Judge Frank M. Tavelman, Case 19STCV17426 2023-01-04 Tentative Ruling

TENTATIVE RULING

January 4, 2023

(Continued from December 30, 2022)

On May 20, 2019, Samantha Ramos (“Plaintiff”) brought this action against Glendale I Mall Associates, LP (“GMA”), asserting causes of action for: (1) Premises Liability and (2) General Negligence. Plaintiff alleges she sustained personal injuries at the Glendale Galleria shopping mall owned by GMA because a metal door frame piece fell on her.

On October 16, 2020, GMA filed a Cross-Complaint against VCC Construction Corp. ("VCC"), RPG Enterprises ("RPG"), and T.J.M. Glazing, Inc. ("TJM"), asserting causes of action for: (1) Equitable Indemnity; (2) Contribution; (3) Express Indemnity; (4) Breach of Contract; and (5) Declaratory Relief.

GMA alleges that the involved door frame piece was part of an aluminum storefront door system installed by general contractor, VCC, and its door subcontractor, TJM, as part of a renovation project of the Glendale Galleria (the “Project”) around 2012-2013. GMA further asserts that the Project was performed pursuant to a Construction Management Agreement (“the Contract”) executed by GMA and VCC on February 13, 2012, and a written subcontract agreement (the “Subcontract”) executed by VCC and TJM on March 28, 2012. According to GMA, the Contract and Subcontract include provisions expressly obligating VCC and TJM to defend and indemnify GMA against Plaintiff’s claims.

GMA settled with Plaintiff for $500,000.00 and Plaintiff’s Complaint was dismissed on April 25, 2022.

On October 12, 2022, GMA moved for summary adjudication in its favor as to the following four issues:

Issue 2: That TJM had a duty to defend GMA from Plaintiff’s claims and related lawsuit;

Issue 3: That VCC has a duty to indemnify GMA for the $500,000 settlement with Plaintiff; and

Issue 4: That TJM has a duty to indemnify GMA for the $500,000 settlement with Plaintiff.

On December 15, 2022, VCC filed an opposition to GMA’s Motion for Summary Adjudication. That same day, TJM filed an opposition and raised one objection to evidence offered by GMA. On December 22, 2022, GMA filed a reply to VCC’s and TJM’s oppositions and raised twenty-eight objections to evidence offered by TJM.

GMA moves for summary adjudication of whether: (1) VCC owed a duty to defend GMA from Plaintiff’s claims and Plaintiff’s lawsuit; (2) TJM owed a duty to defend GMA from Plaintiff’s claims and Plaintiff’s lawsuit; (3) VCC owes a duty to indemnify GMA for the $500,000 settlement payment made to Plaintiff; and (4) TJM owes a duty to indemnify GMA for the $500,000 settlement payment made to Plaintiff.

TJM raises one objection to the declaration of Michael Panish on grounds that the declaration attached to GMA’s memorandum in support of its motion is unsigned.

The objection, while justified has become moot. A signed copy of Panish’s declaration was previously offered by GMA in opposition to TJM’s and VCC’s motions for summary judgment heard by the Court on July 1, 2022. In addition, GMA resubmitted a signed copy with its reply.

GMA raises twenty-eight objections to the declarations of Arnie Rodio, Michael Stapleford, Paul Daniels, and Tom Mercurio. As to each objection the Court rules as follows:

1. Overruled. The Court will note that an objection pursuant to Evidence Code §352 must be substantially more prejudicial than probative. An objection that proposed evidence is simply “prejudicial” is insufficient to support an §352 objection.

14. Sustained, but only as to the conclusion that GMA and 1 Source were solely negligent.

16. Sustained. Mr. Daniels lacks personal knowledge of what the design and/or installation departments of CR Laurence may have recommended to TJM specifically.

19. Sustained. Mr. Daniels lacks the expertise to speak to how the addition of strikes or cups by TJM may have altered the general industry standard, and Mr. Daniels lacks personal knowledge of instructions the design and/or installation departments of CR Laurence gave to TJM specifically.

