, each asking whether the contract imposed a discrete act-based obligation, timely payment (UMF No. 13), release (UMF No. 15), bond (UMF No. 28), or deposit (UMF No. 30). Duty 5 asks whether the Agreement imposed a defense duty (UMF No. 32). Plaintiffs have not shown unambiguously that any of those duties existed as freestanding obligations independent of title-policy exposure. (See § II.A.1.) The ambiguity is strongest as to duty 5, whose noticed formulation refers to defense of “Plaintiffs and their insured” but omits paragraph 7(b)’s critical limitation to insureds “to which RATIC may have possible liability as a result of issuance of a policy or policies of title insurance.” (UMF No. 32.) The Agreement does not unambiguously impose the defense duty as broadly as noticed.

As stated above, duty 6 asks the Court to declare an obligation to “protect and indemnify Plaintiffs from and against any and all liabilities or claims of liability, losses, costs, charges, expenses, and damages of any kind or character whatsoever, including reasonable attorneys’ fees incurred or sustained by Plaintiffs” That formulation moves beyond existence and scope of duty and toward whether specific categories of loss in identified litigations are covered, incurred, and recoverable, implicating breach, causation, and damages.

C.C.P., § 437c(f)(1) does not authorize adjudication of an issue of duty in that form. Duty 6 also references “Plaintiffs” while paragraph 9 protects “RATIC” as defined, and the Agreement originally defined “RATIC” to include Orange Coast Title Company, which later assigned its interest to OCTCSC during litigation (UMF No. 40) an assignment whose legal effect on OCTCSC’s asserted rights is not developed in the motion. Finally, duty 6 is overbroad to the extent it seeks a ruling covering losses arising from OCTCSC’s own conduct, given paragraph 9’s lack of express own-negligence language. (See § II.A.2.)

In sum, the Court denies the alternative request for adjudication of various issues of “duty” as to the complaint.

C. Cross-Complaint

As moving cross-defendants, each plaintiff must show that one or more elements of the cross-claim cannot be established or that a complete defense exists. (C.C.P., § 437c; Aguilar v. Atlantic Richfield Co. (2001), 25 Cal.4th 826.)

1. Notice

The notice of motion seeks summary judgment as to Barker’s cross-complaint and each cause of action in the cross-complaint. (See Ntc. of Mtn., 3:5-10 [“RATIC and OCTC-SC as Cross-Defendants are entitled to summary judgment on Barker’s Cross-Complaint on the grounds that the undisputed facts show that some or all of Barker’s claims are barred by the statute of limitations; that Barker’s contract claims fail because he cannot prove that Barker was a party to any escrow agreement with Cross-Defendants; that Barker ratified any alleged actions of which he complains; and that Cross-Defendant’s alleged breaches were not the proximate cause of any damages that Barker incurred.”) It does not, in the alternative or otherwise, seek summary adjudication of any individual cross-claim under Code of Civil Procedure section 437c(f)(1).

The alternative summary-adjudication request is expressly confined to the six noticed issues of duty on the complaint (see § II.B); it is not extended to the cross-claims, and the Separate Statement is not organized under issue headings identifying each cross-claim as required by California Rule of Court 3.1350(b), (d), and (h) for adjudication of causes of action. Therefore, the Court treats this as a motion for summary judgment on the cross-complaint as a whole. Because Plaintiffs have not shown entitlement to judgment on every cross-claim, the motion fails, and the Court does not need to adjudicate individual cross-claims that were not properly noticed.

2. Negligence and breach of fiduciary duty

Briefly, negligence and breach of fiduciary duty each require duty, breach, causation, and damages. (Markowitz v. Fidelity Nat’l Title Co. (2006) 142 Cal.App.4th 508.) As to an escrow holder, fiduciary obligations are limited to faithful compliance with the escrow instructions of the parties to the escrow; where a claimant is not a party to those instructions, duty to the nonparty is analyzed under the Biakanja factors. (Summit Fin. Holdings, Ltd. v. Continental Lawyers Title Co., 27 Cal. 4th 705, 715.)

An escrow transaction under Financial Code section 17003(a) requires delivery of an instrument to a third person to hold pending a specified event and the person making such a delivery is a depositor protected under Civil Code section 1814. An escrow holder that accepts a deposit of an instrument into escrow and undertakes performance incurs an implied contractual obligation to perform accordingly. (Bruckman v. Parliament Escrow Corp. (1987) 190 Cal.App.3d 1051.) A title insurer’s obligations, by contrast, are narrower than an escrow holder’s, and a person who is not the named insured cannot rely on the insurer as though it were protecting that person's interests. (Vournas v.

