Opinion
INTRODUCTION
Appellant Morgan, Lewis & Bockius LLP (hereinafter Morgan Lewis) appeals from the trial court’s grant of respondent Ralph Cassady’s motion for a new trial on his statutory and common law indemnity claims. Cassady, an attorney, performed legal services for a client, Rallie P. Rallis, for over 20 years. During that period, Cassady practiced law with several firms and in a variety of capacities. For a 13-month period, Cassady was employed as of counsel by Morgan Lewis. Years later, Rallis sued Cassady, Morgan Lewis, and other firms and attorneys with whom Cassady had been affiliated, for a variety of claims including professional negligence, premised on numerous aspects of Cassady’s and those entities’ representation occurring over a multiyear period. Morgan Lewis provided a defense for several other attorneys, but not for Cassady. After incurring legal fees for his defense, Cassady sought indemnity from Morgan Lewis under Labor Code section 2802, 1 which requires employers to indemnify employees for expenses or losses incurred in direct consequence of the discharge of their duties. Morgan Lewis prevailed on a summary judgment motion that disposed of Cassady’s claims, but the trial court subsequently reversed course and granted Cassady a new trial. Morgan Lewis appeals from that ruling.
We affirm the trial court’s grant of a new trial. Under section 2802, an employer must indemnify an employee for attorney’s fees and costs incurred in defending a third party lawsuit, where such expenses are necessary and the lawsuit is based on the employee’s conduct within the course and scope of his or her job duties. Because proof that the defense costs were incurred by the employee in direct consequence of the discharge of his or her duties is an element of the claim, the employee has the burden to prove the conduct on *225 which he or she was sued arose in the course and scope of the employment. To meet that burden on the somewhat unique facts of this case, Cassady bears the burden to prove which expenses he incurred as a result of performance of his duties with Morgan Lewis as opposed to other employers. However, Morgan Lewis’s summary judgment motion failed to show that Cassady lacked, or could not obtain, sufficient evidence to prove this element of his claim. In the unpublished portion of the opinion, we likewise conclude Morgan Lewis failed to meet its burden to prove Cassady lacked evidence to establish his common law indemnity claim. Therefore, the trial court appropriately granted the motion for a new trial.
FACTUAL AND PROCEDURAL BACKGROUND 2
1. The Rallis action.
Attorney Cassady served as legal counsel for Rallis and for various corporations and business entities in which Rallis was an officer, director, or shareholder, from 1969 until November 1994. During that period, Cassady practiced with several different law firms, including Morgan Lewis, 3 and was Rallis’s principal contact at each firm. As of January 1987, Cassady, practicing as Cassady Corporation, was a partner of Hahn Cazier. In February 1987, substantially all the attorneys and employees of Hahn Cazier joined the Morgan Lewis firm. Cassady was employed by Morgan Lewis as of counsel for approximately 13 months, from February 1, 1987, through March 4, 1988.
On January 4, 1995, Rallis sued Cassady, Morgan Lewis, and other firms and attorneys with whom Cassady had practiced while representing Rallis (the Rallis action). Rallis alleged legal malpractice, breach of fiduciary duty, breach of contract, negligent and intentional misrepresentation, and equitable indemnity, for alleged acts of professional negligence committed by Cassady *226 and the other defendants between approximately 1982 through 1994. Some of the conduct upon which Rallis’s claims were premised was alleged to have occurred while Cassady was employed by Morgan Lewis; some was alleged to have occurred while Cassady practiced with other law firms.
Rallis’s revised second amended complaint alleged that Cassady, and the various firms with whom Cassady was associated at the applicable time periods, had advised and represented Rallis in regard to the formation, acquisition, and affairs of various business entities, including Mark Industries, Inc., American Hi-Lift Corporation of California, and Mark Equipment Center of South Florida (MEC-SF). Cassady was also alleged to have been a co-shareholder, officer and director in various businesses which Rallis formed or acquired.