“A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if the party contends that… there is no affirmative defense to the cause of action…or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs. A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (Code Civ. Proc.§ 437c(f)(1).) “A motion for summary adjudication may be made by itself or as an alternative to a motion for summary judgment and shall proceed in all procedural respects as a motion for summary judgment.” (Code Civ. Proc.§ 437c(f)(2).)

“For purposes of motions for summary judgment and summary adjudication…A plaintiff or 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 plaintiff or cross-complainant has met that burden, the burden shifts to the defendant or 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 defendant or 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(p)(1).)

When ruling on a summary judgment motion, the trial court must consider all inferences from the evidence, even those contradicted by the moving party’s evidence. The motion cannot succeed unless the evidence leaves no room for conflicting inferences as to material facts; the court has no power to weigh one inference against another or against other evidence. (Murillo v. Rite Stuff Food Inc. (1998) 65 Cal. App. 4th 833, 841.) In determining whether the facts give rise to a triable issue of material fact, "the facts alleged in the evidence of the party opposing summary judgment and the reasonable inferences there from must be accepted as true.” (Jackson v. County of Los Angeles (1997) 60 Cal. App. 4th 171, 179.) "There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.)

GMA argues that the duty to defend under an express indemnification clause applies regardless of the indemintor’s fault, or lack of fault. According to case law cited by GMA, the duty to defend is immediate and mandatory upon a tender of defense. The only requirement to trigger VCC’s duty to defend in this case is that there be a “claim” of injury or a “suit” that either “arises out of” or “is any way connected with” VCC’s “work or activities.” The undisputed fact that the door frame piece that hit Plaintiff was installed as part of the Project, GMA argues, is enough to trigger VCC’s duty to defend. GMA offers evidence that VCC nonetheless ignored GMA’s tenders for defense.

In opposition, VCC argues that GMA offers no undisputed facts demonstrating that the indemnity provision—and thus duty to defend—was ever triggered in Plaintiff’s action. VCC notes that Plaintiff’s causes of action alleged only that GMA “failed to adequately inspect, maintain and/or make their premises reasonably safe”—not that there was a failure to adequately install the door frame. The indemnification provision in the GMA-VCC Contract states that there is no duty of indemnity for “claims caused by the sole negligence of an indemnitee hereunder” and Plaintiff never alleged the negligence of anyone other than GMA.

GMA replies that VCC’s opposition fails to recognize that the duty to defend is separate and distinct from the duty to indemnify. According to GMA, VCC’s duty to defend was triggered by GMA’s tender of defense regardless of whether it is ultimately determined that VCC was negligent.

“In the interpretation of a contract of indemnity, the following rules are to be applied, unless a contrary intention appears…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(4).)

Parties to a contract, including a construction contract, may assign one party, pursuant to the contract's language, responsibility for the other's legal defense when a third-party claim is made against the latter. (Crawford v. Weather Shield Mfg., Inc. (2008) 44 Cal. 4th 541, 551.) They may agree that the promisor's defense obligations will apply only if the promisor was negligent, or, conversely, even if the promisor was not negligent. (Ibid.)

The duty to defend is distinct from the duty to indemnify. (Crawford, 44 Cal.4th at 558.) “Implicit in this understanding of the duty to defend an indemnitee against all claims ‘embraced by the indemnity,’ as specified in subdivision 4 of section 2778, 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.” (Ibid.)

In Crawford, the California Supreme Court found that the subcontractor in that case had a duty to defend any suit “founded upon” claims alleging damage or loss arising from the subcontractor’s negligent role in the parties’ construction project. (Id. at 553.) The Crawford Court reasoned: “[Section 2778 and] 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”, (Id. at 555), and the indemnity provision in that case did not expressly state that the subcontractor did not have a duty to defend. (Id. at 553.)

