Judge: David B. Gelfound, Case: 22STCV09082, Date: 2025-01-21 Tentative Ruling

Counsel wishing to submit on a tentative ruling may inform the clerk or courtroom assistant in North Valley Department F49, 9425 Penfield Ave., Chatsworth, CA 91311, at (818) 407-2249.  Please be aware that unless all parties submit, the matter will still be called for hearing and may be argued by any appearing/non-submitting parties. If the matter is submitted on the court's tentative ruling by all parties, counsel for moving party shall give notice of ruling. This may be done by incorporating verbatim the court's tentative ruling. The tentative ruling may be extracted verbatim by copying and pasting, as unformatted text, from the Los Angeles Superior Court’s website, http://www.lasuperiorcourt.org.
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Case Number: 22STCV09082    Hearing Date: January 21, 2025    Dept: F49

Dept. F49

Date: 1/21/25

Case Name: Edwin

Martinez, v. City of

Santa Clarita, County

of Los Angeles, Los

Angeles County Sheriff’s

Department, and Does

1 – 25.

Case No. 22STCV09082

LOS ANGELES SUPERIOR COURT

NORTH VALLEY DISTRICT

DEPARTMENT F49

MOTION FOR SUMMARY ADJUDICATION ON THE ISSUE OF THE DUTY TO DEFEND BY D&M PAINTING, INC.

Motion filed: 10/30/24

MOVING PARTY: Cross-Complainant City of Santa Clarita 

RESPONDING PARTY: Cross-Defendant D&M Painting, Inc.

NOTICE: OK.

RELIEF REQUESTED: An order granting Cross-Complainant City of Santa Clarita’s Motion for Summary Adjudication on the issue of the duty to defend by Cross-Defendant D&M Painting, Inc.

TENTATIVE RULING: The motion for summary adjudication is GRANTED.

BACKGROUND

This action arises from alleged personal injuries sustained by Plaintiff Edwin Martinez (“Plaintiff” or “Martinez”), an employee of the Cross-Complainant/Cross-Defendant D&M Painting, Inc. (“D&M”), at a construction site located at 26201 Golden Valley Rd., Santa Clarita, CA 91350 (the “Property”), which is owned by Defendant/Cross-Complainant City of Santa Clarita (“City”).

            On March 15, 2022, Plaintiff filed his Complaint against City, County of Los Angeles (“COLA”), Los Angeles County Sheriff's Department (“LASD”) (collectively, “Defendants”) and Does 1 through 25, alleging two causes of action: (1) General Negligence, and (2) Premises Liability. Subsequently, City filed its Answer to the Complaint on April 29, 2022.

On the same day, April 29, 2022, City also filed its Cross-Complaint against D&M and Roes 1 to 25, alleging six causes of action: (1) Express Indemnity, (2) Equitable/Implied Indemnity, (3) Apportionment of Fault, (4) Declaratory Relief, (5) Contribution, and (6) Negligence. Subsequently, D&M filed its Answer to the Cross-Complaint on May 31, 2022.

            On August 2, 2022, Cross-Complainant Icon West Inc. (“Icon West”) filed its First Amended Cross-Complaint against D&M. Subsequently, on August 8, 2022, D&M filed its Answer and a Cross-Complaint against Icon West. Subsequently, Icon West filed its Answer on August 31, 2022.

            On June 10, 2024, the Court granted City’s Summary Judgment as to Plaintiff’s Complaint. A judgment was entered on June 24, 2024.

            On October 30, 2024, City filed its instant Motion for Summary Adjudication on the Issue of the Duty to Defend by D&M Painting, Inc. (the “Motion”). D&M filed its Opposition on January 7, 2025, and City submitted its Reply on January 14, 2025.

ANALYSIS

A.    Evidentiary Objections

City submits its objections to evidence presented in D&M’s Opposition papers, specifically objecting the following:

1.      Paragraph 11 in Kelly Grant’s Declaration, in its entirety,

2.      D&M’s Separate Statement of Undisputed Material Fact Nos. 10-58.

The court has reviewed the evidentiary objections submitted by City. While all objections have been considered, due to their extensive nature, the Court will not address each objection individually in this tentative ruling. Instead, the Court's analysis will focus on the substance of the objections raised and their relevance to the determination of the motion at hand. Parties are advised to review the Court's analysis and raise any specific concerns during the oral argument.

