Judge: Daniel M. Crowley, Case: 19STCV31192, Date: 2022-09-22 Tentative Ruling

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Case Number: 19STCV31192    Hearing Date: September 22, 2022    Dept: 28

Cross-Complainant Thrifty Oil Co., Motion for Summary Adjudication

Having considered the moving papers, the Court rules as follows. 

BACKGROUND

On September 3, 2019, Plaintiff Carol Bretonne (“Plaintiff”) filed this action against Defendants Arco Gas Station (“Arco”), Conico Coro, Inc. (“Conico”), Tesoro #63213 (“Tesoro”), Tesoro Refining and Marketing Company, LLC (“Tesoro R+M”), Thrifty Oil Co. (“Thrifty”), Arco AMPM (“AMPM”) for general negligence and premises liability. Plaintiff later amended the complaint to include Defendants ABC Liovin Drilling, Inc. (“ABC”), Stantec Consulting Services, Inc. (“Stantec”) and Chevron Environmental Management (“Chevron”).

On March 13, 2020, Conico, Tesoro and Tesoro R+M filed an answer. On April 1, 2020, Conico, Tesoro, Tesoro R+M, and Thrifty filed a Cross-Complaint against Cross-Defendant ABC for contribution, declaratory relief, equitable indemnity, express indemnity and implied indemnity. On May 29, 2020, ABC filed an answer.

On August 7, 2020, ABC filed an answer. On May 7, 2021, Thrifty filed an answer.

On June 2, 2022, Stantec filed an answer and a Cross-Complaint against Cross-Defendant ABC for contribution, declaratory relief, equitable indemnity, express indemnity and implied indemnity. On August 17, 2022, ABC filed an answer.

On July 7, 2022, Thrifty filed a Motion for Summary Adjudication to be heard on September 22, 2022.

Trial is scheduled for April 20, 2023. 

PARTY’S REQUESTS

Thrifty requests the Court grant summary adjudication against ABC as to the fifth cause of action for express indemnity.

LEGAL STANDARD

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.) CCP § 437c(c) “requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.”  (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)  “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, 67, citing FPI Development, Inc. v. Nakashima (1991) 231 Cal. App. 3d 367, 381-382.)

As to each claim as framed by the complaint, the defendant moving for summary judgment must satisfy the initial burden of proof by presenting facts to negate an essential element, or to establish a defense. (CCP § 437c(p)(2); Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520) 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.) 

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. To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.)

DISCUSSION

The Court first notes that the cause of action for express indemnity is actually the fourth cause of action in the relevant cross-complaint.

Plaintiff’s underlying claim is based on a tip and fall accident that occurred at a ARCO gas station—the property was owned by Thrifty and rented out. (UMF 7.) Plaintiff alleges that all defendants controlled the subject premises in a negligent manner. She specifically alleges she tripped on the asphalt cold patch placed by ABC to cover the area drilled by ABC, pursuant to their contract. (UMF 9, 11.) Prior to doing this work, ABC entered into a contract with Stantec in which ABC agreed to defend and indemnify Stantec and "its subsidiaries...and Client...” from all actions of any kind and nature for bodily injury arising out of or in any way related to ABC’s performance. (UMF 8). The duty only applies to the extent that such Claims arise out of the actual negligence of or allegations of the negligence or fault of the subcontractor, ABC. (UMF 14.)

Thrifty claims that Thrifty was obviously intended as a third-party beneficiary, because the indemnity terms were intended to protect Stantec and other parties from any liabilities that might arise from ABC’s work. However, this contradicts the explicit text of the agreement, which limits indemnification to Stantec, Stantec’s subsidiaries and Stantec’s Client. Thrifty has not established what relationship it had with Stantec and whether it would qualify as a client or subsidiary. Thrifty’s connection between the two is limited to the assertion that “Thrifty...leased [the subject property] to various other entities...”, never providing whether or not Stantec was one of said entities. (UMF 7.) Thrifty has not provided any evidence that it had a relationship with Stantec that would require ABC to indemnify Thrifty. Therefore, the Court denies the motion.

CONCLUSION

Cross-Complainant Thrifty Oil Co., Motion for Summary Adjudication is DENIED.

            Moving party is ordered to give notice of this ruling.

Moving Party is ordered to file the proof of service of this ruling with the Court within five days.

The parties are directed to the header of this tentative ruling for further instructions.