This case was last updated from Los Angeles County Superior Courts on 06/03/2019 at 03:00:30 (UTC).

KENT TRUONG VS THE REGENTS OF THE UNIVERSITY OF CA ET AL

Case Summary

On 06/15/2017 KENT TRUONG filed a Personal Injury - Other Personal Injury lawsuit against THE REGENTS OF THE UNIVERSITY OF CA. 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.
Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****5309

  • Filing Date:

    06/15/2017

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Personal Injury - Other Personal Injury

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

GEORGINA T. RIZK

 

Party Details

Plaintiff and Cross Defendant

TRUONG KENT

Defendants, Cross Plaintiffs and Cross Defendants

THE REGENTS OF THE UNIVERSITY OF

MOTION INDUSTRIES INCORPORATION

OTIS ELEVATOR COMPANY

UNITED TECHNOLOGIES CORPORATION

UNIVERSITY OF CALIFORNIA LOS ANGELES

UCLA FACILITIES MANAGEMENT

NIDEC AMERICA CORPORATION DOE 2

MOTION CONTROL ENGINEERING INC. DOE 1

KONE INC.

ICON WEST INC. A CALIFORNIA CORPORATION

ICON-WEST INC

TRUONG KENT

NIDEC MOTOR CORPORATION

ICON-WEST INC.

9 More Parties Available

Attorney/Law Firm Details

Plaintiff Attorney

LAW OFFICES OF GARY A. DORDICK

Defendant Attorneys

FORD WALKER HAGGERTY & BEHAR

DENTONS US LLP

HOSSELLMAN CHRISTOPHER CHARLES

BERGSTEN ROBERT T.

WOLENSKY GARY ALAN

Cross Plaintiff Attorney

DANNER MICHAEL J. ESQ

Cross Defendant Attorneys

ELKORT PAUL ANDREW

DANNER MICHAEL JOHN

SCHLEIER SAMUEL QUINN

MARANGA KENNETH A. ESQ.

 

Court Documents

ORDER AND STIPULATION REGARDING PLAINTIFF'S WITHDRAWAL OF COMMON CARRIER LIABILITY ALLEGATIONS AGAINST OTIS ELEVATOR COMPANY

1/30/2018: ORDER AND STIPULATION REGARDING PLAINTIFF'S WITHDRAWAL OF COMMON CARRIER LIABILITY ALLEGATIONS AGAINST OTIS ELEVATOR COMPANY

AMENDMENT TO COMPLAINT

1/30/2018: AMENDMENT TO COMPLAINT

Minute Order

2/6/2018: Minute Order

DEFENDANT OTIS ELEVATOR COMPANY'S ANSWER TO COMPLAINT FOR DAMAGES OF PLAINTIFF KENT TRUONG

2/9/2018: DEFENDANT OTIS ELEVATOR COMPANY'S ANSWER TO COMPLAINT FOR DAMAGES OF PLAINTIFF KENT TRUONG

FIRST AMENDED COMPLAINT FOR DAMAGES GOVT CODE SECTION 835 DEMAND FOR JURY TRIAL

2/23/2018: FIRST AMENDED COMPLAINT FOR DAMAGES GOVT CODE SECTION 835 DEMAND FOR JURY TRIAL

STIPULATION RE: FILING FIRST COMPLAINT; AND ORDER

3/2/2018: STIPULATION RE: FILING FIRST COMPLAINT; AND ORDER

ANSWER OF DEFENDANT MOTION INDUSTRIES, INC. TO PLAINTIFFS FIRST AMENDED COMPLAINT

3/6/2018: ANSWER OF DEFENDANT MOTION INDUSTRIES, INC. TO PLAINTIFFS FIRST AMENDED COMPLAINT

REQUEST FOR DISMISSAL

4/11/2018: REQUEST FOR DISMISSAL

REQUEST FOR DISMISSAL

4/11/2018: REQUEST FOR DISMISSAL

THE REGENTS OF THE UNIVERSITY OF CALIFORNIA'S ANSWER TO PLAINTIFF'S FIRST AMENDED COMPLAINT

4/12/2018: THE REGENTS OF THE UNIVERSITY OF CALIFORNIA'S ANSWER TO PLAINTIFF'S FIRST AMENDED COMPLAINT

DEFENDANT OTIS ELEVATOR COMPANYS ANSWER TO FIRST AMENDED COMPLAINT FOR DAMAGES OF PLAINTIFF KENT TROUNG

4/16/2018: DEFENDANT OTIS ELEVATOR COMPANYS ANSWER TO FIRST AMENDED COMPLAINT FOR DAMAGES OF PLAINTIFF KENT TROUNG

THE REGENTS OF THE UNIVERSITY OF CALIFORNIA?S CROSS-COMPLAINT

5/16/2018: THE REGENTS OF THE UNIVERSITY OF CALIFORNIA?S CROSS-COMPLAINT

SUMMONS?CROSS COMPLAINT

5/16/2018: SUMMONS?CROSS COMPLAINT

REQUEST FOR DISMISSAL

5/22/2018: REQUEST FOR DISMISSAL

ORIGINAL PROOF OF PERSONAL SERVICE OF SUMMONS ON CROSS COMPLAINT AND CROSS COMPLAINT MOTION CONTROL ENGINEERING INC.

5/22/2018: ORIGINAL PROOF OF PERSONAL SERVICE OF SUMMONS ON CROSS COMPLAINT AND CROSS COMPLAINT MOTION CONTROL ENGINEERING INC.

PROOF OF SERVICE SUMMONS

5/29/2018: PROOF OF SERVICE SUMMONS

Amendment to Complaint (Fictitious/Incorrect Name)

6/7/2018: Amendment to Complaint (Fictitious/Incorrect Name)

Amendment to Complaint (Fictitious/Incorrect Name)

6/7/2018: Amendment to Complaint (Fictitious/Incorrect Name)

84 More Documents Available

 

Docket Entries

  • 05/30/2019
  • Docketat 08:30 AM in Department P; Case Management Conference - Held - Continued

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  • 05/30/2019
  • DocketMinute Order ( (Case Management Conference)); Filed by Clerk

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  • 05/23/2019
  • DocketNotice of Posting of Jury Fees; Filed by ICON WEST, INC., a California corporation (Defendant)

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  • 05/23/2019
  • DocketCase Management Statement; Filed by ICON WEST, INC., a California corporation (Defendant)

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  • 05/20/2019
  • DocketCase Management Statement; Filed by Kone, Inc. (Defendant)

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  • 05/15/2019
  • DocketCase Management Statement; Filed by Nidec America Corporation (Doe 2) (Defendant); Nidec Motor Corporation (Cross-Defendant)

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  • 05/14/2019
  • DocketCase Management Statement; Filed by The Regents Of The University of (Defendant)

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  • 04/22/2019
  • DocketRequest for Refund / Order; Filed by ICON WEST, INC., a California corporation (Defendant)

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  • 04/10/2019
  • DocketRequest for Dismissal; Filed by Motion Control Engineering, Inc. (DOE 1) (Cross-Complainant)

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  • 03/26/2019
  • Docketat 1:30 PM in Department 2, Georgina T. Rizk, Presiding; Hearing on Motion for Summary Judgment - Not Held - Vacated by Court

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134 More Docket Entries
  • 11/09/2017
  • DocketPROOF OF SERVICE OF SUMMONS

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  • 11/06/2017
  • DocketProof-Service/Summons; Filed by Plaintiff/Petitioner

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  • 11/06/2017
  • DocketProof-Service/Summons; Filed by Plaintiff/Petitioner

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  • 11/06/2017
  • DocketPROOF OF SERVICE SUMMONS

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  • 11/06/2017
  • DocketPROOF OF SERVICE SUMMONS

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  • 11/06/2017
  • DocketProof-Service/Summons; Filed by Plaintiff/Petitioner

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  • 11/06/2017
  • DocketPROOF OF SERVICE SUMMONS

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  • 06/15/2017
  • DocketComplaint; Filed by Kent Truong (Plaintiff)

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  • 06/15/2017
  • DocketSUMMONS

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  • 06/15/2017
  • DocketCOMPLAINT FOR DAMAGES

