Filed 10/2/26 Palmer v. State of Cal. ex rel. Department of Transportation CA2/2
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
GEOFFREY H. PALMER et al., B346073
Cross-complainants and (Los Angeles County
Appellants, Super. Ct. No. BC610365)
v.
STATE OF CALIFORNIA ex
rel. DEPARTMENT OF
TRANSPORTATION,
Cross-defendant and
Respondent.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Bradley S. Phillips, Judge. Affirmed.
Hamrick & Evans, George Knopfler, A. Raymond Hamrick,
III, and Jonathan Dutton for Cross-complainants and Appellants.
Justin Lynch and Perry E. Rhoads for Cross-defendant and
Respondent.
Cross-complainants and appellants Geoffrey H. Palmer
doing business as GH Palmer Associates and Palmer Temple
Street Properties, LLC (collectively, appellants) appeal from the
judgment following the order granting the motion for summary
adjudication of cross-defendant and respondent the People of the
State of California (State), acting by and through the Department
of Transportation (Caltrans). Appellants contend the trial court
erred by finding Caltrans was not contractually obligated to
replace the entire right-of-way fencing at issue in this case. We
disagree and affirm.
BACKGROUND
I. The emergency repairs and right-of-entry contract
In February 2012, Caltrans issued an emergency order to
repair the storm damaged roadway and support slope along the
northbound 110 freeway between the First Street undercrossing
and Temple Street in Los Angeles. This work required Caltrans
to obtain a temporary construction easement (TCE) across the
south side of the Da Vinci project—apartment buildings located
at 900 and 909 West Temple Street—along the northbound 110
freeway. The Da Vinci project included two apartment buildings,
“Building A” and “Building B,” with a Caltrans right-of-way fence
separating Building B from the 110 freeway.
In March 2012, Caltrans contacted appellants to obtain a
right of entry for Caltrans to enter part of appellants’ property to
perform the work. The right of entry would allow Caltrans
immediate access to the property, with the amount of just
compensation owed to appellants for Caltrans using the TCE to
be negotiated later. On March 12, 2012, appellants agreed to and
signed the right-of-entry contract.
2
In the first paragraph of the right-of-entry contract, the
scope of Caltrans’s project is described as follows:
“Permission is hereby granted to enter upon our land,
Assessor’s ID No. 5161-001-042 for the purpose of reconstruction
of an embankment and support slope between First Street
undercrossing and Temple Avenue[1] within the downtown Los
Angeles area by northbound LA-110 Highway. The pavement,
asphalt, and concrete dikes, drainage systems, guardrail and
right of way fencing will all be replaced. Additional asphalt and
concrete berms will be added behind the guardrail to prevent
recurrence. The estimated first day of construction is March 19,
2012 and is expected to be completed within 105 days or June 20,
2012.”
A map with the location of the repair work and TCE area
highlighted was attached to the right-of-entry contract. On
August 16, 2012, Caltrans completed the repair project and
issued a notice of acceptance of the contract.
II. The right-of-way contract
On May 17, 2013, Caltrans completed an appraisal for its
use of the TCE, concluding $59,200 was just compensation for
appellants. About a month later, appellants accepted the amount
of the appraisal and signed a right-of-way contract, which
memorialized the agreement.
Clause 3 of the right-of-way contract described the purpose
and scope of Caltrans’s work:
“It is understood and agreed that the State or its
authorized agent is granted permission [to] enter upon Parcel
1 Although the record refers to “Temple Avenue,” it appears
this is a typographical error as the correct street name is “Temple
Street.”
3
80336-1 which is located within that certain area as marked in
‘Exhibit A’. The State requires 9,813 square feet of the Grantor’s
199,883 square foot property to facilitate repairing the storm
damaged roadway and to support the slopes along northbound
Interstate Route 110 from First Street Undercrossing #53-0682 to
the Temple Avenue Undercrossing #53-0240 in the City of Los
Angeles. The State’s repair roadway and highway project
involves: replacing pavement, AC dikes, metal beam
guardrail, drainage systems, and right of way fencing and
utility lines.”
