Judge: Kenneth J. Medel, Case: 37-2021-00008629-CU-CR-CTL, Date: 2023-09-29 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - September 28, 2023

09/29/2023  09:30:00 AM  C-66 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Kenneth J Medel

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Civil - Unlimited  Civil Rights Summary Judgment / Summary Adjudication (Civil) 37-2021-00008629-CU-CR-CTL MCLEMORE VS MCI METRO [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion for Summary Judgment and/or Adjudication, 05/12/2023

HP COMMUNICATIONS, INC.'s Motion for Summary Adjudication against SC Services, Inc. as to the Sixth Cause of Action for Declaratory Relief [Duty to Defend]. It is undisputed that HPCI entered into a valid and enforceable written subcontract with SC Services, whereby SC Services contracted to excavate and dig for the installation of conduit along the streets and sidewalks in the City of Chula Vista, pursuant to plans identified as S07_UG03. SC Services work pursuant to its subcontract with HPCI included performing excavation at/near the sidewalk at/near the north curb of the 600 block of H Street, where Plaintiff, in the underlying complaint, alleges he sustained an injury.

Included within HPCI's subcontract with SC Services was an Indemnity clause whereby SC Services agreed to defend, indemnify, and hold HPCI harmless from and against 'any and all suits, actions, legal or administrative proceedings, claims, demands, damages, liabilities, interest, attorney's fees, costs, expenses and losses of whatever kind or nature . . . in connection with or incidental to the performance of this subcontract . . . and in any manner directly or indirectly caused, occasioned or contributed to in whole or in part, or claimed to be caused, occasioned or contributed to in whole or in part by reason of any act, omission, fault or negligence whether active or passive of subcontractor [SC Services], its lower tier suppliers, subcontractors or anyone acting under its own direction or control or on its behalf.

As alleged in Plaintiff's Complaint, Plaintiff claims that on the night of February 25, 2020, he was injured when he encountered an improperly covered hole/excavation on the sidewalk. The subject hole/excavation was created by SC Services and SC Services placed wood and cones on and around the subject hole. Regardless of whether SC Services did or did not properly cover the hole and regardless of whether the wood was or was not properly secured over the hole, all such work was performed by SC Services. Accordingly, it is indisputable that SC Services' work (i.e., the creation and covering of the hole/excavation) is the subject of Plaintiff's claims and allegations. As a direct result of the claims and allegations made by Plaintiff relating to SC Services' work under its subcontract agreement with HPCI, HPCI has been subjected to lawsuits filed against it by MCI METRO ACCESS TRANSMISSION SERVICES, LLC. ('MCI') and the CITY OF CHULA VISTA ('City'). In that the claims against HPCI arise from, are connected with, and are incidental to the work performed by SC Services, SC Services' duty to defend HPCI has been triggered.

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