Judge Kerry Bensinger, Case Number: 19STCV36598, Date: 2023-08-24 Tentative Ruling

On October 15, 2019, Plaintiff, Kevin Fabian Jimenez, initiated this action against Defendants, Holst Brothers, Inc. (“Holst”) and Morteza Ejabat (“Eja”) as trustee for the Morteza Ezjabat Trust, for Negligence, Negligence per se, and Premises Liability. Plaintiff alleges he sustained injuries while performing electrical work at 32853 Pacific Coast Highway, Malibu CA 90265 (the “Property”). Plaintiff was employed by Bob Hart’s Electric, Inc. (“Hart”) at the time of incident. Holst, the general contractor, subcontracted with Hart to perform electric work at the Property. The subcontract contains an indemnity clause and duty-to-defend language.

On December 30, 2019, Holst filed a Cross-Complaint and later named Hart as Moe 1. The Cross-Complaint asserts causes of action for (1) Breach of Contract, (2) Express Indemnity, (3) Total Equitable Indemnity, (4) Partial Equitable Indemnity, (5) Contribution and Repayment, (6) Declaratory Relief, and (7) Negligence.

On June 5, 2023, Holst filed this motion for summary adjudication as to the Second and Sixth Causes of Action of their Cross-Complaint.

The motion was heard on August 24, 2023. The Court issued a tentative ruling granting the motion. In particular, the Court concluded as a matter of law that Hart was required to defend Holst against Plaintiff’s claims pursuant to the indemnity/duty to defend provision in the parties’ subcontract. However, at the hearing, Hart argued for the first time that the operative contractual provision were null and void because they violated public policy as codified in Civil Code section 2782, subdivisions (a), (d), and (e). Given that Hart’s principal basis for opposing the motion was the newly raised public policy argument, the Court continued the hearing and ordered supplemental briefing limited to the public policy issue. The Court also ordered Hart to attach a copy of the transcript of the August 25, 2023 hearing to their supplemental brief.

The parties submitted supplemental briefs. Hart also filed a copy of the transcript of the August 25, 2023 hearing. After consideration of the arguments and supplemental filings, the Court rules as follows.

In reviewing a motion for summary judgment, courts must apply a three-step analysis: “(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent’s claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.” (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294.)

“[T]he 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, subd. (p)(2).) A moving defendant need not conclusively negate an element of plaintiff’s cause of action. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854.)

To meet this burden of showing a cause of action cannot be established, a defendant must show not only “that the plaintiff does not possess needed evidence” but also that “the plaintiff cannot reasonably obtain needed evidence.” (Aguilar, supra, 25 Cal.4th at p. 854.) It is insufficient for the defendant to merely point out the absence of evidence. (Gaggero v. Yura (2003) 108 Cal.App.4th 884, 891.) The defendant “must also produce evidence that the plaintiff cannot reasonably obtain evidence to support his or her claim.” (Ibid.)¿ The supporting evidence can be in the form of affidavits, declarations, admissions, depositions, answers to interrogatories, and matters of which judicial notice may be taken. (Aguilar, 25 Cal.4th at p. 855.)

“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.” (Code Civ. Proc., § 437c, subd. (p)(2).) The plaintiff may not merely rely on 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.” (Ibid.) “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.)

The court must “liberally construe the evidence in support of the party opposing summary judgment and resolve all doubts concerning the evidence in favor of that party,” including “all inferences reasonably drawn therefrom.” (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1037; Aguilar, supra, 25 Cal.4th at pp. 844-45.) “On a summary judgment motion, the court must therefore consider what inferences favoring the opposing party a factfinder could reasonably draw from the evidence. While viewing the evidence in this manner, the court must bear in mind that its primary function is to identify issues rather than to determine issues. [Citation.] Only when the inferences are indisputable may the court decide the issues as a matter of law. If the evidence is in conflict, the factual issues must be resolved by trial.” (Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 839.) “Put another way, have defendants conclusively negated a necessary element of the [plaintiff’s] case or demonstrated that under no hypothesis is there a material issue of fact that requires the process of trial?” (Jeld-Wen, Inc. v. Superior Court (2005) 131 Cal.App.4th 853, 860 [cleaned up].) Further, “the trial court may not weigh the evidence in the manner of a factfinder to determine whose version is more likely true. [Citation.] Nor may the trial court grant summary judgment based on the court’s evaluation of credibility. [Citation.]” (Id. at p. 840; see also Weiss v. People ex rel. Department of Transportation (2020) 9 Cal.5th 840, 864 [“Courts deciding motions for summary judgment or summary adjudication may not weigh the evidence but must instead view it in the light most favorable to the opposing party and draw all reasonable inferences in favor of that party”].)