The right-of-way contract also stated under clause 1.(A)
that the parties “[h]ave set forth the whole of their agreement.
The performance of this agreement constitutes the entire
consideration for the property … and shall relieve the State of all
further obligation or claims on this account, or on account of the
location, grade, or construction of the proposed public
improvement.” In clause 4, the contract indicated Caltrans’s use
of the TCE for the project commenced on March 19, 2012, and the
TCE terminated on August 31, 2012. In addition, the contract
had an indemnity clause in clause 8, which states: “State agrees
to indemnify and hold harmless the Grantor from any liability
arising out of State’s operations under this agreement. State
further agrees to assume responsibility for any damages
proximately caused by reason of State’s operations under this
agreement and State will, at its option, either repair or pay for
such damage.”
In November 2013, appellants signed the same agreement
but with a correction to the grantor’s name.
4
III. The fire on the property and the lawsuit
In December 2014, Dawud Abdulwali allegedly trespassed
onto the Da Vinci property through a gap in the right-of-way
fence on the north end of the property. Abdulwali ignited a fire
causing millions of dollars in damages to the property.
Appellants subsequently brought a lawsuit against
Caltrans. The operative cross-complaint asserted causes of action
for equitable indemnity, comparative fault, contribution, breach
of contract, contractual indemnity, reformation of contract, and
declaratory relief against Caltrans. Appellants alleged Caltrans
owned or controlled the area between the 110 freeway and the Da
Vinci apartments, including a right-of-way fence. Prior to the fire,
Caltrans allegedly knew of the hole in the fence through its
roadway work orders but failed to construct, maintain, repair, or
replace the fence.
Appellants alleged Caltrans breached the right-of-way
contract by failing to repair or replace the entire right-of-way
fence. Caltrans’s breach allegedly allowed Abdulwali to gain
access to the apartment premises via the fence’s gap, where he
started an arson fire that caused the property to be engulfed in
flames. In addition, the cross-complaint alleged the contract
contained an indemnity provision whereby Palmer Temple Street
Properties LLC was entitled to be indemnified and held harmless
by Caltrans for all of its costs, fees, liability, damages, and other
amounts incurred in the case.
IV. The motion for summary adjudication
In May 2024, Caltrans filed a motion for summary
adjudication as to the fourth through eighth causes of action of
the operative cross-complaint. Caltrans contended it is entitled to
summary adjudication as to the cause of action for breach of
5
contract because Caltrans had no duty under the right-of-way
contract to replace fencing on the north side of Building B of the
Da Vinci property. Caltrans argued the contract’s terms clearly
and unambiguously relieved Caltrans from any further claims
once it fully performed its project. Caltrans posited the scope of
its work was limited to storm-damage repairs on the south side of
the Building B location, while the hole in the right-of-way fence
was at the property’s north end where there was no storm
damage. Caltrans maintained the TCE’s purpose was to facilitate
“repairing the storm damaged roadway,” and the project merely
involved replacing pavement, AC dikes, metal beam guardrail,
drainage systems, and right-of-way fencing and utility lines
under the contract. Caltrans asserted the contract did not
obligate Caltrans to replace all of the right-of-way fencing from
First Street to Temple Street—nothing states the project
required replacement of all the AC dikes, metal beam guardrail,
drainage systems, right-of-way fencing, and utility lines.
As to the contractual indemnity claim, Caltrans contended
the indemnity provision in the contract terminated more than
two years before the fire and did not apply to the right-of-way
fence at the north end of Building B. Caltrans argued the portion
of the fence Abdulwali accessed was outside the scope of
Caltrans’s work on the storm damaged slope.
In opposition, appellants contended the contract documents
required Caltrans to replace the entire right-of-way fencing from
the First Street undercrossing to Temple Street. Appellants
argued Caltrans breached the contract by failing to perform this
work and only replacing the fence on the south side of the project.
Appellants maintained Caltrans’s work was not limited to the
TCE period. Appellants asserted Caltrans could have replaced
6
the remaining right-of-way fence without extending the TCE and
accessing appellants’ property.
