Judge Thomas Falls, Case 19STCV43709 2022-09-07 Tentative Ruling

(1) Defendant Alltech Inc.’s MOTION FOR SUMMARY JUDGMENT AGAINST MILLERCOORS, LLC’S CROSSCOMPLAINT

(2) MillerCoors LLC’s MOTION FOR SUMMARY ADJUDICATION AS TO FOURTH CAUSE OF ACTION FOR DECLARATORY RELIEF AGAINST ALLTECH, INC.

(3) Alltech, Inc.’s MOTION FOR SUMMARY JUDGMENT AS TO PLAINTIFF’S SECOND AMENDED COMPLAINT

(1) Defendant Alltech Inc.’s MOTION FOR SUMMARY JUDGMENT AGAINST MILLERCOORS, LLC’S CROSSCOMPLAINT is DENIED.

(2) MillerCoors LLC’s MOTION FOR SUMMARY ADJUDICATION AS TO FOURTH CAUSE OF ACTION FOR DECLARATORY RELIEF AGAINST ALLTECH, INC. is GRANTED.

(3) Alltech, Inc.’s MOTION FOR SUMMARY JUDGMENT AS TO PLAINTIFF’S SECOND AMENDED COMPLAINT is DENIED.

This case arises from a workplace injury. On March 4, 2018, Plaintiff Joseph Soria (“Plaintiff”) alleges that while at work at MillerCoors’ Irwindale Brewery (“Premises”), a slight glass, “which is a piece of equipment on a yeast storage system, exploded and caused Plaintiff serious personal injuries, including but not limited to glass penetrating his eyeballs (“Incident”).” (Second Amended Complaint (“SAC”) ¶12.)[1]

On December 5, 2019, Plaintiff filed suit against Defendants Millercoors, LLC, Millercoors USA LLC, Molson Coors Brewing Company, Alltech Inc., Pacific Mechanical Supply, Polyone Corporation, Marinela Hendon, and Does 1 to 100 for:

On October 19, 2021, the court granted the Motion for Determination of Good Faith Settlement (Code of Civ. Proc., § 877.6) filed by Polyone Corporation on 09/22/2021.

On December 9, 2021, Alltech, Inc. filed its ‘MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ALLTECH, INC.’S MOTION FOR SUMMARY JUDGMENT AGAINST MILLERCOORS, LLC’S CROSSCOMPLAINT.’

On July 28, 2022, Millers, LLC filed its OPPOSITION TO ALLTECH, INC.’S MOTION FOR SUMMARY JUDGMENT AS TO MILLERCOORS’ CROSS-COMPLAINT.

On December 9, 2021, Alltech, Inc filed its MOTION FOR SUMMARY JUDGMENT AS TO PLAINTIFF’S SECOND AMENDED COMPLAINT.

On July 28, 2022, Millercoors LLC filed its OPPOSITION TO ALLTECH, INC.’S MOTION FOR SUMMARY JUDGMENT AS TO PLAINTIFF’S SECOND AMENDED COMPLAINT.

On July 28, 2022, Plaintiff filed its MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO THE MOTION FOR SUMMARY JUDGMENT OF ALLTECH, INC.

On May 27, 2022, MillerCoors MOTION FOR SUMMARY ADJUDICATION AS TO FOURTH CAUSE OF ACTION FOR DECLARATORY RELIEF AGAINST ALLTECH, INC.

On July 28, 2022, Alltech, Inc. filed its OPPOSITION TO MILLERCOORS LLC’S MOTION FOR SUMMARY ADJUDICATION AS TO THE FOURTH CAUSE OF ACTION FOR DECLARATORY RELIEF.

On June 24, 2022, MillerCoors filed its MOTION FOR SUMMARY ADJUDICATION ON PLAINTIFF JOSEPH SORIA’S SECOND, THIRD, FOURTH, AND FIFTH CAUSES OF ACTION in Plaintiff’s Second Amended Complaint (“Complaint”).

On August 15, 2022, Plaintiff filed a MOTION TO: (1) COMPEL THE DEPOSITION OF DEFENDANT MILLERCOORS, LLC'S PERSON(S) MOST QUALIFIED AND PRODUCTION OF DOCUMENTS, (2) DENY OR CONTINUE DEFENDANT MILLERCOORS, LLC'S MOTION FOR SUMMARY ADJUDICATION, AND (3) REQUEST FOR MONET ARY SANCTIONS. Plaintiff Also Filed An Ex-Parte On This Motion.

