Judge: Ronald F. Frank, Case: 23TRCV02084, Date: 2024-05-23 Tentative Ruling
Case Number: 23TRCV02084 Hearing Date: May 23, 2024 Dept: 8
Tentative Ruling¿
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HEARING DATE: May 23, 2024
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CASE NUMBER: 23TRCV02084
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CASE NAME: Bernard Merholz v.
Bristol Farms, Inc., et al.
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MOVING PARTY: Defendants/Cross-Complainants/Cross-Defendants,
Bristol Farms and Good Food Holdings, LLC
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RESPONDING PARTY: Defendant,
Lincoln Development Co., LTD.
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TRIAL DATE: Not Set.
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MOTION:¿ (1) Motion for Summary Judgment
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Tentative Rulings: (1) GRANTED, with one
point for oral argument as to Bristol’s affirmative responsibility in the moving
party’s initial burden of proof to produce evidence that it was not negligent.
I. BACKGROUND¿¿
A. Factual¿¿
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On June 28, 2023, Plaintiff, Bernard
Merholz (“Plaintiff”) filed a Complaint against Defendants, Bristol Farms,
Inc., Good Food Holdings, Inc., and DOES 1 through 50. On July 19, 2023,
Plaintiff filed a First Amended Complaint (“FAC”) against Defendants, Bristol
Farms, Inc., Good Food Holdings, Lincoln Partnership, and DOES 1 through 75.
The FAC alleges on March 14, 2023, Plaintiff was in the parking lot, as a
customer of the food grocery market, and was walking back to his car in the
parking lot during a rainstorm. (FAC, ¶ 10.) Plaintiff contends that Defendants
were negligent when they allowed the parking lot to have potholes, holes,
cracks, opening, cavities, depressions, craters, cuts, and indentations, to the
parking lot surface, along Plaintiff’s walking path back to his vehicle which
caused him to step into and fall onto a parked car and then to the ground.
(FAC, ¶ 10.)
On August 21, 2023, Defendant,
Bristol Farms (erroneously sued as Bristol Farms, Inc.) filed a Cross-Complaint
against Lincoln Development Co., LTD for: (1) Implied Indemnity; (2) Express
Indemnity; (3) Contribution; and (4) Declaratory Relief.
Further, on August 31, 2023,
Defendant/Cross-Complainant, Lincoln Development Co., LTD. also filed a Cross-Complaint
against Bristol Farms for: (1) Implied Indemnity; (2) Express Indemnity; (3)
Contribution; and (4) Declaratory Relief.
Now, Bristol Farms and Good Food
Holdings, Inc. (“Bristol”) are filing a Motion for Summary Judgment as against Lincoln
Development Co. LTD.’s (“Lincoln”) cross-complainant.
B. Procedural¿¿
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On March 8, 2024, Bristol
filed a Motion for Summary Judgment, or in the alternative, Summary Adjudication.
On May 7, 2024, Lincoln filed an opposition brief. On May 16, 2024, Bristol
filed a reply brief.
II. ANALYSIS¿
A. Legal Standard
The function of a motion for summary
judgment or adjudication is to allow a determination as to whether an opposing
party cannot show evidentiary support for a pleading or claim and to enable an
order of summary dismissal without the need for trial. (Aguilar v. Atlantic
Richfield Co. (2001) 25 Cal.4th 826, 843.) CCP Section 437(c) “requires the
trial judge to grant summary judgment if all the evidence submitted, and ‘all
inferences reasonably deducible from the evidence’ and uncontradicted by other
inferences or evidence, show that there is no triable issue as to any material
fact and that the moving party is entitled to judgment as a matter of law.”¿ (Adler
v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)¿ “The function
of the pleadings in a motion for summary judgment is to delimit the scope of
the issues; the function of the affidavits or declarations is to disclose
whether there is any triable issue of fact within the issues delimited by the
pleadings.”¿ (Juge v. County of Sacramento (1993) 12 Cal.App.4th 59, 67,
citing FPI Development, Inc. v. Nakashima (1991) 231 Cal. App. 3d 367,
381-382.)¿
As to each claim as framed by the
complaint, the defendant moving for summary judgment must satisfy the initial
burden of proof by presenting facts to negate an essential element, or to
establish a defense. (CCP § 437c(p)(2); Scalf v. D. B. Log Homes, Inc. (2005)
128 Cal.App.4th 1510, 1520. ) Courts “liberally construe the evidence in
support of the party opposing summary judgment and resolve doubts concerning
the evidence in favor of that party.”¿ (Dore v. Arnold Worldwide, Inc.¿(2006)
39 Cal.4th 384, 389.)¿
Once the defendant has met that burden,
the burden shifts to the plaintiff to show that a triable issue of one or more
material facts exists as to that cause of action or a defense thereto.¿¿¿
To establish a triable issue of material
fact, the party opposing the motion must produce substantial responsive
evidence. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.)