B.     Motion for Summary Adjudication

A party may seek summary adjudication on whether a cause of action, affirmative defense, or punitive damages claim has merit or whether a defendant owed a duty to a plaintiff. (Code Civ. Proc., § 437c, subd. (f)(1).) “A motion for summary adjudication ... shall proceed in all procedural respects as a motion for summary judgment.” (Code Civ. Proc., § 437c, subd. (f)(2).) The moving party “bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact.” (Aguilar, supra, 25 Cal.4th at pp. 850–851.) To meet that burden, the moving party must present evidence sufficient to show they are entitled to summary adjudication as a matter of law. (Code Civ. Proc., § 437c, subds. (c) & (f)(2); Monticello Ins. Co. v. Essex Ins. Co. (2008) 162 Cal.App.4th 1376, 1385.)

The Legislature authorized a trial court to summarily adjudicate whether a defendant owes a duty because “‘[t]he question of whether a duty exists under certain circumstances is generally a question of law [citation]....’” (Linden Partners, supra, 62 Cal.App.4th at p. 522.) Accordingly, the existence of a duty can often be resolved on a summary adjudication motion. The question whether a defendant breached a duty, however, is generally a question of fact for the jury (see, e.g., Amtower v. Photon Dynamics, Inc. (2008) 158 Cal.App.4th 1582, 1599; Piscitelli v. Friedenberg (2001) 87 Cal.App.4th 953, 983.)

(1)   City’s Initial Burden

City argues that D&M had a duty to defend City under a contractual indemnity provision in the agreement between Icon West and D&M. (Mot. at p. 6.)

Civil Code section 2778 sets forth rules that guide the construction of contracts of indemnity. The rules “are as much a part of [an indemnity agreement] as those set out therein, unless a contrary intention appears.” (Gribaldo, Jacobs, Jones & Associates v. Agrippina Versicherunges A.G. (1970) 3 Cal.3d 434, 442.)

As relevant here, the statute provides: “The person indemnifying is bound, on request of the person indemnified, to defend actions or proceedings brought against the latter in respect to the matters embraced by the indemnity, but the person indemnified has the right to conduct such defenses, if he chooses to do so[.]” (Civ. Code § 2778, subd. 4.)

            Significantly, the Supreme Court of California in Crawford v. Weather Shield Mfg., Inc. (2008) 44 Cal.4th 541 (Crawford) distinguished the duty to defend from a duty to indemnify. (Id. at p. 554.) It explained: “On the one hand, the section [2778] specifies that a basic contractual indemnity against particular claims, demands, or liabilities ‘embraces the cost of defense’ against such claims, demands, or liabilities. [Citation.] On the other hand, the statute separately specifies the indemnitor’s duty actually ‘to defend,” upon the indemnitee’s request, proceedings against the latter ‘in respect to the matter embraced by the indemnity,’ though ‘the person indemnified has the right to conduct such defenses if he chooses to do so.” (Ibid.)

            The issue at hand pertains solely to the duty to defend. (Mot. at p. 1.)

Here, the undisputed facts establish that, on June 17, 2019, Icon West and City entered into an agreement for Phase IIIB, which involved the construction of the buildings and other associated structures for the new sheriff’s station (“Prime Contract”) (UMF No. 3, Ex. “A.”) Under the Prime Contract, D&M was listed as a subcontractor responsible for the “Painting” scope of work. (Id. No. 4.) On August 16, 2019, Icon West and D&M entered into a subcontract agreement (“Subcontract”). (UMF No. 5, Ex. “B.”) Accordingly to the Subcontract, Icon West was designated as the “Contractor,” City as the “Owner,” and D&M as the “Subcontractor.” (UMF No. 6, Ex. “B.”)