The Rallis complaint further alleged that in 1984, MEC-SF terminated Edward Moloney, the company’s general manager and a 10 percent stockholder. During the period 1984 through 1987, Cassady precipitated Moloney’s lawsuit by mishandling negotiations and failing to keep Rallis apprised of the risks and progress of the matter. Rallis also alleged professional negligence and related claims in regard to a plethora of other transactions, including: the acquisition of a competitor in 1984; the sale of a property to a corporate officer in 1984; the sale of MEC-SF’s assets in 1986 and the subsequent windup of its affairs; the handling of distributions to MEC-SF stockholders in or after 1986; a 1988 stock sale and indemnity agreement; a 1990 Mark Industries transaction; and a 1993 proposed stock offering.
2. Defense and resolution of the Rallis action.
Morgan Lewis retained the law firm of Sheppard Mullin to defend it and certain former Hahn Cazier partners in the Rallis action. Morgan Lewis did not provide a defense to Cassady, who had already retained his own counsel, Baird A. Brown. Brown also defended Cassady Corporation, Cassady & Klein, Ray Klein, and Klein Corporation in the Rallis action. Morgan Lewis subsequently advised Cassady that it would not indemnify Cassady or pay his defense fees.
By 1999, all Rallis’s claims had been dismissed either voluntarily, on demurrer, or through summary adjudication and summary judgment. The summary judgments were granted on statute of limitations grounds. Rallis appealed. This court affirmed in part and reversed in part. (Rallis v. Cassady (Oct. 24, 2000) B127047, B131724, opn. ordered nonpub. Jan. 24, 2001.) We reversed the judgments in favor of Cassady, Cassady Corporation, Cassady & Klein, and another defendant. We affirmed the judgments in favor of Morgan *227 Lewis and Hahn Cazier. Cassady and the other remaining defendants entered into a settlement agreement with Rallis, and the case was dismissed with prejudice.
3. The parties’ indemnity claims.
In July 2002, Cassady sued Morgan Lewis for indemnity, under both section 2802 and the common law. Cassady sought fees and costs of approximately $280,000, plus interest, and the attorney’s fees and costs incurred in enforcing his section 2802 rights. (§ 2802, subd. (c).) Cassady’s indemnity demand included defense costs arising from his alleged conduct both at Morgan Lewis and while a partner at Hahn Cazier.
Morgan Lewis cross-complained against Cassady and certain other defendants in the Rallis action, seeking (1) contractual indemnity based upon a 1987 agreement between Cassady and Morgan Lewis, (2) reimbursement under section 2865, 4 and (3) declaratory relief. Morgan Lewis sought approximately $367,000 in fees and costs it incurred defending the Rallis action.
Cassady moved for summary adjudication on Morgan Lewis’s section 2865 indemnity claim. The trial court denied the motion.
Morgan Lewis moved for summary judgment against Cassady, on the ground Cassady could not establish essential elements of his claims. Morgan Lewis contended, in regard to Cassady’s section 2802 indemnity claim, that: (1) Cassady did not possess, and could not, reasonably obtain, evidence demonstrating which defense costs he necessarily expended in direct consequence of the discharge of his duties while at Morgan Lewis; and (2) Cassady could not establish Morgan Lewis’s liability under section 2802 based solely on what Rallis alleged Cassady did while employed at Morgan Lewis. Morgan Lewis argued that Cassady’s common law indemnity claim, like the section 2802 claim, “must fail because Cassady does not possess and cannot reasonably obtain the needed evidence.”
Cassady responded, inter alia, that “the law is that [Morgan Lewis] is responsible for all of Cassady’s fees and costs in the Rallis action except to the extent that [Morgan Lewis] can provide a reasonable basis for apportioning the fees and costs.” Cassady conceded that certain transactions about which Rallis had complained were not indemnifiable because they occurred when Cassady was not employed at Morgan Lewis. Cassady estimated that *228 the cost of defending those actions was $10,000. According to Cassady, the remaining attorney’s fees he incurred defending the Rallis action amounted to approximately $280,000.
The trial court granted Morgan Lewis’s summary judgment motion on the grounds advanced by Morgan Lewis.
The trial court then conducted a bench trial on Morgan Lewis’s cross-complaint, and ruled in Cassady’s favor. 5
4. Cassady’s motion for a new trial.
Cassady moved, pursuant to Code of Civil Procedure section 657, for a new trial on the ground the trial court committed legal error when granting Morgan Lewis’s summary judgment motion. 6 (Code Civ. Proc., § 657, subd. (7).) The trial court granted the motion, concluding it had erred when it granted Morgan Lewis summary judgment. In its oral ruling, the court stated that while Cassady had the burden to prove his damages were necessary and in direct consequence of the discharge of his duties during the time he worked with Morgan Lewis, a triable issue of fact existed with regard to how attorney’s fees should be apportioned. The trial court’s minute order granting the motion did not contain a specification of its reasons for decision.