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Tentative Rulings

Case Number: ****5309 Hearing Date: March 30, 2022 Dept: 1

TENTATIVE RULING
CASE NUMBER: ****5309
CASE NAME: Truong v. The Regents of the University of California, et al
ISSUE: Interpretation of Regents Contractual Indemnity Claim
Discussion
In its trial brief, Regents seeks “a pre-trial ruling from the court as to the elements of its causes of action that it must prove in order to prevail at the bench trial, as this will necessarily frame the evidence to be presented by the parties.” Regents Tr. Br. at 6:12-14. Regents contends it must show:
1. There is a claim (even if not proven, mere allegations are enough) that plaintiff’s injuries were suffered due to a negligent act or omission of Contractor Icon West or its Subcontractor Kone arising out of the performance of the work called for in the modernization contract;
2. The Regents was not solely negligent with respect to plaintiff’s injuries; and
3. The Regents has paid a settlement to the plaintiff for those injuries.
Id. at 6:19-23. The Court agrees.
A. Indemnity Under the Agreement Does Not Require a Finding that Icon West or its Subcontractors were Negligent
“[W]here parties have expressly contracted with respect to the duty to indemnify, the extent of that duty is generally determined from the contract and not by reliance on the independent doctrine of equitable indemnity.” Maryland Casualty Co. v. Bailey & Sons, Inc., 35 Cal. App. 4th 856, 864 (1995). When interpreting a contract, the Court must “give effect to all of a contract’s terms, and ... avoid interpretations that render any portion superfluous, void or inexplicable.” Remedial Construction Services, LP v. AECOM, Inc., 65 Cal. App. 5th 658, 663 (2021).
Regents settled with Plaintiff for $5 million and contends “[t]o obtain indemnity for this $5 million settlement, The Regents must show: (1) there are allegations (even if not proven) that plaintiff’s injuries were suffered due to a negligent act or omission of Contractor Icon West or Subcontractor Kone arising out of the performance of the work in the modernization contract; and (2) The Regents was not solely negligent with respect to plaintiff’s injuries.” Regents Tr. Br. at 12:6-9. Regents argues “the contract with Icon West states that it must indemnify The Regents for any payment to a person claimed to have been suffered by a negligent act of Icon West or Kone arising out of the performance of the elevator modernization work. There is no requirement that there be a showing of fault before this indemnity is due. Instead, allegations of negligence by Icon West and/or Kone are sufficient to trigger Icon West’s duty to indemnify The Regents for this settlement.” Id. at 13:21-25.
Regents’ express indemnity claim is based upon Section 3.22 of the agreement dated July 13, 2010 between the parties. Regent Cross-Compl. 22-28. Section 3.22.1 provides, in relevant part:
Contractor shall indemnify, defend and hold harmless University, University's consultants, University's Representative, University's Representative's consultants, and their respective directors, officers, agents, and employees from and against losses (including without limitation the cost of repairing defective work and remedying the consequences of defective work) arising out of, resulting from, or relating to the following:
1. The failure of Contractor to perform its obligations under the Contract.
2. The inaccuracy of any representation or warranty by Contractor given in accordance with or contained in the Contract Documents.
Regents Tr. Br. Ex. 1000 at 12. Section 3.22.2 provides:
University shall not be liable or responsible for any accidents, loss, injury (including death) or damages happening or accruing during the term of the performance of the Work herein referred to or in connection therewith, to persons and/or property, and Contractor shall fully indemnify, defend and hold harmless University and protect University from and against the same as provided in Article 3.22.1 above. In addition to the liability imposed by law upon Contractor for damage or injury (including death) to persons or property by reason of the negligence of Contractor, its officers, agents, employees or Subcontractors, which liability is not impaired or otherwise affected hereby, Contractor shall defend, indemnify, hold harmless, release and forever discharge University, its officers, employees, and agents from and against and waive any and all responsibility of same for every expense, liability, or payment by reason of any damage or injury (including death) to persons or property suffered or claimed to have been suffered through any negligent act, omission, or willful misconduct of Contractor, its officers, agents, employees, or any of its Subcontractors, or anyone directly or indirectly employed by either of them or from the condition of the premises or any part of the premises while in control of Contractor, its officers, agents, employees, or any of its Subcontractors or anyone directly or indirectly employed by either of them, arising out of the performance of the Work called for by this Contract. Contractor agrees that this indemnity and hold harmless shall apply even in the event of negligence of University, its officers, agents, or employees, regardless of whether such negligence is contributory to any claim, demand, loss, damage, injury, expense, and/or liability; but such indemnity and hold harmless shall not apply (i) in the event of the sole negligence of University, its officers, agents, or employees; or (ii) to the extent that University shall indemnify and hold harmless Contractor for Hazardous Materials pursuant to Article 3.19.5.
Regents Tr. Br. Ex. 1000 at 12.
Separating the clauses from Sections 3.22.1 and 3.22.2 into their component parts, as relevant here, Icon West is contractually obligated to indemnify Regents against each of the following:
(1) losses arising out of, resulting from, or relating to the failure of Contractor to perform its obligations under the Contract; (Section 3.22.1)
(2) losses arising out of, resulting from, or relating to inaccuracy of any representation or warranty by Contractor given in accordance with or contained in the Contract Documents; (Section 3.22.1)
(3) every expense, liability, or payment by reason of any damage or injury (including death) to persons or property suffered or claimed to have been suffered through any negligent act, omission, or willful misconduct of Contractor, its officers, agents, employees, or any of its Subcontractors, or anyone directly or indirectly employed by either of them . . . arising out of the performance of the Work called for by this Contract; (Section 3.22.2)
(4) every expense, liability, or payment by reason of any damage or injury (including death) to persons or property suffered or claimed to have been suffered . . . from the condition of the premises or any part of the premises while in control of Contractor, its officers, agents, employees, or any of its Subcontractors or anyone directly or indirectly employed by either of them, arising out of the performance of the Work called for by this Contract. (Section 3.22.2).
The Court agrees with Regents that, under Continental Heller Corp. v. Amtech Mechanical Services, Inc., 53 Cal. App. 4th 500 (1997) and Centex Golden Const. Co. v. Dale Tile Co., 78 Cal. App. 4th 992 (2000), the indemnity provision does not require a finding of fault. Regents Tr. Br. at 13:21-25; Regents Resp. Br. at 5:15-26.
In Heller, the court upheld a finding of contractual indemnity for the payment of a settlement without a showing of fault. The court found “[t]here is no merit to [the] contention every cause of action for indemnity requires a showing of fault on the part of the indemnitor. On the contrary, courts will enforce indemnity agreements even for losses caused by acts over which the indemnitor had no control.” Heller, supra, 53 Cal. App. 4th at 505. The indemnity provision stated that “liability for indemnity ‘shall apply to any acts or omissions, willful misconduct or negligent conduct, whether active or passive, on the part of Subcontractor.’” Ibid. Because the phrase “any acts or omissions” was separate from “negligent conduct,” the court concluded indemnity did not require a finding of negligence:
In the present case, Continental’s entitlement to indemnity does not depend on a showing Amtech was at fault in performing its work on the refrigeration system. Rather, Amtech’s duty to indemnify Continental applies “to any acts or omissions ... on the part of [Amtech]” not just to its “willful misconduct or negligent conduct.” The language of the agreement leaves no doubt the parties intended Amtech should indemnify Continental irrespective of whether Continental's loss arose by reason of Amtech's negligence or for any other reason except for the sole negligence or willful misconduct of Continental.
Ibid. As the Court acknowledged in Crawford v. Weather Shield Mfg., Inc., 44 Cal. 4th 541, 551 (2008), parties “may agree that the promisor’s indemnity and/or defense obligations will apply only if the promisor was negligent, or, conversely, even if the promisor was not negligent.”
In Centex, the court similarly found “the parties’ contract imposes no requirement that Golden prove that Dale was negligent.” Centex, supra, 78 Cal. App. 4th at 997–998. The indemnity provision in Centex provided:
All work covered by this Agreement done at the site of construction or in preparing or delivering materials or equipment, or any or all of them, to the site shall be at the risk of SUBCONTRACTOR exclusively. SUBCONTRACTOR shall, with respect to all work which is covered by or incidental to this contract, indemnify and hold CONTRACTOR harmless from and against all of the following:
Any claim, liability, loss, damage, cost, expenses, including reasonable attorneys' fees, awards, fines or judgments arising by reason of the death or bodily injury to persons, injury to property, design defects (if design originated by SUBCONTRACTOR), or other loss, damage or expense, including any if the same resulting from CONTRACTOR's alleged or actual negligent act or omission, regardless of whether such act or omission is active or passive . . . However, SUBCONTRACTOR shall not be obligated under this Agreement to indemnify CONTRACTOR with respect to the sole negligence or willful misconduct of CONTRACTOR, his agents or servants or subcontractors who are directly responsible to CONTRACTOR, excluding SUBCONTRACTOR herein.
Id. at 995. The court focused on two phrases to support its holding: “[t]he indemnity clause of the contract begins by providing that all work performed by Dale ‘shall be at the risk of SUBCONTRACTOR exclusively’ and goes on to require indemnity for all claims covered by or incidental to the subcontract, even those which involve the ‘alleged or actual negligent act or omission’ of the general contractor. Id. at 998. The court concluded “the express and exclusive assumption by Dale of ‘the risk’ attendant to its work on the project, including allegations of negligence, plainly contemplates more than the narrow risk of its own actual negligence or fault. This language includes the obvious risk of unmeritorious claims made by third parties.” Ibid.
Under the agreement at issue in this case, Icon West agreed to indemnify Regents “for every expense, liability, or payment by reason of any damage or injury (including death) to persons or property suffered or claimed to have been suffered through any negligent act, omission, or willful misconduct of Contractor, its officers, agents, employees, or any of its Subcontractors, or anyone directly or indirectly employed by either of them.” Regents Tr. Br. Ex. 1000 at 12 3.22.2. The phrase “suffered or claimed to have been suffered” brings the language of this indemnity provision squarely within Centex and the indemnity provision does not require a finding that Icon West was negligent. The phrase also distinguishes the indemnity provision from the one at issue in Heppler, which only required indemnity “against all claims for damages to persons or to property growing out of the execution of the work,” Heppler v. J.M. Peters Co., 73 Cal. App. 4th 1265, 1278 (1999), or in Crawford, which similarly only required indemnity “against all claims for damages ... loss, ... and/or theft ... growing out of the execution of [indemnitor’s] work.” Crawford, supra, 44 Cal. 4th at 547–548.
Under Centex, requiring indemnity for “damage or injury . . . suffered or claimed to have been suffered,” Regents Tr. Br. Ex. 1000 at 12 3.22.2, “plainly contemplates more than the narrow risk of [Icon West’s] own actual negligence or fault.” Centex, supra, 78 Cal. App. 4th at 998. Any other interpretation would render the phrase “or claimed to have been suffered” superfluous. Founding Members of the Newport Beach Country Club v. Newport Beach Country Club, Inc., 109 Cal. App. 4th 944, 957 (2003) (“An interpretation rendering contract language nugatory or inoperative is disfavored.”); Remedial Construction, supra, 65 Cal. App. 5th at 663. Accordingly, Icon West’s “fault is of no consequence in determining whether the indemnity obligation is triggered.” Heppler, supra, 73 Cal. App. 4th at 1280. The Court agrees with Regents that “the intention of the parties, as ascertained from the plain language of the indemnity clause, indicates that Icon West and The Regents expressly agreed that Icon West would be required to indemnify and hold The Regents harmless for any payments to a third party for injuries alleged to have occurred arising out of Icon West’s work (or its Subcontractor’s work) in the elevator modernization contract.” Regents Tr. Br. at 11:17-20.
B. Icon West Does Not Dispute Regents’ Alleged Active Negligence is an Affirmative Defense to Indemnity
Regents note “Icon West has argued that the indemnity provision should not apply if it is found that The Regents is actively negligent” and Regents contend this would be an affirmative defense Icon West must prove. Regents Tr. Br. at 7:10-15. Regents cite Ferrel v. Vegetable Oil Products Co., 247 Cal. App. 2d 117 (1966), which noted “[i]t is well settled that where the right to indemnification otherwise exists it can be defeated by the active negligence of the indemnitee as distinguished from passive negligence” and described a trial court’s jury instruction as “cross-defendant has the burden of proving the following issues: (1) That cross-complainant was guilty of active negligence.” Id. at 120-121. Icon West does not dispute that it would bear the burden of proving active negligence as an affirmative defense, and argues Regents was actively negligent. Icon West Tr. Br. at 12:23-14:9.
Regents also contends “the active-passive negligence dichotomy is inapplicable here” and “should the Court find that Icon West is able to invoke this contractual affirmative defense, Icon West has the burden of proving that The Regents was actively negligent.” Regents Tr. Br. at 13:26-14:21. To argue active negligence is inapplicable, Regents relies entirely upon case law not involving construction contracts with public agencies. Ibid.
Civil Code section 2782(b)(1) provides “provisions, clauses, covenants, or agreements contained in, collateral to, or affecting any construction contract with a public agency . . . that purport to impose on the contractor, or relieve the public agency from, liability for the active negligence of the public agency are void and unenforceable.” Regents notes the indemnity provision in the agreement does not expressly require indemnification for Regents’ active negligence. Because any such requirement would render the indemnity provision void under Section 2782(b)(1), the Court does not imply a duty to indemnify Regents against its active negligence. “[C]ontracts should be read in a manner which renders them reasonable and capable of being put into effect.” Morton Thiokol, Inc. v. Metal Building Alteration Co., 193 Cal. App. 3d 1025, 1030 (1987); Newport Beach Country Club, supra, 109 Cal. App. 4th at 957 (“An interpretation rendering contract language nugatory or inoperative is disfavored.”); Civ. Code, 1643. However, the Legislature has expressly precluded indemnity for active negligence in the context of construction contracts with a public agency and therefore Regents’ active negligence would preclude indemnity.
C. The Implied Warranty in Spearin Does Not Bar Icon West’s Duty to Indemnify Regents
In its brief, Icon West cites U.S. v. Spearin, 248 U.S. 132, 136 (1918), which held “if the contractor is bound to build according to plans and specifications prepared by the owner, the contractor will not be responsible for the consequences of defects in the plans and specifications” and argues it “cannot, as a matter of law, be held responsible for the installation of the defective Motion Control 400 controller.” Icon West Tr. Br. at 10:9-11:20. Pursuant to Public Contract Code section 1104, “[n]o local public entity, charter city, or charter county shall require a bidder to assume responsibility for the completeness and accuracy of architectural or engineering plans and specifications on public works projects, except on clearly designated design build projects.” However, the claims at issue here do not involve the completeness and accuracy of architectural or engineering plans and specifications. Rather, they involve the installation of a defective controller. Icon West’s argument is based upon the contention the contract required the installation of the controller at issue. Icon West Tr. Br. at 9:5-15, 11:8-12.
The Court agrees with Regents that the Spearin issue appears immaterial considering the Court’s interpretation of the indemnity provisions above. Regents Resp. Br. at 13:2-3. The contract permitted the use of a Motion Control Engineering Model, Motion 4400 AC/VVVF or equal. Regents Tr. Br. Ex. 1000 at 51 1.2(A)(3). The “or equal” language is required as a matter of statute. Pub. Contract Code, 3400(b). The contract also provided “[s]pecification of a product, material or equipment by brad or trade name and model number is not a representation or warranty of that product, material or equipment can be used without modification, to meet the requirements of the plans and specifications.” Tr. Br. Ex. 1000 at 46 1.1(A). When the contract permits an “or equal” product, “a substitution may be permitted if the substitution is equal to or superior to the first-named product, material or equipment in quality, utility and appearance, and if the substitution complies with all other requirements of the plans and specifications.” Id. at 1.1(C).
Moreover, the express warranties within the agreement are beyond the general clauses at issue in Spearin and therefore Spearin does not preclude indemnity. Spearin, supra, 248 U.S. at 137 (“This implied warranty is not overcome by the general clauses requiring the contractor to examine the site, to check up the plans, and to assume responsibility for the work until completion and acceptance.”). The agreement required Icon West to perform work in accordance with ASME: American Society of Mechanical Engineers - A17.1-2004; Safety Code for Elevators and Escalators as reference by CCR Title 8, Group II, among other safety regulations. Regents Tr. Br. Ex. 1000 at 51 1.2(B)(a). Additionally, Icon West expressly warranted “all materials and equipment used in or incorporated into the Work will be of good quality . . . that the Work will be of good quality and free from defects; and that the Work will conform with the requirements of the Contract.” Regents Tr. Br. Ex. 1000 at 7 3.4.1. The Court finds Icon West’s reliance upon Spearin insufficient to preclude a finding of liability or indemnity here.


