Judge: Michael E. Whitaker, Case: 20STCV07323, Date: 2022-09-29 Tentative Ruling

Case Number: 20STCV07323    Hearing Date: September 29, 2022    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 Judgment; Memorandum of Points and Authorities
2. Separate Statement of Undisputed Material Facts and Supporting Evidence
3. Declaration of Carrie Bruhl
4. Declaration of Mark Hollinger
5. Declaration of Ritsa Gountoumas

OPPOSITION PAPERS:

Opposition filed by Cross-Defendants HCI 333 East Ocean Owner LP, HCI 333 East Ocean Owner GP LLC, Marriott International, Inc., and Westin Long Beach Hotel

1. Opposition to Motion for Summary Judgment
2. Evidentiary Objections
3. Proposed Order for Evidentiary Objections
4. Separate Statement
5. Declaration of Danielle Ebel

Opposition filed by Plaintiff Jack Tiffany

1. Opposition to Motion for Summary Judgment
2. Proposed Order for Evidentiary Objections
3. Response to Separate Statement
4. Separate Statement (filed twice)
5. Declaration of Joseph Stabler
6. Declaration of Robyn Horn in Opposition
7. Declaration of Robyn Horn regarding Misfiling of Separate Statement

REPLY PAPERS:

1. Reply
2. Evidentiary Objections
3. Response to Plaintiff’s Separate Statement

BACKGROUND

Plaintiff Jack Tiffany (“Plaintiff”) sued Defendants HCI 333 East Ocean Owner LP, HCI 333 East Ocean Owner GP LLC, Marriott International, Inc. and Westin Long Beach Hotel (“Westin Entities”) and Defendant Otis Elevator Company, Inc. (“Otis”) based on injuries Plaintiff alleges he sustained from a faulty elevator in a hotel that Westin Entities owned and operated. Westin Entities filed a Cross-Complaint against Otis primarily seeking indemnification and contribution.

On February 20, 2020, Plaintiff filed his Complaint asserting four causes of action: (1) negligence; (2) premises liability; (3) products liability; and (4) common carrier negligence.

On February 24, 2021, Westin Entities filed their Cross-Complaint asserting five causes of action: (1) express indemnity; (2) implied indemnity; (3) contribution; (4) declaratory relief; and (5) breach of contract.

Otis has filed the instant motion for summary judgment on the Complaint and Cross-Complaint and in the alternative summary adjudication on the following issues:

During the motion briefing, Plaintiff dismissed his second, third, and fourth causes of action against Otis by filing a request for dismissal on July 13, 2022.

Therefore, before the Court is Otis’ motion on the Complaint (the first cause of action) and the Cross-Complaint.

LEGAL STANDARD – SUMMARY JUDGMENT/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.)

“On a summary judgment motion, the court must therefore consider what inferences favoring the opposing party a factfinder could reasonably draw from the evidence. While viewing the evidence in this manner, the court must bear in mind that its primary function is to identify issues rather than to determine issues. Only when the inferences are indisputable may the court decide the issues as a matter of law. If the evidence is in conflict, the factual issues must be resolved by trial.” (Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 839 [cleaned up].) Further, “the trial court may not weigh the evidence in the manner of a factfinder to determine whose version is more likely true. Nor may the trial court grant summary judgment based on the court’s evaluation of credibility.” (Id. at p. 840 [cleaned up]; see also Weiss v. People ex rel. Department of Transportation (2020) 9 Cal.5th 840, 864 [“Courts deciding motions for summary judgment or summary adjudication may not weigh the evidence but must instead view it in the light most favorable to the opposing party and draw all reasonable inferences in favor of that party”].)

DISCUSSION

Otis’ Combined Motion

Otis filed a combined motion for summary judgment. Otis should have filed two separate motions because the motion involves two separate pleadings, even if the issues share some overlap. Despite this procedural defect, the Court reaches the merits.