Indemnification. The Construction Manager shall be responsible for all injury or damages of any kind, including damage to existing facilities or property, or to the work of other contractors or subcontractors working on the Project, arising out of Construction Manager's Work or activities, and Construction Manager shall to the fullest extent permitted by law defend, indemnify and hold harmless Owner and its direct and indirect parents and subsidiaries, any of their affiliated entities, successors and assigns and any current or future director, officer, agent, employee, partner, member, contractor, consultant, lender and tenant of any of them from and against any and all claims, damages, losses, liabilities, suits, expenses, citations and fines (including attorney's fees and legal expenses) arising out of or in any way connected with the Work, to the extent they arise out of death, sickness, disease or injury as to any person, or injury to any property, except for claims caused by the sole negligence of an indemnitee hereunder. In the event the law of the state where the Project is located does not allow the above-referenced indemnity, this Section 16.11 shall be construed as providing for the broadest indemnity by the Construction Manager as permitted by law. Construction Manager shall deliver the Work to Owner free and clear of all liens, claims and encumbrances, and shall defend, indemnify and hold harmless Owner from all such liens, claims and encumbrances arising out of the Construction Manager's performance of the Work, or the work of any of Construction Manager's employees, agents, subcontractors or consultants, including attorney's fees and litigation expenses incurred by the Owner as a result of such claims. Construction Manager shall bond off or otherwise discharge any lien or encumbrance filed against the Project within ten (10) days of written demand by Owner, whether or not Construction Manager believes the claim is valid. (Avila Decl., ¶ 4, Ex. 2; Alley Decl., ¶ 2, Ex. A [emphasis added].)

In other words, the Contract imposes a duty on VCC to defend any claim that is in any way connected with the work performed during the Project—which includes the installation of the door frame piece which allegedly fell on Plaintiff. Like in Crawford, the Contract here does not expressly disclaim VCC’s duty to defend GMA. Quite to the contrary, it expressly imposes it. Pursuant to Civil Code Section 2778 and case law, VCC’s duty to defend immediately arose upon a proper tender of defense by GMA.

GMA offers evidence that it properly tendered its defense to VCC on two separate occasions—once to VCC’s corporate counsel on October 19, 2020, and a second time to VCC’s outside counsel on August 18, 2021. (Avila Decl., ¶¶ 6,8, Exs. 5,6.) Both letters to VCC’s counsel explain why Plaintiff’s claims are related to the Project, and thus why VCC had a duty to defend GMA against Plaintiff’s claims. (Ibid.) VCC’s duty to defend was triggered by these letters, yet VCC declined to respond to either letter, effectively ignoring GMA’s request. (Id., ¶ 9.)

VCC argues that the indemnification provision—and thus its duty to defend—was never triggered by Plaintiff’s action because Plaintiff did not explicitly allege negligence on the part of VCC. The argument is not persuasive. The California Supreme Court has been clear—the duty to defend arises immediately upon a proper tender of defense, which is before a determination of whether indemnity is actually owed. (Crawford, 44 Cal.4th at 558.) The case VCC offers for the proposition that an indemnification provision can only be triggered by a finding of fault, Heppler v. J.M. Peters Co. (1999) 73 Cal.App.4th 1265, is a Court of Appeal decision that was issued before the California Supreme Court ruled in Crawford. Crawford is controlling and dispositive on this issue.

Nor is it significant that Plaintiff’s Complaint did not name VCC as a defendant. (See UDC v. CH2M-HILL (2010) 181 Cal.App.4th 10, 20-21 ["An indemnitee should not have to rely on the plaintiff to name a particular subcontractor or consultant in order to obtain a promised defense by the one the indemnitee believes is responsible for the plaintiff's damages."].) GMAs right to defense is not triggered by a third-party plaintiff’s decision to name an owner’s contractor or subcontractor in the underlying lawsuit. Had VCC intended such a condition precedent, they could have included such language.

Ultimately, in this instance Plaintiff sued GMA because the door that VCC’s subcontractor installed fell on Plaintiff’s head. GMA believes VCC is responsible. Pursuant to a duty to defend and indemnification agreement between the parties, GMA tendered its defense to VCC. VCC’s express duty to defend was therefore triggered.

Accordingly, the Court finds that VCC had a duty to defend GMA. GMA’s Motion for Summary Adjudication as to the first issue is granted.

GMA’s arguments that TJM had a duty to defend GMA are similar to its arguments that VCC had a duty to defend GMA. GMA argues that TJM’s duty to defend was triggered when GMA tendered its defense to TJM.

