Judge Robert B. Broadbelt, Case Number: 22STCV02611, Date: 2025-04-28 Tentative Ruling

Judge: Robert B. Broadbelt, Case: 22STCV02611, Date: 2025-04-28 Tentative Ruling

Tentative rulings are sometimes, but not always, posted. The purpose of posting a tentative ruling is to to help focus the argument. The posting of a tentative ruling is not an invitation for the filing of additional papers shortly before the hearing.

MOVING PARTY: Cross-defendant Pacific Coast Elevator Corporation, d/b/a Amtech Elevator Services

RESPONDING PARTIES: (1) Defendant and cross-complainant 1544 9th Street, LLC, and (2) defendant and cross-complainant Howard Management Group

The court considered the moving, opposition, and reply papers filed in connection with this motion.

The court sustains defendant Howard Management Group’s evidentiary objections, filed on December 17, 2024 and joined by defendant 1544 9th Street, LLC on December 18, 2024, to the declaration filed by cross-defendant Pacific Coast Elevator Corporation, d/b/a Amtech Elevator Services in support of its reply to this motion. (Jack v. Ring LLC (2023) 91 Cal.App.5th 1186, 1210 [the general rule of motion practice is that new evidence is not permitted with reply papers].)

Plaintiff Sofia Nemzer (“Plaintiff”) filed this action against defendants 1544 9th Street, LLC (“9th Street”) and Howard Management Group (“Howard”) on January 21, 2022, and thereafter filed her operative Second Amended Complaint against those defendants on August 12, 2022.

On September 13, 2022, Howard filed its Cross-Complaint against defendant and cross-defendant 9th Street and cross-defendant Pacific Coast Elevator Corporation, d/b/a Amtech Elevator Services (“Amtech”), alleging against them five causes of action for (1) equitable indemnity, (2) contribution, (3) apportionment of fault, (4) tort of another, and (5) declaratory relief. Howard dismissed its Cross-Complaint with prejudice on February 13, 2024. (Feb. 9, 2024 Req. for Dismissal, ¶¶ 1, 5.)

On January 30, 2023, 9th Street filed its Cross-Complaint against Howard and Amtech, alleging against them three causes of action for (1) indemnification, (2) apportionment of fault, and (3) declaratory relief. 9th Street dismissed its Cross-Complaint with prejudice on February 13, 2024. (Feb. 9, 2024 Req. for Dismissal, ¶¶ 1, 5.)

Amtech now moves the court for an order awarding attorney’s fees and costs in its favor and against Howard and 9th Street (collectively, “Cross-Complainants”) in the total amount of $167,223, consisting of (1) $132,223 in attorney’s fees, and (2) the $35,000 amount that Amtech paid to Plaintiff. Amtech contends that it is entitled to this relief pursuant to the terms of the Master Maintenance Agreement entered into by and between Amtech and 9th Street, the terms of the Repair Order entered into by and between Amtech and Howard, and Code of Civil Procedure section 1021.6.

First, the court finds that Amtech has not met its burden to show that it may recover attorney’s fees pursuant to the indemnification provisions in the subject agreements between the parties. (Code Civ. Proc., § 1033.5, subd. (a)(10)(A) [attorney’s fees are allowable as costs when authorized by contract].)

The Master Maintenance Agreement entered into by and between Amtech and 9th Street on April 20, 2018 (the “MMA”) regarding Amtech’s maintenance services of the subject elevator includes the following language: “You [i.e., 9th Street] will indemnify and hold us [i.e., Amtech] harmless for losses due to personal injury or property damage to the extent caused by your [9th Street’s] negligent acts or omissions. [¶] We [Amtech] will not be required: . . . (iv) to replace or repair any component or system utilizing obsolete or discontinued parts, including parts for which the original design is no longer in production by the original equipment managers, or parts where the original item has been replaced by an item of different design . . . .” (Kelly Decl., ¶ 3; Kelly Decl., Ex. B, MMA, p. 5.) The MMA further states that, “[w]hile this Agreement is designed to reduce wear and prolong the useful life of such equipment, we [Amtech] make no representation that such equipment will not breakdown or malfunction, and you [9th Street] agree to hold us [Amtech] harmless from any such event or action arising therefrom.” (Ibid.)

The Repair Order from Amtech and approved by Howard on November 3, 2021 includes several terms of conditions, including the following provisions: “Under no circumstances shall either party be liable for special, indirect, liquidated, or consequential damages in contract, tort, including negligence, warranty or otherwise, notwithstanding any indemnity provision to the contrary. Notwithstanding any provision in any contract document to the contrary, our acceptance is conditioned on being allowed additional time for the performance of the Work due to delays beyond our reasonable control. Your remedies set forth herein are exclusive and our liability with respect to any contract, or anything done in connection therewith such as performance of breach thereof, or from the manufacture, sale, delivery, installation, repair or use of any equipment furnished under this contract, whether in contract, in tort (including negligence), in warranty or otherwise, shall not exceed the price for the equipment or services rendered. [¶] 11. To the fullest extent permitted by law, you agree to hold us harmless, and defend us and indemnify us against any claim or suit for personal injury or property damage arising out of this contract unless such damage or injury arises from our sole negligence.” (Kelly Decl., Ex. C, Repair Order, p. 3, ¶¶ 10-11.)