Evidentiary Objections

The Westin Entities, Plaintiff, and Otis all filed evidentiary objections. Plaintiff and Otis did not follow the proper format by filing both a statement of evidentiary objections and a separate proposed order on those objections, i.e., two documents. (California Rules of Court, rule 3.1354(b)-(c).) Plaintiff and Otis did not follow the proper format by failing to provide the page and line number of the material objected to and verbatim the objectionable statement or material. (Id., subd. (b)(2)-(3).)

The Court could decline to rule on the evidentiary objections because of a defect in violation of the California Rules of Court, rule 3.1354. (Hodjat v. State Farm Mutual Automobile Ins. Co. (2012) 211 Cal.App.4th 1, 9 [trial court not required to give a second chance at filing properly formatted papers].) However, the Court rules on the objections as follows, excluding a ruling on objections that are immaterial. (Code Civ. Proc., § 437c, subd. (q).)

The Court rules on the Westin Entities’ objections as follows:

1. Sustained

2. Overruled

3. Overruled

4. Sustained

5. Overruled

6. Overruled

7. Overruled

8. Sustained

1. Overruled

2. Overruled

3. Overruled

4. Overruled

1. Overruled

2. Sustained except for “During regular maintenance, Otis mechanics clean, examine and inspect the elevator equipment for ordinary wear and tear, make necessary repairs and replace worn parts, as needed.  In addition, as part of the regular maintenance routine, Otis mechanics are trained to inspect the elevator for possible problems.” 

3. Sustained except for “ During routine Controller Maintenance, Otis mechanics are required to among other things, examine and test the shunts for the elevator relays to ensure that they are intact and functioning.  It is standard industry custom and practice to perform Controller Maintenance once a year.” 

4. Sustained

    

   The Court rules on the Plaintiff’s objections as follows:

    

1. Overruled

2. Overruled

3. Sustained

4. Overruled

5. Overruled

6. Sustained except for the following passage - “During regular maintenance, Otis mechanics clean, examine and inspect the elevator equipment for ordinary wear and tear, make necessary repairs and replace worn parts, as needed.  In addition, as part of the regular maintenance routine, Otis mechanics are trained to inspect the elevator for possible problems.” 

7. Sustained except for the following passage -  “ During routine Controller Maintenance, Otis mechanics are required to among other things, examine and test the shunts for the elevator relays to ensure that they are intact and functioning.  It is standard industry custom and practice to perform Controller Maintenance once a year.” 

8. Sustained

    

   The Court rules on the Otis’ objections as follows:

    

1. Overruled

2. Overruled

3. Sustained as to quoted passage only.

4. Overruled

5. Overruled

6. Overruled

7. Overruled

8. Overruled

9. Sustained as to the follow passage only – “OEC more likely than not caused or contributed to Mr. Tiffany's incident by not performing proper preventive maintenance and troubleshooting to identify and correct defective equipment conditions, as mentioned herein.” 

10. Overruled

11. Overruled

12. Overruled

13. Overruled

14. Sustained as to the following passage only – “were negligent”

15. Sustained as to the following passage only – “was negligent” 

16. Overruled

17. Overruled

18. Overruled

19. Sustained as to the following passage only – “that could more likely than not cause or contribute to unsuspecting persons becoming injured, as mentioned herein”

20. Overruled

     

    Cross-Complaint

     

    The Court first addresses the motion involving the Cross-Complaint.

     

    In the Cross-Complaint, Westin Entities allege that they are entitled to indemnity from Otis on the grounds that Otis was negligent in its inspection, maintenance, and/or repair of the subject elevator.

     

    Otis’ motion fails to raise any issues with respect to the Westin Entities’ Cross-Complaint specifically with respect to the causes of action for indemnity and declaratory relief. Accordingly, Otis does not meet its initial burden and the Court denies the motion as to Westin Entities’ Cross-Complaint.

     

    Otis cannot otherwise rely on a successful argument, even if assumed to be true, that it was not negligent because the Cross-Complaint contains an express indemnity claim that requires Otis to defend and indemnify Westin Entities from claims “alleged” to have arisen from injuries related to the elevator and its operation.

