Judge: Lee S. Arian, Case: 22STCV25073, Date: 2025-02-05 Tentative Ruling

Case Number: 22STCV25073    Hearing Date: February 5, 2025    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

Background

        On the afternoon of August 12, 2021, Plaintiff Yolanda Macario ("Plaintiff") was walking on the public sidewalk alongside the 7-Eleven store. As she was walking, she slipped and fell on a wet, slick condition on the sidewalk, resulting in her alleged injuries. The dangerous condition was allegedly caused by broken pipe from the 7-Eleven store. At the time, Defendant AK Investment Property, LLC ("AKI") owned the property and leased it to 7-Eleven, Inc. ("7-Eleven") under a lease agreement that obligated 7-Eleven to defend and indemnify AKI for claims arising out of its use of the premises.

        AKI tendered its defense to 7-Eleven, but 7-Eleven rejected the tender. On December 1, 2022, AKI filed a cross-complaint against 7-Eleven for indemnity, contribution, and declaratory relief. AKI now moves for summary adjudication on two issues:

Issue 1 – 7-Eleven has a duty to defend AKI against Plaintiff’s claims as a matter of law under the First Cause of Action for Express Indemnity in AKI’s cross-complaint.

Issue 2 – 7-Eleven has a duty to indemnify AKI against Plaintiff’s claims as a matter of law under the First Cause of Action for Express Indemnity in AKI’s cross-complaint.

Cross Defendant 7-Eleven did not file an opposition.

Legal Standard 

        In reviewing a motion for summary judgment or adjudication, 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).)¿If the moving party fails to carry its burden, the inquiry is over, and the motion must be denied. (See Id.; see also Consumer Cause, Inc. v. SmileCare (2001) 91 Cal.App.4th 454, 468.)¿Even if the moving party does carry its burden, the non-moving party will still defeat the motion by presenting evidence of a triable issue of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849-50.) 

        “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.) 

Discussion

The Court finds that AKI met its initial burden in establishing 7-Eleven’s duty to indemnify and defend. AKI and 7-Eleven executed a lease agreement, first amendment, and tenant estoppel certificate as of March 28, 2013 (the "Contract"). [(Ex. A attached to the Compendium of Evidence ("COE"), Lease between 7-Eleven and AKI at pp. 1-47.)]

Section 15 of the lease states in part:

"Tenant shall indemnify and hold Landlord harmless from any claim, liability, loss, cost, or obligation owed to or asserted against Landlord by any third party, arising from any damage or injury caused by the use of the Premises by Tenant, its agents, employees, or contractors, excepting in each case any such damages, injuries, claims, liability, losses, costs, or obligations as shall result from conditions existing on the premises prior to the commencement of the term, acts or omissions of Landlord, its agents, employees, or contractors, or the failure of Landlord to perform its obligations under this Lease." [(Ex. A attached to the COE, Lease between 7-Eleven and AKI at p. 13, Section 15.)]

Additionally, Section 29 provides that "Tenant shall maintain the Common Area, at its sole expense." [(Ex. A attached to the COE, Lease between 7-Eleven and AKI at pp. 4-5, Section 8, and p. 17, Section 29; Ex. D attached to the COE, Deposition of Dieter Tack at pp. 31:3-24.)]

Plaintiff is suing for negligence and premises liability arising from an incident on August 12, 2021, when she was walking on the public sidewalk alongside the 7-Eleven store. As she walked, she slipped and fell on a wet, slick condition caused by a pipe leak. [(Ex. B attached to the COE, Plaintiff’s Complaint for Damages at ¶ 11; Ex. C attached to the COE, Deposition of Yolanda Candelario Macario at pp. 21:1-13, 24:11-14, 27:3-6.)]

The lease agreement contains an express indemnity provision in Section 15, requiring 7-Eleven to indemnify and hold the landlord harmless from claims arising from any damage or injury caused by the tenant’s use of the premises. Plaintiff alleges that she slipped and fell on a hazardous condition caused by a pipe leak on the public sidewalk adjacent to the 7-Eleven store, which falls within the indemnity provision. Because Plaintiff's claims arise from an alleged hazardous condition related to the premises, they fall within the broad scope of the indemnity agreement. Therefore, 7-Eleven has a duty to indemnify AK Investment Property, LLC.

Furthermore, under subdivision 4 of section 2778 of the Civil Code, every indemnity contract includes a duty to defend unless the agreement provides otherwise, requiring the indemnitor 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.)

Plaintiff did not file an opposition and therefore failed to raise a triable issue of fact. Accordingly, the Motion for Summary Adjudication 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’s 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.