Judge Andrew E. Cooper, Case Number: 20STCV48734, Date: 2023-05-11 Tentative Ruling

Judge: Andrew E. Cooper, Case: 20STCV48734, Date: 2023-05-11 Tentative Ruling

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Case Number: 20STCV48734 Hearing Date: May 11, 2023 Dept: F51

Dept. F-51

Date: 5/11/23

Case #20STCV48734

LOS ANGELES SUPERIOR COURT

NORTH VALLEY DISTRICT

DEPARTMENT F-51

MAY 10, 2023

MOTION FOR SUMMARY ADJUDICATION

Los Angeles Superior Court Case # 20STCV48734

Motion Filed: 11/14/22

MOVING PARTY: Defendant/Cross-Defendant/Cross-Complainant Bank of America, N.A. (“BANA”)

RESPONDING PARTY: Defendant/Cross-Defendant/Cross-Complainant Jones Lang Lasalle Americas, Inc. (“JLL”)

NOTICE: OK

RELIEF REQUESTED: An order granting summary adjudication in favor of BANA on its cross-complaint against JLL.

TENTATIVE RULING: The motion is granted.

REQUEST FOR JUDICIAL NOTICE: BANA’s request for judicial notice is granted.

BACKGROUND

This is a personal injury action in which Plaintiff Gabriel Alvarado alleges that on 2/15/19, he tripped and fell on an unmarked uneven surface while leaving a financial center owned by BANA and managed by JLL. (Compl. ¶ 9.)

On 5/9/15, BANA and JLL entered into a General Services Agreement (“GSA”) wherein JLL agreed to provide property management services for BANA, including at the subject property located at 13935 Foothill Boulevard, Sylmar, California. (UMF #5.) The GSA provides, in relevant part, as follows:

“16.0 INDEMNITY

16.1 Vendor shall indemnify, defend, and hold harmless Bank of America … from and against any and all claims or legal actions of whatever kind that are made or threatened by any third party … and all related losses, expenses, damages, costs and liabilities, including reasonable attorneys’ fees and expenses incurred in investigation, defense, or settlement (“Damages”), which arise out of, are alleged to arise out of, or relate to the following: (a) any negligent act or omission or willful misconduct by Vendor … in the performance of Vendor’s obligations under this Agreement …

16.5 Bank of America shall indemnify, defend and hold harmless Vendor … from and against any and all claims or legal actions of whatever kind or nature that are made or threatened by … any third party and all related damages, which arise out of or relate to the following: (a) any grossly negligent act or omission or willful misconduct by Bank of America … (b) any liability arising out of or in connection with a Property except to the extent caused by Vendor's negligence or willful misconduct …”

(Ex. E to Decl. of Hany A. Nicola [emphasis added].)

On 12/21/20, Plaintiff filed his complaint against BANA and unnamed Doe defendants, alleging the following causes of action: (1) Personal Injuries; (2) Negligence; and (3) Premises Liability. On 11/15/21, BANA filed its cross-complaint against Roe defendants, alleging the following causes of action: (1) Breach of Contract; (2) Express Indemnity; (3) Equitable Indemnity; (4) Apportionment; (5) Implied Contractual Indemnity; and (6) Declaratory Relief. On 3/25/22, BANA amended its cross-complaint to name JLL as a cross-defendant. On 3/28/22, Plaintiff amended his complaint to name JLL as a defendant. On 5/6/22, JLL filed a cross-complaint against BANA, alleging the following causes of action: (1) Implied Equitable Indemnity; (2) Contribution; (3) Declaratory Relief; (4) Apportionment; (5) Express Indemnity; and (6) Breach of Contract.

On 11/14/22, BANA filed the instant motion for summary adjudication as to its cross-complaint against JLL. On 2/9/23, JLL filed its opposition thereto. On 2/17/23, BANA filed its reply.