     

    “Parties to a contract, . . . , may define therein their duties toward one another in the event of a third party claim against one or both arising out of their relationship. Terms of this kind may require one party to indemnify the other, under specified circumstances, for moneys paid or expenses incurred by the latter as a result of such claims. They may also assign one party, pursuant to the contract’s language, responsibility for the other’s legal defense when a third party claim is made against the latter.” (Crawford v. Weather Shield Mfg., Inc. (2008) 44 Cal.4th 541, 551 [cleaned up] (hereafter, Crawford).)

     

    “[T]he [indemnitor’s] duty to defend is broader than its duty to indemnify. The latter duty runs only to claims that are actually covered by the [agreement], while the duty to defend extends to claims that are merely potentially covered. The [indemnitor’s] defense duty is a continuing one, arising on tender of defense and lasting until the underlying lawsuit is concluded, or until it has been shown that there is no potential for coverage.” (Crawford, supra, 44 Cal.4th at p. 547 [cleaned up].) Further, “a contractual promise to “defend” another against specified claims clearly connotes an obligation of active responsibility, from the outset, for the promisee’s defense against such claims. The duty promised is to render, or fund, the service of providing a defense on the promisee’s behalf — a duty that necessarily arises as soon as such claims are made against the promisee, and may continue until they have been resolved.” (Id. at pp. 553–554 [cleaned up].)

     

    Equally important, “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.” (Id. at p. 553.) Civil Code section 2778 provides, in pertinent part:

     

    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;

     

    5. If, after request, the person indemnifying neglects to defend the person indemnified, a recovery against the latter suffered by him in good faith, is conclusive in his favor against the former

     

    (Civ. Code, § 2778, subds. (4)-(5).) “By virtue of these statutory provisions, the case law has long confirmed 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 indemnity provision. Where the indemnitor has breached this obligation, an indemnitee who was thereby forced, against its wishes, to defend itself is entitled to reimbursement of the costs of doing so.” (Crawford, supra, 44 Cal.4th at p. 555.) Moreover, “implicit in this understanding of the duty to defend an indemnitee against all claims “embraced by the indemnity,” as specified in subdivision 4 of section 2778, is that the duty arises immediately upon a proper tender of defense by the indemnitee, and thus before the litigation to be defended has determined whether indemnity is actually owed. This duty, as described in the statute, therefore cannot depend on the outcome of that litigation. It follows that, under subdivision 4 of section 2778, claims “embraced by the indemnity,” as to which the duty to defend is owed, include those which, at the time of tender, allege facts that would give rise to a duty of indemnity. Unless the indemnity agreement states otherwise, the statutorily described duty “to defend” the indemnitee upon tender of the defense thus extends to all such claims.” (Id. at p. 558.)

     

    And whether a duty to defend arises from an indemnity agreement is question of law for a court. (See Centex Homes v. R-Help Construction Co., Inc. (2019) 32 Cal.App.5th 1230 [“[T]he duty to defend was not a question of fact for the jury; the trial court was compelled to determine [that issue of duty] as a matter of law”].)

     

    In the original complaint, Plaintiff alleges that the defendants “negligently operated, maintained, repaired, inspected, managed, controlled and/or supervised said premises” and defendants “created a dangerous condition and negligently failed to take steps to make the premises safe.” (Complaint, First Cause of Action, p. 1 at GN-1.)

     

    Prior to Plaintiff’s fall, in April 2018, Westin Entities and Otis entered into a full preventative maintenance service agreement (“Maintenance Agreement”). (See Bruhl Decl. Ex. A at pp. 5-6.) As part of the Maintenance Agreement, Otis assented as follows: “We agree that we shall be liable for accidents and injuries to person or property when adjudged to have been caused by the sole negligence or willful misconduct of Otis or our employees. In all other instances, Customer shall indemnify, defend and hold us harmless against all claims, damages, losses, costs, and expenses (including attorney’s fees and other litigation costs) arising out of or connected with the use, repair, maintenance, operation, or condition of the Equipment.” Critically, in March 2018, Westin Entities and Otis entered into a modernization agreement (“Modernization Agreement”). (See Ebel Decl. Ex. E.) In the Modernization Agreement, Otis agreed in writing to defend and indemnify Westin Entities for “any claims, damages, losses or expenses” that arise out of “the negligent acts, errors or omissions or willful misconduct by [Otis], its subcontractors or vendors, or their employees and agents during the performance of this Agreement.” (Id. at p. 7 ¶ 30.1.) Plaintiff filed an action asserting a claim of negligence arising out of the maintenance of the subject elevator, and Westin Entities have filed a Cross-Complaint against Otis for express indemnity and breach of contract specifically based upon the language in the Maintenance Agreement and Modernization Agreement. Therefore, Otis had a contractual duty to defend Westin Entities against the claims asserted by Plaintiff.