Holst requests judicial notice of (1) Plaintiff’s Complaint, filed 10/15/19, (2) Holst’s Answer to the Complaint, filed 12/30/19, (3) Holst’s Cross-Complaint, filed 12/30/19, and (4) Holst’s Amendment to the Cross-Complaint, filed 10/14/20. The unopposed requests are GRANTED. (Evid. Code, § 452, subd. (d).)

Hart requests judicial notice of the Joint Stipulation to Continue Trial Date and Order, filed 8/1/23, and Holst’s Cross-Complaint. The unopposed requests are GRANTED. (Evid. Code, § 452, subd. (d).)

Hart submits 18 objections[2] to the Declarations of Jens Holst, James P. Souza, and Kevin E. Barry. Objections 1-14 pertain to the Jens Holst Declaration. Objections 15-17 pertain to the Souza Declaration. Objections 18 pertains to the Barry Declaration. The Court need not rule on these objections because they are not material to the disposition of the motion. (Code Civ. Proc., § 437c, subd. (q).)

This matter involves a personal injury lawsuit filed by Plaintiff Kevin Fabian Jimenez. The incident occurred on or about May 15, 2018 at 32860 Pacific Coast Highway, Malibu, California 90265 (the “Property”). (Undisputed Material Fact (“UMF”) 1.) On October 15, 2019, Plaintiff filed a Complaint against Holst, alleging causes of action for negligence and negligence per se. (UMF 2.) Plaintiff was performing electrician technician duties as an employee of Hart at the Property when Plaintiff’s injuries occurred. (UMF 3.)

On December 30, 2019, Holst answered the Complaint and filed its Cross-Complaint for (1) Breach Of Written Contract, (2) Express Indemnity, (3) Total Equitable Indemnity, (4) Partial Equitable Indemnity, (5) Contribution And Repayment, (6) Declaratory Relief, and (7) Negligence. (UMF 4.) Holst later filed a MOE amendment naming Hart as MOE #1. (UMF 5.)

On or about February 5, 2018, Jens Holst at Holst and Brian Hart at Hart entered into a Subcontract for Hart to provide specified “Low Voltage Lighting” at the Property.

Pursuant to the Subcontract, Hart was obligated to 1) indemnify, 2) defend, and 3) hold harmless Holst of and from “Any and all claims, demands, causes of action, damages, costs, expenses, losses or liabilities, in law or in equity, of every kind and nature whatsoever for, but not limited to, injury to or death of Subcontractor, any Subcontractor hereunder, or any employees of Contractor, Subcontractor or any such Subcontractor…. arising out of or in any manner directly or indirectly caused, regardless of any negligence of Contractor or its agents or servants, be it active or passive including but not limited to Contractor's supervision of the work of improvement or the work place…. (UMF 8.)

With the exception that the following provisions shall in no event be construed to require Indemnification by Subcontractor in excess of that permitted under the public policy of the State of California, Subcontractor shall indemnify, defend, and save harmless Contractor and its agents and servants, and each of them of and from.

Any and all claims, demands, causes of action, damages, costs, expenses, losses or liabilities, in law or in equity, of every kind and nature whatsoever (for, but not limited to, injury to or death of Subcontractor, any Subcontractor hereunder, or any employees of Contractor, Subcontractor or any such Subcontractor, and damage to or destruction of property of Contractor or the project which is the subject of this agreement, including extra work), arising out of or in any manner directly or indirectly caused, regardless of any negligence of Contractor or its agents or servants, be it active or passive including but not limited to Contractor's supervision of the work of improvement or the work place except the sole negligence or willful misconduct of Contractor or its agents or servants; and, any and all penalties imposed on account of the violation of any law or regulation, compliance with which is left by this contract to the part Subcontractor.

