Judge: Lisa R. Jaskol, Case: 23NWCV00686, Date: 2025-04-22 Tentative Ruling
Case Number: 23NWCV00686 Hearing Date: April 22, 2025 Dept: 28
Having considered the moving, opposition, and reply papers, the Court rules as follows.
BACKGROUND
A. Prior proceedings
On March 6, 2023, Plaintiff Laramie Leyva (“Plaintiff”) filed this action against Defendants Whole Foods and Does 1-100 for premises liability.
On March 29, 2023, The Court found that case numbers 23STCV01747 and 23NWCV00686 are related within the meaning of California Rules of Court, rule 3.300(a). Case number 23STCV01747 became the lead case. The cases were assigned to Department 31 at the Spring Street Courthouse for all purposes. (The cases were later reassigned to Department 28 in the Spring Street Courthouse.)
On May 3, 2023, Defendant Mrs. Gooch’s Natural Food Markets, Inc. dba Whole Foods Market (“Mrs. Gooch’s” or “Whole Foods”) filed an answer.
On July 5, 2023, Plaintiff amended the complaint to include Defendant Harry Innouye (“Innouye”) as Doe 1. On August 17, 2023, Innouye filed an answer.
On December 11, 2023, Mrs. Gooch’s filed a cross-complaint against Cross-Defendants Network Services Company Inc. (“Network”) and Roes 1-25 for express indemnity (first cause of action), implied contractual indemnity (second cause of action), equitable indemnity (third cause of action), and declaratory relief (fourth cause of action). On February 2, 2024, Network filed an answer to the cross-complaint.
On October 16, 2024, Mrs. Gooch’s filed a motion for summary adjudication with a hearing date of April 22, 2025. On January 15, 2025, Mrs. Gooch’s filed an amended motion for summary adjudication with a hearing date of May 21, 2025.
On November 27, 2024, Plaintiff filed a first amended complaint against Mrs. Gooch’s and Does 1-100 for negligence and premises liability.
On January 2, 2025, Mrs. Gooch’s filed an answer to the first amended complaint.
B. This motion
On October 4, 2024, Network filed a motion for summary judgment or, in the alternative, motion for summary adjudication of Mrs. Gooch's' cross-complaint. The motion was set for hearing on January 16, 2025.
On January 15, 2025, Network filed an amended motion for summary judgment or, in the alternative, motion for summary adjudication. The motion was set for hearing on April 22, 2025. On April 1, 2025, Mrs. Gooch’s filed an opposition. On April 11, 2025, Network filed a reply. On April 16, 2025, Mrs. Gooch’s filed a surreply, which the Court has not considered.
PARTIES’ REQUESTS
Network asks the Court to grant summary judgment or, in the alternative, summary adjudication of Mrs. Gooch’s' cross-complaint.
Mrs. Gooch’s asks the Court to deny the motion.
LEGAL STANDARD
A. Summary judgment and summary adjudication
“‘[F]rom commencement to conclusion, the party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law.’” (LAOSD Asbestos Cases (2023) 87 Cal.App.5th 949, 945, quoting Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 (Aguilar).) “[T]he party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact.” (Aguilar, supra, 25 Cal.4th at p. 850.)
When the moving party is a defendant, it must show that the plaintiff cannot establish at least one element of the cause of action. (Aguilar, supra, 25 Cal.4th at p. 853.) “The defendant has shown that the plaintiff cannot establish at least one element of the cause of action by showing that the plaintiff does not possess, and cannot reasonably obtain, needed evidence.” (Id. at p. 854.) The defendant must “present evidence, and not simply point out that the plaintiff does not possess, and cannot reasonably obtain, needed evidence.” (Ibid.) Thus, “the defendant must ‘support[ ]’ the ‘motion’ with evidence including ‘affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice’ must or may ‘be taken.’ [Citation.] The defendant may, but need not, present evidence that conclusively negates an element of the plaintiff’s cause of action. The defendant may also present evidence that the plaintiff does not possess, and cannot reasonably obtain, needed evidence—as through admissions by the plaintiff following extensive discovery to the effect that he has discovered nothing.” (Id. at p. 855, original emphasis.)
“Supporting and opposing affidavits or declarations . . . shall set forth admissible evidence.” (Code Civ. Proc., § 437c, subd. (d).) “Matters which would be excluded under the rules of evidence if proffered by a witness in a trial as hearsay, conclusions or impermissible opinions, must be disregarded in supporting affidavits.” (Hayman v. Block (1986) 176 Cal.App.3d 629, 639.)