ANALYSIS

Legal Standard

“A party may move for summary adjudication as … one or more issues of duty, if the party contends that … one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs.” (Code Civ. Proc. § 437c, subd. (f)(1).) The function of a motion for summary judgment or adjudication is to allow a determination as to whether an opposing party cannot show evidentiary support for a pleading or claim and to enable an order of summary dismissal without the need for trial. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) “The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues; the function of the affidavits or declarations is to disclose whether there is any triable issue of fact within the issues delimited by the pleadings.” (Juge v. County of Sacramento (1993) 12 Cal.App.4th 59, 65, citing FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 381–382.)

“A … cross-complainant has met his or her burden of showing that there is no defense to a cause of action if that party has proved each element of the cause of action entitling the party to judgment on the cause of action. Once the … cross-complainant has met that burden, the burden shifts to the … cross-defendant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. The … cross-defendant shall not rely upon the allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action or a defense thereto.” (Code Civ. Proc., § 437c, subd. (p)(1).)

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.)

Duty to Defend/Indemnify

Here, BANA contends that Section 16.1 of the GSA has been triggered and JLL is therefore bound to indemnify and defend BANA in the instant matter.

“The insurer's duty to defend is broader than its duty to indemnify. The latter duty runs only to claims that are actually covered by the policy, while the duty to defend extends to claims that are merely potentially covered.” (Crawford v. Weather Shield Mfg., Inc. (2008) 44 Cal.4th 541, 547.) Parties to a contract may agree that the promisor's indemnity and/or defense obligations to the other party will apply only if the promisor is negligent, or, conversely, even if the promisor is not negligent. (Id. at 551.)

The indemnitor is bound, at the indemnitee’s request, to defend actions or proceedings brought against the indemnitee in respect to the matters embraced by the indemnification agreement. (Civ. Code § 2778, subd. 4.) “Implicit in this understanding of the duty to defend an indemnitee against all claims ‘embraced by the indemnity,’ … is that the duty arises immediately upon a proper tender of defense by the indemnitee, and thus before the litigation to be defended has determined whether indemnity is actually owed. This duty, as described in the statute, therefore cannot depend on the outcome of that litigation.” (Crawford, 44 Cal.4th at 558.)

Here, BANA argues that Section 16.1 applies because Plaintiff alleges negligence against JLL, stemming from a dangerous condition on the subject property which JLL was responsible for maintaining and repairing. Under the GSA, JLL was responsible for “Property inspections, including without limitation, roof inspections; Building, zoning and other code compliance; Building interior and exterior repairs; and Site work.” (UMF #9.) Plaintiff’s complaint alleges that both BANA and unnamed Doe defendants “negligently owned, maintained, managed, operated, supervised, inspected, cleaned, and controlled the parking lot,” and that such alleged negligence caused his injuries. (Compl. ¶ 8, 11, 14, 22.) Plaintiff later amended his complaint to name JLL as a Doe defendant. (3/28/22 Amendment to Compl.)

As BANA observes, the plain language of Section 16.1 encompasses a relatively broad range of scenarios in which JLL’s duty to defend and indemnify BANA may be invoked, requiring JLL to perform such duties in any legal action that arises out of, or is alleged to arise out of, any negligent act of JLL. (Ex. E to Nicola Decl.) As Plaintiff alleges negligence against JLL for its maintenance of the subject property, BANA has a right to indemnification and defense by JLL under the GSA.

BANA further argues that “JLL’s duty to defend BANA arose at the time of BANA’s tender of defense to JLL, on or about March 8, 2019.” (BANA MSA 13:20–22.) BANA argues that JLL refused to accept BANA’s tender of defense, and therefore has breached its obligations the GSA. (Id. at 10:2–5.) Based on the foregoing, the Court finds that BANA has met its initial burden to show evidence that JLL had a duty to defend and indemnify BANA from Plaintiff’s negligence claims. The burden thus shifts to JLL to show that a triable issue of material fact remains as to its duty to defend and indemnify BANA under Section 16.1 of the GSA.