In opposition, TJM offers case law supporting the proposition that express indemnification provisions in non-insurance settings must be strictly construed against the indemnitee. TJM also offers statutory law stating that express indemnification provisions which attempt to indemnify against injury arising from the sole negligence of the indemnitee are unenforceable, and then argues that triable issues exist as to whether Plaintiff’s accident was due to the sole negligence of GMA. Finally, TJM argues the indemnification provision in the Subcontract between GMA and TJM is ambiguous because: (1) There was no “claim” or “lawsuit” which arose out of the “performance” of TJM’s work; (2) there are no claims of negligence against TJM; and (3) the indemnification provision is silent as to how long TJM intended to indemnify GMA.

Like its reply to VCC’s opposition, in reply to TJM’s opposition GMA argues that TJM confuses the duty to defend with the duty to indemnify. TJM’s duty to defend is not dependent on a finding that TJM was negligent. In response to TJM’s arguments that the Subcontract’s indemnification provision is ambiguous, GMA notes that TJM offers no law or extrinsic evidence in support of its assertions.

The same law that applied to Section IIA., supra, applies here. “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…” (Civ. Code § 2778(4-5).) Unless expressly disclaimed, the duty to defend “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.” (Crawford, 44 Cal.4th at 558.)

Here, Article 9 titled “INDEMNIFICATION” of the Subcontract executed by TJM, in its entirety, reads:

TO THE FULLEST EXTENT PERMITTED BY LAW, THE SUBCONTRACTOR SHALL INDEMNIFY, DEFEND AND HOLD HARMLESS THE OWNER, ARCHITECT, ARCHITECT'S CONSULTANTS, THE CONTRACTOR AND AGENTS AND EMPLOYEES OF ANY OF THEM, AS WELL AS ANY OTHER PARTY DESIGNATED BY PROJECT SPECIFICATIONS FROM AND AGAINST ALL LIABILITY, CLAIMS, DAMAGES, LOSSES AND EXPENSES, OR INJURIES TO ANY PERSON OR TO PROPERTY, INCLUDING INJURIES TO SUBCONTRACTOR EMPLOYEES, AND ALL EXPENSES OF INVESTIGATING AND DEFENDING AGAINST THE SAME (A) ARISING FROM, OR CONNECTED WITH THE PERFORMANCE OF, OR FAILURE TO PERFORM, THE WORK OR OTHER OBLIGATIONS OF THIS SUBCONTRACT, (B) CAUSED OR CLAIMED TO BE CAUSED BY THE INDEPENDENT NEGLIGENCE OF THE SUBCONTRACTOR OR THE CONCURRENT NEGLIGENCE OF THE SUBCONTRACTOR WITH THE ACTIVE OR PASSIVE NEGLIGENCE OF THE CONTRACTOR, OWNER, OR ANY OTHER PARTY DESIGNATED BY PROJECT SPECIFICATIONS OR THEIR AGENTS OR EMPLOYEES. (Avila Decl., ¶ 5, Ex. 3; Mercurio Decl., ¶ 8.)

In other words, the Subcontract imposed a duty on TJM to defend the owner, GMA, against all claims arising from or connected with the performance of TJM’s obligations under the Subcontract—which includes TJM’s installation of the door frame that allegedly fell on Plaintiff. Nowhere in the indemnification provision is TJM’s duty to defend disclaimed. Rather, it expressly states that TJM “shall indemnify, defend, and hold harmless” GMA. (Id., [emphasis added].)

GMA offers proof that it tendered its defense to TJM on two separate occasions. (Avila Decl., ¶¶ 10-11, Exs. 6-7.) TJM, like VCC, does not dispute this. Because Plaintiff implicitly claimed TJM was responsible for her injuries, and because GMA explicitly claimed TJM was responsible for Plaintiff’s injuries, TJM’s duty to defend was triggered when GMA tendered its defense. The determination of who was ultimately negligent is not relevant to the issue of whether TJM had a duty to defend.