On August 18, 2022, Millercoors Filed Its LIMITED OPPOSITION TO PLAINTIFF’S EX PARTE APPLICATION TO SHORTEN TIME FOR A HEARING ON PLAINTIFF’S MOTION TO COMPEL THE DEPOSITION OF DEFENDANT MILLERCOORS, LLC’S PERSON(S) MOST QUALIFIED OR IN THE ALTERNATIVE TO DENY OR CONTINUE DEFENDANT’S MOTION FOR SUMMARY ADJUDICATION UNDER C.C.P. §437c(H).

The hearing on Millercoors LLC’s MSJ as to Plaintiff’s SAC is scheduled for 10/26/2022.

The law of summary judgment provides courts “a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843 (Aguilar).) In reviewing a motion for summary judgment, courts employ a three-step analysis: “(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent’s claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.” (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294.) “The motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Code Civ. Proc., § 437c, subd. (c).)

A moving defendant bears the initial burden of production to show that one or more elements of the cause of action cannot be established or that there is a complete defense to the cause of action, at which point the burden shifts to the plaintiff to make a prima facie showing of the existence of a triable issue. (Code Civ. Proc., § 437c, subd. (p)(2).) “The motion shall be supported by affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice shall or may be taken.” (Code Civ. Proc., § 437c, subd. (b)(1).)

The opposing party may not rely on the mere allegations or denials of the pleadings, but instead must set forth the specific facts showing that a triable issue exists as to that cause of action or a defense thereto. (Aguilar, supra, at p. 849.) Specifically, “[t]he opposition, where appropriate, shall consist of affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice shall or may be taken.” (Code Civ. Proc., § 437c, subd. (2).)

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; see also Hinesley, supra, 135 Cal.App.4th at p. 294 [The court must “view the evidence in the light most favorable to the opposing party and accept all inferences reasonably drawn therefrom.”].) In determining whether the papers show that there is a triable issue as to any material fact, the court shall consider all of the evidence set forth in the moving papers, except that as to which objections have been made and sustained, and all inferences reasonable deducible from such evidence. (Hayman v. Block (1986) 176 Cal.App.3d 629, 639.)

I. Alltech, Inc.’s MOTION FOR SUMMARY JUDGMENT AGAINST MILLERCOORS, LLC’S CROSSCOMPLAINT’

Alltech moves for summary judgment against MillerCoors because to establish any of its causes of actions, MillerCoors is required to establish that Alltech was negligent, and that its acts or omissions were the cause of Plaintiff’s underlying lawsuit against MillerCoors. However, according to Alltech, MillerCoors cannot meet its burden to demonstrate any such negligence, notably because “[i]t is undisputed that Alltech met all of its contractual obligations under the MillerCoors Contract by delegating the responsibility of training and safety to IWP.” (Motion p. 7:8-10.)

Alltech argues that “the undisputed evidence demonstrates IWP was exclusively in control of the performance of Plaintiff’s work, including responsibility for training Plaintiff on how to perform his job duties safely. Plaintiff testified that Alltech never gave him any safety training or instruction on how he should perform his duties as a driver for IWP, and that Alltech did not do anything to prevent him from performing his job duties safely.” (Motion p. 6, citing Statement of Undisputed Facts (“SUF”) Nos. 32-52.) Moreover, Alltech did not provide IWP with any direction as to the means and methods by which the contracted work was to be accomplished. (Motion p. 6, citing SUF No. 40.)[2] Lastly, IWP’s Safety Director, Risk Manager, and Plaintiff’s direct supervisor testified that IWP was responsible for training its drivers, including Plaintiff, on safety, how to drive and load their trucks, and what PPE should be worn; IWP never received any direction or instruction from Alltech regarding this training. (Motion p. 7, citing SUF 43-52.)

Here, the court finds it cannot even reach the issue of negligence because Alltech mischaracterizes the Agreement between Alltech and MillerCoors.

Contrary to Alltech’s assertion that it is precluded from liability because it did not train Plaintiff and other employers about the safe transport of the Production from the Premises, the terms of the agreement required Alltech to engage in such activity. The agreement, which set out Alltech’s duties, included the following provision:

7. Buyer’s Warranties. …. [Alltech] warrants that all personnel accessing Seller's property to pick up and transport the CPs will be properly trained and qualified to provide such services.

(SUF No. 15) (emphasis added and underline added). Accordingly, Alltech has mischaracterized the requirements of the Agreement as the Agreement required Alltech to conduct the training of its subcontractor’s employees. Or, in the alternative, there is a dispute as to contract interpretation.

