Procedural Posture

Procedural Posture

Appellant consultant challenged a judgment entered by the Superior Court of Santa Clara County, California, on a cross-complaint brought by respondent developer, pursuant to an indemnity provision in the parties’ contract. The judgment required the consultant, which had denied the developer’s tender of defense, to reimburse the developer for the costs of its defense in a lawsuit filed by a third entity, a homeowners association.

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The consultant also challenged a postjudgment order under Code Civ. Proc., § 411.35, in which the trial court granted its motion for verification but denied its request for costs and attorney fees in the cross-action. The court found that the contract between the parties called for a defense when any claim against the developer implicated the consultant’s performance of its role in the project. That defense obligation arose when the homeowners association alleged harm resulting from deficient work that was within the scope of the services for which the developer had retained the consultant. The trial court thus did not err in ruling that the consultant had a duty to defend the developer upon the developer’s request pursuant to Civ. Code, § 2778. Because the developer’s cross-complaint included allegations that withstood the consultant’s reliance on Bus. & Prof. Code, § 7031, the consultant’s summary judgment motion was properly rejected. The trial court was within its discretion to accept counsel’s declaration describing the developer’s consultation with an expert, and to find no harm to the consultant in the form of additional expenditures caused by the lack of a certificate.


The court affirmed the judgment and the postjudgment verification order.

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