In opposition, JLL argues that “in this case, plaintiff’s claim does not ‘arise out of’ any negligence or willful misconduct on part of JLL. Instead, the allegations in plaintiff’s complaint, and the evidence, establish that it was BANA, not JLL, that was allegedly negligent in performing its duties and responsibilities at the property.” (JLL Opp. 5:7–10.) “BANA’s MSA, which is dependent on BANA conclusively disproving its own negligence and conclusively establishing JLL’s, must fail, as BANA has done neither. The issue of liability is an issue for the trier of fact to determine, and JLL cannot be responsible for defending BANA for its negligent operation, ownership and control of the financial center” (Id. at 6:24–27.)

To support its argument, JLL proffers evidence that BANA contracted directly with a third party to upgrade the parking lot area of the subject property prior to the incident to ensure ADA compliance. (7:1–18.) JLL appears to argue that BANA was therefore responsible for the maintenance and operation of the subject property. However, this evidence is weak when compared against the contractual obligation that JLL undertook to assume the same responsibilities pursuant to the GSA.

Moreover, JLL’s argument that Plaintiff’s complaint alleges that only BANA was negligent is misplaced. As discussed earlier, JLL was added as a previously unnamed Doe defendant to the complaint. Therefore, the Court declines to accept JLL’s argument that Plaintiff’s claim does not arise out of JLL’s alleged negligence.

Furthermore, JLL’s argument appears to confuse the parties’ obligations under the GSA. The language of Section 16.1 expressly includes legal actions arising out of any negligent act alleged against JLL. Meanwhile, the language of Section 16.5, which JLL attempts to invoke, is only triggered when the legal action arises out of BANA’s “grossly negligent act or omission or willful misconduct,” or when liability was not caused by JLL’s “negligence or willful misconduct.” There is no language contained in Section 16.5 like that in Section 16.1 which similarly encompasses allegations of negligence giving rise to BANA’s duty to defend and indemnify JLL. Accordingly, the Court finds that JLL has not successfully met its responsive burden to show that a triable issue of material fact exists as to JLL’s duty to defend and indemnify BANA.

The Court takes note of BANA’s argument that other California trial courts have ruled in its favor, and against JLL, on the same issues before this Court. (BANA Reply 10:5–24.) However, as California trial court decisions are not binding precedents, it need not follow the proffered case law. (Harrott v. County of Kings (2001) 25 Cal.4th 1138, 1148.) Nevertheless, the Court finds that BANA has satisfied its initial burden, and JLL has not met its responsive burden on summary adjudication.

There exists no triable issue of material fact as to whether JLL was allegedly negligent, and therefore whether BANA is entitled to invoke Section 16.1 of the GSA, requiring JLL to defend and indemnify BANA for “all related losses, expenses, damages, costs and liabilities, including reasonable attorneys’ fees and expenses incurred” in the defense of Plaintiff’s complaint and prosecution of BANA’s cross-complaint against JLL.

CONCLUSION¿

The motion is granted.

Dept. F-51

Date: 5/11/23

Case #20STCV48734

LOS ANGELES SUPERIOR COURT

NORTH VALLEY DISTRICT

DEPARTMENT F-51

MAY 10, 2023

MOTION FOR SUMMARY ADJUDICATION

Los Angeles Superior Court Case # 20STCV48734

Motion Filed: 11/10/22

MOVING PARTY: Defendant/Cross-Defendant/Cross-Complainant Jones Lang Lasalle Americas, Inc. (“JLL”)

RESPONDING PARTY: Defendant/Cross-Defendant/Cross-Complainant Bank of America, N.A. (“BANA”)

NOTICE: OK

RELIEF REQUESTED: An order granting summary adjudication in favor of JLL on its cross-complaint against BANA.

TENTATIVE RULING: The motion is denied.

REQUEST FOR JUDICIAL NOTICE: BANA’s request for judicial notice is granted.