As to the contractual indemnity claim, appellants posited
the right-of-way contract contains an indemnity provision for
Caltrans’s operations. Appellants argued a triable issue of
material facts exists because appellants incurred liability due to
Caltrans’s failure to complete its operations under the contract.
On November 27, 2024, the trial court heard the motion for
summary adjudication and took the matter under submission. On
December 2, 2024, the court granted the motion as to the causes
of action for breach of contract and contractual indemnity. The
court concluded Caltrans had no contractual obligation to repair
the gap in the fence Abdulwali later used to access the Da Vinci
property. The court found the parties’ contracts related
exclusively to Caltrans’s right to access a portion of appellants’
property that did not have the fence with the hole.
The trial court added the contract’s purpose was to give
Caltrans access to appellants’ property to repair storm damage
along the northbound 110 freeway, which was not in the area of
the fence’s gap. The court indicated appellants admitted Caltrans
would have no need to contract with them to access the area with
the fence’s gap. The court reasoned it would make no sense for
Caltrans to enter an easement agreement with appellants to
access land already under its control. The court concluded the
contract documents confirm Caltrans did not form such an
agreement since the construction areas did not include areas with
the fence’s hole.
As to the contractual indemnity claim, the trial court
concluded it failed as a matter of law because Caltrans’s
operations were limited to repair work within the TCE
7
designated in the right-of-way contract. The court indicated those
operations did not involve the fence where Abdulwali gained
access to the Da Vinci property.
V. The trial
In February 2025, the case proceeded to a bench trial
involving appellants’ duty to Caltrans as to the third party arson
that occurred in December 2014. The trial court found in favor of
appellants and against Caltrans with respect to Caltrans’s cross-
complaint.2 As to appellants’ operative cross-complaint, however,
the court found in favor of Caltrans and against appellants.
Judgment was entered on March 13, 2025. Appellants
timely appealed.
CONTENTIONS ON APPEAL
Appellants assert four main arguments. First, appellants
contend the trial court erred by ignoring the contracts’ plain
language requiring Caltrans to replace the entire right-of-way
fencing between the First Street undercrossing and Temple
Street. Appellants argue any ambiguity in the contracts is
interpreted against Caltrans, the party who drafted the
contracts. Second, appellants assert the court erroneously
interpreted the contracts based on Caltrans’s evidence of its
undisclosed subjective intent. Third, appellants posit there is
conflicting extrinsic evidence regarding the contracts to the
extent they are ambiguous and reasonably susceptible to
Caltrans’s interpretation. Finally, appellants argue triable issues
of material fact exist as to their contractual indemnity claim
because Caltrans failed to perform work required by the
contracts, which resulted in appellants incurring liability.
2 Caltrans’s cross-complaint is not at issue in this appeal.
8
DISCUSSION
I. Standard of review and applicable law
“In reviewing an order granting summary adjudication of
an issue, we apply the same de novo standard of review that
applies to an appeal from an order granting summary judgment.”
(Davis v. Kiewit Pacific Co. (2013) 220 Cal.App.4th 358, 363.)
“Code of Civil Procedure section 437c, subdivision (f)(1), allows a
party to move for summary adjudication ‘as to one or more causes
of action within an action ... if that party contends that the cause
of action has no merit ....’ ‘A motion for summary adjudication
may be made by itself or as an alternative to a motion for
summary judgment and shall proceed in all procedural respects
as a motion for summary judgment.’ (Code Civ. Proc.[,] § 437c,
subd. (f)(2).)” (Rehmani v. Superior Court (2012) 204 Cal.App.4th
945, 950.) Thus, “[a] summary adjudication motion is subject to
the same rules and procedures as a summary judgment motion.”
(Lunardi v. Great-West Life Assurance Co. (1995) 37 Cal.App.4th
807, 819.)
A ruling granting summary adjudication “resolves a pure
question of law [citation], namely, whether there is any triable
issue as to any material fact and, if not, whether the moving
party is entitled to adjudication in his favor as a matter of law
[citation].” (Certain Underwriters at Lloyd’s of London v. Superior
Court (2001) 24 Cal.4th 945, 972.) “There is a triable issue of
material fact if, and only if, the evidence would allow a
reasonable trier of fact to find the underlying fact in favor of the
party opposing the motion in accordance with the applicable
standard of proof.” (Aguilar v. Atlantic Richfield Co. (2001) 25
Cal.4th 826, 850.)