City cites the relevant provisions in the Subcontract, which states:

            “With the exception that this Section 13 shall in no event be construed to require indemnification by Subcontractor to a greater extent than permitted under the public policy of the State of California, Subcontractor shall defend, indemnify and save harmless Owner and Contractor, and any others required by the Prime Contract, including their officers. agents, employees, affiliates, parents and subsidiaries, and each of them, of and from any and all claims, demands, causes of action, damages, costs, expenses, actual attorneys' fees, losses or liabilities, in law or in equity, of every kind and nature whatsoever ("Claims") arising out of or in connection with Subcontractor's Scope of Work to be performed under this Subcontract for, but not limited to:

(a)   Personal injury, including, but not limited to, bodily injury, emotional injury, sickness or disease, or death to persons, including, but not limited to, any employees or agents of Subcontractor, Owner, Contractor. or any other subcontractor and/or damage to property of anyone (including loss of use thereof, caused or alleged to be caused in whole or in part by any act or omission of Subcontractor or anyone directly or indirectly employed by Subcontractor or anyone for whose acts Subcontractor may be liable regardless of whether such personal injury or damage is caused in part by a party indemnified hereunder."

“Subcontractor shall, at Subcontractor's own cost, expense and risk, defend all Claims as defined in this Section 13.1 that may be brought or instituted by third persons, including, but not limited to, governmental agencies or employees of Subcontractor, against Contractor or Owner or their agents or employees or any of them; Subcontractor shall pay and satisfy any judgment or decree that may be rendered against Contractor or Owner or their agents or employees, or any of them, arising out of any such Claim; and/or Subcontractor shall reimburse Contractor or Owner or their agents or employees for any and all legal expense incurred by any of them in connection herewith or in enforcing the indemnity granted in this Section 13.1."

(UMF Nos. 8,9; underlines added)

The Court finds that the undisputed evidence establishes the existence of an indemnity provision under the Subcontract, which expressly imposes on D&M a duty to defend City.

Furthermore, City presents evidence showing that on October 13, 2021, it tendered the claim for defense to Icon West based on the Prime Contract (UMF No. 19, Ex. “E.”) On March 23, 2022, Icon West’s insurer, Evanston Insurance Company, tendered the defense of the lawsuit of Kelly Grant, the representative of D&M. The tender letter requested that D&M and its commercial liability insurer accept the tender of defense in the Subcontract. (Id. No. 20, Ex. “F.”) On April 4, 2022, Michele Greene of the insurer of D&M, issued a letter that denied City and Icon West’s tender, indicating that there was no coverage to the City for the loss. (Id. No. 21, Ex. “G.”)

The Court observes that the timeframe for the indemnitor to perform its duty to defend the indemnitee is unmistakable as outlined in the subdivision 4 of Civil Code section 2778, which provides, in its entirety: “The person indemnifying is bound, on request of the person indemnified, to defend actions or proceedings brought against the latter in respect to the matters embraced by the indemnity, but the person indemnified has the right to conduct such defense, if he chooses to do so.” (Underlines added.) It is written from the perspective of a party who requests a defense and who has, unless a contrary intention is otherwise expressed in the contract, the right to conduct the defense.

Here, the indemnitee City conducted its own defense rather than the indemnitor D&M; however, D&M’s obligation remains a current and enforceable obligation, binding on the request of City at the time the tender correspondence was sent. (See Crawford, supra, 44 Ca.4th at p. 555 [“By virtue of these statutory provisions, the case law has long confirmed that, unless the parties' agreement expressly provides otherwise, a contractual indemnitor has the obligation, upon proper tender by the indemnitee, to accept and assume the indemnitee's active defense against claims encompassed by the indemnity provision. Where the indemnitor has breached this obligation, an indemnitee who was thereby forced, against its wishes, to defend itself is entitled to reimbursement of the costs of doing so.”])

Here, neither party contends that the language of the Subcontract expresses a contrary intention between them that would override the applicability or effect of Civil Code section 2778.

Accordingly, the Court concludes that City has satisfied its initial burden in establishing D&M’s duty to defend based on the undisputed contractual reference and construction of its effect under Civil Code section 2778. Consequently, the burden now shifts to D&M to raise a triable issue of fact.

