On 12/13/2017 ALICE MEZA filed a Personal Injury - Other Personal Injury lawsuit against 99 NORTH LA CIENEGA L P. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is GEORGINA T. RIZK. The case status is Pending - Other Pending.
Pending - Other Pending
Los Angeles County Superior Courts
Stanley Mosk Courthouse
Los Angeles, California
GEORGINA T. RIZK
99 NORTH LA CIENEGA L.P.
G.E.K. CONSTRUCTION INC.
KOBOR GEORGE AND ERIKA INDIVIDUALLY
DOES 1 THROUGH 30
SECK IBIERE ESQ.
PALTA AMIT ESQ.
12/19/2018: Notice of Lien
12/19/2018: Other -
3/14/2019: Stipulation and Order
3/27/2019: Motion for Leave to File a Cross-Complaint
5/16/2019: Minute Order
5/22/2019: Notice of Case Management Conference
1/10/2018: PROOF OF SERVICE SUMMONS
1/17/2018: ANSWER TO COMPLAINT AND DEMAND FOR TRIAL BY JURY
1/17/2018: DEMAND FOR JURY TRIAL
1/3/2018: PROOF OF SERVICE OF SUMMONS
12/13/2017: COMPLAINT FOR DAMAGES 1. NEGLIGENCE ;ETC
at 10:00 AM in Department 2, Georgina T. Rizk, Presiding; Final Status Conference - Not Held - Continued - StipulationRead MoreRead Less
Notice of Case Management Conference; Filed by ClerkRead MoreRead Less
Certificate of Mailing for ([Notice of Case Management Conference]); Filed by ClerkRead MoreRead Less
at 1:30 PM in Department 2, Georgina T. Rizk, Presiding; Hearing on Motion for Leave to File a Cross-Complaint - Not Held - Advanced and VacatedRead MoreRead Less
at 4:34 PM in Department 2, Georgina T. Rizk, Presiding; Court OrderRead MoreRead Less
Certificate of Mailing for (Minute Order (Court Order Re: Transferring and Case Reassignment To An I/C...) of 05/16/2019); Filed by ClerkRead MoreRead Less
Order (Court Order Re: Transfer of Complicated Personal Injury Case to an Independent Calendar Court); Filed by ClerkRead MoreRead Less
Minute Order ( (Court Order Re: Transferring and Case Reassignment To An I/C...)); Filed by ClerkRead MoreRead Less
Plaintiff's Notice of Non-Opposition To Defendants' Motion for an Order for Leave to File Cross-Complaint; Filed by Alice Meza (Plaintiff)Read MoreRead Less
Notice of Motion and Motion for an Order for Leave of Court to File Cross-Complaint; Filed by 99 North La Cienega, L.P. (Defendant); G.E.K. Construction, Inc. (Defendant); Kobor, George and Erika, individually (Defendant)Read MoreRead Less
Answer; Filed by 99 North La Cienega, L.P. (Defendant); G.E.K. Construction, Inc. (Defendant); Kobor, George and Erika, individually (Defendant)Read MoreRead Less
Demand for Jury Trial; Filed by 99 North La Cienega, L.P. (Defendant); G.E.K. Construction, Inc. (Defendant); Kobor, George and Erika, individually (Defendant)Read MoreRead Less
Receipt; Filed by 99 North La Cienega, L.P. (Defendant); G.E.K. Construction, Inc. (Defendant); Kobor, George and Erika, individually (Defendant)Read MoreRead Less
PROOF OF SERVICE SUMMONSRead MoreRead Less
Proof-Service/Summons; Filed by Alice Meza (Plaintiff)Read MoreRead Less
Proof-Service/Summons; Filed by Alice Meza (Plaintiff)Read MoreRead Less
PROOF OF SERVICE OF SUMMONSRead MoreRead Less
SUMMONSRead MoreRead Less
COMPLAINT FOR DAMAGES 1. NEGLIGENCE ;ETCRead MoreRead Less
Complaint; Filed by Alice Meza (Plaintiff)Read MoreRead Less
Case Number: BC686643 Hearing Date: November 05, 2020 Dept: O
Case Name: Meza v. 99 North La Cienega, L.P., et al.