B. Discussion
Bristol
moves for Summary Judgment on its Cross-Complaint against Cross-Defendant,
Lincoln. In the alternative, Bristol moves for Summary Adjudication on the
following issues: (1) ISSUE 1: For adjudication as to the
First Cause of Action of its Cross-Complaint filed in this action for Implied
Indemnity against Cross-Defendant Lincoln; (2) ISSUE 2: For adjudication
as to the Second Cause of Action of its Cross-Complaint filed in this action
for Express Indemnity against Cross-Defendant Lincoln; (3) ISSUE 3: For
adjudication as to the Third Cause of Action of its Cross-Complaint filed in
this action for Contribution against Cross-Defendant Lincoln; and (4) ISSUE
4: For adjudication as to the Fourth Cause of Action of its Cross-Complaint
for Declaratory Relief against Cross-Defendant Lincoln. Bristol contends that
it makes this motion on the grounds that it is entitled to judgment against
Lincoln based on the Lease between the parties.
Bristol posits that the subject
property that Plaintiff’s alleged incident took place is located at 8448
Lincoln Blvd., Los Angeles, California and is owned by Cross-Defendant, Lincoln. Lincoln does not dispute these facts. Bristol notes that it is a tenant at the
subject property, and Good Food Holdings, LLC is Bristol’s parent company. Lincoln
does not dispute these facts. Bristol notes that on June 7, 1976, a lease
was entered into between Cross-Defendant, Lincoln and Alpha Beta Company, which
was assigned to Lucky Stores, Inc., and pursuant to the August 3, 2005
Assignment Agreement, the lease was transferred to Bristol. Lincoln does not dispute
these facts. Bristol contends that the Fifth Lease
Amendment, dated March 13, 2003, which Bristol asserts was the operative lease
at the time of the subject incident, provided under Section 2 – Indemnity and
Insurance, that Landlord is to “indemnify, defend and hold harmless Tenant from
and against any and all liability, claims, damages, expenses…judgments,
proceedings and causes of action, for injury to or death of any
person…occurring in the Shopping Center or its adjoining streets, sidewalks or
public rights-of-way (except those occurring in the Demised Premises), unless
caused by the willful or negligent act or omission of Tenant…” (Declaration of Samuel
L. Masterson (“Masterson Decl.”), Exhibit 1 – Lease Agreement.) Lincoln does not
dispute these facts. Bristol further asserts that the indemnity
clause also states the landlord assumes all risk of damage to property or
injury to person occurring in the Shopping Center from any cause whatsoever
except for the willful or negligent act of omission of Tenant, its subtenants,
agents, contractors or employees. (Masterson Decl., Exhibit 1.) Lincoln disputes
the quoted language.
Bristol also assert that the undisputed
facts show that the parking lot where Plaintiff’s accident occurred, is part of
the Shopping Center, rather than part of Bristol’s Demised Premises. Lincoln
does not dispute these facts. Bristol notes that its lease with Lincoln did
not provide Bristol with exclusive use or ownership of the parking lot, but
instead, was granted nonexclusive use of the Parking and Common Areas. Lincoln
does not dispute these facts. Bristol also contends that its interest in the
property was limited to a leasehold of a portion of the subject property,
specifically the leased premises or “Demised Premises.” Lincoln does not dispute these facts.