BACKGROUND

On 5/9/15, BANA and JLL entered into a General Services Agreement (“GSA”) wherein JLL agreed to provide property management services for BANA, including at the subject property located at 13935 Foothill Boulevard, Sylmar, California. (UMF #1.) The GSA provides, in relevant part, as follows:

“16.0 INDEMNITY

(Ex. 1 to Decl. of Alana C. Martinez [emphasis added].)

On 11/10/22, JLL filed the instant motion for summary adjudication as to its cross-complaint against BANA. On 2/9/23, BANA filed its opposition thereto. No reply has been filed to date.

ANALYSIS

Legal Standard

Duty to Defend/Indemnify

Here, JLL contends that Section 16.5 of the GSA applies and BANA is therefore bound to indemnify and defend JLL in the instant matter.

Here, JLL argues that Section 16.5 applies because “it is undisputed that plaintiff’s claims are ‘in connection with’ the Property,” and the express carve-out is inapplicable because there are no allegations of negligence against JLL. (JLL MSA 6:11–12, 7:3–4.) JLL supports its argument with discovery responses in which BANA purportedly admits that it “does not contend that JLL was negligent with respect to the incident giving rise to plaintiff’s Complaint.” (UMF #11.)

However, upon review of BANA’s entire response to the subject interrogatory, the Court finds that while BANA indeed did not contend that JLL was negligent, it maintained that Plaintiff nevertheless alleges that JLL was negligent. “What is relevant, at this time, is that Plaintiff contends/alleges that JLL was negligent, and such triggers JLL’s (and its carrier’s) duty to defend/indemnify under the General Services Agreement (‘GSA’). To the extent that Plaintiff is correct, then yes, JLL would be negligent in the manner it managed, controlled, inspected, maintained, and/or repaired, etc., the property (inclusive of the area in question, such as the transition from the tactile tiles to the parking lot surface at the subject Financial Center), as it was BANA’s property manager, and held such duties/obligations pursuant to the GSA.” (Ex. 7 to Martinez Decl., 4:9–15.)

Moreover, JLL’s argument that Plaintiff’s complaint alleges that only BANA was negligent is misplaced. The complaint alleges that both BANA and unnamed Doe defendants “negligently owned, maintained, managed, operated, supervised, inspected, cleaned, and controlled the parking lot,” and that such alleged negligence caused Plaintiff’s injuries. (Compl. ¶ 8, 11, 14, 22.) Plaintiff later amended his complaint to name JLL as a Doe defendant. (3/28/22 Amendment to Compl.) Therefore, the Court declines to accept JLL’s argument that there are no allegations of negligence against JLL simply by virtue of it being named as a defendant after the original complaint was filed.

Based on the foregoing, the Court finds that JLL has not met its initial burden to proffer evidence showing that it is entitled to defense and indemnification by BANA under Section 16.5 of the GSA. There exists a triable issue of whether the express carve out for conduct alleged to be caused by JLL’s “negligence or willful misconduct” applies in the instant matter. This is further confirmed by BANA’s opposing evidence showing that JLL was responsible for the upkeep and maintenance of the grounds, including the area where Plaintiff was allegedly injured. (Exs. E and O to Decl. of Hany A. Nicola.)

The issue of whether JLL’s negligence caused Plaintiff’s injuries requires a factual finding that JLL has not sufficiently proven at this juncture.

The Court agrees with BANA’s contention that “triable issues of material fact exist as to whether JLL is entitled to be defended and indemnified by BANA in connection with this Action. The location of the Incident was a part of JLL’s area of responsibility, either directly or indirectly, and by JLL’s own admission and PMQ testimony. It was JLL’s responsibility to inspect the location of the Incident per the GSA.” (BANA Opp. 11:20–23.)

Accordingly, the Court finds that JLL has not met its initial burden on summary adjudication and there exists a triable issue of material fact as to whether JLL is liable for negligence, and therefore whether it is entitled to invoke Section 16.5 of the GSA. The Court declines to reach the issue of whether BANA’s insurance is primary to that of JLL.

CONCLUSION¿

The motion is denied.