TJM argues that express indemnification provisions in non-insurance settings must be strictly construed. Strictly construed, the indemnification provision in the Subcontract imposes an express duty on TJM to defend claims arising from or connected to its work. Nor does the Court find the provision to be ambiguous—it requires TJM to defend claims (A) arising from or connected to its work that (B) are “caused or claimed to be caused” by the independent or concurrent negligence of TJM. (See Avila Decl., ¶ 5, Ex. 3 [emphasis added].) GMA claimed TJM was negligent, and thus TJM’s duty to defend was triggered.

Finally, TJM argues the indemnification provision is ambiguous because it does not provide for how long TJM was agreeing to defend and indemnify GMA. According to TJM, the indemnification provision could therefore be read as imposing a duty to defend and indemnify forever. However, California law provides a time limit in cases when indemnification provisions are silent. Code of Civil Procedure Section 337.15, subdivisions (a) and (c), in part, read:

(a)No action may be brought to recover damages from any person, or the surety of a person, who develops real property or performs or furnishes the design, specifications, surveying, planning, supervision, testing, or observation of construction or construction of an improvement to real property more than 10 years after the substantial completion of the development…(c)As used in this section, ‘action’ includes an action for indemnity brought against a person arising out of that person’s performance or furnishing of services or materials referred to in this section…

California Courts have confirmed that the 10-year statute related to construction improvements applies to indemnification claims. (See FNB Mortgage Corp. v. Pac. General Corp., (1999) 76 Cal.App.4th 1116.)

Since the indemnification provision in the Subcontract does not include an expiration date, the 10-year statute of repose applies and TJM has a duty to defend GMA for 10 years after the Project’s completion date.

Accordingly, the Court finds that TJM had a duty to defend GMA. GMA’s Motion for Summary Adjudication as to the second issue is granted.

C. There are triable issues of fact as to whether VCC has a duty to indemnify GMA for the $500,000 settlement payment made to Plaintiff

GMA argues that, in general, parties have the right to create a duty to indemnify—even if the indemnitor is not negligent or at fault. GMA further argues that the indemnification provision in the Contract between GMA and VCC does in fact impose a duty on VCC to indemnify GMA from Plaintiff’s claims regardless of whether VCC was negligent. Thus, the issue of negligence is irrelevant to this motion and GMA is entitled to summary adjudication on the issue of whether VCC has a duty to indemnify GMA as a matter of law.

In opposition, VCC points out that GMA offers no evidence demonstrating negligence by VCC. VCC disputes that GMA need not prove negligence for VCC to have a duty to indemnify GMA.

GMA replies by reiterating its position that the indemnification provision in the Contract between GMA and VCC only requires a “claim” of negligence to trigger VCC’s duty to indemnify GMA, and the undisputed facts are that both Plaintiff and GMA claim VCC was negligent.

“Parties to an indemnity contract have great freedom of action in allocating risk, subject to certain limitations of public policy. (See, e.g., Civ.Code, § 2782 [construction contracts cannot provide for indemnification for injury caused solely by indemnitee's negligent or willful conduct].) 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. [Citation.] Likewise, the parties may require negligence by the indemnitor as a condition to indemnification [citation], or they may establish a duty in the indemnitor to save the indemnitee harmless even if the indemnitor is not negligent [citation].” (Heppler v. J.M. Peters Co. (1999) 73 Cal.App.4th 1265, 1277.)

However, “agreements…affecting any construction contract that purport to indemnify the promisee against liability for damages…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…are against public policy and are void and unenforceable.” (Civ. Code § 2782(a).)

Here, the indemnification provision of the Contract between GMA and VCC, in relevant part, reads:

The Construction Manager shall be responsible for all injury or damages of any kind, including damage to existing facilities or property, or to the work of other contractors or subcontractors working on the Project, arising out of Construction Manager's Work or activities, and Construction Manager shall to the fullest extent permitted by law defend, indemnify and hold harmless Owner and its direct and indirect parents and subsidiaries, any of their affiliated entities, successors and assigns and any current or future director, officer, agent, employee, partner, member, contractor, consultant, lender and tenant of any of them from and against any and all claims, damages, losses, liabilities, suits, expenses, citations and fines (including attorney's fees and legal expenses) arising out of or in any way connected with the Work, to the extent they arise out of death, sickness, disease or injury as to any person, or injury to any property, except for claims caused by the sole negligence of an indemnitee hereunder...” (Avila Decl., ¶ 4, Ex. 2; Alley Decl., ¶ 2, Ex. A [emphasis added].)