Morgan Lewis timely appealed the new trial order. (Code Civ. Proc., § 904.1, subd. (a)(4).) Cassady filed a protective cross-appeal from the portion of the judgment granting summary judgment to Morgan Lewis.
CONTENTIONS OF THE PARTIES
Morgan Lewis contends Cassady had the burden to prove what portion of expenses he necessarily incurred in direct consequence of his employment with Morgan Lewis, and to distinguish expenses attributable to the time he practiced law elsewhere. The trial court’s original grant of summary judgment was proper, Morgan Lewis asserts, because it was undisputed that Cassady did not possess, and could not reasonably obtain, evidence to make such an apportionment.
Cassady urges that apportionment of indemnifiable expenses is not required because at least some of his defense costs arose from the discharge of his duties while at Morgan Lewis, and claims arising from his representation of *229 Rallis while employed at Morgan Lewis and at other firms were factually intertwined. Further, Cassady asserts that if apportionment is required, it should be Morgan Lewis’s burden because Morgan Lewis refused to provide his defense. Finally, assuming he bears the burden of apportioning fees, Cassady urges that Morgan Lewis’s summary judgment motion was wrongly granted because Morgan Lewis failed to establish Cassady does not possess, and cannot reasonably obtain, the evidence necessary to make such an apportionment.
DISCUSSION
1. Standard of review.
A decision granting summary judgment may be challenged by a motion for a new trial.
(Aguilar
v.
Atlantic Richfield Co.
(2001)
The ruling at issue is the grant of Morgan Lewis’s summary judgment motion. “An order granting summary judgment, of course, is reviewed independently.”
(Aguilar
v.
Atlantic Richfield Co., supra, 25
Cal.4th at p. 860; see
Kahn v. East Side Union High School Dist.
(2003)
2. Section 2802.
Section 2802 provides, in pertinent part, “(a) An employer shall indemnify his or her employee for all necessary expenditures or losses incurred by the employee in direct consequence of the discharge of his or her duties, or of his or her obedience to the directions of the employer, even though unlawful, unless the employee, at the time of obeying the directions, believed them to be unlawful, [f] . . . [][] (c) For purposes of this section, the term ‘necessary expenditures or losses’ shall include all reasonable costs, including, but not limited to, attorney’s fees incurred by the employee enforcing the rights granted by this section.”
Section 2802 thus requires an employer to indemnify an employee who is sued by third persons for conduct in the course and scope of his or her employment, including paying any judgment entered and attorney’s fees and costs incurred in defending the action.
(Jacobus v. Krambo Corp.
(2000)
The elements of a section 2802, subdivision (a) cause of action, as delineated by the statutory language, are: (1) the employee made expenditures or incurred losses; (2) the expenditures or losses were .incurred in direct consequence of the employee’s discharge of his or her duties, or obedience to the directions of the employer; and (3) the expenditures or losses were necessary. The second element, at issue here, is met if “the conduct defended against was within the course and scope of employment.”
(Jacobus v. Krambo
*231
Corp., supra,
Whether an employee’s acts are within the scope of employment is ordinarily a question of fact, but may be resolved as a question of law when the material facts are undisputed and no conflicting inferences are possible.
(Farmers Ins. Group
v.
County of Santa Clara
(1995)
Here, unlike in the typical section 2802 case, there is no dispute that Cassady’s representation of Rallis while at Morgan Lewis was within the scope of his employment. Instead, the question is the application of section 2802 when the defense costs arose from Cassady’s alleged conduct spanning a period during which he was employed by several different successive employers.
a. Morgan Lewis must indemnify Cassady, if at all, only for defense costs arising from Cassady’s representation of Rallis while employed by Morgan Lewis.
When interpreting a statute, we look to the plain meaning of the statute’s words, which are generally the most reliable indicator of the Legislature’s intent.