Subcontractor shall, at Subcontractor's own cost, expense and risk, defend any and all suits, actions or other legal proceedings that may be brought or instituted by third persons against Contractor, its agents or servants or any two or more of them, on any such claim, demand or cause of action of such third persons, or to enforce any such penalty; shall pay and satisfy any judgment or decree that may be rendered against Contractor or its agents or servants, or any two or more of them, in any suit, action or other legal proceeding; and shall reimburse contractor and its agents and servants for any and all legal expense incurred by each of them in connection therewith or in enforcing the indemnity granted in this paragraph.

Subcontractor's obligation to defend is independent and separate from Subcontractors obligation to indemnify and hold harmless hereunder, such duty being a separate consideration for this agreement.

Holst also provided notice of the Complaint and its Cross-Complaint and tendered its defense to HART under Section 10 of the Subcontract. Hart, by its insurance carrier, denied this tender in writing on January 28, 2021. (UMF 10.) To this date, Hart has not accepted, and indeed has denied, Holst’s attempts to tender Plaintiff’s Complaint for a defense of the Complaint. (UMF 11.)

Issue 1: Under Holst’s Second Cause of Action for Express Indemnity in its Cross-Complaint, Hart owed an immediate duty to defend Holst upon proper tender of/for defense of Plaintiff’s Complaint/claim to Hart.

Issue 2: Under Holst’s Sixth Cause of Action for Declaratory Relief in its Cross-Complaint, Hart owed an immediate duty to defend Holst upon proper tender of/for defense of Plaintiff’s Complaint/claim to Hart.

Issue 3: Under Holst’s Second and Sixth Causes of Action for Express Indemnity and Declaratory Relief, and under the express terms of the subject Subcontract (and under prevailing and supporting California law), Hart owes a duty to reimburse Holst for all attorney fees and other fees and litigation costs incurred to date in defense of Plaintiff’s claim/Complaint, and until the conclusion of Plaintiff’s action and/or Hart accepts in full Holst’s tender of defense of Plaintiff’s claim/Complaint.

The essential facts are not in dispute. The parties agree Holst subcontracted with Hart for the installation of low voltage lighting at the Property. The agreement is evidenced by a signed written contract which contains an indemnity provision. The indemnity provision also contains a “independent and separate” duty to defend paragraph that requires Hart to defend Holst against “any and all suits” brought by third parties against Holst.

That duty to defend encompasses Plaintiff’s suit. Plaintiff suffered an injury while installing the low voltage lighting at the Property and while employed by Hart. Plaintiff initiated the underlying action, prompting Holst to tender its demand on Hart to indemnify and defend Holst from Plaintiff’s claims. Hart refused the demand and Holst has incurred expenses in defending against Plaintiff’s claims. (UMF 1-11.)

Against this background, Holst moves for summary adjudication on two of its causes of action seeking a ruling on Hart’s duty to defend.[4] Holst has the initial burden to establish a prima facie case. As this is a contractual dispute, Holst relies upon the language of the contract, and, based thereon, asserts there are no triable issues of material fact.

Hart raises three challenges to Holst’s prima facie case: (1) Holst did not adequately plead/seek the requester relief – duty to defend – in its cross-complaint; (2) Holst did not provide sufficient facts at the time Holst tendered its demand for a defense of Plaintiff’s claims; and (3) Holst cannot seek adjudication of issues that do not completely dispose of the Second or Sixth Causes of Actions. Each argument lacks merit.

“A summary adjudication motion is directed to the issues framed by the pleadings.” (Maria D. v. Westec Residential Sec. (2000) 85 Cal.App.4th 125, 132.)

Hart argues the motion should be denied because the Second and Sixth Causes of Action are based on a duty to indemnify and not a duty to defend. As such, the motion seeks adjudication of issues that go beyond the scope of the pleadings. In support Hart focuses on paragraph 21 of the Second Cause of Action and paragraph 38 of the Sixth Cause of Action.

At paragraph 21 of the Second Cause of Action, the Cross-Complaint alleges, “CROSS-Defendants owe CROSS-Complainant full and complete indemnity, under the express terms of their respective Subcontracts, for the full amount of any judgment which may be entered in favor of Plaintiff and against CROSS-Complainant in this action, including for all costs, expenses, expert fees and attorneys' fees which may be incurred by or on behalf of CROSS-Complainant in the defense of Plaintiff's claims, the claims of any other CROSS-Complainant, and in the pursuit of this CROSS-Complaint.” (Cross-Complaint, ¶ 21, emphasis added.)