In other words, VCC does not have a duty to indemnify GMA if Plaintiff’s claims resulted from the sole negligence of GMA. Unlike VCC’s duty to defend, evidence of negligence is relevant here. To meet its prima facie burden, GMA must prove that Plaintiff’s injuries were not caused by GMA’s sole negligence.

GMA meets its prima facie burden by offering the declaration of Michael Panish. Panish, an expert in commercial door construction, opines that TJM failed to properly secure Von Duprin 9847 ratchet releases onto the subject door frame. (Panish Decl., ¶¶ 30, 31.) According to Panish, even if TJM did not install the Von Duprin 9847 ratchet releases, TJM and/or VCC should have been aware of their defective condition at the time of the Project and TJM and/or VCC’s failure to take corrective action was a breach of the standard of care for contractors in California. (Id. ¶¶ 33-41.) Panish’s statements indicate that Plaintiff’s injuries were not caused by GMA’s sole negligence.

However, VCC creates a triable issue of fact by offering evidence that Plaintiff’s injuries were in fact caused by the sole negligence of GMA. For example, VCC offers a declaration from its Executive Vice President who states that VCC’s work on the Project was signed off by representatives of GMA. (Alley Decl., ¶ 5.) VCC also offers deposition testimony from a Glendale Galleria security official who states that the door frame piece in question fell off nine days before Plaintiff’s incident, and that GMA staff attempted to reattach it. (VCC’s Compendium, Ex. F [Powers Depo. 63:6-65:20].)

The Court does not weigh the credibility of evidence at summary adjudication. It merely looks for whether the non-moving party has established an issue of triable fact, and with respect to whether Plaintiff’s injuries were caused by the sole negligence of GMA, VCC has done so.

Accordingly, GMA’s Motion for Summary Adjudication as to the third issue of whether VCC has a duty to indemnify GMA for the $500,000 settlement payment made to Plaintiff is denied.

D. There are triable issues of fact as to whether TJM has a duty to indemnify GMA for the $500,000 settlement payment made to Plaintiff

GMA’s arguments that TJM has a duty to indemnify GMA for the $500,000 settlement payment made to Plaintiff are similar to its arguments that VCC has a duty to indemnify GMA. GMA argues TJM is required to indemnify, not only if TJM is found to be negligent, but also when TJM is “claimed” to have been negligent. According to GMA, Plaintiff claimed that the subject doorway was not constructed reasonably. Plus, GMA claims that TJM was negligent. TJM’s duty to indemnify is therefore triggered, and GMA is entitled to summary adjudication on this issue as a matter of law.

In opposition, TJM argues that there are triable issues of fact as to whether Plaintiff’s accident was due to the sole negligence of GMA. TJM also argues that if the Court were to accept GMA’s interpretation of the indemnification provision in the Subcontract executed by TJM—specifically, that it only requires GMA to claim negligence rather than show negligence on the part of TJM—the provision would be unconscionable. According to TJM, this would effectively impose limitless liability on TJM for GMA’s defective maintenance procedures long after TJM’s work was complete.

GMA replies by reiterating its position that the Subcontract executed by TJM only requires a “claim” of negligence to trigger TJM’s duty to indemnify GMA, and the undisputed facts are that both Plaintiff and GMA claim TJM was negligent.

The same law that applied to Section IIC., supra, applies here. “Parties to an indemnity contract have great freedom of action in allocating risk, subject to certain limitations of public policy.” (Heppler, 73 Cal.App.4th at 1277.) One of those limitations is that construction contracts cannot provide for indemnification for injury caused solely by indemnitee's negligent or willful conduct. (Civ. Code, § 2782(a).)