(Stephens v. County of Tulare
(2006)
Cassady, however, contends that, where claims involve a common core of facts and are based on related legal theories, attorney’s fees need not be apportioned. (See, e.g.,
Reynolds Metals Co. v. Alperson
(1979)
But none of these cases assist Cassady, in that they did not involve application of section 2802. Section 2802 is not an attorney’s fees statute; it is an indemnity statute. It expressly conditions the right to indemnity on a showing that the expenditures arose as a direct consequence of the discharge of the employee’s duties. If the expenditures did not arise from discharge of the employee’s duties, indemnity under section 2802 cannot be had. (See
Douglas v. Los Angeles Herald-Examiner, supra,
*233
On the other hand, where Cassady incurred fees on an issue common to defense of Rallis’s claims arising
both
from periods he was and was not employed by Morgan Lewis, indemnity is proper.
Reynolds Metals Co.
v.
Alperson, supra,
Analogously here, the fact Cassady worked for or was associated with more than one employer should not dilute his right to indemnity for costs incurred in direct consequence of the discharge of his duties at Morgan Lewis. Thus, if Cassady’s counsel performed work necessary to defense of a claim or issue predicated on both his conduct while at Morgan Lewis and elsewhere, indemnity for those fees is appropriate. (Cf. Reynolds Metals Co. v. Alperson, supra, 25 Cal.3d at pp. 129-130.) Such defense costs would fall within section 2802’s ambit because they would have been incurred in the defense of the Morgan-Lewis-related claims, even in the absence of the non-Morgan-Lewis-related claims.
b. Cassady bears the burden of proving which defense costs are attributable to his representation of Rallis while employed by Morgan Lewis.
We likewise reject Cassady’s argument that Morgan Lewis should bear the burden of apportioning defense fees between itself and other law firms. As we have observed, one of the elements of Cassady’s section 2802 claim is that the expenditures or losses—here, the costs of defense of the Rallis action— were incurred in direct consequence of Cassady’s discharge of his duties for Morgan Lewis. As noted, to establish this, it must be shown that the conduct defended against was within the course and scope of Cassady’s employment with Morgan Lewis. (§ 2802, subd. (a);
Jacobus v. Krambo Corp., supra,
*234
Evidence Code section 500 provides, “Except as otherwise provided by law, a party has the burden of proof as to each fact the existence or nonexistence of which is essential to the claim for relief or defense that he is asserting.” Under Evidence Code section 500, the plaintiff normally bears the burden of proof to establish the elements of his or her cause of action.
(Sargent Fletcher, Inc. v. Able Corp.
(2003)
In rare instances, the burden of proof set forth in Evidence Code section 500 is altered. “It is true that ‘[t]he general rule allocating the burden of proof applies “except as otherwise provided by law.” The exception is included in recognition of the fact that the burden of proof is sometimes allocated in a manner that is at variance with the general rule.’ ”
(Lakin v. Watkins Associated Industries
(1993)
Cassady fails to persuade us that we should alter the normal burden of proof here. The evidence necessary to establish the facts essential to Cassady’s claim—i.e., what work he performed for Rallis while employed at Morgan Lewis—does not lie peculiarly within Morgan Lewis’s knowledge and competence. To the contrary, the relevant evidence is primarily within Cassady’s knowledge and control. (See generally
Wolf v. Superior Court
(2003)
*235
No public policy would be served by requiring employers to indemnify for expenses attributable to an employee’s conduct while working for a different employer. “It would be unfair to force an employer to pay for employee torts that are unconnected with the activities of the business. [Citation.] Forcing liability upon an employer for torts that do not arise from the enterprise contravenes the basic rationale underlying the theory of respondeat superior.”
(Bailey v. Filco, Inc.
(1996)
Finally, Morgan Lewis is not alleged to have engaged in wrongdoing that makes it practically impossible for Cassady to prove his claims. To the extent Cassady may find it difficult to apportion his defense costs because of a lack of detail in his attorney’s billing records, that circumstance cannot be attributed to Morgan Lewis.
Cassady asserts that apportionment should be “a Morgan Lewis problem, not a Cassady problem” because “Morgan Lewis put itself in this situation by ignoring Labor Code section 2802 and refusing to defend Cassady in the first place.” He argues, “Where, as here, the employer ignores its duty under section 2802 and forces the employee to defend himself, the burden of apportioning the employee’s defense costs between claims arising from the employment and other claims ought to fall on the employer.”
