Judge: Daniel M. Crowley, Case: 20STCV25568, Date: 2023-03-09 Tentative Ruling
Case Number: 20STCV25568 Hearing Date: March 9, 2023 Dept: 28
Cross-Defendant Terminix
International’s Motion for Summary Judgment
Having considered the moving,
opposing and reply papers, the Court rules as follows.
BACKGROUND
On
July 7, 2020, Plaintiff Eric Cottrell (“Plaintiff”) filed this action against
Defendants Jose Castro (“Castro”), Caliber Bodyworks, Inc. (“Bodyworks”) and
RCB Equities South Bay, LLC (“RCB”) for negligence and premises liability.
Plaintiff later amended the complaint to include Defendants Emcor Facilities
Services, Inc. (“Emcor”) and Caliber Holdings, LLC (“Holdings”).
On
September 3, 2020, Bodyworks and Castro filed an answer and a Cross-Complaint
against ROES 1 through 500 for implied contractual indemnity, total indemnity,
equitable indemnity, negligence and contribution.
On
December 2, 2020, RCB filed its answer and a Cross-Complaint against Bodyworks
for equitable indemnity, express indemnity, apportionment of fault, breach of
contract and declaratory relief.
On
November 10, 2021, Plaintiff dismissed Emcor, without prejudice. Holdings filed
its answer on January 28, 2022.
On
April 22, 2022, Holdings, Bodyworks, Castro and RCB filed a Cross-Complaint
against the Terminix International (“Terminix”) for express contractual
indemnity, equitable indemnity, contribution, breach of contract, declaratory
relief (duty to defend) and declaratory relief (duty to indemnify).
On
May 10, 2022, Holdings, Bodyworks, Castro and RCB filed a Cross-Complaint
against the Terminix International for express contractual indemnity, equitable
indemnity, contribution, breach of contract, declaratory relief (duty to
defend) and declaratory relief (duty to indemnify). This appears to be an earlier copy of the
previously submitted Cross-Complaint.
On
December 21, 2022, Terminix filed a Motion for Summary Judgment on Holdings,
Bodyworks, Castro and RCB’s Cross-Complaint to be heard on March 9, 2023. On
February 23, 2023, Holdings, Bodyworks, Castro and RCB (“Caliber Defendants”)
filed an opposition. On March 3, 2023, Terminix filed a reply.
Trial
is currently scheduled for May 10, 2023.
PARTY’S REQUESTS
Terminix
requests the Court grant summary judgment as there are no triable issues of
material fact.
Caliber
Defendants request the Court deny the motion.
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.)
“The
first element, duty, ‘may be imposed by law, be assumed by the defendant, or
exist by virtue of a special relationship.” (Doe v. United States Youth
Soccer Assn., Inc. (2017) 8 Cal.App.5th 1118, 1128.)
“The
elements of a negligence claim and a premises liability claim are the same: a
legal duty of care, breach of that duty, and proximate cause resulting in
injury.” (Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1159.)
A
land possessor does not have a duty to warn an invitee of obvious dangers but
does have a duty to warn about dangerous conditions known to the possessor and
those that might have been found by exercise of ordinary care. (Beauchamp v.
Los Gatos Golf Course (1969) 273 Cal.App.2d 20, 27.) Obvious dangerous are
those that which that an invitee will perceive “that which would be obvious to
him through the ordinary use of his senses.” Id. A land possessor is not
liable for damages caused “by a minor, trivial, or insignificant defect in
property.” (Caloroso v. Hathaway (2004) 122 Cal. App. 4th 922, 927.)
According
to Dolquist v. City of Bellflower (1987) 196 Cal.App.3d 261, 267-268,
when determining if a risk if trivial, courts look to a multitude of factors
beyond just depth or height of a sidewalk fault. For example, courts may look
towards physical characteristics (such as exposed rebar or broken pieces),
visibility, and history (such as whether anyone else has been injured).
Indemnification
clauses do not “extend to claims or liability arising out of [incidents] in the
common areas over which the tenant had no control.” (Morlin Asset Mgmt. LP v.
Murachanian (2016) 2 Cal.App.5th 184, 189.)
California
Labor Code §3864 states “If an action as provided in this chapter prosecuted by
the employee, the employer, or both jointly against the third person results in
judgment against such third person, or settlement by such third person, the
employer shall have no liability to reimburse or hold such third person
harmless on such judgment or settlement in absence of a written agreement so to
do executed prior to the injury.”
