Judge: Michael E. Whitaker, Case: 19STCV23564, Date: 2023-03-14 Tentative Ruling

Case Number: 19STCV23564    Hearing Date: March 14, 2023    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely (which is highly encouraged).  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

 TENTATIVE RULING

MOVING PAPERS:

1. Notice of Motion and Motion for Summary Adjudication; Memorandum of Points and Authorities
2. Separate Statement of Undisputed Material Facts in Support of Motion for Summary Adjudication
3. Declaration of Spencer Y. Wong in Support of Motion for Summary Adjudication
4. Compendium of Evidence in Support of Motion for Summary Adjudication

NON-OPPOSITION PAPERS:

1.     Plaintiff Bilaal Alvi’s Notice of Non-Opposition

2.     Defendant/Cross-Complainant/Cross-Defendant Sun Hill Properties, Inc.’s Notice of Non-Opposition

BACKGROUND

Plaintiff Bilaal Alvi (Plaintiff) sued Defendants Hilton Worldwide Holdings, Inc., American General Private Security Corp. (AGPS), Hillcrest Real Estate, LLC, and Sun Hill Properties, Inc. based on injuries Plaintiff alleges he sustained when two security guards physically attacked him at a Hilton property.  

Prior to the incident, AGPS entered into a service agreement with the subject Hilton property agreeing to provide security officer services.  Cross-Complainants Hillcrest Real Estate LLC and Sun Hill Properties, Inc. (collectively, Cross-Complainants) filed a cross-complaint against Cross-Defendants AGPS, Victor Alvarez, and Ruben Llamas (collectively Cross-Defendants), asserting the following five causes of action: (1) comparative indemnification; (2) equitable indemnity; (3) contribution; (4) implied indemnity; and (5) express indemnity. 

Cross-Defendants move for summary adjudication on the fifth cause of action in the Cross-Complaint.  Plaintiff has filed a notice of non-opposition.  Cross-Complainant Sun Hill Properties, Inc. has filed a notice of non-opposition.  Cross-Complainant Hillcrest Real Estate, LLC has not filed an opposition.

LEGAL STANDARDS – MOTION FOR SUMMARY ADJUDICATION

“A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty . . . .”  (Code Civ. Proc., § 437c, subd. (f)(1).) 

“[T]he 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[.] There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.”  (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.)  “[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.”  (Ibid.; Smith v. Wells Fargo Bank, N.A. (2005) 135 Cal.App.4th 1463, 1474 [summary judgment standards held by Aguilar apply to summary adjudication motions].)  Further, in line with Aguilar v. Atlantic Richfield Co., “[o]n a motion for summary adjudication, the trial court has no discretion to exercise.  If a triable issue of material fact exists as to the challenged causes of action, the motion must be denied. If there is no triable issue of fact, the motion must be granted.”  (Fisherman's Wharf Bay Cruise Corp. v. Superior Court (2003) 114 Cal.App.4th 309, 320.)

DISCUSSION

            Cross-Defendants argue that they have not subjected themselves to express indemnity terms that would impose on them a duty to indemnify for the alleged negligence of the security guards in the incident in question, and are thus entitled to summary adjudication on the fifth cause of action for express indemnity.

Express indemnity refers to an obligation that arises “by virtue of express contractual language establishing a duty in one party to save another harmless upon the occurrence of specified circumstances.” (Prince v. Pacific Gas & Electric Co. (2009) 45 Cal.4th 1151, 1120.) Express indemnity is generally “enforced in accordance with the terms of the contracting parties’ agreement. In the context of noninsurance indemnity agreements, if a party seeks to be indemnified for its own active negligence, or regardless of the indemnitor’s fault, the contractual language on the point must be particularly clear and explicit, and will be construed strictly against the indemnitee.” (Ibid., emphasis in original, [cleaned up].)

Under Civil Code section 2778, “[t]he 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, subd. 4.) 

            Cross-Defendants argue the only relevant agreement that Cross-Complainants contend affords them express indemnity rights against Cross-Defendants is a September 23, 2016 agreement between AGPS and the subject Hilton Los Angeles Property.  Cross-Defendants advance the following Undisputed Material Facts (hereinafter, UMFs) in regard to the subject agreement:

·       On or about September 23, 2016, Cross-Defendant AGPS executed a service agreement (“9/23/16 Agreement”) with Hilton Los Angeles – Universal City.  The 9/23/16 Agreement required AGPS to provide security officer services to the Hilton Los Angeles – Universal City. 

·       The 9/23/16 Agreement was not signed by Victor Alvarez or Ruben Llamas. 

·       The entire 14 pages (with 1 blank page) of the 9/23/16 Agreement between AGPS and Hilton Los Angeles – Universal City produced by Cross-Complainants did not have an express indemnity clause.

·       The 9/23/16 Agreement was also the only contract underlying Cross-Defendants’ AGPS’ relationship with Hilton Los Angeles – Universal City produced by Cross-Complainants in discovery in response to contracts with AGPS. 

(UMFs, Nos. 7-10.)  This evidence meets Cross-Defendants’ burden to show that the only agreement that exists between relevant parties does not include express contractual language establishing Cross-Defendants’ duty to indemnify.  Further, Cross-Defendants have established that no further relevant agreements exist which would include such express contractual language.  Consequently, Cross-Defendants have shifted the burden to Cross-Complainants to raise a triable issue of material fact as to whether an agreement with an express indemnity clause exists which would obligate Cross-Defendants to indemnify, defend, and hold Cross-Complainants harmless in this action.  

Cross-Complainants have not opposed the motion.  As such, Cross-Complainants have not met their burden of production to make a prima facie showing of the existence of a triable issue of material fact regarding whether an agreement with express contractual terms imposing a duty to indemnify on Cross-Defendants exists.  Absent that showing, Cross-Complainants cannot prevail.

CONCLUSION AND ORDER

In considering the competent evidence proffered by Cross-Defendants, and viewing such evidence most favorable to Cross-Complainants, the Court finds that there are no triable issues of material fact, and determines, as a matter of law, that Cross-Defendants are not obligated to indemnify, defend, and hold Cross-Complainants harmless in the underlying cause of action, based on Cross-Complaints’ failure to establish the existence of an express indemnity clause in a relevant agreement between parties. 

Therefore, the Court grants Cross-Defendants’ motion for summary adjudication as to the fifth cause of action for express indemnity. 

Cross-Defendants shall provide notice of the Court’s ruling and file a proof of service of the same.