Judge Jill Feeney, Case 20STCV49829 2022-10-24 Tentative Ruling

This is an action for general negligence and premises liability arising from a slip and fall incident which took place in September 2020. Plaintiff Sandra Marlene Bonilla filed her Complaint against All Valley Washer Service, Inc. (“AVWS”), HNG Trade, LLC (“HNG”), and Xiaohong Tang on December 31, 2020.

AVWS moves for summary adjudication against HNG as to AVWS’s second cause of action of its Cross-Complaint on the grounds that HNG was required to indemnify and hold harmless AVWS under the terms of their lease agreement. Specifically, HNG was to indemnify AVWS for injuries caused by a lack of a floor drain.

HNG argues on opposition that AVWS’s motion should be denied because triable issues of material fact remain as to whether Plaintiff’s injuries were caused by the lack of a floor drain or some other factor.

AVWS reiterates arguments from its motion. AVWS also submits new evidence including Plaintiff’s medical records, photographs of the alleged wet floor, Plaintiff’s responses to Form Interrogatories, and photographs of Plaintiff’s injuries.

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 facia 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.” (Code Civ. Proc., § 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.” (Id.) “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.)

“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; Code Civ. Proc., §437c(c).)

AVWS moves for summary adjudication against HNG on the causes of action for express indemnity on the grounds that the lease between AVWS and HNG requires HNG to indemnify AVWS for injuries arising from the lack of a floor drain.

“D. Lessor shall maintain the Property, the Premises, and the utility lines and pipes and venting system servicing the Premises in good condition and repair, free from any latent or patent defects, and in condition suitable for operation of laundry equipment. Lessor shall provide drainage adequate for the laundry equipment. Lessor shall hold Lessee harmless due to the lack or inadequacy of a floor drain…

K. Lessor shall indemnify Lessee and hold Lessee harmless from any and all injury or damage to any person or property arising out of (a) any defect in the premises, (b) the failure of Lessor to provide drainage adequate for said laundry equipment (including but not limited to overflows resulting therefrom), (c) the failure of Lessor to keep the premises, buildings, and laundry space in good repair, or (d) the failure of Lessor to perform any of its obligations under the lease.”

“Parties to a contract . . . may define therein their duties toward one another in the event of a third party claim against one or both arising out of their relationship. Terms of this kind may require one party to indemnify the other, under specified circumstances, for moneys paid or expenses incurred by the latter as a result of such claims. (See Civ. Code 2772 [“Indemnity is a contract by which one engages to save another from a legal consequence of the conduct of one parties, or of some other person”].) They may also 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.)

Here, AVWS’s evidence shows that Plaintiff alleges that she fell in September 2020 after slipping on water that leaked from a malfunctioning washing machine on the floor of the laundry room in the premises owned by Cross-Defendant HNG and leased by AVWS. (UMF Nos. 1-3.) On the date of the accident, AVWS sent a technician to the premises who found that the floor had already been mopped and that there was a wet towel under the washing machine. (UMF No. ¶7.) The technician decided to replace a component on one of the machines and then noticed the room did not have floor drains. (UMF No. 8.) AVWS’s insurer, Traveler’s Indemnity Company of Connecticut, sent tender letters to HNG in October and November of 2020 and January and May of 2021. (UMF No. 19.) The third-party administrator to HNG’s insurer rejected tender on July 30, 2021. (UMF No 22.)

AVWS fails to show that there are no issues of material fact as to whether Plaintiff’s claim falls within the scope of its lease agreement. The terms of the parties’ lease provides that HNG shall indemnify AVWS for injuries arising from HNG’s failure to provide drainage or the lack or inadequacy of a floor drain. AVWS’s only evidence offered to show that Plaintiff’s injuries were caused by the lack of a floor drain are declarations from AVWS’s president and AVWS’s counsel. AVWS’s President’s declaration reiterates claims from Plaintiff’s Complaint, including that she “fell on water while doing laundry” and that the “water leaked from a malfunctioning washing machine.” (Feinsteing Decl., ¶9.) When AVWS dispatched a technician to the laundry room, the floor had already been mopped and a wet towel was placed under a washing machine. (Id., ¶8.)

AVWS argues that HNG’s duty to defend was triggered because Plaintiff was injured after falling in the laundry room of the premises owned by HNG and that there was no floor drain in the room. However, the terms of the parties’ lease firmly state that HNG has a duty to indemnify AVWS from injuries arising from a lack of a floor drain. AVWS does not offer any evidence that Plaintiff’s fall was caused by the lack of a floor drain. Thus, there is no evidence that Plaintiff’s injuries arose from the lack of a floor drain as required by the lease. In short, there is no evidence showing a causal link between the lack of a drain and Plaintiff’s fall.

Although AVWS submits new evidence on reply, the Court may only consider new evidence submitted on reply if the party opposing the summary judgment motion has notice and an opportunity to respond to the new material (Severin Mobile Towing, Inc., v. JPMorgan Chase Bank, N.A. (2021) 65 CA5th 292, 308.) Here, HNG has objected to AVWS’s new evidence on the grounds that the late evidence infringes on its due process rights. Regardless, Plaintiff’s medical records and Form Interrogatory responses again do not include evidence Plaintiff’s fall was caused by a lack of a floor drain. The remaining photographs are unauthenticated and do not show how Plaintiff’s fall was caused by the lack of a floor drain.