Judge: Gary Y. Tanaka, Case: BC717136, Date: 2022-11-07 Tentative Ruling
Case Number: BC717136 Hearing Date: November 7, 2022 Dept: B
LOS ANGELES SUPERIOR COURT –
SOUTHWEST DISTRICT
Honorable Gary Y. Tanaka Monday, November 7, 2022
Department B Calendar No. 5
PROCEEDINGS
Kimberle
Loudermilk v. John Dwyer Construction, Inc., et al.
BC717136
1. Ability First’s Motion for Summary Adjudication
TENTATIVE RULING
Ability First’s (“Ability”) Motion
for Summary Adjudication is granted.
Background
Plaintiff filed the Complaint on August 8, 2018. Plaintiff alleges the following facts. On August 12, 2016, Plaintiff slipped and fell
on the premises of Defendants. Several
Cross-Complaints have been filed including Ability First’s Cross-Complaint.
Objections
Ability’s objections to the declaration of Matthew
Perry: Objections 1 to 3 are overruled. Objections 4 to 9 are sustained.
Motion for Summary Adjudication
The purpose of a motion for summary judgment or
summary adjudication “is to provide courts with a mechanism to cut through the
parties’ pleadings in order to determine whether, despite their allegations,
trial is in fact necessary to resolve their dispute.” (Aguilar
v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) “Code of Civil Procedure section 437c,
subdivision (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.)
“On a motion for summary judgment, the initial burden
is always on the moving party to make a prima facie showing that there are no
triable issues of material fact.” (Scalf v. D. B. Log Homes, Inc. (2005)
128 Cal. App. 4th 1510, 1519.) A
defendant moving for summary judgment or summary adjudication “has met his or
her burden of showing that a cause of action has no merit if the party has
shown that one or more elements of the cause of action . . . cannot be
established, or that there is a complete defense to the cause of action.” CCP § 437c(p)(2). “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 the cause of action or a defense
thereto.” CCP § 437c(p)(2). “If the
plaintiff cannot do so, summary judgment should be granted.” Avivi
v. Centro Medico Urgente Medical Center (2008) 159 Cal. App. 4th 463, 467.
“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.” Code Civ. Proc., § 437c(p)(1).
“When deciding whether to grant summary judgment, the
court must consider all of the evidence set forth in the papers (except
evidence to which the court has sustained an objection), as well as all
reasonable inferences that may be drawn from that evidence, in the light most
favorable to the party opposing summary judgment.” (Avivi,
159 Cal.App.4th at 467; CCP § 437c(c).)
Ability moves for summary adjudication of Advanced
Dynamic Therapies Professional Corporation’s (“ADT”) duty to defend Ability
from and against Plaintiff’s Complaint. Ability argues that it is an express
indemnitee of indemnitor ADT under lessor Ability’s lease/rental contract with
lessee ADT which requires a defense in favor of Ability. Crawford v. Weather Shield Mfg. Inc.
(2008) 44 Cal.4th 541.
Duty to Defend
“The existence and scope of duty are legal questions
for the court.” Merrill v. Navegar,
Inc. (2001) 26 Cal.4th 465, 477. “If
any party moves for summary judgment or adjudication (Code Civ. Proc., § 437c)
with respect to the duty to defend against litigation still in progress, the
court may proceed as it deems expedient.
For example, the court may resolve legal issues then ripe for
adjudication, such as whether any of the contracts at issue include a duty to
defend, and, if so, whether the underlying suit or proceeding as to which a
defense is sought falls within the scope of any of the parties’ contractual
duty to defend.” Crawford v. Weather
Shield Mfg. Inc. (2008) 44 Cal.4th 541, 565, fn. 12.
Ability identifies paragraph 5 of the parties’
agreement which states as follows: “Lessor shall not be liable for any loss,
injury, death, or damage to persons or property suffered or sustained by Lessee
or by any person who may at any time be using or occupying or visiting the
property or be in, on, or about the same, whether such loss, injury, death or
damage shall be caused by or in any way result from or arise out of any act,
omission, or negligence of Lessee or of any occupant, tenant, visitor, or user
of any matter or thing whether of the same kind as or of a different kind than
the matters or things about set forth. Lessee shall indemnify Lessor for
injuries to persons or property in or about the Premises, from causes arising
at any time, except in the event of willful misconduct or active gross
negligence of Lessor.” (Ability’s
Separate Statement of Facts and Supporting Evidence [SSUF] No. 16.)
The Court finds that Ability has met its burden of
showing that ADT owed a duty to defend Ability against Plaintiff’s
Complaint. CCP § 437c(f)(1). Paragraph 5
of the parties’ agreement as outlined above specifically sets forth an
indemnification provision which provides that the lessee “shall indemnify
lessor for injuries to persons ....”
Civ. Code, § 2778 states as follows:
“In the interpretation of a contract of indemnity, the
following rules are to be applied, unless a contrary intention appears:
1. Upon an indemnity against liability, expressly, or
in other equivalent terms, the person indemnified is entitled to recover upon
becoming liable;
2. Upon an indemnity against claims, or demands, or
damages, or costs, expressly, or in other equivalent terms, the person indemnified
is not entitled to recover without payment thereof;
3. An indemnity against claims, or demands, or
liability, expressly, or in other equivalent terms, embraces the costs of
defense against such claims, demands, or liability incurred in good faith, and
in the exercise of a reasonable discretion;
4. 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;
5. If, after request, the person indemnifying neglects
to defend the person indemnified, a recovery against the latter suffered by him
in good faith, is conclusive in his favor against the former;
6. If the person indemnifying, whether he is a
principal or a surety in the agreement, has not reasonable notice of the action
or proceeding against the person indemnified, or is not allowed to control its
defense, judgment against the latter is only presumptive evidence against the
former;
7. A stipulation that a judgment against the person
indemnified shall be conclusive upon the person indemnifying, is inapplicable
if he had a good defense upon the merits, which by want of ordinary care he failed
to establish in the action.”
There is no contrary intention that is provided in the
agreement, and, therefore, the indemnification provision noted above
encompasses a duty to defend. By
specifying a duty to defend, Civil Code § 2778(4) places in every
indemnity contract, unless the agreement provides otherwise, a duty to assume
the indemnitee’s defense, if tendered, against all claims embraced by the
indemnity. Crawford v. Weather Shield
Mfg. Inc. (2008) 44 Cal.4th 541, 557. In UDC-Universal Dev., LP. v. CH2M Hill
(2010) 181 Cal.App.4th 10, 17, the Court found that, under the indemnity
provision, a sub-contractor owed a duty to defend the developer from the time
the defense was tendered, even though the Complaint did not specifically allege
negligence by the sub-contractor, and even though the jury found the
sub-contractor not negligent. Id. Therefore, ADT’s arguments in opposition,
which essentially contend that it will ultimately be found to be not negligent
and/or that Ability will be found negligent, thus negating any duty to indemnify,
are not availing. Ability did not move
for summary adjudication on the issue of the duty to indemnify, nor is the
Court making a finding that ADT owes a duty to indemnify.
Therefore, Ability has established that ADT owes a
duty to defend Ability based on the plain language of the contract. Thus, for the foregoing reasons, Ability’s
motion for summary adjudication is granted.
Ability is ordered to give notice of this ruling.