Implicit in Cassady’s argument is the suggestion that certain principles applicable in the insurance law context should apply to section 2802. In the insurance context, in a “mixed” action—i.e., one in which some claims are potentially covered and others are not—an insurer has a duty to defend the
entire
action “prophylactically, as an obligation imposed by law in support of the policy.”
(Buss v. Superior Court
(1997)
The instant situation resembles the “mixed” action scenario, in that certain aspects of the defense of the Rallis action are potentially indemnifiable, whereas other aspects—the portions of the Rallis action based upon Cassady’s conduct when he was
not
employed by Morgan Lewis—are clearly not (at least not by Morgan Lewis). Despite this superficial similarity, insurance principles have no application here. “ ‘An insurance policy is a contract between an insurer and an insured [citations], the insurer making promises, and the insured paying premiums, the one in consideration for the other, against the risk of loss [citations].’ [Citation.] The insurer’s promises require it both to indemnify and to defend its insured. [Citation.]”
(State of California
v.
Pacific Indemnity Co., supra,
First, the record is not entirely clear as to whether or when Cassady tendered his defense to Morgan Lewis, or simply sought reimbursement of his attorney’s fees after the fact. Assuming Cassady requested Morgan Lewis defend him, however, Morgan Lewis’s failure to furnish defense counsel does not mean it must later indemnify Cassady for all defense costs. Section 2802 does not impose a duty to defend upon an employer. The existing caselaw on this point is contradictory. (Compare
Grissom v. Vons Companies, Inc., supra,
1 Cal.App.4th at pp. 57-58 with
Jacobus v. Krambo Corp., supra,
Grissom v. Vons Companies, Inc., supra, 1 Cal.App.4th at pages 57 through 58, explained why the statement in Douglas was “too broad. Section 2802 does not say that an employer must ‘defend’ an employee. The word ‘defend’ does not appear in section 2802. The statute merely requires the employer to indemnify the employee for all that the employee necessarily expends in direct consequence of the discharge of the employee’s duties. The focus of the actual words of the statute is on the employee’s expenditure. If that expenditure is necessarily in direct consequence of the discharge of the employee’s duties, then the employer must ‘indemnify’ (i.e., reimburse) the employee.” (Grissom v. Vons Companies, Inc., supra, at pp. 57-58, fn. omitted.) Grissom also pointed to the dictionary definition of “indemnify,” which does not mean “defend.” {Id. at p. 58, fn. 3.) An employer may obviate the need to indemnify for attorney’s fees by providing counsel under some circumstances (see id. at p. 58), but it is not required to do so.
More recently,
Jacobus v. Krambo Corp., supra,
On this point, we believe
Grissom
has the better view. It is certainly true, as
Douglas
reasoned, that the employer who declines to provide a defense must pay the defense costs if it is determined that the acts for which the employee was sued arose in the course and scope of employment. However, as
Grissom
reasoned, section 2802 does not expressly include a requirement to defend; it speaks only in terms of indemnification. “ ‘Indemnity may be defined as the obligation resting on one party to make good a loss or damage another party has incurred. [Citation.]’ ”
(McCrary Construction Co.
v.
Metal Deck Specialists, Inc.
(2005)
In any event, section 2802 does not transform an employer into an insurer. Even the authorities that impose a duty to defend have been careful to clarify that the duties imposed by section 2802 are not coterminous with an
insurer’s
duty to defend. “Unlike an insurer, the employer need not defend whenever there is a mere potential for liability.”
(Jacobus
v.
Krambo Corp., supra,
Further, “There are significant differences between an insurer and an employer/indemnitor.”
(Boyer v. Jensen
(2005)
Because principles applicable in the insurance context do not apply here, Morgan Lewis’s failure to defend Cassady does not mandate that Morgan Lewis reimburse Cassady for attorney’s fees allocable to the defense of claims premised on Cassady’s conduct while employed somewhere other than Morgan Lewis.
In sum, we hold Cassady must prove, as an element of his section 2802 cause of action, that the attorney’s fees and costs he seeks arose from the discharge of his duties while at Morgan Lewis. We next turn to the question of whether Morgan Lewis’s summary judgment motion established Cassady did not possess, and could not obtain, evidence to make such a showing.
