Judge: H. Jay Ford, III, Case: 20STCV39889, Date: 2023-03-28 Tentative Ruling

Case Number: 20STCV39889    Hearing Date: March 28, 2023    Dept: O

Case Name:  Jeffrey v. City of Calabasas, et al.

SUBJECT:                 DEMURRER TO Cross-COMPLAINT

MOVING PARTY:   Cross-Defendant Ronald Jeffrey

RESP. PARTY:         Cross-Complainant City of Calabasas

TENTATIVE RULING

            Cross-Defendant Ronald Jeffrey’s Demurrer to the City of Calabasas’s Cross-Complaint is OVERRULED. 

            Ronald’s demurs to the express indemnification cause of action alleged in City’s Cross-Complaint filed on 10-14-22.  The express indemnification cause of action is based on the following indemnification provision contained in the membership agreement signed by Ronald:  “The undersigned hereby agrees to defend, indemnify, and hold harmless the City of Calabasas and its officers, employees and agents from and against any and all loss, liability charges and expenses (including attorney’s fees) and costs which may arise by reason of participation in any program.”  See City’s Cross-Complaint, Ex. 2.  Ronald argues the indemnification provision does not apply to his wife’s injuries, because his wife’s injuries were the result of the City’s negligence in maintaining the equipment and the term “program” does not clearly include use of the fitness equipment. 

“Where a complaint is based on a written contract which it sets out in full, a general demurrer to the complaint admits not only the contents of the instrument but also any pleaded meaning to which the instrument is reasonably susceptible.  While plaintiff's interpretation of the contract ultimately may prove invalid, it was improper to resolve the issue against her solely on her own pleading.  In ruling on a demurrer, the likelihood that the pleader will be able to prove his allegations is not the question.”  Aragon-Haas v. Family Security Ins. Services, Inc. (1991) 231 Cal.App.3d 232, 239.

In order to prevail on demurrer, Ronald must establish that the City’s interpretation of the indemnification provision is unreasonable.  Ronald fails to do so.  The indemnification provision does not contain any explicit language excluding losses attributable to the City’s negligence, nor does Ronald point to anything else in membership agreement evidencing the parties’ intent to exclude such losses. 

Ronald fails to cite any authority holding that such indemnification provisions do not apply where the losses are attributable to the indemnitee’s negligence or wrongdoing.  Ronald relies heavily on Leon v. Family Fitness Center (No. 107), Inc.  However, Leon involved the interpretation and enforcement of a release in gym membership agreement.  The question posed in Leon was whether the release provision was sufficiently conspicuous and whether the release clearly, unambiguously and explicitly expressed the specific intent to exculpate a tortfeasor from damage claims based on future negligence or misconduct.  Leon did not address the scope of an indemnification provision.  Leon was also decided on summary judgment, not demurrer, and findings of fact based on undisputed evidence could be made.  Leon certainly did not hold as an issue of law that an indemnification provision like the one presented cannot be enforced in the manner proposed by the City. 

Ronald argues the word “program” is ambiguous and may not include use of fitness equipment.  The City’s interpretation of the word “program” to include use of the facility’s fitness equipment is not unreasonable based on the face of the Cross-Complaint and the Membership Agreement.  As such, the Court must accept the City’s interpretation on demurrer. 

Ronald makes a final argument that the contract must be interpreted against the City because it drafted the agreement and possessed superior bargaining power, citing Crawford v. Weather Shield Mfg., Inc. (2008) 44 Cal.4^th 541, 552.  “In noninsurance contexts, however, it is the indemnitee who may often have the superior bargaining power, and who may use this power unfairly to shift to another a disproportionate share of the financial consequences of its own legal fault…This public policy concern influences to some degree the manner in which noninsurance indemnity agreements are construed. For example, it has been said that if one seeks, in a noninsurance agreement, to be indemnified for his or her own active negligence, or regardless of the indemnitor's fault—protections beyond those afforded by the doctrines of implied or equitable indemnity—language on the point must be particularly clear and explicit, and will be construed strictly against the indemnitee.”  Crawford, supra, 44 Cal.4^th at 552. 

The rules of construction are intended to give effect to the parties’ intent.  As stated above, Ronald fails to cite any case law holding that City’s construction of the indemnification agreement is unreasonable as a matter of law, nor is there anything in the cross-complaint or the Membership Agreement indicating that the parties did not intend the indemnification clause to be applied in the manner advanced by the City.  Ronald’s demurrer is OVERRULED.