Judge: Mark H. Epstein, Case: 23SMCV03201, Date: 2025-01-06 Tentative Ruling

Case Number: 23SMCV03201    Hearing Date: January 6, 2025    Dept: I

This is a demurrer filed by cross-defendant.  Essentially, the main complaint is filed by plaintiff Moore, who claims to have been injured on premises owned by defendants and cross-complainants SLG and others (SLG).  Plaintiff allegedly slipped and fell due to an inoperable gate at an office building and parking lot.  Plaintiff alleges that defendants had a duty to maintain the premises, including the parking lot and the gate.  Defendants have brought a cross action against cross-defendant, TBWA Worldwide and others (TBWA).  The gist of the cross action is that plaintiff was injured in the course and scope of his duties as a security vendor of TBWA, which was a tenant.  The lease between SLG and TBWA has an indemnity provision that states that except where the injury is caused by SLG’s gross negligence or willful misconduct, TBWA “shall indemnify . . . [SLG] . . . from and against any and all claims arising out of any alleged defective or unsafe condition of the Premises and from [TBWA’s] use of the Premises, or from the conduct of [TBWA’s} business or from any activity, work or things done, permitted or suffered by Lessee in or about the Premises or elsewhere . . .”  SLG contends that plaintiff’s claim against SLG is covered by this clause; TBWA opposes.  Preliminarily, TBWA’s request for judicial notice is GRANTED.

To the extent TBWA claims uncertainty, the demurrer is OVERRULED.  Such demurrers are disfavored and proper only where the defendant cannot understand the allegations.  That is not the case here.  (Butler v. Sequeira (1950) 100 Cal.App.2d 143.)  The more difficult issue is whether the clause covers this action such that TBWA has, or might have, an indemnity duty.  TBWA says that this issue was decided in Morlin Asset Management LP v. Murachanian (2016) 2 Cal.App.5th 184.  In that case, a tenant’s janitorial vender was injured on a staircase in a common area.  The lease stated that the tenant had to indemnify the landlord for injuries “in or about the Premises” and for claims “arising out of, involving or in connection with, the use and/or occupancy of the Premises by Lessee.”  (Id., at p. 188.)  The trial court granted summary judgment in favor of the tenants, stating that the clause did not cover injuries in the building’s common areas, but rather covered only injuries in the part of the space the tenant actually leased.  The court agreed that the accident would not have occurred “but for” the fact that the injured party had been invited onto the premises by the tenant; the point was that the indemnity clause did not obligate the tenant to indemnify the landlord for injuries in the part of the building under the landlord’s control—that is, the common areas.  The language in Morlin is different than the language here, but the substance is the same. 

As with any contract, the question is whether the contract supports the cause of action.  That, in turn, depends on the definition of “Premises.”  After all, TBWA has an obligation to indemnify SLG from any claim “arising out of any alleged defective or unsafe condition of the Premises” and from TBWA’s “use of the Premises.”  If “Premises” includes the garage, then the clause would seem to apply.  “Premises” is defined in section 2 of the lease.  The premises is approximately 42,790 square feet of space situated in the larger building.  Thus, the term means the space that is for TBWA’s exclusive use; not the common areas.  (The term was amended in subsequent documents, but not in a material way.)  Thus, at least the part of the lease promising to indemnify SLG for injuries arising out of an unsafe condition of the Premises or TBWA’s use of the Premises would appear not to apply.  SLG contends that other aspects of the lease would give rise to such a duty—such as the duty to indemnity for claims “arising out of” the use of the Premises or from any activity permitted by TBWA “in or about the Premises or elsewhere—but the court does not see it.  It is one thing to say that the tenant must indemnify the landlord for injuries caused on the part of the building that the tenant leased, it is another to say that the tenant must indemnify the landlord for injuries that occur anywhere in the building because the tenant invited the injured party.  The court, reading the lease, does not see anything in the lease document that requires TBWA to indemnify the landlord for injuries that occur in the common area (like the garage) over which TBWA has no control.  SLG nonetheless claims that TBWA is trying to make improper inferences from the complaint.  The court agrees with SLG as to the legal standard.  For purposes of a demurrer, the court must assume that the allegations in the complaint are true and must indulge every reasonable inference favoring the cross-complainant.  Even if a contract on its face supports the demurring party, if the potential of parol evidence might change that outcome, the demurrer cannot succeed.  The problem here is that the court just does not see it.  The court is aware that Morlin came up in the summary judgment context.  But the gist of the decision was that the lease language simply did not support the allegations.  That is the case here.  And there is no basis alleged for equitable contribution either, for that requires some mutual fault.  Nor does the court see any ambiguity as to where the plaintiff’s injury occurred.  The main complaint alleges that the injury occurred in the garage—which would not appear to be the leased Premises. 

In short, the demurrer is SUSTAINED.  However, it could well be that additional allegations would indicate that perhaps the court’s reading of the contract is not complete or that TBWA had more control over the garage and gate than appears from the allegations thus far, or that TBWA took some other action that contributed to the injury.  SLG will have 30 days leave to amend to allege something that would put TBWA within the indemnity provision in the lease.  This ruling should not be viewed as a finding that SLG cannot amend to get around the problem, just that it would have to suggest some reading that the words support and that makes sense.  If it can do that, then the better way to test the language is through summary judgment or trial.