     

    In Reply, Otis argues that the Modernization Agreement only applied to “during the performance of this Agreement” and the incident occurred while the subject elevator had not been modernized and Otis was not performing modernization work on the unit, but was instead performing maintenance work on the subject elevator. Therefore, the Court should hold that the Maintenance Agreement is controlling and that agreement has a limited scope with an express indemnification only as to claims “adjudged to have been caused by the sole negligence or willful misconduct of Otis.” The Court disagrees.

     

    This argument overlooks the broad holding of Crawford, which requires a broader duty to defend. Here, Otis has a broad duty to defend Westin Entities under the agreement, even if Otis’ duty to indemnify only becomes effective when the claims are actually adjudged to have been caused by the sole negligence or willful misconduct of Otis. In other words, Otis is reading the contract too narrowly. It does not expressly state that Otis has no duty to defend against accidents and injuries to person or property unless there is a substantial likelihood that they will be adjudged to have been caused by the sole negligence or willful misconduct of Otis or our employees. The limitation is to liability. Otis still has a duty to defend under Crawford, and the undisputed facts show that it did not satisfy that duty to defend.

     

    Although whether Otis is obligated to indemnify Westin Entities remains an open question at this stage of the litigation, Otis cannot argue that it owes no duty to Westin Entities to defend against Plaintiff’s cause of action for negligence.

     

    Accordingly, the Court denies the motion for summary judgment as to the Cross-Complaint.

     

    Complaint

     

    Because of Plaintiff’s request for dismissal, the only claim against Otis in the Complaint is the first cause of action for negligence. All other issues/causes of action are now moot.

     

    To sustain a negligence cause of action, a plaintiff must prove: (1) a legal duty owed to the plaintiff to use due care; (2) breach of duty; (3) causation; and (4) damage to the plaintiff. (County of Santa Clara v. Atlantic Richfield Co. (2006) 137 Cal.App.4th 292, 318.)

     

    In support of Otis’ motion, Otis proffers facts showing that it performed its obligations under the Maintenance Agreement, it had no actual or constructive knowledge of an issue involving a shunt in the elevator relay before the incident, and Plaintiff’s discovery responses do not otherwise show any negligent conduct caused by Otis. More specifically, Otis proffers an expert declaration whereby Mark Hollinger concluded that the incident was caused by an intermittent open in the electrical loop circuit, which stemmed from an issue involving a shunt for one of the elevator relay. (Undisputed Material Facts ¶¶ 7-9, 12; see also Hollinger Decl. ¶¶ 7-9.)  Otis proffers the maintenance records that establishes Otis provided regular maintenance on the subject elevator and there were no warning signs or indications of issues involving the shunts for the elevator relays before the incident. (Undisputed Material Facts ¶¶ 10-11, 13, 16; see also Bruhl Decl. Ex. B.) The elevator did not otherwise have documented problems during the initial inspection. (Undisputed Material Facts ¶ 19; see also Gountoumas Decl. Ex. F.) Finally, Otis proffers evidence of Plaintiff’s discovery responses that do not otherwise provide any concrete facts showing evidence of negligence. ( Undisputed Material Facts ¶¶ 20-24.) This evidence is sufficient to meet Otis’ initial burden because it shows that Otis did not breach its duty by negligently preforming maintenance work and was not otherwise aware of any issues with the stunt. (see also Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1207 ‘“[A] defendant is entitled to judgment as a matter of law if the plaintiff fails to show that the dangerous condition existed for at least a sufficient time to be discovered by ordinary care and inspection.”].)