Case Number: ****5309 Hearing Date: March 23, 2022 Dept: 1

Motions set for 03/23/2022 at 11:15 a.m.

TENTATIVE RULING Re.
Kone, Inc.’s Motion for Nonsuit against Icon West, Inc.
HEARING DATE: March 23, 2022
CASE NUMBER: ****5309
CASE NAME: Truong v. The Regents of the University of California, et al
MOVING PARTY: Cross-Defendant Kone, Inc.
RESPONDING PARTY: Cross-Complainant Icon West, Inc.
MOTION: Kone, Inc.’s Motion for Nonsuit against Icon West, Inc.
Background
On November 19, 2018, Icon West filed its Cross-Complaint against Kone, Inc, among other cross-defendants for: 1) Total Implied Indemnity, 2) Equitable Comparative Indemnity, 3) Express Contribution, 4) Express Contractual Indemnity (against Kone), and 5) Declaratory Relief.
On August 11, 2021, the Court granted Kone’s Motion for Summary Adjudication, thereby ordering that the “First, Second, and Third Counts (and Causes of Action set forth therein) of the Cross-Complaint filed by ICON WEST against KONE are barred pursuant to California Code of Civil Procedure section 877.6(c), and are hereby DISMISSED in their entirety as to KONE based on the Court having found that these Counts (and Causes of Action set forth therein) seek relief through equitable indemnity only.” The Court also denied Icon West’s motion for summary adjudication related to Kone’s duty to defend.
On November 19, 2021, this matter was called to trial and the Court issued an order granting Kone’s motion in limine No. 1, which requested the Court preclude the presentation of evidence or argument that Kone was responsible for Plaintiff’s injuries or the other Defendants’ liability to Plaintiff.
Kone moves for nonsuit as the fourth cause of action for express contractual indemnity.
Discussion
A. Legal Standard
Pursuant to Code of Civil Procedure section 581c(a), “[o]nly after, and not before, the plaintiff has completed his or her opening statement, or after the presentation of his or her evidence in a trial by jury, the defendant, without waiving his or her right to offer evidence in the event the motion is not granted, may move for a judgment of nonsuit.”
“A nonsuit motion tests the sufficiency of the plaintiff's evidence before the defense is presented…. The granting of a nonsuit motion is warranted when, disregarding conflicting evidence, giving plaintiff's evidence all the value to which it is legally entitled, and indulging in every legitimate inference that may be drawn from the evidence, the trial court determines that there is no sufficiently substantial evidence to support a verdict in plaintiff's favor.” County of Kern v. Sparks, 149 Cal. App. 4th 11, 16 (2007)
However, “[i]n a nonjury trial, such as the one held in this case, a motion for nonsuit is no longer recognized; the correct motion is a motion for judgment under Code of Civil Procedure section 631.8.” Combs v. Skyriver Communications, Inc., 159 Cal. App. 4th 1242, 1262 (2008). Code of Civil Procedure section 631.8(a) provides:
After a party has completed his presentation of evidence in a trial by the court, the other party, without waiving his right to offer evidence in support of his defense or in rebuttal in the event the motion is not granted, may move for a judgment. The court as trier of the facts shall weigh the evidence and may render a judgment in favor of the moving party, in which case the court shall make a statement of decision as provided in Sections 632 and 634, or may decline to render any judgment until the close of all the evidence. The court may consider all evidence received, provided, however, that the party against whom the motion for judgment has been made shall have had an opportunity to present additional evidence to rebut evidence received during the presentation of evidence deemed by the presenting party to have been adverse to him, and to rehabilitate the testimony of a witness whose credibility has been attacked by the moving party. Such motion may also be made and granted as to any cross-complaint.
Code Civ. Proc., 631.8. “If it appears that the evidence presented supports the granting of the motion as to some but not all the issues involved in the action, the court shall grant the motion as to those issues and the action shall proceed as to the issues remaining. Despite the granting of such a motion, no final judgment shall be entered prior to the termination of the action, but the final judgment in such action shall, in addition to any matters determined in the trial, award judgment as determined by the motion herein provided for.” Code Civ. Proc. 631.8(b).
B. Kone’s Motion Will Not Be Granted Prior to Trial
As argued by Icon West in opposition, trial on the cross-complaints will not be a jury trial. Accordingly, Kone’s motion for nonsuit pursuant to Code of Civil Procedure section 581c is the incorrect motion. Combs, supra, 159 Cal. App. 4th at 1262. Additionally, the Court cannot grant a motion for nonsuit, or a motion for judgment until after Icon West has concluded its presentation of evidence at trial. Code Civ. Proc. 631.8(a); 581c(a). In a footnote, Kone acknowledges the procedural issues with its motion:
Recognizing that California procedure generally only permits motions for nonsuit after an opposing party has presented its opening statement, KONE sought leave from the Court at the January 31, 2022 status conference to bring this motion at this time and informed the Court of this procedural issue. The Court indicated that it would permit KONE to bring this motion at this time and that, if the Court felt it could not rule on the motion at the March 23, 2022 hearing, it would at least provide a tentative ruling. However, the Court also indicated that, although it may provide a tentative, it may also just rule on the motion at the March 23 hearing.
Mot. at 2 n.1.
Kone cites Atkinson v. Elk Corp., 109 Cal. App. 4th 739, 748 (2003), which does not support a finding that the Court should grant a motion for judgment before trial. Rather, Atkinson stands for the proposition that an order granting such a motion will not be reversed on appeal unless a party was prejudiced thereby. Id. at 749 (“we will not reverse for this irregular procedure unless we find that Atkinson was prejudiced.”). See Ritschel v. City of Fountain Valley, 137 Cal. App. 4th 107, 114 (2006) (“Plaintiff initially attacks the judgment on two procedural grounds. First, he argues the trial court violated Code of Civil Procedure section 581c, subdivision (a) by granting nonsuit before he had made his opening statement in the jury phase of trial. But the granting of a nonsuit before opening statement is not reversible error if it is clear the plaintiff could not have prevailed even if he had presented his opening statement.”) citing Atkinson. The court’s opinion in Atkinson supports a standard for appellate review and conforms with the constitutional requirements for setting aside judgments. Cal. Const., art. VI, 13 (“No judgment shall be set aside, or new trial granted, in any cause, on the ground of misdirection of the jury, or of the improper admission or rejection of evidence, or for any error as to any matter of pleading, or for any error as to any matter of procedure, unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.”). The court’s opinion in Atkinson does not support the finding that a trial court, as a matter of practice, should deviate from the statutory mandates governing such motions.
Accordingly, the Court shall not issue a premature final ruling on the merits of Kone’s motion.
C. Tentatively, the Court Agrees with Kone that Icon West’s Express Indemnity Claim Fails
Kone’s motion is based upon the contention that “Icon West cannot prove its remaining cause of action against KONE. It is procedurally and substantively impossible, given the prior rulings of this Court, without overturning those prior rulings.” Mot. at 2:5-7. The Court tentatively agrees with Kone.
As noted above, the Court granted Kone’s Motion in Limine No. 1, which precludes the presentation of evidence that Kone was responsible for Plaintiff’s injuries. The Court finds no basis to deviate from that ruling and therefore Icon West will not be able to prove Kone’s negligence.
In its motion for summary adjudication, filed on February 21, 2020, Icon West sought summary adjudication of its fourth cause of action for express contractual indemnity against Kone based upon paragraph 12.1 of the subcontract between the parties. Icon West MSA at 7:1-28. Icon West argued “the indemnity obligation obtains irrespective of whether KONE was negligent,” Icon West MSA at 9:1-2, and “as long plaintiff's accident did not result from the sole negligence or willful misconduct of ICON WEST, KONE should be deemed to be under a duty to indemnify and defend cross-complainant.” Id. at 10:9-11. Judge Mandel expressly rejected these arguments in ruling on Icon West’s motion, based upon the language of the contracts between the parties:
The indemnification provision explicitly states it applies “regardless of any active and/or passive negligent act or omission of Owner or Contractor.” See KONE Exh. 3, 12.1. This language is unlawful under Civ. Code 2782(b). Further, it states a subcontractor shall “not be obligated to indemnify Owner or Contractor for Claims arising from the sole negligence or willful misconduct of Contractor or their Agents.” Id. Finally, Rider No. 1 states the duty to defend and indemnify applies only “to the extent of negligence of subcontractor.” KONE Exh. 3, pg. 28 9. Taken together, these terms mean KONE is only responsible for indemnification to the extent it was negligent in installation and/or maintenance of the elevator.
. . .
ICON’s arguments against KONE are essentially identical to the arguments in connection with the REGENTS’ motion, and the Court’s reasoning above applies. ICON argues KONE’s duty to defend is broader than its duty to indemnify, so it is responsible under Crawford for providing a defense upon tender, even if it is determined that KONE was not negligent. The subcontract’s language imposes a duty to defend and indemnify “only to the extent of the negligence of subcontractor.” Since the Court determined there is insufficient evidence of KONE’s negligence, KONE has no contractual duty to defend.