9
“In making its review, the appellate court need not defer to
the trial court’s decision. ‘“We are not bound by the trial court’s
stated reasons, if any, supporting its ruling; we review the ruling,
not its rationale.”’” (West Shield Investigations & Security
Consultants v. Superior Court (2000) 82 Cal.App.4th 935, 946.)
“We resolve any evidentiary doubts or ambiguities in favor of the
party opposing summary judgment.” (Nicoletti v. Kest (2023) 97
Cal.App.5th 140, 144.) “The appellant, however, still ‘has the
burden of showing error, even if he did not bear the burden in the
trial court.’” (640 Octavia, LLC v. Pieper (2023) 93 Cal.App.5th
1181, 1189.)
II. Summary adjudication was proper because the
contracts are clear and unambiguous regarding the
scope and purpose of Caltrans’s work
A. The right-of-entry contract did not require
Caltrans to replace right-of-way fencing beyond
the TCE
Appellants contend the trial court ignored the right-of-
entry contract’s plain language requiring Caltrans to replace all
of the right-of-way fencing between the First Street
undercrossing and Temple Street. Appellants argue the court
improperly relied on extrinsic evidence of Caltrans’s subjective
intent, which is at odds with the contract’s clear and
unambiguous requirement that the fence be completely replaced.
We disagree.
Here, the parties initially entered a right-of-entry contract
then subsequently executed a right-of-way contract concerning
the same work performed by Caltrans. “Courts will construe
together several documents concerning the same subject and
made as part of the same transaction [citations] even though the
10
documents were not executed contemporaneously [citation], and
do not refer to each other [citation].” (Boyd v. Oscar Fisher Co.
(1989) 210 Cal.App.3d 368, 378.) “Our review of the trial court’s
interpretation of a contract generally presents a question of law
for this court to determine anew.” (DVD Copy Control Assn., Inc.
v. Kaleidescape, Inc. (2009) 176 Cal.App.4th 697, 713.) “We look
to California’s rules of contract interpretation to decide whether
the questions we address are factual or legal. When interpreting
contracts, courts must first determine whether the language is
ambiguous, or, in other words, whether it is reasonably
susceptible to the interpretation urged by a party.” (Oakland-
Alameda County Coliseum Authority v. Golden State Warriors,
LLC (2020) 53 Cal.App.5th 807, 816 (Oakland).) “The ‘threshold
determination of “ambiguity” ... is a question of law,’ ‘subject to
independent review.’” (Ibid.)
“The fundamental rules of contract interpretation are based
on the premise that the interpretation of a contract must give
effect to the ‘mutual intention’ of the parties.” (Waller v. Truck
Ins. Exchange, Inc. (1995) 11 Cal.4th 1, 18 (Waller).) “‘Such intent
is to be inferred, if possible, solely from the written provisions of
the contract.’” (Ibid.) “Civil Code section 1638 provides that the
‘language of a contract is to govern its interpretation, if the
language is clear and explicit …,’ and section 1639 provides that
when ‘a contract is reduced to writing, the intention of the parties
is to be ascertained from the writing alone, if possible ….’ But, as
explained by our high court over 50 years ago, the meaning of
words can change depending on the circumstances.” (Oakland,
supra, 53 Cal.App.5th at p. 817.) “We must view the language of
a contract as a whole, avoiding a piecemeal, strict construction
approach. If possible, we should give effect to every provision and
11
avoid rendering any part of an agreement surplusage.” (Segal v.
Silberstein (2007) 156 Cal.App.4th 627, 633.)
“‘“The ‘clear and explicit’ meaning of these provisions,
interpreted in their ‘ordinary and popular sense,’ ... controls
judicial interpretation.”’” (ASP Properties Group, L.P. v. Fard,
Inc. (2005) 133 Cal.App.4th 1257, 1269.) “Courts will not strain to
create an ambiguity where none exists.” (Waller, supra, 11
Cal.4th at pp. 18–19.) “Interpretation of a contract ‘must be fair
and reasonable, not leading to absurd conclusions.’” (ASP
Properties Group, supra, at p. 1269.)