     

    Therefore, the burden now shifts to Plaintiff to show a triable issue of fact.

     

                In Opposition, Plaintiff argues that there is a triable issue of fact regarding notice and whether Otis fully performed its obligations under the Maintenance Agreement.

     

    As to notice, Plaintiff proffers evidence of the maintenance records, which purportedly show a history of problems and malfunctions long before Plaintiff’s incident that included problems with its motion controller and motion generator. (Plaintiff’s Separate Statement of Undisputed Material Facts ¶ 2.) These prior incidents include more than 14 repairs and/or callbacks for safety-related electronic components that had caused the elevator to malfunction. (Plaintiff’s Separate Statement of Undisputed Material Facts ¶ 2; see also Madden Decl. ¶ 7.) In fact, there is a comment by one of Otis’ mechanics that the subject elevator was “[l]imping” until modernization. (Plaintiff’s Separate Statement of Undisputed Material Facts ¶ 11.) One issue with the elevator even caused less than a month before Plaintiff’s incident a passenger to be trapped because of an overspeed incident. (Plaintiff’s Separate Statement of Undisputed Material Facts ¶ 5.) That incident put Otis on notice of general problems with the subject elevator.

     

    As to Otis’ breach of duty, Plaintiff proffers evidence that Otis was aware that the elevator shaft and elevator machine room would get excessively hot and created problems with the electrical components of the elevator including equipment failure. (Madden Dec. Ex. 8 at pp. 1626-1629.) As demonstrated by the expert declaration of Joseph Stabler, the extreme heat, poor ventilation, old age of the elevator components, and airborne particulate intrusion was a likely contributing factor to the relay and shunt failure that caused the incident. (Plaintiff’s Separate Statement of Undisputed Material Facts ¶¶ 18-19; see also Stabler Decl. ¶ 6.14.) In other words, Otis was aware of the likely contributing factors and did not remedy them ultimately causing the incident.

     

    This evidence is sufficient to show a triable issue of fact. More specifically, the evidence shows that a reasonable juror, taking the evidence in the light most favorable to Plaintiff as the non-moving party, that Otis had at least knowledge of existing issues with the elevator and some of those issues were the result of Otis failure to properly maintain and service the elevator.

     

    In making this finding, the Court disagrees with Otis’ arguments in reply, which primarily are that Stabler’s declaration is inadmissible. (See the Court’s rulings regarding Otis’ Evidentiary Objections above.)  Stabler has the sufficient expertise to opine that normal wear and tear of the relay can lead to an intermittent open. Stabler’s declaration contains sufficient basis for his conclusion especially when liberally construing it as the opponent of the summary judgment motion. (See, e.g., Binder v. Aetna Life Insurance Company (1999) 75 Cal.App.4th 832, 839.)  Otis’ argument that Stabler had to identify what Otis should have done for maintenance is misplaced. First, it is sufficient to show that Otis’ work was done in a way that likely would lead to the accident. Second, Stabler opines that a major procedure and appropriate troubleshooting would have prevented the accident. (Stabler Decl. ¶¶ 6.9, 6.12; see also id. ¶ 6.14 [modernization would have prevented the incident].) Finally, it is irrelevant whether modernization was not required of Otis because there is sufficient evidence to show a triable issue of fact that the incident also occurred because of negligent maintenance.

     

    CONCLUSION AND ORDER

     

    Therefore, the Court denies Otis’ motion for summary judgment as to the Cross-Complaint, finding specifically as a matter of law that Otis is obligated to defend Westin Entities against the causes of action asserted by Plaintiff in the Complaint.

     

    Therefore, the Court denies Otis’ motion for summary judgment or in the alternative motion for summary adjudication as to the first cause of action for negligence as to the Complaint, finding specifically as a matter of law that there are triable issues of material fact regarding breach of duty and causation.

     

    The Clerk of the Court shall provide notice of the Court’s rulings.