In ruling on the motion, the court must consider all the evidence and all the inferences reasonably drawn from it and must view such evidence and inferences in the light most favorable to the opposing party. (Aguilar, supra, 25 Cal.4th at p. 843.)
B. Indemnification
Civil Code section 2778 provides in part:
“In the interpretation of a contract of indemnity, the following rules are to be applied, unless a contrary intention appears:
“1. Upon an indemnity against liability, expressly, or in other equivalent terms, the person indemnified is entitled to recover upon becoming liable;
“2. Upon an indemnity against claims, or demands, or damages, or costs, expressly, or in other equivalent terms, the person indemnified is not entitled to recover without payment thereof;
“3. 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;
“4. 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, subds. (1), (2), (3), (4).)
Civil Code section 2778 “sets forth general rules for the interpretation of indemnity contracts, ‘unless a contrary intention appears.’ If not forbidden by other, more specific, statutes, the obligations set forth in [Civil Code] section 2778 thus are deemed included in every indemnity agreement unless the parties indicate otherwise.” (Crawford v. Weather Shield Mfg., Inc. (2008) 44 Cal.4th 541, 553 (Crawford).)
“Several subdivisions of [Civil Code section 2778] touch specifically on the indemnitor's obligations with respect to the indemnitee's defense against third party claims.” (Crawford, supra, 44 Cal.4th at p. 553.) “[T]he statute first provides that a promise of indemnity against claims, demands, or liability ‘embraces the costs of defense against such claims, demands, or liability’ insofar as such costs are incurred reasonably and in good faith. [Citation.] Second, the section specifies that the indemnitor ‘is bound, on request of the [indemnitee], to defend actions or proceedings brought against the [indemnitee] in respect to the matters embraced by the indemnity,’ though the indemnitee may choose to conduct the defense. [Citation.].” (Ibid.)
“Where . . . the parties have expressly contracted with respect to the duty to indemnify, the extent of that duty must be determined from the contract and not by reliance on the independent doctrine of equitable indemnity.” (Rossmoor Sanitation, Inc. v. Pylon, Inc. (1975) 13 Cal.3d 622, 628.)
DISCUSSION
A. The first amended complaint
The first amended complaint includes the following allegations:
On or about March 17, 2021, Defendants caused Plaintiff to trip and fall on a motorized pallet jack on the receiving dock at Whole Foods, 5000 Pacific Boulevard, City of Vernon (“premises”). As a result, Plaintiff was injured.
Innoye [sic], Wholes [sic] Food, Inc. and Does negligently owned, controlled, repaired, entrusted, maintained and/or operated a motorized pallet jack, causing it to come into contact with Plaintiff and/or causing Plaintiff to trip and call, injuring and damaging Plaintiff. Defendants owned the motorized pallet jack, which was being used and operated with the owners’ knowledge and consent.
Plaintiff was offloading his truck on the premises and was hit with a pallet operated by an unknown person and knocked to the ground, resulting in injuries to his left leg, left ankle, neck and back.
Defendants owned, leased, operated, maintained, managed or retained some legal interest in the premises. Defendants failed to use reasonable care to protect Plaintiff from the foreseeable harm caused by the dangerous and unsafe conditions that existed at the premises. Defendants knew and should have known that the dangerous conditions were present and/or Defendants (and/or their employees) created such conditions.
Defendants failed to take reasonable steps to repair, replace, or give adequate warning of the dangerous and unsafe conditions of the premises, which Defendants created or otherwise failed to repair despite reasonable time and opportunity to take corrective action. These conditions created an unreasonable risk of harm which Defendants knew about because the Defendants created the condition or because Defendants, in the exercise of reasonable care, should have discovered through reasonable periodic inspections of the premises. This includes creating, allowing, maintaining, and managing a high traffic area where people, include Plaintiff, Defendant and Defendant’s employees, and others, walk, next to motorized pallet jacks, in a loud area, without any warning signs, or any policies or procedures in place to prevent harm.
B. Mrs. Gooch’s’ cross-complaint
Mrs. Gooch’s’ cross-complaint includes the following allegations:
Mrs. Gooch’s is informed and believes that Cross-Defendants entered into a valid legal contract with Whole Foods Services Inc. (“Whole Foods”) of which Mrs. Gooch’s was a direct, intended beneficiary. (The contract is attached to the cross-complaint as Exhibit A.)