We conclude the right-of-entry contract did not require
Caltrans to replace the entire right-of-way fencing between the
First Street undercrossing and Temple Street. Appellants point
to language in the contract defining the scope of Caltrans’s work:
“The pavement, asphalt and concrete dikes, drainage systems,
guardrail and right of way fencing will all be replaced.”
Appellants claim the use of the word “all” here confirms a
comprehensive obligation to replace the entire fencing “between
First Street undercrossing and Temple Avenue.” The contract’s
plain language does not support appellants’ interpretation. The
word “all” in this sentence clearly and unambiguously refers to
the preceding list of items, i.e., the enumerated storm damaged
facilities. Indeed, the term “all” comes after the entire list of
items, not immediately before the right-of-way fencing. If the
contract was intended to require Caltrans to replace the entire
fence, the word “all” would have immediately preceded and
modified the right-of-way fencing directly. The fact that the term
“all” does not modify any particular term clearly suggests it is
intended to refer to the entire list of storm damaged facilities.
12
Further, appellants’ interpretation contradicts other
portions of the right-of-entry contract. Namely, the contract
plainly states in the preceding sentence that Caltrans was
“granted to enter upon [appellants’] land … for the purpose of
reconstruction of an embankment and support slope between First
Street undercrossing and Temple Avenue within the downtown
Los Angeles area by northbound LA-110 Highway.” (Italics
added.) Thus, Caltrans only contracted to access the property to
perform a particular type of repair work. The repair work
described in the contract does not include replacing the entire
right-of-way fencing between the First Street undercrossing and
Temple Street. The language appellants highlight regarding
fence replacement cannot be read in isolation. “[R]eading a
sentence in isolation is not reasonable because California law
requires contracts to be interpreted as a whole.” (Joseph v. City of
Atwater (2022) 74 Cal.App.5th 974, 982.) When reading this
contract as a whole, it is clear the parties intended Caltrans to
only access appellants’ property to repair the storm damaged
facilities listed in the agreement.
B. The right-of-way contract did not require
Caltrans to replace all of the right-of-way
fencing between the First Street undercrossing
and Temple Street
Appellants posit the right-of-way contract further confirms
Caltrans agreed to replace all of the right-of-way fencing between
the First Street undercrossing and Temple Street. Appellants
assert the appraisal map attached to the contract depicts the full
length of the fence along the Da Vinci project as the scope of
Caltrans’s work.
13
We conclude the right-of-way contract’s plain language
further shows the scope of Caltrans’s work thereunder did not
include replacing the entire right-of-way fencing between the
First Street undercrossing and Temple Street. In clause 3, the
right-of-way contract specifies Caltrans needed access to “9,813
square feet of the Grantor’s 199,883 square foot property to
facilitate repairing the storm damaged roadway and to support
the slopes along northbound Interstate Route 110 from First
Street Undercrossing #53-0682 to the Temple Avenue
Undercrossing #53-0240 in the City of Los Angeles.” (Italics
added.) The specific purpose of Caltrans’s work described here
again does not include complete replacement of the right-of-way
fencing. Moreover, Caltrans’s work was limited to 9,813 square
feet of the 199,883 square foot property adjacent to the 110
freeway as highlighted in the attached right-of-way appraisal
map.3
In addition, the next sentence of section 3 of the right-of-
way contract further spells out Caltrans’s work: “The State’s
repair roadway and highway project involves: replacing
pavement, AC dikes, metal beam guardrail, drainage
3 Appellants posit Caltrans presented no evidence
establishing there was no storm damage at the area Abdulwali
accessed the Da Vinci property. But appellants waived this issue
because they never raised it in the underlying proceedings. (See
People v. Mayham (2013) 212 Cal.App.4th 847, 856 [“A party may
not raise an argument on appeal that he or she did not raise
before the trial court.”].) Regardless, this issue is not dispositive
because the contracts’ plain language shows Caltrans contracted
with appellants to work in the TCE area, which is expressly
defined as “9,813 square feet of the Grantor’s 199,883 square foot
property” and highlighted in the right-of-way appraisal map.