Bennett Decl. Ex. 1 at 8:3-26. Icon West reiterates the same rejected arguments here. Opp. at 6:17-21 (“KONE, INC.’S obligation to indemnify and defend is not dependent upon whether KONE, INC., was negligent; thus, this motion is based on an erroneous premise, that KONE, INC., has no duty to indemnify or defend ICON WEST, INC., if it is determined to be negligence-free.”).
Icon West contends Kone is “relying upon dictum in the Court order that KONE, INC., was not negligent and was under no duty to defend KONE, INC.” Opp. at 9:8-9. “[D]ictum is the statement of a principle not necessary to the decision.” Hensley v. San Diego Gas & Electric Co. 7 Cal. App. 5th 1337, 1355 (2017) citing City of San Diego v. Board of Trustees of California State University, 61 Cal. 4th 945, 958 (2015). As detailed above, Icon West expressly raised Kone’s contractual obligations to the Court for purposes of its summary adjudication motion regarding its fourth cause of action for contractual indemnity, including whether the parties’ contracts required a showing of Kone’s negligence. Accordingly, Icon West’s characterization of the Court’s discussion of the matter as dictum is not accurate. The Court finds no basis to deviate from Judge Mandel’s interpretation of the same contracts regarding Kone’s obligations to defend or indemnify Icon West alleged in the fourth cause of action of Icon West’s cross-complaint.
Conclusion
Kone, Inc.’s Motion for Nonsuit against Icon West, Inc. is DENIED without prejudice as premature.
TENTATIVE RULING Re. Motion for Good Faith Settlement Filed by The Regents of the University of California
HEARING DATE: March 23, 2022
CASE NUMBER: ****5309
CASE NAME: Truong v. The Regents of the University of California, et al
MOVING PARTY: Defendant The Regents of the University of California
RESPONDING PARTY: NONE
MOTION: Motion for Good Faith Settlement Filed by The Regents of the University of California
Background
On June 15, 2017, Plaintiff Kent Truong filed a complaint against The Regents of the University of California, among other defendants, for personal injuries arising out of an elevator accident. The defendants filed several cross-complaints against one another for indemnity.
On February 23, 2022, Defendant The Regents of the University of California filed their motion for determination of good faith settlement.
Defendant’s motion is unopposed.
Discussion
A. Good Faith Settlement
Code of Civil Procedure section 877 provides that “[w]here a release, dismissal . . . , or a covenant not to sue . . . is given in good faith before verdict or judgment to . . .” some, but not all, joint tortfeasors or co-obligors, it shall (1) not discharge remaining tortfeasors or co-obligors, and (2) “discharge the party to whom it is given from all liability for any contribution to any other parties.” Code Civ. Proc. 877(a)-(b). This section does “not apply to co-obligors who have expressly agreed in writing to an apportionment of liability for losses or claims among themselves.” Code Civ. Proc. 877(c). Any party to the action, including the settling party, may request or obtain a hearing to determine the good faith nature of the proffered settlement. Code Civ. Proc. 877.6(a)(1)-(2). When determining the good faith nature of a settlement, the court may properly rely on (1) supporting and opposing declarations, (2) other evidence received at the hearing, or (3) the court’s “personal experience and [the guidance] of experts in the field.” Tech-Bilt, Inc. v. Woodward-Clyde & Associates, 38 Cal. 3d 488, 500 (1985); Code Civ. Proc. 877.6(b).
“The good faith provision of section 877 mandates that the courts review agreements purportedly made under its aegis to [e]nsure that such settlements appropriately balance the contribution statute’s dual objectives” of equitable sharing and encouragement of settlement. Tech-Bilt, Inc., 38 Cal. 3d at 494. The relevant Tech-Bilt factors for determining whether a settlement was made in good faith include: (1) the rough approximation of the plaintiff’s total recovery and the settling defendant’s proportionate liability; (2) the settlement amount; (3) the relative allocation of settlement proceeds among the plaintiffs; (4) the recognition that a defendant should pay less through settlement than he would have to pay if found liable at trial; (5) the settling party’s financial condition and relevant insurance policy limits; and (6) the existence of collusion, fraud, or tortious conduct aimed at injuring the interests of nonsettling defendants. Id. at 499. Nevertheless, “only when the good faith nature of a settlement is disputed, [is it] incumbent upon the trial court to consider and weigh the Tech-Bilt factors. City of Grand Terrace v. Superior Court, 192 Cal. App. 3d 1251, 1261 (1987) (“[W]hen no one objects, the barebones motion which sets forth the ground of good faith, accompanied by a declaration which sets forth a brief background of the case is sufficient.”).
This evaluation is “made on the basis of information available at the time of settlement.” Tech-Bilt, supra, 38 Cal. 3d at 499. All in all, the “trial court must inquire ‘whether the amount of the settlement is within the reasonable range of the settling tortfeasor’s proportional share of comparative liability for the plaintiff’s injuries.’” PacifiCare of Cal. v. Bright Medical Associates, Inc., 198 Cal. App. 4th 1451, 1464 (2011) (quoting Tech-Bilt, Inc., supra, 38 Cal. 3d at 499). “By necessity, this reasonable range test leaves substantial latitude to the discretion of the trial court,” id. (internal quotations omitted), and it is “[t]he party asserting the lack of good faith, who has the burden of proof . . . that the settlement is so far ‘out of the ballpark’ in relation to these factors as to be inconsistent with the equitable objectives of the statute.” Tech-Bilt, Inc., supra, 38 Cal. 3d at 499-500.
B. Defendant Met Its Burden to Demonstrate Good Faith
Plaintiff settled his claims with Defendant for $5 million in exchange for a dismissal and release. Evenstad Decl. 7. Plaintiff made a Code of Civil Procedure section 998 offer of $4.5 million prior to the final settlement. Id. 6, Ex. D. Plaintiff’s expert opined Plaintiff’s compensatory damages, if the jury found he could not work again, would be at most $7.7 million. Id. Decl. 3, Ex. A. All other defendants have settled with Plaintiff. Id. 8. The declaration and accompanying memorandum of points and authorities set forth the background of the case and the basis for good faith. Mot. at 5:8-8:20.
Accordingly, the moving Defendant met its burden to demonstrate good faith for obtaining an order pursuant to Code of Civil Procedure sections 877 and 877.6. City of Grand Terrace, supra, 192 Cal. App. 3d at 1261.
Conclusion
The Motion for Good Faith Settlement Filed by The Regents of the University of California is GRANTED. The Court’s determination “shall bar any other joint tortfeasor or co-obligor from any further claims against the settling tortfeasor or co-obligor for equitable comparative contribution, or partial or comparative indemnity, based on comparative negligence or comparative fault.” Code Civ. Proc. 877.6(c).
TENTATIVE RULING Re. Icon West, Inc.’s Motion for Judgment on the Pleadings as to Second Cause of Action of Cross-Complaint of The Regents of the University of California, Pursuant to Code of Civil Procedure, Section 438
HEARING DATE: March 23, 2022
CASE NUMBER: ****5309
CASE NAME: Truong v. The Regents of the University of California, et al
MOVING PARTY: Cross-Defendant Icon West, Inc.
RESPONDING PARTY: Cross-Complainant The Regents of the University of California
MOTION: Icon West, Inc.’s Motion for Judgment on the Pleadings as to Second Cause of Action of Cross-Complaint of The Regents of the University of California, Pursuant to Code of Civil Procedure, Section 438
Background
On October 4, 2018, The Regents of the University of California filed a cross-complaint against Icon West, Inc. asserting claims for breach of contract; express indemnity, equitable indemnity, implied indemnity, comparative indemnity, declaratory relief, and contribution.
Icon West moves the Court for judgment on the pleadings as to the second cause of action for express indemnity in Regents’ cross-complaint.
Request for Judicial Notice
Both Icon West and Regents request the Court take judicial notice of Regents’ cross-complaint filed in this action and Regents request the Court take judicial notice of the amendment to the First Amended Complaint adding Icon West as Doe 33, Icon West’s motion for summary judgment as to Regents’ cross-complaint, Regents’ motion for summary adjudication as to its cross-complaint, and Judge Elaine W. Mandel’s ruling on both motions. These requests are GRANTED. Evid. Code 452(d).
Icon West also requests the Court take judicial notice of “[t]he fact that the Motion Control Engineering 400 controller that is the subject of this action, contained a latent software defect that caused or contributed to Plaintiff’s accident, based upon the undisputed evidence in this case as presented during the first phase of this trial, pursuant to Evidence Code, Section 452(h) and 453.” This request is DENIED. Defendant cites no authority supporting the contention that the presentation of evidence, in a phase of trial which was not completed, is sufficient to establish the undisputed truth of a fact from the presented evidence. The existence of a software defect is not a “[f]act[] . . . that [is] not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.” Evid. Code 452(h).
Discussion
A. Legal Standard
A motion for judgment on the pleadings may be made to the “entire . . . cross-complaint or as to any of the causes of action stated therein.” Code Civ. Proc. 438(c)(2)(A). “A motion for judgment on the pleadings performs the same function as a general demurrer, and hence attacks only defects disclosed on the face of the pleadings or by matters that can be judicially noticed.” Burnett v. Chimney Sweep, 123 Cal. App. 4th 1057, 1064 (2004). “In deciding or reviewing a judgment on the pleadings, all properly pleaded material facts are deemed to be true, as well as all facts that may be implied or inferred from those expressly alleged.” Fire Ins. Exchange v. Superior Court, 116 Cal. App. 4th 446, 452 (2004). A motion for judgment on the pleadings does not lie as to a portion of a cause of action. Ibid.