Case No.: BC686643
Complaint Filed: 12-13-17
Hearing Date: 11-5-20
Discovery C/O: 12-21-20
Calendar No.: 8
Discover Motion C/O: 1-6-21
Trial Date: 1-21-21
SUBJECT: MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE SUMMARY ADJUDICATION
MOVING PARTY: Defendant/Cross-Defendant Cedars-Sinai Medical Care Foundation
RESP. PARTY: (1) Defendants 99 North La Cienega, LP, G.E.K. Construction, Inc., George and Erika Kobor, individually and as trustees of George and Erika Kobor Family Trust dated 7-7-89
(2) Plaintiff Alice Meza (Notice of Non-Opposition)
Defendant/Cross-Defendant Cedars-Sinai Medical Care Foundation’s (“Cedars”) Motion for Summary Judgment is GRANTED as to Plaintiff’s complaint.
Cedars Motion for Summary Judgment, or in the Alternative, Summary Adjudication is DENIED as to Defendants/X-Complainants 99 North La Cienega, L.P., G.E.K. Construction, Inc., George and Erika Kobor, individually and as trustees of George and Erika Kobor Family Trust dated 7-7-89’s (“Cross-Complainants”) Cross-Complaint.
Cedars Motion for Summary Adjudication of Cross-Complainants’ Cross-Complaint is GRANTED as to the 2nd cause of action for equitable indemnification and DENIED as to the 1st cause of action for express contractual indemnification, 3rd cause of action for declaratory relief and 4th cause of action for indemnification.
I. Motion for Summary Judgment/Adjudication of Plaintiff’s Complaint and Cross-Complainants’ 2nd cause of action for equitable indemnification—GRANTED
“A defendant cannot be held liable for the defective or dangerous condition of property
which it did not own, possess, or control.” Isaacs v. Huntington Mem'l Hosp. (1985) 38 Cal.3d
112, 134. “Absent the right to control either the premises or the dangerous condition, there
generally is no duty to correct or warn.” Alcaraz v. Vece (1997)14 Ca1.4th 1149, 1176.
The undisputed facts establish (1) Plaintiff’s accident occurred on the Walkway, which is a common area of the building; (2) Cedars did not own, possess, maintain, control, operate, manage, repair, inspect, review, evaluate, or construct any portion of the Walkway; (3) it was the landlord’s duty to maintain the walkway per the Lease. See Cedars’ SSUMF Nos. 8-10; Cedars’ Response to Defendants’ SSUMF Nos. 8-10.
Cedars therefore negates the essential elements of duty and breach as to Plaintiff’s three causes of action for negligence, premises liability and negligence per se. Plaintiff did not oppose the MSJ/A. No triable issues of fact remain as to the Plaintiff’s complaint. Defendant Cedar’s Motion for Summary Judgment of Plaintiff’s Complaint is GRANTED.
If a court adjudicates that a defendant is not a concurrent tortfeasor responsible in any way for the plaintiff’s injuries, another defendant may not pursue a claim for indemnity against that defendant. See Frank v. State of California (1988) 205 Cal.App.3d 488, 494 (dismissal of State from underlying plaintiff’s complaint on demurrer did not bar co-defendant from suing State for indemnification, because dismissal based on demurrer was not tantamount to an adjudication of the issue of State’s negligence); Columbus Line, Inc. v. Gray Line Sight-Seeing Companies Associated, Inc. (1981) 120 Cal.App.3d 622, 628 (where defendant obtained summary judgment of plaintiff’s complaint on grounds that it was not negligent, defendant was also entitled to summary judgment of codefendant’s cross-complaint for equitable indemnification based on doctrine of collateral estoppel; defendant’s negligence towards plaintiff was an essential element of codefendant’s equitable indemnification claim).
“A key restrictive feature of traditional equitable indemnity is that, on matters of substantive law, the doctrine is wholly derivative and subject to whatever immunities or other limitations on liability would otherwise be against the injured party. This rule is often expressed in the shorthand phrase ‘there can be no indemnity without liability.’” Prince v. Pacific Gas & Electric Co. (2009) 45 Cal.4th 1151, 1158–1159 (plaintiff acknowledged she could not recover traditional equitable indemnity because defendant owed her not duty of care per CC §846).