14
systems, and right of way fencing and utility lines.” There
is no language here suggesting Caltrans was required to replace
the entire right-of-way fencing between the First Street
undercrossing and Temple Avenue. The contract does not include
the word “all” or some comparable term to modify the repair work
on the fence. If Caltrans’s work included replacing the entire
right-of-way fence, such language could have been included here.
But such a broad description regarding the scope of Caltrans’s
work is clearly not in the contract’s language despite it being the
follow-up agreement to the right-of-entry contract. Accordingly,
the right-of-way contract’s language is clear and unambiguous
that Caltrans’s obligations did not extend to the area containing
the fence’s gap where Abdulwali accessed the Da Vinci property.
Appellants maintain Caltrans’s obligations extended to the
entire fence because the right-of-way contract has no language
limiting Caltrans’s responsibilities to the TCE area or to storm
damaged fencing. We disagree Caltrans’s duties extended to the
entire fence simply because there is no specific limiting language
regarding the scope of Caltrans’s work. “To interpret a contract,
we look to its language ([Civ. Code,] § 1638) and ascertain the
intent of the parties, if possible, based solely on the contract’s
written provisions (§ 1639).” (Hewlett-Packard Co. v. Oracle Corp.
(2021) 65 Cal.App.5th 506, 531.) The absence of specific limiting
language regarding the scope of Caltrans’s work does not
necessarily mean Caltrans had broader duties. Appellants’
interpretation of the contract here creates additional terms
expanding Caltrans’s responsibilities. Such an interpretation is
not supported by the plain language of the agreement.4
4 Appellants also argue the trial court improperly based its
ruling on Caltrans’s extrinsic evidence of its subjective intent.
15
C. The contracts’ language is not reasonably
susceptible to appellants’ interpretation in light
of extrinsic evidence
Further, appellants argue the trial court erred by taking
the issue of contract interpretation away from the jury despite
conflicting extrinsic evidence as to the contracts’ proper
interpretation.
“The court generally may not consider extrinsic evidence of
any prior agreement or contemporaneous oral agreement to vary
or contradict the clear and unambiguous terms of a written,
integrated contract.” (Wolf v. Walt Disney Pictures & Television
(2008) 162 Cal.App.4th 1107, 1126.) “Extrinsic evidence is
admissible, however, to interpret an agreement when a material
term is ambiguous.” (Ibid.) “If, in light of the extrinsic evidence,
the language is reasonably susceptible to the interpretation
urged, the extrinsic evidence is then admitted to aid the court in
its role in interpreting the contract. [Citations.] When there is no
Appellants assert such evidence is irrelevant and may not be
considered since the contracts’ language clearly required
Caltrans to replace the entire right-of-way fencing and is not
reasonably susceptible to Caltrans’s interpretation in light of the
evidence. However, we need not consider if the court improperly
considered Caltrans’s extrinsic evidence in its favor because the
contracts’ language is clear and unambiguous regarding the scope
of Caltrans’s work and is not reasonably susceptible to
appellants’ interpretation. (See Sunniland Fruit, Inc. v. Verni
(1991) 233 Cal.App.3d 892, 898 [“Parol evidence may be admitted
to explain the meaning of a writing when the meaning urged is
one to which the written contract term is reasonably susceptible
or when the contract is ambiguous. [Citations.] Parol evidence
cannot, however, be admitted to show intention independent of
an unambiguous written instrument.”].)
16
material conflict in the extrinsic evidence, the trial court
interprets the contract as a matter of law.” (Ibid.) “If, however,
there is a conflict in the extrinsic evidence, the factual conflict is
to be resolved by the jury.” (Id. at p. 1127.)
Here, we need not consider any extrinsic evidence because
the contracts’ language is clear and unambiguous that Caltrans
was not required to replace the entire right-of-way fencing.