B. The Second Cause of Action – Express Indemnity
The second cause of action in Regent’s cross-complaint asserts a claim for express contractual indemnity based upon section 3.22 in the parties’ agreement dated July 13, 2010. The second cause of action alleges cross-defendants, including Icon, failed to take over Regents’ defense in this action and Regents “is entitled to indemnification in this regard from Cross-Defendants, and each of them, as to any amount which Cross-Complainant might become obligated to pay in this matter, whether by way of judgment or reasonable settlement.” Regents Cross-Compl. 22-28.
C. Icon West’s Motion is Procedurally Improper.
As an initial matter, the Court agrees with Regents that Icon West’s motion is procedurally improper. Opp. at 8:24-9:16.
On February 26, 2020, Regents filed a motion for summary adjudication seeking, in part, an order finding “Icon West owes The Regents a duty to defend as a matter of law pursuant to the indemnity provision provided in the parties’ contract.” Code of Civil Procedure section 437c(f) permits summary adjudication as to issues of duty, even if they do not dispose of entire causes of action. On February 5, 2021, the Court granted Regents’ motion for summary adjudication as to this issue and established that Icon West owed a duty to defend Regents’ under to the second cause of action. Pursuant to Code of Civil Procedure section 437c(n)(1), “[i]f a motion for summary adjudication is granted, at the trial of the action, the . . . issue or issues of duty as to the motion that has been granted shall be deemed to be established and the action shall proceed as to the cause or causes of action, affirmative defense or defenses, claim for damages, or issue or issues of duty remaining.”
Icon West’s motion for judgment on the pleadings seeks judgment as to the entire second cause of action, but only focuses on the duty to indemnify therein. In reply, Icon West contends “[s]ince the indemnity issues are separate and distinct from the defense issues, the Court’s granting of THE REGENTS’ summary adjudication on the duty to defend did not resolve the indemnity issues that remain in the second cause of action.” Reply at 4:3-5. However, Icon West cannot obtain judgment on the pleadings as to only a portion of the second cause of action. See e.g. Fire Ins. Exchange, supra, 116 Cal. App. 4th at 452; Fremont Indemnity Co. v. Fremont General Corp., 148 Cal. App. 4th 97, 119 (2007) (“A demurrer must dispose of an entire cause of action to be sustained.”); Code Civ. Proc. 438(c)(2)(A). As argued by Regents “Icon West’s motion should be denied because at least part of its duty owed to The Regents under the second cause of action for express indemnity has already been established.” Opp. at 16:11-12. Accordingly, even if the Court agreed with each of Icon West’s arguments regarding indemnification, the motion could not be granted.
Icon West’s motion is properly denied on this basis.
D. Icon West’s Motion Relies Upon Facts Outside the Pleadings.
While the motion fails to dispose of an entire cause of action and is therefore improper, Icon West’s motion also impermissibly relies upon facts outside the pleadings and those for which judicial notice was granted. “Judgment on the pleadings does not depend upon a resolution of questions of witness credibility or evidentiary conflicts. In fact, judgment on the pleadings must be denied where there are material factual issues that require evidentiary resolution.” Schabarum v. California Legislature, 60 Cal. App. 4th 1205, 1216 (1998).
For example, Icon West contends “The Regents’ contract specifications called for a Motion Control Engineering 400 controller to be installed in the modernization process--the very controller that was in fact installed.” Mot. at 3:19-21. This is a factual issue not properly before the Court for purposes of this motion. Moreover as noted by Regents, a provision in the contract states “Controller: Provide controls from Motion Control Engineering, Model 4000-AC or equal,” and therefore there is language in the contract indicating a specific controller was not mandated. Icon West RJN Ex. 1, Specifications for Hedrick Repairs and Refurbishment at 2.13(C). The resolution of this issue cannot be made on a motion for judgment on the pleadings.
Icon West contends “the subject accident did not arise out of Icon West’s Negligence or that of its subcontractor.” Mot. at 6:9-21. However, the cross-complaint alleges Icon West was negligent and its negligence caused plaintiff’s injuries. Regents Cross-Compl. 25. Icon West makes an unsupported factual and legal assumption that a finding of non-negligence by Kone renders Icon West non-negligent as well. Mot. at 6:20-22 (“Given the fact ICON WEST, the general contractor, was much further removed from the work performed on the elevator than KONE, INC., it logically follows that ICON WEST could not have been negligent either.”). Icon West’s refrain it is not liable “by logical extension” is not sufficient to bar the second cause of action on the pleadings as a matter of law, and Icon West cites no authority for this assumption. Icon West also argues Regents’ “active negligence” precludes indemnity. Mot. at 8:22-9::25. Regents’ Cross-Complaint does not allege it was actively negligent and no facts subject to judicial notice affirmatively establish its active negligence. A motion for judgment on the pleadings solely addresses the sufficiency of the allegations in the cross-complaint, which is adequately pled here. Accordingly, the motion is DENIED.
Conclusion
Icon West, Inc.’s Motion for Judgment on the Pleadings as to Second Cause of Action of Cross-Complaint of The Regents of the University of California, Pursuant to Code of Civil Procedure, Section 438 is DENIED.
TENTATIVE RULING
HEARING DATE: March 23, 2022
CASE NUMBER: ****5309
CASE NAME: Truong v. The Regents of the University of California, et al
MOVING PARTY: Defendant Nidec Motor Corporation
RESPONDING PARTY: NONE
MOTION: (1) Notice of Settlement and Motion for Determination of Good Faith Settlement
(2) Motion to File Under Seal Confidential Documents Filed in Support of Motion for Determination of Good Faith Settlement
Background
On June 15, 2017, Plaintiff Kent Truong filed a complaint against the Regents of the University of California, among other defendants, for personal injuries arising out of an elevator accident. The defendants filed several cross-complaints against one another for indemnity.
On February 23, 2022 and again on March 1, 2022, Defendant Nidec Motor Corporation filed its Notice of Settlement and Motion for Determination of Good Faith Settlement, which is supported by the declaration of Samuel Q. Schleier. Pursuant to the declaration of John D. Stanley filed on March 2, 2022, the Court disregards the March 1 version. Stanley Decl. 6.
Defendant seeks an order finding its settlement with Plaintiff was made in good faith and dismissing the three cross-complaints filed against Nidec by The Regents of the University of California, Icon West, Inc., and Kone, Inc.
On March 2, 2022, Nidec also filed its Motion to File Under Seal Confidential Documents Filed in Support of Motion for Determination of Good Faith Settlement.
Defendant’s motions are unopposed.
Discussion
A. Good Faith Settlement
Code of Civil Procedure section 877 provides that “[w]here a release, dismissal . . . , or a covenant not to sue . . . is given in good faith before verdict or judgment to . . .” some, but not all, joint tortfeasors or co-obligors, it shall (1) not discharge remaining tortfeasors or co-obligors, and (2) “discharge the party to whom it is given from all liability for any contribution to any other parties.” Code Civ. Proc. 877(a)-(b). This section does “not apply to co-obligors who have expressly agreed in writing to an apportionment of liability for losses or claims among themselves.” Code Civ. Proc. 877(c). Any party to the action, including the settling party, may request or obtain a hearing to determine the good faith nature of the proffered settlement. Code Civ. Proc. 877.6(a)(1)-(2). When determining the good faith nature of a settlement, the court may properly rely on (1) supporting and opposing declarations, (2) other evidence received at the hearing, or (3) the court’s “personal experience and [the guidance] of experts in the field.” Tech-Bilt, Inc. v. Woodward-Clyde & Associates, 38 Cal. 3d 488, 500 (1985); Code Civ. Proc. 877.6(b).
“The good faith provision of section 877 mandates that the courts review agreements purportedly made under its aegis to [e]nsure that such settlements appropriately balance the contribution statute’s dual objectives” of equitable sharing and encouragement of settlement. Tech-Bilt, Inc., 38 Cal. 3d at 494. The relevant Tech-Bilt factors for determining whether a settlement was made in good faith include: (1) the rough approximation of the plaintiff’s total recovery and the settling defendant’s proportionate liability; (2) the settlement amount; (3) the relative allocation of settlement proceeds among the plaintiffs; (4) the recognition that a defendant should pay less through settlement than he would have to pay if found liable at trial; (5) the settling party’s financial condition and relevant insurance policy limits; and (6) the existence of collusion, fraud, or tortious conduct aimed at injuring the interests of nonsettling defendants. Id. at 499. Nevertheless, “only when the good faith nature of a settlement is disputed, [is it] incumbent upon the trial court to consider and weigh the Tech-Bilt factors. City of Grand Terrace v. Superior Court, 192 Cal. App. 3d 1251, 1261 (1987) (“[W]hen no one objects, the barebones motion which sets forth the ground of good faith, accompanied by a declaration which sets forth a brief background of the case is sufficient.”).