3. Morgan Lewis failed to carry its initial burden on summary judgment that Cassady did not possess, and could not obtain, evidence proving that at least some of the costs of defending the Rallis action were incurred in direct consequence of the discharge of his duties.
a. Summary judgment standard.
In moving for summary judgment, a “ ‘defendant. . . has met’ his ‘burden of showing that a cause of action has no merit if’ he ‘has shown that one or more elements of the cause of action . . . cannot be established, or that there is a complete defense to that cause of action. Once the defendant. . . has met that burden, the burden shifts to the plaintiff ... to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto.’ ”
(Aguilar v. Atlantic Richfield Co., supra,
A defendant moving for summary judgment need not conclusively negate an element of the plaintiff’s cause of action; he need only show that one or more elements cannot be established. “In other words, all that the defendant need do is to show that the plaintiff cannot establish at least one element of the cause of action—for example, that the plaintiff cannot prove element X. Although he remains free to do so, the defendant need not himself conclusively- negate any such element—for example, himself prove
not
X.”
(Aguilar v. Atlantic Richfield Co., supra,
25 Cal.4th at pp. 853-854,
*240
fns. omitted.) A defendant may show an element cannot be established by presenting evidence that the plaintiff does not possess, and cannot reasonably obtain, needed evidence.
(Id.
at p. 855;
Kahn v. East Side Union High School Dist., supra,
In opposing a defendant’s motion, the plaintiff may not rely upon the mere allegations or denials of his or her pleadings to show that a triable issue of material fact exists but, instead, “must ‘set forth the specific facts showing that a triable issue of material fact exists as to that cause of action or a defense thereto.’ ”
(Aguilar v. Atlantic Richfield Co., supra,
b. Morgan Lewis failed to establish Cassady did not possess, and could not obtain, evidence to support his indemnity claim.
As noted above, the trial court’s ruling was based on its finding that Cassady did not possess and could not reasonably obtain evidence to establish his expenditures were necessary and incurred as a direct consequence of discharge of his duties at Morgan Lewis. Morgan Lewis’s summary judgment motion attempted to make that showing primarily in two ways. First, Morgan Lewis’s fact No. 14—which Cassady did not dispute—averred, “Cassady and his counsel admit that Cassady’s claim against Morgan Lewis for indemnification under Labor Code section 2802 is based upon the allegations in the Rallis [ajction.” In support, Morgan Lewis offered various discovery and deposition excerpts in which Cassady affirmed that the basis for his indemnity claim was the Rallis action.
8
Relying on
Douglas v. Los
*241
Angeles Herald-Examiner, supra,
It is true that the allegations in a complaint do not, at trial, constitute evidence of the truth of the allegations made therein
(San Diego Police Officers Assn. v. City of San Diego
(1994)
Moreover, the evidence cited in support of fact No. 14 did not demonstrate the absence of evidence. One cited interrogatory called for Cassady to specify each act he contended he was sued for in the Rallis action. It is hardly surprising, therefore, that Cassady responded by referencing the Rallis complaint and summaries thereof prepared by Morgan Lewis’s attorneys. Given that the interrogatory was expressly framed in terms of what the Rallis action alleged, criticism that the response referenced the complaint seems misplaced. Two of the cited deposition excerpts set forth Cassady’s theory about why he should be indemnified for his representation of Rallis while employed *242 elsewhere. While Cassady’s theory may have been incorrect, his responses did not demonstrate a lack of evidence that at least some of the defense expenses arose due to his rendering of professional services to Rallis while employed by Morgan Lewis. Thus, undisputed fact No. 14 and the evidence offered in support did not suffice to shift the burden to Cassady to show a triable issue.