Cedars has obtained summary judgment of the Plaintiff’s complaint by demonstrating that it was not negligent towards Plaintiff. Cross-Complainants attempt to raise a triable issue regarding Cedars’ negligence based on their failure to inform patients that the exit doors locked behind them and properly marking the way to the waiting room. See Cross-Complainant’s Material Facts in Opposition Nos. 7-14. These arguments fail to raise a triable issue of fact for two reasons.
First, Cross-Complainants concede that they were the ones with control over the walkway where Plaintiff fell and that Cedars did not have any duty to control, manage or maintain the walkway. See Cedars’ SSUMF Nos. 8-10; Cedars’ Response to Defendants’ SSUMF Nos. 8-10. Cross-Complainants do not argue, nor do they present evidence, that Cedars was responsible for the alleged dangerous condition, i.e. the “design and color of the walkway, step, and lower surface level.” See Cedars’ Compendium of Evidence, Ex. A, Complaint, ¶9. These elements are essential to Plaintiff’s claims.
Second, there is no evidence that Cedars alleged conduct was negligent or that its allegedly negligent conduct was the proximate cause of Plaintiff’s injury. There is no evidence that the way to the waiting room was improperly marked, nor is there any evidence that Cedars had a duty to warn of the exit doors automatically locking after exit. The only evidence presented is Plaintiff’s deposition testimony, in which she testified that she left the exam room to return to the waiting room, that she went through a few doors marked exit, that she could not go back through the exit doors and as a result, she exited the building where she fell. See Cross-Complainants’ Material Facts in Opposition Nos. 7-14.
As a consequence, Cross-Complainants fail to raise a triable issue as to whether Cedars was negligent towards Plaintiffs and whether Cedars’ alleged negligence caused her injury, essential elements of Cross-Complainants’ 2nd cause of action for traditional equitable indemnity. Defendant Cedars’ Motion for Summary Adjudication of the 2nd cause of action for partial or complete equitable indemnity is GRANTED.
II. Motion for Summary Judgment/Adjudication of Cedars’ 1st cause of action for Express Indemnification and 4th cause of action for Indemnification
The 1st cause of action for express indemnification and the 4th cause of action for indemnification in the Cross-Complaint are duplicative. Both causes of action seek indemnification from Cedars based on the indemnification provision contained in the parties’ written lease agreement. See Cedars’ Compendium of Evidence, Ex. H, X-Complaint, ¶¶5, 20 and 21.
Cedars argues §8.1 of the Lease Agreement does not obligate it to indemnify against injuries arising from use of the common areas of the Subject Building. Cedars argues the clause only requires it to indemnify Cross-Complainants for liability “incurred in connection with or arising from any cause in, on or about the Premises,” including the “use or occupancy of the Premises.” Id. at Ex. C, Lease Agreement, §8.1.
Section §8.1 of Cedars lease states:
“Indemnification and Waiver. Landlord shall not be liable for and Tenant hereby waives all claims against Landlord for damage to any property or injury, illness or death of any person in, upon, or about the Premises and/or the Real Property arising at any time and from any cause whatsoever other than damages proximately caused by reason of the negligence, willful misconduct or breach of this Lease by Landlord or its agents and employees. Subject to the terms of the preceding sentence, Tenant shall indemnify, defend, and protect Landlord, and hold Landlord harmless from any and all loss, cost, damage, expense and liability (including without limitation court costs and reasonable attorneys' fees) incurred in connection with or arising from any cause in, on or about the Premises, including, without limiting the generality of the foregoing: … (iii) the condition of the Premises or any occurrence or happening on the Premises from any cause whatsoever; (iv) any acts, omissions or negligence of Tenant or any person claiming by, through or under Tenant, or of the contractors, agents, servants, employees, visitors or licensees of Tenant or any such person, in, on or about the Premises or the Real Property…. Tenant further agrees to indemnify and save harmless Landlord, Landlord's agents, and the lessor or lessors under all ground or underlying leases, from and against any and all loss, cost, liability, damage and expense including, without limitation, reasonable attorneys' fees, incurred in connection with or arising from any claims by any persons by reason of injury to persons or damage to property occasioned by any use, occupancy, condition, occurrence, happening, act, omission or negligence referred to in the preceding sentence.” (Emphasis added.) Cedars’ Compendium of Evidence, Ex. C, §8.1.