This evaluation is “made on the basis of information available at the time of settlement.” Tech-Bilt, supra, 38 Cal. 3d at 499. All in all, the “trial court must inquire ‘whether the amount of the settlement is within the reasonable range of the settling tortfeasor’s proportional share of comparative liability for the plaintiff’s injuries.’” PacifiCare of Cal. v. Bright Medical Associates, Inc., 198 Cal. App. 4th 1451, 1464 (2011) (quoting Tech-Bilt, Inc., supra, 38 Cal. 3d at 499). “By necessity, this reasonable range test leaves substantial latitude to the discretion of the trial court,” id. (internal quotations omitted), and it is “[t]he party asserting the lack of good faith, who has the burden of proof . . . that the settlement is so far ‘out of the ballpark’ in relation to these factors as to be inconsistent with the equitable objectives of the statute.” Tech-Bilt, Inc., supra, 38 Cal. 3d at 499-500.
B. Defendant Met Its Burden to Demonstrate Good Faith, Provided Defendant Does Not Withdraw the Settlement Agreement from Consideration
Defendant’s motion indicates it achieved a confidential settlement, for a confidential sum, with Plaintiff for his injuries. Defendant filed the settlement agreement under seal in support of the motion and the memorandum does not state the settlement amount. For the reasons stated herein, the Court shall not seal the settlement. Pursuant to California Rules of Court, rule 2.551(b)(6), “[i]f the court denies the motion or application to seal, the moving party may notify the court that the lodged record is to be filed unsealed. This notification must be received within 10 days of the order denying the motion or application to seal, unless otherwise ordered by the court. On receipt of this notification, the clerk must unseal and file the record. If the moving party does not notify the court within 10 days of the order, the clerk must (1) return the lodged record to the moving party if it is in paper form or (2) permanently delete the lodged record if it is in electronic form.” If Defendant determines it wants the sealed document returned, the Court will lack sufficient information to make a good faith determination and the motion will be DENIED.
The following discussion of Defendant’s motion will only apply if Defendant does not withdraw the settlement agreement under Rule 2.551(b)(6).
Plaintiff settled claims against Defendants Kone and Icon West in the amounts of $100,000 and $50,000.00 respectively. Schleier Decl. 9. These settlement amounts were publicly filed in connection with previous motions for determination of good faith settlement filed by Kone and Icon West. On February 23, 2022, Defendant The Regents of the University of California publicly filed its own motion for determination of good faith settlement, which disclosed its $5 million settlement with Plaintiff. Defendant arguably waived any claim of confidentiality in the settlement amount by providing the precise percentage of its settlement in comparison with the other defendants. Mot. at 8:18-19.
Plaintiff’s expert testified at his deposition that the elevator’s main brake did not hold the 100% of the rated load, despite California law requiring that the main brake hold 125% of the load. Id. 10. Defendant notes it “was partially liable for any defect in the elevator’s controller,” but other parties were in control of the elevator, replaced parts on the elevator, and did not adequately maintain or test the elevator. Mot. at 7:27-8:14; Schleier Decl. 10-12, Ex. B-D. Plaintiff settled his claims against Defendant in the amount of CONDITIONALLY REDACTED. Schleier Decl. Ex. E.
The declaration and accompanying memorandum of points and authorities set forth the background of the case and the basis for good faith. Mot. at 8:7-9:28; Schleier Decl. 16. Accordingly, the moving Defendant met its initial burden to demonstrate good faith for obtaining an order pursuant to Code of Civil Procedure sections 877 and 877.6. City of Grand Terrace, supra, 192 Cal. App. 3d at 1261.
The cross-complaints asserted against Defendant Nidec solely assert claims for equitable indemnity, contribution, comparative fault, and declaratory relief and therefore dismissal is appropriate. Code Civ. Proc. 877; 877.6; Cal. R. Ct., rule 3.1382; Hartford Accident & Indemnity Co. v. Superior Court, 29 Cal. App. 4th 435, 439 (1994) (“Section 877.6 shows, on its face, that its protective cloak is limited. It bars only those claims by one joint tortfeasor against the settling tortfeasor for equitable comparative contribution based on comparative negligence or comparative fault.”).
Accordingly, if Defendant permits public filing of Exhibit E, the ruling will be revised to reflect the settlement amount and the motion for good faith settlement will be GRANTED.
C. Motion to Seal
Unless the law requires confidentiality, court records are presumed to be open to the public, pursuant to a potent “open court” policy undergirded by the First Amendment and favoring the public nature of court proceedings. CRC 2.550(c); NBC Subsidiary (KNBC-TV), Inc. v. Superior Court, 20 Cal. 4th 1178, 1199-10 (1999) “The court may order that a record be filed under seal only if it expressly finds facts that establish:
(1) There exists an overriding interest that overcomes the right of public access to the record;
(2) The overriding interest supports sealing the record;
(3) A substantial probability exists that the overriding interest will be prejudiced if the record is not sealed;
(4) The proposed sealing is narrowly tailored; and
(5) No less restrictive means exist to achieve the overriding interest.”
CRC 2.551(d). “An order sealing the record must: (A) Specifically state the facts that support the findings; and (B) Direct the sealing of only those documents and pages, or, if reasonably practicable, portions of those documents and pages, that contain the material that needs to be placed under seal. All other portions of each document or page must be included in the public file.” CRC 2.551(e).
A motion seeking an order sealing records must be accompanied by a memorandum and declaration containing facts sufficient to justify the sealing. CRC 2.551(b)(1). “Substantive courtroom proceedings in ordinary civil cases, and the transcripts and records pertaining to these proceedings, are presumptively open.” McNair v. National Collegiate Athletic Association, 234 Cal. App. 4th 25, 31 (2015).
Defendant moves to seal the entirety of its settlement agreement with Plaintiff, attached as Exhibit E to the motion for determination of good faith settlement. Defendant’s motion is supported by a single paragraph declaration from its counsel:
On December 7, 2021, the Settling Parties reached a settlement of their claims in the form of a Settlement Agreement. A material term of confidentiality was intentionally included in the Settlement Agreement between the Settling Parties. This confidentiality provision within the Settlement Agreement was one of the bases on which the settlement terms were formed. The existence of this express confidentiality provision within the Settlement Agreement was specifically requested and agreed to by the Settling Parties throughout the settlement process.
Schleier Sealing Decl. 2. Thus, Defendant seeks to seal the agreement solely based upon their confidentiality agreement. Cal. R. Ct., rule 2.551(a) (“The court must not permit a record to be filed under seal based solely on the agreement or stipulation of the parties.”).
The declaration is insufficient as a matter of law. Courts have consistently rejected parties’ attempts to seal settlement agreements and court proceedings based upon the assertion that they agreed to keep the same confidential. See McNair v. National Collegiate Athletic Association, 234 Cal. App. 4th 25, 36 (2015) (“the mere agreement of the parties alone is insufficient to constitute an overriding interest to justify sealing the documents.”); Universal City Studios, Inc. v. Superior Court, 110 Cal. App. 4th 1273, 1281 (2003); Huffy Corp. v. Superior Court, 112 Cal. App. 4th 97, 106-107 (2003) abrogated on other grounds as stated in Curtis v. Superior Court, 62 Cal. App. 5th 453, 471 (2021). In Copley Press, Inc. v. Superior Court, 63 Cal. App. 4th 367 (1998), the court upheld an order unsealing the settlement amount from a settlement agreement:
We are sympathetic to the student's situation as a young crime victim. However, we find no authority that the amount of money a person receives in judgment or court-approved settlement as the result of tortious conduct is confidential. . . . Although a court is not powerless to seal portions of its records to protect litigants, it may do so only in exceptional circumstances upon a showing of compelling reasons. The student has not shown his interest in sealing the amount of the settlement, even temporarily, outweighs the public right of access to court records.
Probate proceedings, including a petition for minor's compromise, are not closed proceedings. No statute exempts probate files from the status of public records.
Id. at 376. Defendant has not made any showing other than an agreement to maintain confidentiality, which is insufficient to seal a public record. There are substantial similarities between Defendant’s motion and settlement agreement here and the issue presented in Huffy, supra:
Defendant argues the entire settlement agreement must be sealed. Defendant has not asked to seal any particular parts of the settlement agreement. Much of the settlement agreement is routine verbiage which appears in most settlement agreements. Further, the settlement agreement has a specific provision that if disclosure is required by a court order, the confidentiality provisions are no longer applicable. No prejudice to defendant's legitimate business and propriety interests will occur if the settlement agreement is ordered unsealed.
Huffy, supra, 112 Cal. App. 4th at 107. Accordingly, the motion to seal is DENIED.
Conclusion
Defendant’s Motion to File Under Seal Confidential Documents Filed in Support of Motion for Determination of Good Faith Settlement is DENIED.
Defendant must inform the Court whether it will allow the clerk to file Exhibit E as an unsealed document pursuant to California Rules of Court, rule 2.551(b)(6).
If the settlement agreement is publicly filed, Defendant’ Motion for Determination of Good Faith Settlement will be GRANTED and the cross-complaints asserted against Defendant Nidec Motor Corporation will be dismissed. If the settlement agreement is returned, the motion will be DENIED.


