Judge: Daniel M. Crowley, Case: 20STCV25568, Date: 2023-03-15 Tentative Ruling

Case Number: 20STCV25568    Hearing Date: March 15, 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.