First, Bristol contends that express
indemnity is enforced in accordance with the terms of the contracting parties’
agreement, and is not subject to equitable consideration. “An
indemnitee seeking to recover on an agreement for indemnification must allege
the parties’ contractual relationship, the indemnitee’s performance of that
portion of the contract which gives rise to the indemnification claim, the
facts showing a loss within the meaning of the parties’ indemnification
agreement, and the amount of damages sustained.” (Four Star Electric, Inc. v. F & H Construction (1992) 7
Cal.App.4th 1375, 1380.) Here, as noted above, Bristol has set forth that the
Fifth Lease Amendment, dated March 13, 2003, which was the operative lease at
the time of the incident involving Plaintiff’s alleged injury, clearly sets
forth the scope of Lincoln’s duty to indemnity. The parties do not dispute that
the Fifth Lease Amendment includes the
“Section 2 – Indemnity and Insurance” section.
Instead, Lincoln argues that Bristol created an
obligation to maintain the parking lot when it performed a resurfacing,
re-pairing, and re-striping in the parking lot in 2021, two years before the
subject slip and fall incident. As such, Lincoln contends that to the extent
Bristol relies on the lease agreement to escape liability for the condition in
the parking lot, they may not because they “exercised control” of the parking
lot and created an obligation to maintain the parking lot.
In Bristol’s reply brief, it argues this Court should
look at the plain language of the lease. Section 2 of the Fifth Amendment to
the Lease states:
“indemnify, defend and hold
harmless Tenant from and against any and all liability, claims, damages,
expenses…judgments, proceedings and causes of action, for injury to or death of
any person…occurring in the Shopping Center or its adjoining streets, sidewalks
or public rights-of-way (except those occurring in the Demised Premises), unless
caused by the willful or negligent act or omission of Tenant, its subtenants,
agents, contractors, or employees”
(Masterson
Decl., Exhibit 1.)
Lincoln states that Courts have
identified two situations in which an owner or occupier of private land has
engaged in affirmative or positive action to hold them liable for a hazard
located on abutting, publicly owned property: (1) First, when the owner or
occupier has created that hazard; and (2) Second, if the hazard was created by
a third party, when the owner or occupier has “dramatically asserted dominion
and control over the abutting, publicly owned property by effectively treating
the property as its own. Lincoln argues that the second scenario occurred here.
In doing so, Lincoln relies on Contreras v. Anderson (1997) 59
Cal.App.4th 188 (“Contreras”) to argue that Bristol retained control
over the parking lot. The Court finds Contreras to be
distinguishable. There was no lease language
in Contreras like the language here where the property owner expressly
and contractually assumed responsibility for the alleged hazard on the land abutting
the demised premises.
In Contreras, a plaintiff
slipped on an improperly sloped brick path which led from the street curb to
the sidewalk in the front of the defendant homeowners’ residence. The area of
the fall was owned by the city and separated the sidewalk by a five-foot fence.
(Contreras, 59 Cal.App.4th at 192.) However, the issue with Contreras
involved a tenant, a landlord, and public property abutting the private
property. Here, the parking lot is not claimed to be public property, nor as
any party argued that Plaintiff’s injury took place on a publicly owned portion
of the property. Further, in Contreras
there was evidence that the plaintiff’s slip and fall occurred because of negligence
in the creation or maintenance of the sloped brick path. Here, Lincoln has not provide the Court with
any evidence of how Bristol’s temporary control over the surface of the parking
lot in 2021 caused or contributed to the Plaintiff’s injury in 2023. For example, there is no expert or percipient
witness testimony before the Court on this motion as to the nature of the claimed
defect in the paved surface of the parking lot, or when or how it was created,
or what if anything Bristol may have done to constitute negligence or an intentional
act to create a dangerous condition of the parking lot. Bristol’s intentional act of paving and
striping the lot for Lincoln, regardless of whether Bristol paid $47,000 or $47
Million to do so, is not shown by any evidence before the Court to have caused,
contributed to, or created a hazard. Nor
is there any evidence that Lincoln amended the Lease or modified it
indemnification language to impose any responsibility on Bristol for untoward
consequences connected to the paving and re-striping.
Bristol has provided this Court with excerpts of William
Ward West’s deposition, who is the property manager for Lincoln, deposition.
Bristol notes that West visits the subject property once a week on an as-needed
basis. (West Depo. 49:7-12.) West has a litany of duties he engages in when on
site. One of these duties is to look for glaring holes in the parking lots and
the condition of the stripes. (West Depo., 54:1-9.) However, West has indicated
that he does not usually inspect the handicap spots in the parking area in
front of the Bristol store because the spaces are usually full. (West Depo., 52:10-23.)