Case Number: ****5309    Hearing Date: February 05, 2021    Dept: P

Tentative Ruling

Kent Truong v. The Regents of the University of California, Case No. ****5309

Hearing Date February 5, 2021

Supplemental Briefing: Regents and Icon Motions for Summary Judgement

The court heard various motions for summary judgement on December 16, 2020. The court did not issue final rulings as to Kone’s MSJ against the Regents and The Regents’ MSAs against Kone and Icon, continuing these to February 5, 2021, with permission to file supplemental briefing as to the issue of contractual indemnity only.

Regents’ Motion

Parties to a contract have the right to assign responsibility to one contracting party for the other’s legal defense when a third-party claim is made against the other. Crawford v. Weather Shield Mfg., Inc. (2008) 44 Cal.4th 541, 565 fn. 12. Therefore, a contractual indemnitor has the obligation, upon tender by the indemnitee, to accept and assume the indemnitee’s active defense against claims encompassed by the indemnity provision. Id. at p. 432. A contractual indemnitor is obliged to assume an indemnitee’s active defense, even if the indemnitor is ultimately found blameless. Crawford v. Weather Shield Mfg., Inc. (2008) 44 Cal.4th 541, 551.

The Regents argue evidence shows both Icon and Kone’s work on the elevator was negligent and both are liable for express contractual indemnity and defense under the maintenance contract. Further, Regents argue that, under Crawford, Kone and Icon were obligated to fulfill their duties under the contract as soon as the Regents tendered their defense. The Regents argue that, under Crawford, Kone and Icon are required to provide a defense even if found not negligent at trial.

Kone argues the indemnification and duty to defend clauses explicitly excluded claims arising out of “defects in design” or “the sole negligence or willful misconduct” of other parties. Additionally, Kone argues that Civ. Code ;2782(b) bars the Regents’ indemnification claims, because Civ. Code ;2782(b) bars enforcement of provisions in construction contracts that seek to “relieve the public agency from liability for the active negligence of the public agency[.]”

The indemnification provision explicitly states it applies “regardless of any active and/or passive negligent act or omission of Owner or Contractor.” See Kone Exh. 3, ¶12.1. This language is unlawful under Civ. Code ;2782(b). Further, it states a subcontractor shall “not be obligated to indemnify Owner or Contractor for Claims arising from the sole negligence or willful misconduct of Contractor or their Agents.” Id. Finally, Rider No. 1 states the duty to defend and indemnify applies only “to the extent of negligence of subcontractor.” Kone Exh. 3, pg. 28 ¶9. Taken together, these terms mean Kone is only responsible for indemnification to the extent it was negligent in installation and/or maintenance of the elevator.