Fidelity Nat'l Title Ins. (1999) 73 Cal.App.4th 668, 670.) Causation is not severed by a subsequent act unless both the act and the resulting harm were unforeseeable. (Id.) Neither Plaintiff has carried its burden on this record.

As to RATIC The general rule that a title insurer owes no independent negligence or fiduciary duty to a noninsured indemnitor has force. (Vournas v. Fidelity Nat'l Title Ins. (1999) 73 Cal.App.4th 668, 670; Markowitz v. Fidelity Nat'l Title Co. (2006) 142 Cal. App. 4th 508.) But the Agreement originally defined “RATIC” to include Real Advantage and Orange Coast Title Company collectively, with benefits inuring to Orange Coast Title Company’s assignees, including OCTC-SC (UMF Nos. 11, 40), and RATIC actively demanded and received the Indemnity as a condition of issuing the policy and of the 2019 endorsement (UMF Nos. 8, 11); movants’ opening papers address only the general no-duty rule and do not negate the alternative duty theories Barker has advanced. The Court denies the motion.

As to OCTCSC, Barker was not a party to the escrow agreement (UMF No. 3), which supports the prima facie no-duty position under Summit and Markowitz. But the record also shows the lender’s closing instructions identified a “Personal Guaranty (Michael Barker)” among documents deposited or to be deposited with OCTC-SC, and Barker's theory rests on his personal

execution and delivery of indemnity instruments demanded as a condition of issuing the policy. Financial Code section 17003(a) and Civil Code sections 1814 and 1835 may define a depositor relationship where Barker personally delivered an instrument to be held pending policy issuance or closing conditions. OCTCSC has not shown as a matter of law that the indemnity fell wholly outside the operative escrow transaction or that Barker remained a stranger to it. The Court denies the motion.

Even treating Barker as a nonparty, the Biakanja analysis is not conclusively resolved in OCTCSC’s favor. (Summit Fin. Holdings, Ltd. v. Continental Lawyers Title Co., 27 Cal. 4th 705, 715.) The transaction was structured around issuance of lender coverage against mechanics’ lien risk; Barker personally signed indemnities to induce that issuance; the instructions themselves referenced his guaranty; and his claimed injury is exposure under the very indemnity delivered in connection with the challenged closing. Foreseeability and intended effect cannot be negated as a matter of law on this record.

Movants rely on Barker’s receipt of loan benefits and Amanda LaValle’s receipt of the final closing instructions before escrow closed (UMF Nos. 54, 57). Ratification requires full knowledge of the material facts (Stalberg v. W. Title Ins. (1991) 230 Cal.App.3d 1223, 1225) and imputation of an agent’s knowledge depends on scope of authority, a question that may be triable. (Bergstrom v. Zions Bancorporation, N.A. (2022) 78 Cal.App.5th 387; Triple a Mgmt. Co. v. Frisone (1999) 69 Cal.App.4th 520, 525.).

Barker’s asserted first knowledge of the instruction conflict in December 2022 is disputed. On causation, if Barker’s later exposure was a foreseeable consequence of a closing that allegedly preserved uncovered mechanics’ lien risk while binding him under the indemnity, superseding cause is not established as a matter of law. (Vournas v. Fidelity Nat'l Title Ins. (1999) 73 Cal.App.4th 668, 670.)

A breach of implied-in-fact contract claim requires the same elements as breach of express contract, with assent inferred from conduct. (Aton Ctr., Inc. v. United Healthcare Ins. Co. (2023) 93 Cal.App.5th 1214, 1230.) Plaintiffs have not carried their initial burden to negate breach and damages on Barker’s theory that OCTCSC’s acceptance of his deposited indemnities and undertaking of escrow performance gave rise to implied contractual obligations. (Bruckman v. Parliament Escrow Corp. (1987) 190 Cal.App.3d 1051; Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826.)

Declaratory relief is cumulative, and overlap with other causes of action does not by itself defeat the claim where an independent prospective controversy remains. (Tribeca Cos., LLC v. First Am. Title Ins. (1975) 239 Cal.App.4th 1088.) The parties maintain an active, ongoing dispute over their rights and obligations under the indemnity agreements, which is sufficient at this stage.

Because at least the foregoing cross-claims present triable issues, Plaintiffs have not shown entitlement to judgment on the cross-complaint as a whole. Summary judgment on the Second Amended Cross-Complaint should be denied and the Court declines to reach whether any individual cross-claim would be susceptible to summary adjudication on a properly noticed motion, because such a motion is not before the Court on the present notice.

Deny the motion in its entirety.