Effectively, to the extent that Alltech argues it cannot be liable because of all the things it did not do that it was not required to do, Alltech’s own evidence directly undermines that assertion.

Additionally, to the extent that Alltech argues it was able to delegate its duties, the Agreement contained an Assignment provision that expressly prohibited Alltech from such action. The Agreement, in pertinent part, prohibits the following:

…assign[ing], subcontract[ing] or delegat[ing] its rights or obligations under this Agreement without [MillerCoors]’s prior written consent. Any attempt by [Alltech] to assign, subcontract or delegate any rights or obligations without written consent will be null and void and will grant [MillerCoors] the right to terminate this Agreement.

Here, however, Alltech has not produced evidence that such prior written consent was ever obtained. (Opp. p. 10.)

Accordingly, without the required written consent, Alltech’s duties were nondelegable.

Furthermore, to the extent that Alltech argues that the Privette Doctrine permits Alltech to delegate the responsibility of ensuring the proper training and qualification to IWP, the Privette Doctrine appears inapplicable for three reasons.

First, the doctrine does not exempt general contractor from liability for injuries caused by breach of non-delegable duties. (Felmlee v. Falcon Cable TV (1995) 36 Cal.App.4th 1032, 1035; see also See CACI No. 3713.) “A nondelegable duty is a definite affirmative duty the law imposes on one by reason of his or her relationship with others. One cannot escape this duty by entrusting it to an independent contractor.” (Id. at 1036) (emphasis added). Entrustment of a nondelegable duty may arise from contract. (Bowman v. Wyatt (2010) 186 Cal.App.4th 286, 316, citing Harold A. Newman Co. v. Nero (1973) 31 Cal.App.3d 490, 496-497.)

Second, as argued by both Plaintiff and MillerCoors, Privette should not apply because its policy rationale is not supported by Alltech’s contractual indemnity right against IWP. Privette held that when the “injuries resulting from an independent contractor’s performance of inherently dangerous work are to an employee of the contractor, and thus subject to workers’ compensation coverage, the doctrine of peculiar risk affords no basis for the employee to seek recovery of tort damages from the person who hired the contractor but did not cause the injuries.” (Privette, supra, at p. 702) (emphasis added). The Privette doctrine was further extended to situations wherein the contractor expressly agreed in writing to indemnify the person who hired the independent contractor against such liability but limited to vicarious liability. (Redfeather v. Chevron USA, Inc. (1997) 57 Cal.App.4th 702, 704, fn. 1.) Here, as Alltech has a remedy against IWP (i.e., indemnity via their agreement) and this is a situation of direct liability, then tort remedy is not precluded. (See Privette, supra, at pp. 701 [“[A]ffixing liability without indemnification places an onerous burden on someone who is “fault-free.” [citation omitted]. The availability of equitable indemnity, as mentioned earlier, is but one of several policy reasons that generally support the imposition of peculiar risk liability. In addition, the peculiar risk doctrine seeks to ensure that injuries caused by contracted work will not go uncompensated, that the risk of loss for such injuries is spread to the person who contracted for and thus primarily benefited from the contracted work, and that adequate safety measures are taken to prevent injuries resulting from such work. [citation omitted]. But in the case of on-the-job injury to an employee of an independent contractor, the workers' compensation system of recovery regardless of fault achieves the identical purposes that underlie recovery under the doctrine of peculiar risk .”].) Consequently, as the Privette court was concerned with a situation wherein equitable indemnity is unavailable, a concern that formed the court’s finding, here, as equitable indemnity is available, Privette is seemingly inapplicable. (Id. at 701 [“Not considered [] however, was the unavailability of equitable indemnity from a negligent employer whose employee is covered by workers' compensation, an issue we address here.”].)

Third, the Privette doctrine applies when the hirer itself is not negligent. (Id. [“Not present in such a case is a significant policy justification for imposing peculiar risk liability on a nonnegligent party.”].) Plaintiff alleges that Alltech is liable for negligent undertaking based upon the following allegations: (i) Alltech, as purchaser of the "Product" ("the Wet Spent Brewers Yeast"), expressly undertook responsibility at the Premises to provide necessary training to its employees and had “undertaken the duties of determining how to perform yeast removal in a safe manner and also ensuring that the yeast removal could be safely performed with the existing equipment at the Premises” (SAC ¶32); (ii) as a result of the failure to exercise reasonable care in the undertaking concerning safety training was the “direct, proximate, and legal cause of the injuries sustained by Plaintiff.” (SAC ¶50.) Here, however, Alltech has provided no evidence that it was not negligent.

