Judge Marcella O. Mclaughlin, Case 37-2019-00043699-CU-BC-CTL 2024-02-16 Tentative Ruling

Judge: Marcella O. Mclaughlin, Case: 37-2019-00043699-CU-BC-CTL, Date: 2024-02-16 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - February 15, 2024

02/16/2024 01:30:00 PM C-72 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Marcella O McLaughlin

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Civil - Unlimited Breach of Contract/Warranty Summary Judgment / Summary Adjudication (Civil) 37-2019-00043699-CU-BC-CTL KINSALE INSURANCE COMPANY VS XL STAFFING INC [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion for Summary Judgment and/or Adjudication, 11/30/2023

Plaintiff Kinsale Insurance Company's motion for summary adjudication is GRANTED.

A. The court rules on the request for judicial notice and evidentiary objections as follows: Kinsale's request for judicial notice is granted. Evid. Code § 452(d). 'However, while courts are free to take judicial notice of the existence of each document in a court file, including the truth of results reached, they may not take judicial notice of the truth of hearsay statements in decisions and court files.' Lockley v. Law Offices of Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875, 882.

The court declines to rule on the evidentiary objections asserted in XL Staffing's opposition separate statement. 'A separate statement is not, in and of itself, evidence.' Brown v. El Dorado Union High School Dist. (2022) 76 Cal.App.5th 1003, 1020.

The court declines to rule on plaintiff's evidentiary Kinsale's objections as they do not comply with formatting requirements set forth in CRC 3.1354(b)(3).

B. 'Indemnity is a contract by which one engages to save another from a legal consequence of the conduct of one of the parties, or of some other person.' Civ. Code § 2772. Civil Code section 2778 sets forth general rules for the interpretation of indemnity contracts 'unless a contrary intention appears.' As relevant here, subdivision 4 of section 2778 provides that '[t]he person indemnifying is bound, on request for the person indemnified, to defend actions or proceedings brought against the latter in respect to the matters embraced by the indemnity[.]' The California Supreme Court has interpreted section 2778(4) to mean that, 'unless the parties' agreement expressly provides otherwise, a contractual indemnitor has the obligation, upon proper tender by the indemnitee, to accept and assume the indemnitee's active defense against claims encompassed by the indemnitee provision.' Crawford v. Weather Shield Mfg., Inc. (2008) 44 Cal.4th 541, 555. Claims 'encompassed' or 'embraced' by the indemnity provision include 'those which, at the time of tender, allege facts that would give rise to a duty to indemnify.' Id. at 558.

Here, it is undisputed that the parties entered into the Hospitality Vendor Agreement whereby XL Staffing agreed provide security services Kinsale's insured, Rich's San Diego ('RSD'). (UMF 1.) It is further undisputed that the Hospitality Vendor Agreement contains an indemnity provision, which requires XL Staffing to 'indemnify and save harmless [RSD] from any and all claims resulting out of negligence on the part of the [XL Staffing], it's [sic] employees or officers.' (UMF 3.) The indemnity Calendar No.: Event ID: TENTATIVE RULINGS

3059216 CASE NUMBER: CASE TITLE: KINSALE INSURANCE COMPANY VS XL STAFFING INC [IMAGED] 37-2019-00043699-CU-BC-CTL provision does not limit or exclude XL Staffing's duty to defend. (See Pltf.'s Ex. 1.) Finally, it is undisputed that RSD tendered its defense to XL Staffing. (UMF 16.) In light of the foregoing, the court finds that XL Staffing had a duty to defend RSD against claims 'embraced' by the indemnity obligation. See Crawford, 44 Cal.4th at 555, 558; see also Civ. Code § 2778(4). The complaint in the underlying action – Lopez v. RICH's San Diego, SDSC Case No.

2013-80607 – alleges that XL Staffing breached its duty of care to Lopez by failing to intervene in an altercation between nightclub patrons, failing to provide an adequate number of security staff, and failing to adequately train its security staff to identify and intervene in confrontations. (Pltf.'s Ex. 2 at ¶ 20.) These allegations were sufficient to trigger XL Staffing's duty to defend. See Davidson v. Welch (1969) 270 Cal.App.2d 220, 235 (indemnitor required to defend where allegations of complaint contained the 'potential for liability').

XL Staffing's arguments to the contrary are unavailing. The fact that the indemnity provision uses the term 'employees' rather than 'Aggrieved Employees' is irrelevant because Lopez sued XL Staffing – not any of its employees. 'A corporation can act only through its employees[.]' Fiol v. Doellstedt (1996) 50 Cal.App.4th 1318, 1326. Moreover, nothing in the indemnity provision or the Hospitality Vendor Agreement purports to limit XL Staffing's duty to defend to ''back-end' duties of payroll and administrative compliance.' If XL Staffing wanted to limit its defense obligations in such a manner, it could easily have done so. 'The court does not have the power to create for the parties a contract which they did not make, and it cannot insert in the contract language which one of the parties now wishes were there.' Levi Strauss & Co. v. Aetna Casualty & Surety Co. (1986) 184 Cal.App.3d 1479, 1486.

Finally, although RSD's negligence may be a basis for limiting XL Staffing's indemnity obligations, it has no bearing on XL's duty to defend. See Crawford, 44 Cal.4th at 558. '[A] duty to defend arises out of an indemnity obligation as soon as the litigation commences and regardless of whether the indemnitor is ultimately found negligent.' UDC-Universal Development, L.P. v. CH2M Hill (2010) 181 Ca1.App.4th 10, 21-22.

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