(2)   D&M’s Burden

Here, D&M advances several arguments. In essence, it contends that a triable issue of material fact exists regarding the following issues: (1) the claim asserted by Plaintiff against City is not covered within the provisions of the indemnity clause as Plaintiff’s injury arises outside of D&M’s scope of work, (2) the claim is excluded under Section 13.1 of the Subcontract, (3) the indemnity provision is unenforceable as it is against public policy, and (4) the indemnity provision is unenforceable due to unconscionability.

Lastly, D&M argues that the Motion should be denied because the issue as to its duty to defend is moot, as City has obtained a judgment on Plaintiff’s Complaint and is no longer a defendant in the action.  

            The Court will address these arguments in turn.  

i.                    Claim Arising Out of or in Connection with D&M’s Scope of Work

Section 13 of the Subcontract provides, in part, that “Subcontractor shall defend ... Owner and Contractor, and any others required by the Prime Contract, including their officers. agents, employees, affiliates, parents and subsidiaries, and each of them, of and from any and all claims, demands, causes of action, damages, costs, expenses, actual attorneys' fees, losses or liabilities, in law or in equity, of every kind and nature whatsoever ("Claims") arising out of or in connection with Subcontractor's Scope of Work to be performed under this Subcontract[.]” (UMF No. 8, Ex. “B.”) (Underlines added.)

            It is undisputed that on April 30, 2021, Plaintiff was working at the Property as an employee of D&M. (UMF No. 12.) D&M relies on its evidence showing that on that day, Plaintiff arrived at the Property between 6:00 a.m.  – 6:30 a.m. and spoke with Mr. Lara, a D&M’s foreman, about their painting work for that day in an indoor area near the corridor entrance of the Property. (Maxwell Decl. ¶¶ 46-47.) They were required to use the main entrance because no other doors available for them to get inside the Property. (Id. ¶ 48.) While walking in the area in front of the main entrance, Plaintiff stepped into a hole that was covered by a piece of plywood and injured himself. (Id. ¶ 50.)

            D&M asserts that “navigating a portion of the Property that Plaintiff and Mr. Lara had never been, and were not scheduled to perform work in, was not within D&M’s assignment for that day.” (Opp’n. at p. 11.)

            However, D&M’s argument improperly and unnecessarily narrows the scope of its duty to defend. The language of the Subcontract explicitly states: “Subcontractor shall defend ... Owner ... of ... (“claims”) arising out of or in connection with Subcontractor’s Scope of Work” (UMF No. 8), rather than limiting the duty to claims arising solely “within D&M’s assignment for that day.”

Importantly, D&M’s own evidence acknowledges that the work performed by both of its employees – Plaintiff and Mr. Lara – on the day of the incident involved painting the interior of the Property near its corridor entrance. (Maxwell Decl. ¶ 47.) Similarly, D&M concedes that Plaintiff sustained injury while preparing to enter the Property to perform the work. (Id. ¶¶ 48-50.)

Moreover, D&M’s evidence – specifically Mr. Lara’s deposition – further confirms that both Plaintiff and Mr. Lara had been working inside the building for an hour before the incident. At 9:30 a.m., based on Mr. Lara’s notes on his worksheet, the accident occurred as they stepped out the Property to get additional equipment for their work. (Maxwell Decl. Ex. “4,” p. 28:21-29:5, p. 30:3-7.) This timeline clearly connects Plaintiff’s presence and activity to D&M’s assigned scope of work.

            While D&M attempts to characterize the evidence as “[a] dispute ... call[ing] into question what exactly Plaintiff was doing prior to the incident” (D&M’s Responses to UMF Nos. 14-16), this characterization falls short. The evidence presented fails to create a triable issue of fact regarding whether Plaintiff’s injury was “arising out of or in connection with” the scope of work D&M was performing under the Subcontract, specifically painting. The facts demonstrate a clear connection between Plaintiff’s activities at the time of the incident and the work encompassed within D&M’s contractual obligations.