But there is more to the language of the Second Cause of Action. The Cross-Complaint also alleges “Pursuant to California Civil Code sections 2778(3)[5] and 2778(4)[6], this indemnity obligation includes attorneys' fees and all other costs of defense incurred in good faith and to the exercise of reasonable discretion.” (Cross-Complaint, ¶ 16.) “Cross-Complainant tendered its defense and indemnity to Cross-Defendants, and demanded defense and indemnity from Cross-Defendants under the express, written terms of their respective Subcontracts, .... Cross-Defendants have not accepted the defense and indemnity tender of Cross-Complainant, although Cross-Defendants owe a contractual obligation to accept such tender, and to indemnify Cross-Complainant from Plaintiff’s claims. (Cross-Complaint, ¶ 20.) In paragraph 22, Holst specifically refers to Hart’s failure to “defend and indemnify.” Paragraph 12, which is incorporated by reference into the Second and Sixth Causes of Action, specifically states that Hart has breached one or more provisions of the contract “(b) by refusing to defend CROSS-Complainant.” The duty to defend is adequately pled and ripe for summary adjudication.

The Sixth Cause of Action incorporates all the prior allegations and seeks declaratory relief. While paragraph 38 leads in with the term indemnification, the paragraph also discusses the duty to defend. The Cross-Complaint alleges, “A dispute has arisen and an actual controversy exists between CROSS-Complainant and CROSS-Defendants, and each of them, as to whether said CROSS-Defendants, or any of them, must indemnify CROSS-Complainant for damages, if any, which CROSS-Complainant may be obligated to pay to Plaintiff and/or any other person or entity, and as to whether CROSS-Defendants and each of them or any of them must pay reasonable attorneys' fees, costs and expenses incurred by CROSS-Complainant in the defense of said action. [¶] A declaration of the right to indemnity is necessary and proper as this CROSS-Complainant has no adequate remedy at law, and in order to avoid the circuitry and multiplicity of actions that would otherwise be required if CROSS-Complainant must defend this action and then bring a separate action against CROSS-Defendants and each of them.” (Emphasis added.) Given that this cause of action seeks declaratory relief, incorporates by reference the prior allegations, and specifically seeks adjudication of the duty to defend, the cause of action is adequately pled and ripe for purposes of summary adjudication of the duty to defend.

A contractual promise to “defend” another against specified claims clearly connotes an obligation of active responsibility, from the outset, for the promisee’s defense against such claims. The duty promised is to render, or fund, the service of providing a defense on the promisee’s behalf—a duty that necessarily arises as soon as such claims are made against the promisee, and may continue until they have been resolved. (Crawford v. Weather Shield Mfg., Inc. (2008) 44 Cal. 4th 541, 553-54 (Crawford).)

Hart argues a duty to defend is triggered when, at the time of tender, facts have been alleged by the plaintiff which would give rise to a duty to indemnify the defendant/indemnitee (here, Holst). Because Plaintiff’s Complaint[7] does not allege any actionable conduct against Hart, Hart argues the duty to defend is not triggered. However, Hart turns a blind eye to the indemnity provision of the parties’ contract which does not condition a duty to defend solely upon actionable conduct alleged against Hart. Rather, the indemnity provision, here, states “Subcontractor shall, at Subcontractor’s own cost, expense and risk, defend any and all suits, actions or other legal proceedings that may be brought or instituted by third persons against Contractor, its agents or servants or any two or more of them, on any such claim, demand or cause of action of such third persons, or to enforce any such penalty.” (Declaration of Jens Holst, ¶ 9, emphasis added.) Under the plain terms of the agreement, Hart’s duty to defend is not limited in the way Hart describes.[8] As it is undisputed Plaintiff’s Complaint arises from work Plaintiff performed under the subcontract and while employed by Hart, Holst’s tender of defense triggered Hart’s duty to defend.