Based thereon, as there remain triable issues of material fact as to Alltech’s nondelegable duties and whether Alltech was negligent in the performance thereof, Alltech failed to meet its burden, the burden has not shifted to MillerCoors. (See Doe v. Good Samaritan Hosp. 2018) 23 Cal.App.5th 653, 661-662.)

All in all, Alltech’s argument that it was not involved in the subject incident, thereby precluding liability is fatal to its motion because the very thing Alltech was contractually required to do was to be involved. Thus, without an accurate representation of the Agreement between the parties, Alltech’s motion inherently fails. Therefore, the court DENIES Alltech’s motion for summary judgment.[3]

II. MillerCoors LLC’s MOTION FOR SUMMARY ADJUDICATION (“MSA”) AS TO FOURTH CAUSE OF ACTION FOR DECLARATORY RELIEF AGAINST ALLTECH, INC

Any person interested under a written instrument, excluding a will or a trust, or under a contract, or who desires a declaration of his or her rights or duties with respect to another … may, in cases of actual controversy related to the legal rights and duties of the respective parties, bring an original action or cross-complaint in the superior court for a declaration of his or her rights and duties in the premises, including a determination of any question of construction or validity arising under the instrument or contract. He or she may ask for a declaration of rights or duties, either alone or with other relief; and the court may make a binding declaration of these rights or duties, whether or not further relief is or could be claimed at the time. The declaration may be either affirmative or negative in form and effect, and the declaration shall have the force of a final judgment. The declaration may be had before there has been any breach of the obligation in respect to which said declaration is sought.

MillerCoors brings forth the MSA on the ground that there are no triable issues of material fact regarding Alltech’s contractual duty to defend MillerCoors from Plaintiff’s lawsuit, specifically due to the express indemnity provision that obligates Alltech to indemnify MillerCoors.[4]

“The duty to defend an indemnitee against all claims ‘embraced by the indemnity’ . . . 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.” (Crawford v. Weather Shield Mfg., Inc. (2008) 44 Cal.4th 541, 558.) As such, a duty to defend does “not require a final determination of the issues, including the issue of [] negligence.” (Crawford, supra, 44 Cal.4th at p. 559.) It follows that claims, “embraced by the indemnity,” include those that “at the time of tender allege facts that would give rise to a duty of indemnity.” (Id) (italics original). Thus, “even if the indemnity obligation is triggered only by an ultimate finding of the indemnitor’s fault, the defense obligation applies before, and thus regardless of, any finding to be made in the course of the litigation for which a defense is owed.” (Id. at 561.)

MillerCoors argues that Plaintiff had a duty to defend based upon the Agreement.

Subject to Section 8, Buyer will indemnify, defend and hold harmless Seller from and against any claims, suits or liabilities (“Claims”) that may be brought against Seller arising out of or in connection with the acts or omissions of Buyer in connection with this Agreement. . . . Buyer will reimburse Seller for any costs incurred by Seller in enforcing Buyer’s obligations under this provision.

Here, Plaintiff has sued MillerCoors. Additionally, suit arises out of or is connected to Alltech’s acts or omissions as Plaintiff’s negligent undertaking cause of action is predicated upon Alltech’s responsibility to properly train Plaintiff about how to perform yeast removal in a safe manner. (SAC P32.)[5] After all, Plaintiff was not wearing any personal protective equipment at the time and contends that the exploding glass caused various injuries to his eyes and face. (SSUF No. 28). Lastly, MillerCoors also states that the ‘Loading’ provision further evidences the imposition of a duty on Alltech. The provision states that “[Alltech] will be solely liable for any damage or destruction of property or injury to person caused by [Alltech] or its agent while present on Seller's premises, unless such damage or destruction of property or injury to person was solely the result of an act by [MillerCoors] or a result of [MillerCoors’] negligence.” (SUF No. 14) (emphasis added and underline added). Thus, even if “[t]he cause of the pressure buildup is in dispute” (Motion p. 4), that is irrelevant for purposes of determining whether there is a duty to defend.

Therefore, as the express indemnity provision applies and requires that Alltech indemnify MillerCoors for any suit (i.e., this action) that relates to the Agreement (i.e., Plaintiff alleges Alltech’s failure to train Plaintiff, as required by the Agreement, and such a failure allegedly caused Plaintiff’s injuries), then the provision is valid and MillerCoors met its evidentiary burden.