Douglas v. Los Angeles Herald-Examiner, supra,
We do not read Douglas as standing for the principle that a defendant sued for malpractice and related claims cannot reference the allegations of the third party’s complaint as relevant to a determination of the necessary scope of his defense. Instead, Douglas stands for the prosaic proposition that a trier of fact called upon to determine whether conduct was actually within the scope of employment must make a factual finding rather than simply treating the allegations in the third party complaint as true. The problem in Douglas was the trial court’s finding that the facts as alleged in the third party complaint established the reporter’s actions were outside the scope of his employment, whereas the evidence might have shown the contrary. That is not the problem here. Unlike in Douglas, in the instant matter there appears to be no dispute that Cassady’s representation of Rallis, while at Morgan Lewis, was within the scope of his employment. Morgan Lewis’s summary judgment motion did not offer any evidence showing Cassady did not represent Rallis, or did not represent Rallis on the matters underlying the Rallis action, while employed by Morgan Lewis.
*243 In a further attempt to prove an absence of evidence, Morgan Lewis presented the following. When Cassady was asked at his deposition for the basis of his claim he should be indemnified for costs arising from his representation of Rallis during periods when he was employed by Hahn Cazier, Cassady responded that it was “difficult to try to cut this problem with a sharp knife” and that the parties had not “been able to do it” in prior discovery. Second, Cassady’s defense counsel’s time entries were not segregated by cause of action or by “which allegations [counsel] was focusing on with respect to which entity [Cassady was] with at a particular time.” Third, Cassady’s supplemental response to an interrogatory stated, among other things, “There is no factual basis to apportion the subject fees and costs. There is no factual basis for partial, full or comparative indemnity.”
None of this evidence was sufficient to meet Morgan Lewis’s summary judgment burden. As Cassady points out, the interrogatory response cited by Morgan Lewis was made in response to an interrogatory asking for facts supporting Cassady’s denial of an allegation or affirmative defense and related to Cassady’s defense of Morgan Lewis’s claim for indemnity against Cassady. Morgan Lewis’s claim for indemnity against Cassady was based in part on a contract between the parties, not section 2802. At least as presented on the record before us, the cited evidence does not establish Cassady lacked, and could not obtain, evidence on his section 2802 claim.
The other cited discovery responses suggest it may be difficult for Cassady to prove which defense costs related to his work at Morgan Lewis. They do not, however, establish Cassady cannot obtain evidence to prove at least some of the defense costs were necessary expenditures incurred in direct consequence of the discharge of his duties. (See, e.g.,
Heppler v. J.M. Peters Co., supra,
73 Cal.App.4t10h at p. 1297 [“ ‘although time-keeping and billing procedures may make a requested segregation difficult, they do not, without more, make it impossible’ ”].) Morgan Lewis fails to consider that other methods besides an attorney’s billing statements could be used in this regard. As Cassady argues, there appears to be no reason why his attorney could not testify regarding the amount of fees expended on claims or issues relating to Cassady’s representation of Rallis while at Morgan Lewis. (See
Steiny & Co. v. California Electric Supply Co.
(2000)
Nor were the cited discovery responses factually inadequate. As noted above, Morgan Lewis points to no evidence in which, for example, Cassady admitted he did not perform services for Rallis, or did not work on the matters that formed the basis for Rallis’s complaint, while at Morgan Lewis. Morgan Lewis’s failure to ask more pointed and specific questions does not establish an absence of evidence.
(Gulf Ins. Co. v. Berger, Kahn, Shafton, Moss, Figler, Simon & Gladstone
(2000)
Indeed, our review of the Rallis complaint suggests that the claims, which may and may not be indemnifiable, are not so fatally intertwined as to make apportionment impossible. For example, Rallis’s second and eighth causes of action are premised entirely on conduct occurring during the period Cassady was employed by Morgan Lewis. The third and fourth causes of action, in contrast, were premised upon alleged conduct occurring at periods when Cassady was not employed by Morgan Lewis. 10 For the most part, Rallis alleged particular failings occurring at specified dates or periods. Thus, while it may not be easy for Cassady to prove which defense costs arose from the scope of his employment, it is clearly not impossible. In sum, Morgan Lewis has not met its burden to show Cassady cannot reasonably obtain evidence to prove the elements of his claim. Because Morgan Lewis did not meet its burden to prove no triable issue of fact existed, Morgan Lewis’s summary judgment was improperly granted and the trial court correctly granted Cassady’s motion for a new trial.
4. The common law indemnity claim. *
*245 DISPOSITION
The order granting a new trial is affirmed, and the matter is remanded for further proceedings consistent with the opinions expressed herein. Cassady shall recover his costs on appeal.