Regardless, the contracts’ language is not reasonably susceptible
to appellants’ interpretation in light of the evidence they
presented. Geoffrey H. Palmer, the principal and president of GH
Palmer Associates and Palmer Temple Street Properties, LLC,
attested that one of the Da Vinci project’s design challenges was
Caltrans’s old, rusted right-of-way fence located between the
northbound 110 freeway and the project. Palmer indicated
appellants could not repair the fence because Caltrans owned and
controlled it. Palmer explained, when he signed the right-of-entry
contract, his understanding was Caltrans would replace the
entire right-of-way fencing from the First Street undercrossing to
Temple Street. Palmer attested Caltrans in return would gain
access to appellants’ property for a long period of time. Palmer
added the scope of work described in the right-of-way contract is
consistent with the description in the right-of-entry contract.
Palmer averred Caltrans breached the contracts by failing to
replace the right-of-way fencing from the First Street
undercrossing to Temple Street as required.
Here, Palmer’s statements provide no additional facts or
context establishing the contracts’ language is reasonably
susceptible to appellants’ interpretation. Nothing in Palmer’s
statements show why the contracts’ language may be read as
requiring Caltrans to replace the entire right-of-way fencing.
17
While the Da Vinci project may have faced issues with the right-
of-way fence and appellants lacked authority to repair it, these
matters do not demonstrate an ambiguity in the contracts’
language. The right-of-entry contract clearly indicates Caltrans
was allowed to access the property “for the purpose of
reconstruction of an embankment and support slope.” The right-
of-way contract similarly states the purpose of Caltrans accessing
the property was “to facilitate repairing the storm damaged
roadway and to support the slopes.” Appellants’ evidence does not
show the foregoing contractual language regarding the scope of
Caltrans’s work extended to portions of the fence appellants
wanted to address for the Da Vinci property. Caltrans
compensated appellants for accessing their property to repair
certain storm damaged facilities; nothing shows Caltrans was
also obligated to replace the entire right-of-way fencing for
appellants.
Moreover, appellants maintain circumstances surrounding
the execution of the contracts show Caltrans was obligated to
replace all right-of-way fencing. Appellants assert Caltrans
continued to replace portions of the right-of-way fence along the
highway side of the Da Vinci project from July 2013 through
early 2014. Further, appellants posit Caltrans’s obligations were
not limited to storm-damage repairs within the TCE because
clause 3 of the right-of-way contract describes Caltrans’s work in
the present tense as an ongoing project.
Appellants fail to show, however, how the foregoing facts
establish ambiguity in the contracts’ language. While
circumstances may help explain a contract under Civil Code
section 1647, the fact that Caltrans performed repairs on other
parts of the right-of-way fence after the TCE expired does not
18
mean Caltrans agreed to be bound to appellants for such repairs.
Indeed, these additional repairs are consistent with Caltrans
having no obligation to appellants for the entire fence because
Caltrans did not need a TCE to repair the other parts of the
fence.
And we disagree with appellants’ assertion Caltrans had an
obligation to repair the entire fence simply because the right-of-
way contract uses present tense to describe Caltrans’s work. This
interpretation contradicts the plain language of the contract. In
clause 4, the contract clearly states the TCE expired on
August 31, 2012. As discussed above, the purpose of the
agreement was to grant Caltrans a TCE to repair the storm
damaged roadway and to support the slopes. An ongoing project
to repair the entire right-of-way fence is entirely at odds with the
contract’s clear and unambiguous language regarding the scope
of Caltrans’s work and its end date.
D. Summary adjudication was properly granted
against the contractual indemnity cause of
action
Finally, appellants contend a triable issue of material facts
exists as to their contractual indemnity claim because they
incurred liability due to Caltrans’s failure to perform work
required by the contracts. Appellants’ arguments here are based
on the same contentions discussed above for their breach of
contract claim. We therefore conclude appellants also fail to show
a triable issue exists as to their indemnity claim.
19
DISPOSITION
The March 13, 2025 judgment is affirmed. Respondent is
awarded its costs of appeal.
CHAVEZ, J.
We concur:
LUI, P. J.
GOORVITCH, J.
20