Alltech does not dispute that it will defend MillerCoors. According to Alltech, “[o]n July 26, 2022, Alltech’s general liability carrier, ACE American Insurance Company (“Chubb”), sent correspondence to MillerCoors’ counsel, which states that the carrier agreed to accept MillerCoors’ request for defense pursuant to a reservation of rights.” (Opp. p. 4.)

Here, however, Alltech has only partially accepted its duty to defend with a “reservation of rights.” And to the extent that Alltech argues the issue presents “questions of fact,” Alltech has not presented any facts to meet its burden. (Opp. p. 5.)

Therefore, as Alltech failed to meet its burden, summary judgment is granted as to MillerCoors’ MSA.

III. Alltech, Inc.’s MOTION FOR SUMMARY JUDGMENT AS TO PLAINTIFF’S SECOND AMENDED COMPLAINT.

Alltech’s motion is predicated upon to legal principle that the Privette Doctrine applies and none of the exceptions to the Privette Doctrine apply.

However, for reasons already articulated above, there remains at a triable issue of material fact as to whether Alltech retained the obligation of ensuring a safe workplace.

In short, Alltech’s argument remains that it is not liable because it rightfully abdicated its duties to IWP ignores that the contract between MillerCoors and Alltech precluded delegation of said duties. To the extent Alltech argues such delegation was permitted by the contract, then triable issue of material fact remains as to contract interpretation. Based on the foregoing, Alltec’s motion is DENIED.

[1] As further explained in the SAC, Plaintiff worked for Imperial Western Products, Inc. (“IWP”). (SAC ¶13(c).) The premises where the accident occurred was owned by MillerCoors LLC. (SAC ¶13(a).) Moreover, “Alltech had contracted with MillerCoors to purchase, remove, and transport spent brewer’s yeast from the Premises and to provide safety for the Spent Yeast removal processes.” (SAC ¶13(b).) Furthermore, Alltech hired IWP “with the consent of MillerCoors to perform the yeast transfer work at the premises.” (SAC ¶13(c).) Lastly, the subject yeast storage system (which included the slight glass component) was designed and manufactured by MillerCoors and PolyOne. (SAC ¶13(e).) Thus, in short and as explained in more detail in the summary judgment motions, Alltech purchased spent yeast from MillerCoors and as part of that agreement, Alltech agreed to remove and the transport the spent yeast from the brewery. Alltech then hired IWP to perform said services.

[2] Alltech heavily relies on the declaration of Kevin Perraut. Though not dispositive for this motion, Perraut’s declaration is inadmissible because of the Secondary Evidence Rule. (Evid. Code § 1521, subd. (a) [“The content of a writing may be proved by otherwise admissible secondary evidence. The court shall exclude secondary evidence of the content of writing if the court determines either of the following: (1) A genuine dispute exists concerning material terms of the writing and justice requires the exclusion.”].) Here, a genuine dispute concerning the material terms of the writing exist as Alltech states that “MillerCoors Contract does not state that Alltech is required to conduct the training of its subcontractor’s employees” whereas the Agreement says otherwise. (See Motion, p. 7: 17-18, SUF No. 16.) Therefore, Perraut’s declaration is inadmissible evidence.

[3] Alltech only moved for summary judgment, not summary adjudication. Thus, as the motion is denied in its entirety, triable issues remain as to all causes of action. (See Gonzales v. Superior Court (1987) 189 Cal.App.3d 1542, 1546 [“The language of Code of Civil Procedure section 437c subdivision (f) makes it clear that a motion for summary adjudication cannot be considered by the court unless the party bringing the motion duly gives notice that summary adjudication is being sought.”].)

[4] The narrow issue subject to this MSA is the duty to defend. (Motion p. 2:14-17 [“This is purely a question of legal duty . . . to defend MillerCoors as a matter of law; see also Motion p. 2:21-24 [“[N]o triable issues of material fact regarding Alltech’s duty to defend MillerCoors; see also Motion p. 11 [“MillerCoors respectfully submits that it is entitled to . . . an Order from this Court stating that Alltech is contractually obligated to defend MillerCoors with regard to the claims made by Plaintiff in this case.”]) (emphasis added).

[5] “Liability [for a negligent undertaking] depends on whether: (1) defendants’ failure to exercise reasonable care increased the risk of physical harm to the third person; or (2) defendants undertook to perform a duty the other owed to the third person; or (3) the harm was suffered because the other or the third person relied on defendants’ undertaking.” (Paz v. State of California (2000) 22 Cal.4th 550, 560) (emphasis added).