However, besides checking on the parking lot, West was in charge of approving
repairs for Bristol and other tenants on the premises. West contends that it
is his understanding that Lincoln is generally responsible for maintaining the
common areas. (West Depo., 69:24-70:2.) West also noted he has never had any
requests from Bristol or any other tenant to make repairs in the parking lot.
(West Depo., 66:16-15.) Nor is there any
evidence before the Court that Bristol or anyone else had actual or
constructive notice of the need to repair anything between the 2021 date of the
repaving and the 2023 date of Plaintiff’s injury. Absent such a showing, it is difficult to
imagine how Bristol could have had any duty to report a request to repair to
its landlord.
Bristol also provided evidence that the only reason they
paid for the entirety of the parking lot project was because when Bristol asked
West about having Lincoln perform a slurry seal or other resurfacing of the parking
lot, West advised that after COVID, the tenants would not be able to afford
such a large expense. (West Depo., 74:6-15.) Mr. West also testified that Lincoln
exercised its right of control over the parking lot surface by requiring
Bristol to send him the plans and specs in order for Lincoln to approve the
project and grant Bristol permission. (West Depo., 74:16-77:3.) Generally, West
affirmatively noted that Bristol would need Lincoln’s permission to do any kind
of work in the common area. (West Depo., 74:25-77:3.) Moreover, during the resurfacing
project, West was on site every other day. (West Depo., 77:16-17.) These are indicia that Bristol did not exercise
unlimited control over the parking lot surface during the repaving project, and
that Lincoln asserted its contractual right and obligation to maintain
responsibility for the that expanse of common area that was not within the demised
premises.
Bristol cites to the unpublished opinion of Mission
Valley Partnership v. Sport Chalet, Inc. (2003) 2003 WL 21321832 (“Mission
Valley”) where the Fourth District Court of appeal ruled on a case Bristol
asserts is analogous to the case at bar. In Mission Valley, a pedestrian
fell on a concrete walkway outside of a sport chalet and sued the store owner,
mall owner, general contractor that restored the walkway, and subcontractor
that performed concrete work. The mall owner cross-complained against the store
owner for express indemnity. In Mission Valley, the mall was required to
indemnify Sport Chalet against any claims arising from an accident in the
“common areas.” The mall was, however, excused from its obligation if the claim
arose from Sport Chalet’s negligence. In Mission Valley, the mall had
paid for the restoration of the concrete walkway where the accident occurred,
but Sport Chalet contracted for the work. The Fourth Circuit Court of Appeal
discussed a number of decisions in which an indemnitor attempted to seek
indemnity from an indemnitee. The Mission Valley Court held that the
contracting parties had set forth each of their respective indemnity
obligations, which required the mall to indemnify Sport Chalet for any claim
arising from an accident in its premises, or interior of its store, absent
negligence of the indemnitee. The Court discussed that the parties specifically
delineated their respective areas of responsibility, and had they intended to
hold Sport Chalet liable for a claim arising from an accident in the common
area, when its negligence caused or contributed to the accident, they could
easily have said so.
Here, the parties did account for such negligence on the
part of Bristol in the lease. In fact, the clause accounts for negligence on
behalf of Bristol, its subtenants, agents, contractors, or employees. In
Lincoln’s answer to the cross-complaint, Lincoln has asserted comparative
negligence on the part of Bristol. However, Bristol has not shown facts that take
it out of the exception clause in the indemnification provision of the Lease,
i.e., affirmative evidence that Bristol was free from negligence. it was not negligent, nor that its
contractors were not negligent. The Court requests oral argument from the
parties as to whether Bristol, as part of its initial burden, is required to
show that no issue of material fact exists as to its negligence and/or its contractor
or subcontractor negligence exists.
Nonetheless, the Court’s tentative ruling is to GRANT the
Motion for Summary Judgement based on the plain language of the lease, the
evidence produced by Bristol, and the lack of evidence presented by Lincoln to
meet its shifted burden and show that triable issues of material fact do
exists.
III. CONCLUSION¿¿
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For the foregoing reasons, Bristol’s
Motion for Summary Judgment is GRANTED pending oral argument discussion.
Moving party is ordered to
provide notice.