            Accordingly, the Court finds D&M’s argument on this basis lacks merit.

ii.                  Qualifications to the Indemnity Provision

D&M argues that the Subcontract also includes the following qualifications to the indemnity provision that City relies upon to demonstrate the duty to defend. Section 13.1 of the Subcontract provides, in pertinent part:

“Such indemnity provisions apply regardless of any passive negligent act or omission of Owner or Contractor or their agents or employees. Subcontractor, however, shall not be obligated under this Subcontract to indemnify Owner or Contractor for Claims arising from the sole negligence or willful misconduct of Contractor or their agents, employees or independent contractors who are directly responsible to Contractor, or for defects in designs furnished by such persons. The indemnity set forth in this Section 13 shall not be limited by insurance requirements or by any other provision of this Subcontractor.”

(D&M’s UMF No. 67.)

As the Court has previously noted, both the statute and case law distinguish between the duty to defend and the duty to indemnify (Civ. Code § 2778, Crawford, supra.) The qualifications to the duty to indemnify does not alter D&M’s separate and distinct duty to defend, which has been clearly established to arise immediately upon tender and does not depend on whether the conditions of indemnity is, or is not, later established. (Crawford, supra, 44 Cal.4that p. 565.)

Therefore, the Court finds D&M’s argument on this basis to be unpersuasive.

iii.                 Public Policy Concern

Civil Code section 2782, subdivision (a), provides in part, that “provisions, clauses, covenants, or agreements contained in, collateral to, or affecting any construction contract and that purport to indemnify the promisee against liability for damages for death or bodily injury to persons, injury to property, or any other loss, damage or expense arising from the sole negligence or willful misconduct of the promisee or the promisee’s agents, servants, or independent contractors who are directly responsible to the promisee, or for defects in design furnished by those persons, are against public policy and are void and unenforceable[.]” (Underlines added.)

This section establishes public policy limitations specifically on the enforceability of a duty to indemnify. The statute is silent, however, on any restrictions or limitations regarding the duty to defend.,

D&M does not present any argument or legal analysis suggesting that section 2782 alters its separate duty to defend. Instead, this section addresses only indemnity, leaving the distinct and independent duty to defend under Civil Code section 2778 subdivision 4 unaffected.

Under established principles of statutory interpretation, the Court must give effect to the plain meaning of the statute’s words, without enlarging a statute by inserting or deleting words or by giving terms false or unusual meaning. (In re Jerry R. (1994) 29 Cal.App.4th 1432,1437.)

Here, the statute uses distinct words – the duty “to defend” (Civ. Code, § 2778, subd. 4), and the duty “to indemnify” (Civ. Code, § 2782, subd. (a).) This distinction is explicit, reflecting the legislative intent to treat the two duties differently. Consequently, the language of section 2782 subdivision (a) does not apply to the duty to defend, which arises immediately upon tender, independent of whether the conditions for indemnity are ultimately satisfied. (Crawford, supra, 44 Cal.4th at p. 565.) D&M’s reliance on section 2782 is therefore misplaced and irrelevant to the issue of its duty to defend.

Accordingly, the Court finds that D&M’s argument based on the public policy under Civil Code section 2782 does not negate its separate and independent duty to defend as established under Civil Code section 2778, subdivision 4, and the terms of the Subcontract.

iv.                Unconscionability

D&M argues that the indemnity provision of the Subcontract is void and unenforceable due to unconscionability. (Opp’n. at p. 15.)

“If the court as a matter of law finds the contract or any clause of the contract to have been unconscionable at the time it was made the court may refuse to enforce the contract, or it may enforce the remainder of the contract without the unconscionable clause, or it may so limit the application of any unconscionable clause as to avoid any unconscionable result.” (Civ. Code, § 1670.5, subd. (a).)