Section 11 of the contract is an indemnification clause. Under the contract, Cross-Defendants are obligated to defend, indemnify, and hold harmless Mrs. Gooch’s from any and all claims arising out of the presence or activities of Cross-Defendant (or its business units). According to the contract, the laws of Texas are to govern the claims made in this cross-complaint.
Mrs. Gooch’s complied with its obligations to promptly notify Cross-Defendant of its acts and omissions allegedly causing the subject incident and Mrs. Gooch’s resulting losses arising from Plaintiff’s claims and Mrs. Gooch’s tendered its defense and indemnity to Cross-Defendant.
Mrs. Gooch’s is entitled to recover costs, damages, and fees incurred as a result of enforcing the express indemnity provisions as well as any costs, damages, and fees incurred in litigating and settling Plaintiff’s claims.
Mrs. Gooch’s is entitled to be fully defended and indemnified under Code of Civil Procedure section 1021.6 by Cross-Defendants for any amounts which may in good faith be paid by way of compromise, settlement, or judgement and is further entitled to costs and expenses, including reasonable attorneys’ fees.
In equity and good conscience, Mrs. Gooch’s is entitled to equitable indemnity, apportionment of liability, and contribution from Cross-Defendants according to their respective fault.
C. Undisputed facts
On or about January 12, 2017, Network and Whole Foods’ purchasing company, WFM Purchasing, LP, entered into a Supply Agreement. Under the terms of the Supply Agreement, Network, through its Business Units (supply network), agreed to supply Whole Foods and its subsidiaries with certain prducts.
On March 17, 2021, Plaintiff was delivering goods on behalf of his employer, Imperial Dade, at a Whole Foods location in Vernon, California. Imperial Dade is one of Network’s Business Units.
While Plaintiff was unloading products at Whole Foods’ location and moving backwards, Whole Foods’ employee Harry Inouye drove a motorized pallet jack behind Plaintiff. As Plaintiff moved backwards, he tripped on the forks of the pallet jack, causing him to fall to the ground and sustain injuries.
Plaintiff filed his complaint against Whole Foods on March 6, 2023, asserting a single cause of action for premise liability. Whole Foods answered Plaintiff’s complaint. On December 11, 2023, Whole Foods filed a cross-complaint against Network for express indemnity, implied contractual indemnity, equitable indemnity, and declaratory relief.
D. Network has carried its initial burden on summary judgment or summary adjudication
According to Network, Mrs. Gooch’s cannot establish that the Supply Agreement imposes an obligation on Network to indemnify Mrs. Gooch’s in Plaintiff’s underlying case because the Supply Agreement excludes losses or damages caused by an act, omission, breach or gross negligence of the other party. Network contends that Plaintiff’s asserted damages are the result of Mrs. Gooch’s negligence, barring indemnity under the Supply Agreement.
To support this argument, Network points to the Supply Agreement attached to Mrs. Gooch’s cross-complaint as Exhibit A, which provides in paragraph 11:
“Each party agrees to indemnify and hold harmless the other party, and its affiliates, officers, directors, employees, clients and agents from any and all third party claims, damages liabilities and costs, losses and expenses (including reasonable attorney’s fees and disbursements) with the other party or any of the said persons shall suffer or incur as a result of or attributable to (i) any and all third party claims, damages, liabilities, costs, losses and expenses (including reasonable attorneys’ fees and disbursements) arising out of the indemnifying party’s (and in the case of WFM, any of WFM Location’s ) breach of its representations, warranties, obligations or covenants set forth in this Agreement; (ii) the indemnifying party’s (and in the case of WFM, any WFM Location’s) failure to comply with the terms of this Agreement, provided, however, any such indemnification shall exclude any such losses and expenses caused by the act, omission, breach or gross negligence of the other party.” (Emphasis added.)
Based on the phrase “provided, however, any such indemnification shall exclude any such losses and expenses caused by the act, omission, breach or gross negligence of the other party,” Network asserts that it is not required to indemnify Mrs. Gooch’s for Plaintiff’s damages because Mrs. Gooch’s employee, Harry Inouye, caused Plaintiff’s injury by driving the motorized pallet jack behind Plaintiff. (See evidence supporting UMF 8.)
Based on this evidence, the Court finds that Network has carried its initial burden on summary judgment, shifting the burden to Mrs. Gooch’s.