Croskey, Acting P. 1, and Kitching, 1, concurred.
On December 21, 2006, the opinion was modified to read as printed above.
Notes
All further undesignated statutory references are to the Labor Code.
These facts are either undisputed, alleged in the complaint and not controverted by evidence in support of the summary judgment motion, or supported by evidence in opposition to the motion.
From prior to January 1975 through July 5, 1979, Cassady was a partner of Hahn Cazier & Leff.
From July 5, 1979, through January 31, 1987, Cassady was employed by the Cassady Corporation, as follows. From July 5, 1979, through January 31, 1987, Cassady Corporation practiced law with, and was a partner of, Hahn, Cazier & Leff (which was also known by other names, including Hahn, Cazier & Smaltz, during that period, hereinafter Hahn Cazier.)
From February 1, 1987, through March 4, 1988, Cassady was employed by Morgan Lewis as of counsel.
From March 5, 1988, through July 31, 1989, Cassady Corporation and the Raymond M. Klein Law Corporation practiced law as Cassady & Klein. From August 1, 1989, through July 13, 1993, Cassady Corporation was of counsel to Davis Wright Tremaine. From July 13, 1993, through December 31, 1996, Cassady Corporation and Raymond M. Klein Law Corporation again practiced as Cassady & Klein.
Section 2865 provides: “An employee who is guilty of a culpable degree of negligence is liable to his employer for the damage thereby caused to the employer. The employer is liable to the employee if the service is not gratuitous, for the value of the services only as are properly rendered.”
That ruling is not at issue here.
Although Cassady cursorily mentioned several other grounds in his moving papers below, his argument on appeal is limited to error in law.
In practice, it may make little difference in the majority of cases whether section 2802 requires the employer to furnish defense counsel or simply pay the costs of the defense. When an employee is sued for actions arising during the course of employment, the employer is often sued as well. Furnishing a defense to the employee may in some cases avoid duplication of efforts and minimize the risk of greater financial exposure later if the employee fails to present a competent defense. (See Chin et al., Cal. Practice Guide: Employment Litigation (The Rutter Group 2005) f 3:8, p. 3-3 [“Even if not obligated to do so, it is usually in the employer’s interest to provide a defense where the employee is not accused of intentional wrongdoing or acts outside the scope of his or her employment”].)
At his deposition, Cassady was asked for “specific acts that you are claiming occurred while you were with specific entities . . . .” Cassady’s counsel replied, “He is not claiming anything. This is all about what Rallis alleges and what he alleges in this complaint. And you can read all of those file documents in the Rallis action, you can see what we made summary judgments about, the grounds for it, you can read all the deposition transcripts.” Later, Cassady was asked whether he sought to recover fees for defense costs for work performed while at Hahn Cazier. Cassady replied, “we need to look at what Rallis alleged and it is defending the allegations of Rallis so that if Rallis alleged something that needed to be defended because it was an allegation against Morgan, Lewis & Bockius then it would be defended. It doesn’t have to do so much or may not be limited to the conduct while I was at MLB.” When asked whether he contended Morgan Lewis was responsible for defense costs relating to Cassady’s conduct after he left the firm, Cassady replied, “it depends in part on what Mr. Rallis alleges. If *241 Mr. Rallis alleges that Morgan, Lewis & Bockius and I are both responsible for the conduct that occurred, some of it occurred before and some of it occurred after, but no matter when you and I might agree it occurred, in Mr. Rallis’s mind we are both liable for it and I believe I am entitled to be indemnified.” In a supplemental interrogatory response to a request that Cassady “[sjpecify each and every act that you contend you were sued for in the Rallis action,” Cassady responded, “Cassady does not ‘contend’ that he was sued for one thing or another. The question is what Rallis alleged.” The interrogatory then referenced several summaries of the Rallis action prepared by Morgan Lewis’s counsel.
We do not mean to suggest that any particular evidence would be admissible or sufficient; those are questions for the trial court.
Rallis’s third cause of action alleged professional negligence in regard to a stock repurchase transaction occurring in September 1990. Rallis’s fourth cause of action against Cassady and other defendants, but not Morgan Lewis, alleged professional negligence in regard to a proposed public offering in 1993 through 1994.
See footnote, ante, page 220.