The lease defines “Premises” as “The space located on the Mezzanine floor, known as Suite 102M , as outlined on Exhibit A attached hereto, containing approximately 4,636 rentable square feet for purposes of calculating Minimum Annual Rent and Tenant's Share.” And Section 2.1 of the lease describes “Real Property” as “The Building, the land upon which the building stands and the land and the improvements surrounding the building, including the parking structure, which are designated from time to time by Landlord as land or common areas appurtenant to or servicing the Building are sometimes collectively referred to as the ‘Real Property.’” (Emphasis added.) Cedars’ Compendium of Evidence, Ex. C, §8.1.
Cedars’ interpretation of §8.1 is too narrow. Under §8.1, Cedars is obligated to indemnify against losses “incurred in connection with or arising from any cause in, on or about the Premises, including, without limiting the generality of the foregoing….” Id. There is nothing in §8.1 expressly stating that Cedars is not obligated to indemnify for injuries that occur in common areas. The obligation to indemnify is not limited to losses arising from “use,” but from “any cause,” that occurred “on or about the Premises.”
Cedars relies on two cases for the principal that “arising out of” in an indemnification provision cannot reasonably be interpreted to include injuries arising out of use of the common areas. Both cases interpreted indemnification provisions that were narrower than the language of §8.1 of the Lease Agreement.
In Morlin Asset Management LP v. Murachanian (2016) 2 Cal.App.5th 184, a lease
agreement with a dentist imposed an indemnity obligation on the dentist for claims “arising out of, involving or in connection with, the use and/or occupancy of the Premises by Lessee.” “We hold that under the indemnity clause in this case, the injury to a third party that occurred outside the dental suite, in a common area over which the landlords have exclusive control, did not arise out of the tenant's use of the dental suite.” Morlin Asset Management LP v. Murachanian (2016) 2 Cal.App.5th 184, 193.
Likewise, in City of Oakland v. Oakland Unified School Dist. Of Alameda County (1956) 141 Cal.App.2d 733, the alleged indemnification provision required defendants “to indemnify plaintiff against all loss, expense or claim for damages arising out of use of the property described in the lease.” City of Oakland, supra, 141 Cal.App.2d at 734. “[T]he indemnity provision only applied to the ‘premises' as strictly defined in the lease…The parties have specifically defined ‘the premises' as ‘the Arena (and no other space or accommodation except as may be hereinafter expressly provided for)[.]’ While, of course, people going to the Arena would be entitled to use the walkways and driveways around the building and parking areas, if any, it would be unreasonable, in view of the very restrictive language of the lease, to hold that the indemnity applied to injuries incurred by conditions in those areas, particularly conditions over which defendants would have no control but plaintiff would.” Id. at 737.
The language of §8.1 is not as narrow as the language interpreted in Oakland or Morlin. The Court finds these cases distinguishable. The motion for summary judgment of the Cross-Complaint and summary adjudication of the 1st cause of action for express indemnification and 4th cause of action for indemnification is DENIED.
III. Motion for Summary Adjudication of the 3rd cause of action for declaratory relief—DENIED.
Cedars moves for summary adjudication of the 3rd cause of action for declaratory relief on grounds that it is “just a request for a determination of the rights and duties of each party concerning indemnification.” See Motion, 7:26-27. Cedars argues there is no longer a justiciable controversy requiring declaratory relief, because there is no right to equitable indemnification as an issue of law. However, the declaratory relief claim alleges that there is a controversy regarding Cedars’ duty to indemnify, which includes the contractual duty to indemnify. Because summary adjudication of the 1st and 4th cause of action for express contractual indemnity is denied, there remains, at the very least, a controversy over Cedars’ contractual duty to indemnify requiring a declaratory order. Cedars’ motion for summary adjudication of the 3rd cause of action for declaratory relief is DENIED.
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