            “Unconscionability has a procedural and a substantive element; the procedural element focuses on the existence of oppression or surprise and the substantive element focuses on overly harsh or one-sided results. [Citations.] To be unenforceable, a contract must be both procedurally and substantively unconscionable, but the elements need not be present in the same degree. [Citation.] The analysis employs a sliding scale: ‘the more substantively oppressive the contract term, the less evidence of procedural unconscionability is required to come to the conclusion that the term is unenforceable, and vice versa.’ [Citations.]”  (Gatton v. T-Mobile USA, Inc. (2007) 152 Cal.App.4th 571, 579; see also Lhotka v. Geographic Expeditions, Inc. (2010) 181 Cal.App.4th 816, 822.)

Except where public policy imposes limitations, parties to an indemnity contract generally have great freedom of action in allocating risk. (Heppler v. J.M. Peter Co. (1999) 73 Cal.App.4th 1265, 1277.) The parties may establish a duty in the indemnitor to save the indemnitee harmless from the results of his or her active negligence – provided the language is sufficiently specific and clear to evidence this intent. (Ibid., internal citation omitted.) Likewise, the parties may require negligence by the indemnitor as a condition to indemnification or they may establish a duty in the indemnitor to save the indemnitee harmless even if the indemnitor is not negligent. (Ibid.)

            Here, in support of D&M’s argument that the Subcontract is procedurally unconscionable, it presents declarations by its vice president, Kelly Grant (“Grant”), claiming that the Subcontract was presented by Icon West to D&M as a “take it or leave it” proposition, D&M did not have bargaining power to negotiate the indemnity and defense provision in the Subcontract. The only subject matter D&M was in a position to negotiate was its scope of work under the Subcontract. (Grant Decl. ¶ 11.)

            While the Court liberally construe the declarations submitted by the opposing party in considering the parties’ evidence in connection with a motion for summary judgment, the opposing party may rely upon inferences, but “those inferences must be reasonably deducible from the evidence, and not such as are derived from speculation, conjecture, imagination, or guesswork. [Citation.]” (Joseph E. Di Loreto, Inc. v. O'Neill (1991) 1 Cal.App.4th 149, 161.)

            Here, D&M’s reliance on Grant’s declarations offers conclusory statement that the Subcontract was a “take it or leave it” proposition.  Even liberally construing the declarations, it fails to provide sufficient evidence of oppression or surprise, which are necessary to establish procedural unconscionability.

            D&M’s argument regarding substantive unconscionability is similarly unpersuasive. D&M relies on Section 13.1 of the Subcontract to highlight the qualifications limiting its duty to indemnify.  The inclusion of the qualifications section demonstrates that the parties exercised their freedom to allocate risks, including protections for D&M that limit its indemnity obligations. Such provisions support the inference that the Subcontract was neither “one-sided” nor “overly-harsh.”

Consequently, D&M fails to establish the existence of a triable issue of fact regarding the substantive unconscionability of the Subcontract.

            Accordingly, the Court finds that D&M has failed to satisfy its burden of making a prima facie showing of the existence of a triable material factual issue.

v.                  Mootness

D&M asserts that City’s Motion seeks an advisory opinion on a moot question because City has prevailed on its motion for summary judgment as to Plaintiff’s Complaint and is no longer a defendant in Plaintiff’s action.

            However, D&M acknowledges that City remains a part to the action as a Cross-Complainant against D&M and seeks the Court summarily adjudicate the issue of whether D&M owed City a duty to defend.

As previously analyzed, even if City conducted its own defense and subsequently obtained a judgment, D&M’s obligation to defend was triggered by the request of City at the time the tender correspondence was sent and remains a valid issue under the Cross-Complaint. (See Crawford, supra, 44 Ca.4th at p. 555 [“a contractual indemnitor has the obligation, upon proper tender by the indemnitee, to accept and assume the indemnitee's active defense against claims encompassed by the indemnity provision. Where the indemnitor has breached this obligation, an indemnitee who was thereby forced, against its wishes, to defend itself is entitled to reimbursement of the costs of doing so.”])

            Accordingly, the issue as to D&M’s duty to defend is not moot and is appropriately addressed in the instant Motion.

            Based on the foregoing, the Motion for Summary Adjudication is GRANTED.

CONCLUSION

Cross-Complainant City of Santa Clarita’s Motion for Summary Adjudication is GRANTED.

Moving party to give notice.