Amtech asserts that the agreements (1) required 9th Street to hold Amtech harmless from the Cross-Complaint alleged against it by Howard, and (2) required Howard to hold Amtech harmless from the Cross-Complaint alleged against it by 9th Street, such that Cross-Complainants must pay Amtech’s attorney’s fees. The court acknowledges, as Amtech has raised in its moving papers, that duties to defend that are set forth in indemnification provisions encompass the costs of defense. (Civ. Code, § 2788, subd. (3); UDC-Universal Development, L.P. v. CH2M Hill (2010) 181 Cal.App.4th 10, 21-22 [“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”].) The court also acknowledges that the MMA and Repair Order includes “hold harmless” provisions. But the court finds that Amtech did not present adequate authority and analysis to support its position that, in “[r]eading the third-party indemnity provisions in the two contracts [i.e., the MMA and Repair Order] together, they operate as a prevailing party attorney fee provision.” (Mot., p. 4:16-17.)

The cases on which Amtech relies do not (1) concern the circumstances presented here, i.e., a motion for attorney’s fees brought by a cross-defendant that did not affirmatively assert claims for indemnification, or (2) authorize the court to construe indemnification provisions as operating as attorney’s fees provisions in the manner proposed by Amtech even though Amtech has not asserted a claim for indemnification.[1] (UDC-Universal Development, L.P., supra, 181 Cal.App.4th at p. 13 [stating that the party sought review of a judgment on a cross-complaint brought pursuant to an indemnity provision in a contract]; Crawford v. Weather Shield Mfg., Inc. (2008) 44 Cal.4th 541, 549 [JMP cross-complained against parties asserting that JMP was owed duties of indemnity and defense].)

Further, even if Amtech had shown that it could recover from Cross-Complainants attorney’s fees pursuant to the MMA and Repair Order on this motion, Amtech would, at most, be entitled only to collect attorney’s fees (1) from 9th Street for the costs incurred in defending itself against Howard’s Cross-Complaint and (2) from Howard for the costs incurred in defending itself against 9th Street’s Cross-Complaint. (Alki Partners, LP v. DB Fund Services, LLC (2016) 4 Cal.App.5th 574, 600-601 [“The court will not infer that the parties intended an indemnification provision to cover attorney fees between the parties if the provision ‘ “does not specifically provide for attorney’s fees in an action on the contract . . . .” ’”] [emphasis in original] [internal citations omitted].) Amtech has, however, requested a joint and several award of attorney’s fees without division of such attorney’s fees (i.e., without establishing a lodestar figure for the attorney’s fees incurred in connection with its defending (1) the Cross-Complaint filed by Howard, for which only 9th Street could be required to pay attorney’s fees, and (2) the Cross-Complaint filed by 9th Street, for which only Howard could be required to pay attorney’s fees). Amtech is, therefore, seeking to recover attorney’s fees from Cross-Complainants in connection with defending itself against Cross-Complainants’ own cross-complaints, which is improper. (Notice of Mot., p. 3:16-18 [“This Motion . . . seeks an award of attorney fees against [Howard] and [9th Street] jointly and severally in the sum of $132,223” and an additional award of $35,000] [emphasis added]; Kelly Decl., ¶ 12 [chart setting forth hours billed by attorneys without differentiating the time spent to defend each cross-complaint]; Alki Partners, LP, supra, 4 Cal.App.5th at pp. 600-601.)

Thus, the court finds that Amtech has not shown that the MMA and Repair Order contain attorney’s fee provisions for which Amtech may recover its attorney’s fees from Cross-Complainants under Code of Civil Procedure section 1033.5.

Second, the court finds that Amtech has not met its burden to present adequate authority, argument, and analysis to show that it may recover from Cross-Complainants, in connection with this motion and under the indemnity provisions in the MMA and Repair Order, the $35,000 that it paid to Plaintiff as costs under Code of Civil Procedure section 1033.5 for the reasons set forth above.

Third, the court finds that Amtech has not met its burden to show that it may recover from Cross-Complainants attorney’s fees pursuant to Code of Civil Procedure section 1021.6 because (1) section 1021.6 provides that a court, “after reviewing the evidence in the principal case[,] may award attorney’s fees to a person who prevails on a claim for implied indemnity if the court finds[,]” inter alia, “”that the trier of fact determined that the indemnitee was without fault in the principal case which is the basis for the action in indemnity or that the indemnitee had a final judgment entered in his or her favor granting a summary judgment, a nonsuit, or a directed verdict[,]” and (2) Amtech has not shown either that (i) a trier of fact determined that Amtech was without fault in this case, or (ii) Amtech had a final judgment entered in its favor granting a summary judgment, a nonsuit, or a directed verdict. (Code Civ. Proc., §§ 1021.6, 1033.5, subd. (a)(1)(B) [attorney’s fees are allowable as costs when authorized by statute].)

For the reasons set forth above, the court denies Amtech’s motion for attorney’s fees.

The court denies cross-defendant Pacific Coast Elevator Corporation, d/b/a Amtech Elevator Services’ motion for attorney’s fees and costs.

[1] The court also notes that, in its opposition papers, 9th Street raises an issue with due process in that it states that “Amtech is seeking indemnity with this Motion without ever cross-complaining for indemnity that would have given 9th Street due process notice before 9th Street settled with Plaintiff and dismissed its cross-complaint.” (Opp., p. 8:23-25.)

sofia nemzer ; Plaintiff, vs. 1544 9th street, llc , et al.; Defendants.	Case No.:	22STCV02611

	Hearing Date:	April 28, 2025

	Time:	10:00 a.m.

	[tentative] Order RE: cross-defendant’s motion for attorney’s fees and costs