DISCUSSION
Overview
Plaintiff
alleges that while inspecting Defendants' roof, the roof collapsed, resulting
in injuries. Plaintiff specifically alleges that Defendants negligently
maintained and supervised the subject premises. Defendants filed a
Cross-Complaint against Terminix, Plaintiff’s employer, on the basis that there
is a Master Service Agreement between Terminix and EMCOR.
Terminix
alleges that the subject agreement is governed by Texas Law; Texas Insurance
Code § 417.004 provides an exception to the exclusive remedy portion of the
worker’s compensation statute, allowing a claim of contractual indemnification
against a plaintiff’s employer only where “the employer executed, before the
injury or death occurred, a written agreement with the third party to assume
the liability.” (UMF 5.) As there is no agreement between Terminix and Caliber,
Terminix alleges that the subject agreement is not within the exception of the
Texas statute.
Additionally,
Terminix argues that even if California law applied, the indemnification
provision is unenforceable and negated as Caliber’s expert admits to
wrongdoing that rises to gross negligence. The relevant MSA provides that
“Subcontractor shall defend, indemnify, and hold harmless...each of their
parents and affiliates....employees...and assigns from all liabilities.” it
states that the right to indemnification is excused only by acts of gross
negligence or willful misconduct; otherwise, it covers “any and all losses
for claims made by or brought against an Indemnified Party by any former or
present employee of Terminix...arising from or connected to such employee’s
tenure with Terminix.” John Martinet,
the Caliber parties’ retained expert, admitted that Plaintiff fell through a
roof that was not safe for walking on and that Caliber received work estimated
to install wooden reinforcements to address the defective condition. (UMF 7-9.)
He also admitted that the Caliber Defendants were on notice as to the danger but
did not remedy the situation before allowing Plaintiff on the roof. (UMF
11-12.)
Express
Indemnity
First,
the Court disagrees that the reading under Texas statute would prevent the
Caliber Defendants from bringing express indemnity claims against Terminix. The
Texas Supreme Court previously held that the referenced labor code does not
bar third parties from seeking express indemnity when the third-party is an
intended third-party beneficiary. Energy Serv. Co. of Bowie, Inc. v.
Superior Snubbing Servs., Inc., 236 S.W.3d 190, 191 (Tex. 2007). Generally speaking, contracts are
interpreted under the most reasonable reading of the language. Here, Terminix
agreed to indemnify EMCOR’s clients, which would include Defendants, from “all
liabilities,” with such obligations only excused by “gross negligence” or
“willful misconduct.” The Caliber Defendants were clearly intended
beneficiaries, as EMCOR’s clients. This similarly applies in relevant
California statutes.
Parties disagree as to whether to apply the
California or Texas standard for gross negligence to the reading of the contract;
the Court finds that, given that Texas law is the governing source of law for
the contract, the Texas standard should be applied within the confines of the
agreement. In Texas, to be liable of gross negligence, a party must 1) act with
an ‘extreme degree of risk,’ and 2) do so with the knowledge of the peril, and
act in a manner demonstrating he did not care about the consequences. Reeder
v. Wood Cnty. Energy, LLC (Tex. 2012) 395 S.W.3d 789, 796. These are factual
determinations. Caliber Defendants’
expert did not testify that the entire surface was safe to walk on, but rather
that the “plywood walkway” was safe to walk on. (UMF 8.) Martinent also
stated he did not believe Caliber Defendants should have covered the entirety
of the space to make it all safe to stand on. (UMF 12.). These issues belong to
the jury.
Other Causes of Action
As discussed above, neither Texas nor
California bar indemnity claims made against a Plaintiff’s employer by intended
third-party beneficiaries of a contract. There is no basis for summary judgment
on this claim, or the related claim of contribution.
Similarly, Caliber Defendants, as intended
beneficiaries, have a right to enforce a contract. There is no basis for
granting summary judgment as to breach of contract.
Finally, as the Court has not found a basis
for summary judgment otherwise, the Court cannot grant summary judgment as to
declaratory relief for relief for defense or indemnity.
In total, the Court denies the motion.
CONCLUSION
Cross-Defendant
Terminix International’s Motion for Summary Judgment 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.