Whether a duty, such as a duty to defend, can be separately adjudicated and resolved was specifically addressed and answered in Linden Partners v. Wilshire Linden Associates (1998) 62 Cal.App.4th 508. In Linden, the defendants argued on appeal that the trial judge erred by granting summary adjudication on the duty to be accurate because: “(1) the issue of duty… is not the kind of “issue of duty” contemplated by Code of Civil Procedure section 437c, subdivision (f); and (2) the ruling did not dispose of an entire cause of action or defense, nor did it dispose of any portion of the action with its determination of an issue of duty.” (Id. at p. 517.) Hart makes the same arguments here. Linden specifically rejected those arguments.

The Linden Court wrote: “We believe it may fairly be concluded from settled authority and upon a reasonable interpretation of legislative intent that if, under the facts and circumstances of a given case, a court finds it appropriate to determine the existence or nonexistence of a duty in the nature of a contractual obligation, it may properly do so by a ruling on that issue presented by a motion for summary adjudication.” (Id. at p. 519.) Having determined that a contractual duty can be resolved by way of summary adjudication, the Linden Court next addressed the question whether the matter can be summarily adjudicated if it does not dispose of the entire cause of action. The Linden Court stated, “We hold that on a motion for summary adjudication, the court may rule whether a defendant owes or does not owe a duty to plaintiff without regard for the dispositive effect of such ruling on other issues in the litigation, except that the ruling must completely dispose of the issue of duty.” (Id. at p. 522.) The court went on to explain: “We believe that the plain meaning of this language is that a motion for summary adjudication may be granted or denied as to any one of these substantive areas, standing alone, and without reference to the dispositive effect of such ruling on any of the companion substantive areas. A ruling which “completely disposes” of an issue of duty as required by the last sentence of the section [CCP section 437c], but which has no dispositive impact on other issues would appear to be fully in conformance with legislative intent and the straightforward, unambiguous language of the section.” (Id. at p. 520.)

Hart argues the motion should be denied because Holst seeks adjudication of Hart’s purported duty to defend and duty to reimburse Holst for costs of defense pursuant to the Second and Sixth Causes of Action but that the resolution of that issue does not dispose of the entirety of the causes of action. Linden forecloses Hart’s arguments. Here, it is undisputed that Hart’s purported duty to defend is contractual in nature. Determination of a duty to defend in the nature of a contractual obligation is a matter of law appropriate for summary adjudication. (Linden Partners, at pp. 518-19.) Moreover, the issue is ripe for adjudication. And the Court can and does resolve the entirety of the issue related to the duty to defend.

At the August 24, 2023 hearing, Hart argued for the first time that the indemnity/duty to defend provision violates public policy. That policy, Hart contends, is codified in Civil Code section 2782, subdivisions (a), (d), and (e).[9] A review of these sections, however, does not support Hart’s argument.

Except as provided in Sections 2782.1, 2782.2, 2782.5, and 2782.69 , provisions, clauses, covenants, or agreements contained in, collateral to, or affecting any construction contract and that purport to indemnify the promisee against liability for damages for death or bodily injury to persons, injury to property, or any other loss, damage or expense 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, or for defects in design furnished by those persons, are against public policy and are void and unenforceable; provided, however, that this section shall not affect the validity of any insurance contract, workers' compensation, or agreement issued by an admitted insurer as defined by the Insurance Code (emphasis added).

Hart argues the “indemnity language in the Holst subcontract limits Hart’s defense indemnity obligation by the very same language (“sole negligence or willful misconduct” of Holst) as set forth in Section 2782(a) and therefore renders the Indemnity provisions void and unenforceable.” (Supp. Opp., p. 3:24-26.) However, as Holst points out, subdivision (a) pertains to indemnity provisions. This motion seeks adjudication as to Hart’s duty to defend. Additionally, Hart misstates the indemnity provision in this case. Section 10 expressly states that Hart is to indemnify Holst for “any and all claims . . . arising out of or in any manner directly or indirectly caused, regardless of any negligence of Contractor or its agents . . . except the sole negligence or willful misconduct of Contractor or its agents or servants (emphasis added.)” (Declaration of Jens Holst, ¶ 9.) The indemnity provision is consistent with public policy as codified in this subdivision. As Holst points out, the allegations in the Complaint, and as incorporated in the Cross-Complaint, do not seek damages for bodily injury “arising from the sole negligence or willful misconduct of” Holst.