TO THE FULLEST EXTENT PERMITTED BY LAW, THE SUBCONTRACTOR SHALL INDEMNIFY, DEFEND AND HOLD HARMLESS THE OWNER…FROM AND AGAINST ALL LIABILITY, CLAIMS, DAMAGES, LOSSES AND EXPENSES, OR INJURIES TO ANY PERSON OR TO PROPERTY… CAUSED OR CLAIMED TO BE CAUSED BY THE INDEPENDENT NEGLIGENCE OF THE SUBCONTRACTOR OR THE CONCURRENT NEGLIGENCE OF THE SUBCONTRACTOR WITH THE ACTIVE OR PASSIVE NEGLIGENCE OF THE CONTRACTOR, OWNER, OR ANY OTHER PARTY DESIGNATED BY PROJECT SPECIFICATIONS OR THEIR AGENTS OR EMPLOYEES. (Avila Decl., ¶ 5, Ex. 3; Mercurio Decl., ¶ 8.)

GMA interprets this provision as requiring TJM to indemnify GMA for any claim “caused or claimed to be caused” by TJM’s independent or concurrent negligence. However, such a reading would violate Civil Code Section 2782, as TJM would have a duty to indemnify GMA for incidents that were caused by the sole negligence of GMA so long as GMA simply “claimed” TJM was negligent.

Contracts are to be construed to avoid rendering terms as surplusage and/or redundant. (Shell Oil Company v. Winterthur Swiss Insurance Company (1993) 12 Cal.App.4th 715, 753.) Here, GMA’s interpretation makes the phrase “caused or claimed to be caused” redundant since a subcontractor who caused damage due to their negligence is likely to face claims that they caused damage due to their negligence. If either “caused” or “claim to be caused” are sufficient to trigger a duty to indemnify, then it is unnecessary to include “caused.” Simply stating “claim to be caused” would cover all scenarios. For example, if Plaintiff’s injuries were in fact caused by the negligence of TJM, then of course GMA would “claim” TJM’s negligence was the cause.

The Court’s interpretation is that the phrase “or claimed to be caused” refers to TJM’s duty to defend, since as discussed supra, a duty to defend can be triggered by a mere claim of negligence. This would leave the term “caused” to refer to TJM’s duty to indemnify—meaning the indemnification provision mandates that TJM has a duty to indemnify only for claims that are in fact caused by its independent or concurrent negligence.

Under such an interpretation, GMA has the prima facie burden of proving that TJM’s independent or concurrent negligence was the cause of Plaintiff’s injuries. Alternatively, to avoid a violation of Civil Code § 2782, GMA at a minimum has the prima facie burden of proving Plaintiff’s injuries were not caused by its sole negligence.

As noted in Section IIC., supra, GMA meets its prima facie burden by offering the declaration of Michael Panish. However, TJM responds by offering substantial evidence creating a triable issue of fact. For example, TJM offers declarations from several experts or industry insiders who opine that TJM installed the door frame correctly and that Plaintiff’s accident was due to GMA’s negligent maintenance of the door frame. (See, e.g., Daniels Decl., ¶¶ 25-27, 32; Rodio Decl., ¶¶ 6-12, 16; Stapleford Decl., ¶¶ 37, 46.)

At a minimum, GMA must offer undisputed facts that Plaintiff’s injuries were not caused by the sole negligence of GMA. GMA has failed to do so. Accordingly, GMA’s motion for summary adjudication as to the fourth issue of whether TJM has a duty to indemnify GMA for the $500,000 settlement payment made to Plaintiff is denied.

The Court grants the motion for summary adjudication as to the first and second issues (duty to defend). The Court denies the motion for summary adjudication as to the third and fourth issues (indemnification).

In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court’s records.

Defendant/Cross-Complainant Glendale I Mall Associates, LP’s Motion for Summary Adjudication came on regularly for hearing on December 30, 2022, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows:

THE MOTION FOR SUMMARY ADJUDICATION IS GRANTED AS TO ISSUES 1 AND 2 (DUTY TO DEFEND).

THE MOTION FOR SUMMARY ADJUDICATION IS DENIED AS TO ISSUES 3 AND 4 (INDEMNIFICATION).

MP:	Defendant/Cross-Complainant Glendale I Mall Associates, LP
RP:	Cross-Defendants/Cross-Complainants VCC Construction Corp. and T.J.M. Glazing, Inc.