E. Mrs. Gooch’s has raised a triable issue of fact
Mrs. Gooch’s asks the Court to deny Network’s motion for summary judgment and deny summary adjudication of Mrs. Gooch’s first cause of action for express indemnity and fourth cause of action for declaratory relief. Mrs. Gooch’s contends that in addition to the “mutual” indemnity provision in the Supply Agreement’s paragraph 11 on which Network relies, paragraph 11 of the Supply Agreement contains a separate “unilateral” indemnity provision which states:
“Network agrees to indemnify and hold harmless WFM, its affiliates and each of their officers, directors and employees from any and all claims, damages, liabilities, costs, losses and expenses (including reasonable attorneys’ fees and disbursements) arising out of the presence or activities of Network (or its business units) at any WFM Location (including but not limited to all personal injury, product liability, wrongful termination, harassment or discrimination, workers compensation, disability, tort, strict liability, or contact claims or demands). In cases of third party claims against either party by anyone directly or indirectly employed by the other party (or anyone for whose acts they may be liable), indemnification obligation of the other party will not be limited by a limitation on amount or type of damages, compensation or benefits payable by the other party or its insurer to the employee under worker’s compensation acts, disability benefit acts or other employee benefit acts.”
This “unilateral” indemnity provision applies here, Mrs. Gooch’s argues, because Plaintiff’s employer, Imperial Dade, was a Network “business unit” and Plaintiff’s personal injury action arises out of Imperial Dade’s presence or activities at a Mrs. Gooch’s location. The “unilateral” indemnity provision does not contain the type of exclusion contained in the Supply Agreement’s “mutual” indemnity provision.
In its reply, Network asserts that the “unilateral” indemnity provisions is void under Civil Code section 2784.5, which provides:
“Any provision, promise, agreement, clause, or covenant contained in, collateral to, or affecting any hauling, trucking, or cartage contract or agreement is against public policy, void and unenforceable if it purports to indemnify the promisee against liability for any of the following damages which are caused by the sole negligence or willful misconduct of the promisee, agents, servants, or the independent contractors directly responsible to the promisee, except when such agents, servants, or independent contractors are under the direct supervision and control of the promisor:
“(a) Damages arising out of bodily injury or death to persons.
“(b) Damage to property.
“(c) Any other damage or expense arising under either (a) or (b).
“This section shall not affect the validity of any insurance contract, workmen’s compensation insurance contract, or agreement issued by an admitted insurer as defined by Sections 23 and 24 of the Insurance Code or insurance effected by surplus line brokers under Sections 1760 through 1780 of the Insurance Code.”
(Civ. Code, § 2784.5.)
The Court cannot say as a matter of law that Civil Code section 2784.5 voids the “unilateral” indemnity provision in the Supply Agreement. The Supply Agreement is to be “construed and enforced in accordance with the substantive, but not the conflicts, laws of the State of Texas.” (Supply Agreement, para. 16.) If Texas law governs the agreement, it is unclear why a California statute would void one of its provisions.
Mrs. Gooch’s has raised a triable issue of fact concerning whether Network is required to defend and indemnify Mrs. Gooch’s under the “unilateral” indemnity provision of paragraph 11 of the Supply Agreement. The Court denies Network’s motion for summary judgment and denies Network’s motion for summary adjudication of the first and fourth causes of action.
CONCLUSION
The Court DENIES Cross-Defendant Network Services Company Inc.’s motion for summary judgment of Cross-Complainant Mrs. Gooch’s Natural Food Markets, Inc. dba Whole Foods Market’s cross-complaint.
The Court DENIES Cross-Defendant Network Services Company Inc.’s motion for summary adjudication of the first cause of action for express indemnity in Cross-Complainant Mrs. Gooch’s Natural Food Markets, Inc. dba Whole Foods Market’s cross-complaint.
The Court DENIES Cross-Defendant Network Services Company Inc.’s motion for summary adjudication of the fourth cause of action for declaratory relief in Cross-Complainant Mrs. Gooch’s Natural Food Markets, Inc. dba Whole Foods Market’s cross-complaint.
The Court GRANTS Cross-Defendant Network Services Company Inc.’s motion for summary adjudication of the second cause of action for implied contractual indemnity in Cross-Complainant Mrs. Gooch’s Natural Food Markets, Inc. dba Whole Foods Market’s cross-complaint.
The Court GRANTS Cross-Defendant Network Services Company Inc.’s motion for summary adjudication of the third cause of action for equitable indemnity in Cross-Complainant Mrs. Gooch’s Natural Food Markets, Inc. dba Whole Foods Market’s cross-complaint.
Moving party is ordered to give notice of this ruling.
Moving party is ordered to file the proof of service of this ruling with the Court within five days.