For all construction contracts, and amendments thereto, entered into after January 1, 2009, for residential construction, as used in Title 7 (commencing with Section 895) of Part 2 of Division 2, all provisions, clauses, covenants, and agreements contained in, collateral to, or affecting any construction contract, and amendments thereto, that purport to insure or indemnify, including the cost to defend, the builder, as defined in Section 911, or the general contractor or contractor not affiliated with the builder, as described in subdivision (b) of Section 911, by a subcontractor against liability for claims of construction defects are unenforceable to the extent the claims arise out of, pertain to, or relate to the negligence of the builder or contractor or the builder’s or contractor’s other agents, other servants, or other independent contractors who are directly responsible to the builder, or for defects in design furnished by those persons, or to the extent the claims do not arise out of, pertain to, or relate to the scope of work in the written agreement between the parties.

A subcontractor shall owe no defense or indemnity obligation to a builder or general contractor for a construction defect claim unless and until the builder or general contractor provides a written tender of the claim ....

Hart argues the indemnity/defense provision violates subdivisions (d) and (e) because Plaintiff Jimenez’s injuries arose from a construction defect. Specifically, the scaffolding which collapsed under Plaintiff was constructed by a Holst employee. However, on its face, these subdivisions do not apply. Plaintiff has not made a claim for a construction defect; he has alleged negligence and premises liability. Moreover, Plaintiff does not allege the scaffolding broke because of some design defect, rather Plaintiff alleges the scaffolding broke because it was built without due care. Reference to subdivisions (d) and (e) is inapposite.

In sum, Hart’s procedural attacks and public policy arguments do not undermine Holst’s prima facie case. The burden shifts. Hart fails to raise any triable issues of material fact.

Accordingly, the motion for summary adjudication as to Issues 1, 2, and 3 is GRANTED.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue. If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.

[1] Hart argues the motion is untimely because at the time this motion was filed, the hearing for the motion was scheduled less than 30 days away from the September 11, 2023 trial date. The argument lacks merit. Trial has since been continued to March 7, 2024, and further, Hart has opposed the substance of the motion. The Court considers the motion herein.

[2] These objections are misnumbered, beginning with Objection No. 13.

[3] These facts are set forth in support of each issue to be adjudicated.

[4] Holst created several of its own problems by not pleading the duty to defend as a separate cause of action.

[5] 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. (Civ. Code, § 2778(3).)

[6] 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), emphasis added.)

[7] In passing, Hart points out, but does not develop the significance of Holst’s failure to include the Complaint when tendering its defense. Even if developed, Holst’s Cross-Complaint incorporates Plaintiff’s Complaint by reference. (See Cross-Complaint, ¶ 6.)

[8] Hart relies on Alumna Systems Concrete Construction of California v. Nibbi Bros. Inc. (2016) 2 Cal.App.5th 620 (Alumna Systems) for the proposition that a case involving personal injuries does not trigger a duty to defend. However, Alumna Systems has no application here for two reasons: first, the Court has found the Cross-Complaint adequately pleads a duty to defend. Second, and unlike Alumna Systems, the expansive contractual language encompasses “any and all claims” such as claims for personal injury, as well as “suits… that may be brought or instituted by third persons against Contractor.”

[9] In its supplemental brief, Hart also contends the indemnity provision in this case is overbroad and thus distinguishable from the indemnity agreement in Crawford. The Court does not address this argument for at least three reasons. First, the Court explicitly continued the hearing “to allow briefing on this public policy issue, the 2782 issue.” (8/24/23 Transcript, p. 26:14-16.) Despite that clear instruction, Hart attempts to re-litigate Crawford’s application. Second, Hart had the opportunity to make their points previously, did so in their opposition papers and made their points at the August 24, 2023 hearing. (See 8/24/23 Transcript p. 10:9-15.) The Court was satisfied that the indemnity provision, while broader than the one in Crawford, was sufficiently limited. Indeed, the indemnity provision comports with Civil Code section 2782, subdivision (a). (See discussion regarding Subdivision (a), infra.) Third, the crux of Hart’s supplemental brief is that the indemnity/defense provision violates Civil Code section 2782. Thus, the Court need not revisit Crawford. The only remaining issue is the applicability of Civil Code section 2782. And, as discussed, Hart’s reliance on section 2782 is misplaced.