The court previously found that there was no significant evidence that Kone acted negligently. When the court took this matter under submission, it did not grant leave to provide additional briefing as to Kone’s negligence. Absent negligence by Kone, there is no contractual indemnity or defense requirement. Kone’s Motion for Summary Adjudication as to the contractual indemnity claim is GRANTED; Regents’ cross-motion as to the same cause of action is DENIED.

Icon’s Motion

Icon’s arguments against Kone are essentially identical to the arguments in connection with the Regents’ motion, and the court’s reasoning above applies. Icon argues Kone’s duty to defend is broader than its duty to indemnify, so it is responsible under Crawford for providing a defense upon tender, even if it is determined that Kone was not negligent. The subcontract’s language imposes a duty to defend and indemnify “only to the extent of the negligence of subcontractor.” Since the court determined there is insufficient evidence of Kone’s negligence, Kone has no contractual duty to defend.

There is, however, disputed evidence as to whether Icon was negligent in failing to convey Kone’s offer to install an alternative MCE. Therefore, under Crawford, Icon was responsible for defending the University upon its tender of a defense. Icon’s MSA against Kone and the Regents is DENIED. The Regents’ MSA against Icon is GRANTED as to the duty to defend only.

Case Management Issues

The parties should be prepared to discuss the issues raised in the joint status report: (1) dates for trial/FSC; (2) independent mental exam, set for 6/1/21; (3) mediation (Roe or Tessier/date); and (4) any discovery issues.

DUE TO THE ONGOING COVID-19 PANDEMIC, PARTIES AND COUNSEL ARE ENCOURAGED TO APPEAR VIA LA COURT CONNECT.



Case Number: ****5309    Hearing Date: September 11, 2020    Dept: P

 Tentative Ruling

Kent Truong v. The Regents of the University of California, Case No. ****5309

Hearing Date September 11, 2020

Defendants’ Motions for Summary Judgment or Summary Adjudication

Minor plaintiff was attending a multi-day pole-vaulting camp at UCLA when injured by an elevator in a residence hall. He sues the Regents of the University of California and various entities involved with the elevator’s installation and maintenance. Defendant Regents move for summary judgment on the grounds that plaintiff’s mother signed a liability release. Defendant Kone, which performed modernization work on the elevator, also moves for summary judgment.

Summary Judgment Standard

A court determining a summary judgment motion applies a three-step process: (1) identifying the issues framed by the complaint, (2) determining whether the moving party made an adequate showing that negates the opponent’s claim and (3) determining whether the opposing party has raised a triable issue of fact. Bostrom v. County of San Bernardino (1995) 35 Cal.App.4th 1654, 1662. A moving party has the initial burden to show one or more elements of a plaintiff’s cause of action cannot be established or an affirmative defense exists. If defendant makes that showing, the burden shifts to plaintiff to show a triable issue of fact. Saelzler v. Advanced Group 400 (2001) 25 Cal. 4th 763, 768.

Regents’ MSJ

Liability release agreements are enforceable so long as they do not violate public policy. Tunkl v. Regents of University of California (1963) 60 Cal.2d 92, 96. Generally, releases in the context of recreational sports do not violate public policy. Capri v. L.A. Fitness International, LLC (2006) 136 Cal.App.4th 1078, 1084. A parent can execute a release on behalf of a child. E.g. Berg v. Traylor (2007) 148 Cal.App.4th 809, 819.

A liability waiver is an affirmative defense; defendant asserting a waiver bears the burden of proving its validity. City of Santa Barbara v. Sup.Ct. (2007) 41 Cal.4th 747, 780 fn. 58. Ambiguities in the scope of waivers are strictly construed against the drafting party. Cal. Civ. Code ;1654, Zipusch v. LA Workout, Inc. (2007) 155 Cal.App.4th 1281, 1288. An exculpatory clause is unenforceable if it is not easily readable and conspicuous. Leon v. Family Fitness Center (#107), Inc. (1998) 61. Cal.App.4th 1227, 1232. When a waiver purports to release a defendant from its own negligent conduct, the “negligence that results in injury . . . must be reasonably related to the object or purpose for which the release is given. Sweat v. Big Time Auto Racing, Inc. (2004) 117 Cal.App.4th 1301, 1305. For example, a waiver that allows a plaintiff to engage in fitness activities at a health club was found not to apply to injuries from a collapsed bench at the club. Leon, supra 61 Cal.App.4th at 1234-35. Finally, a liability release does not release a defendant from liability for gross negligence. City of Santa Barbara v. Sup. Ct. (2007) 41 Cal.4th 747, 751.

Plaintiff’s mother allegedly signed a liability release, which the Regents argue precludes the claims. By presenting the release, defendant meets its initial burden, which shifts to plaintiff to show a triable issue of fact.

Ambiguities in waivers are construed against the drafters. The waiver purports to release the Regents from liability “arising from, but not limited to, participation in UCLA Sports Camps[.]” The “not limited to” language is ambiguous, and a reasonable person could interpret the waiver as applying specifically to injuries suffered while participating in athletic activities. Under Sweat and Leon, plaintiff’s injury is not “reasonably related to the object or purpose for which the release is given.” The facts are analogous to Leon, where a fitness-club waiver did not extend to injury suffered from a negligently maintained bench. Plaintiff was not injured while pole vaulting; he was crushed between floors while on an elevator in a dormitory. There is a triable issue as to whether the injury was outside the scope of the waiver.

Further, even if defendant met its burden and showed the waiver applied, plaintiff provided evidence the elevator’s main brake was so poorly maintained so as to constitute gross negligence due to various code violations. See plaintiff’s separate statement ¶¶124, 138. Plaintiff raises a triable issue as to gross negligence. If defendants were grossly negligent, the waiver cannot apply, per City of Santa Barbara, supra. DENIED.

Kone, Inc. MSJ (Amended Points and Authorities filed 6/2)

Defendant Kone provides testimony from Kenneth Brauer, who investigated the elevator on behalf of the Department of Health and Safety. Kone’s undisputed facts no. 11. Brauer testified the brakes failed due to insufficient maintenance after daily use. DUF at 18. Kone alleges the emergency backup system, a rope brake gripper, failed due to the design and programming of software intended to engage the braking system. DUF 21-23.

Defendant Kone admits it installed the software but states it did not design or manufacture the software and suggested a different system, which was rejected by the University. DUF 37. Defendant provides evidence it performed no maintenance work after 2011. DUF 45-50.

Strict Products Liability (Plaintiff’s claims)

Strict liability applies to defendants “responsible for placing products in the stream of commerce. Pierson v. Sharp Memorial Hospital, Inc. (1989) 216 Cal.App.3d 340, 344. Strict liability applies when the purchase of a product is the primary objective or essence of the transaction and applies to those who are “mere conduits in distributing the product to the consumer.” By contrast, the doctrine is inapplicable to transactions “whose primary objective is obtaining services.” Jovana Hernandezcueva v. E.F. Brady Company, Inc. (2015) 243 Cal.App.4th 249, 258. Strict liability does not apply to “occasional” sellers of products. Id. Generally, one who contracts to “inspect, repair, and maintain machinery owned and operated by another is the provider of a product-related service rather than the provider of a product.” Parties involved in passing a defective component to the ultimate user or consumer are not subject to strict liability when their sole contribution to the pertinent transaction was a service, namely installation of the component into the final product. Id. at 259.

A subcontractor cannot be strictly liable under a products liability theory if it installs a defective product at the instruction of a property owner and was not in the business of selling the product. E.g. Kurland v. United Pacific Ins. Co. (1967) 251 Cal.App.2d 112, 117; Monte Vista Development Corp. v. Superior Court (1991) 226 Cal.App.3d 1681, 1683-1684.

Kone argues the products liability claim fails because strict liability does not apply. Though Kone admittedly installed the software, it presents evidence it did so at the Regents’ instruction and had suggested using different software. Kone Separate Statement (KSS) at ¶¶ 32, 34, 37, 40. Further, Kone provides evidence that its role was to maintain and modernize the elevators, not to sell any product. Separate Statement at ¶¶40-45. Kone argues it is not subject to strict liability for the software’s alleged failure. The court agrees. Kone was not in the business of selling software. It contracted to provide a service – elevator maintenance and modernization – so was not responsible for placing the software into the “stream of commerce.” Kone met its initial burden, pursuant to Kurland.

Plaintiff requests a continuance under Cal. Code of Civ. Proc. ;437c(h) because he has not been able to depose Kone’s PMK, due to COVID-related delays. Upton decl. ¶3-4. The deposition is necessary for plaintiff to obtain evidence regarding the nature of Kone’s business and the work performed. Because the Kone deposition may produce evidence relevant to other motions, which involve the nature and quality of Kone’s work, those motions will also be continued.

DUE TO THE ONGOING COVID-19 PANDEMIC, PARTIES AND COUNSEL ARE STRONGLY ENCOURAGED TO AVOID IN-PERSON APPEARANCES AND TO APPEAR REMOTELY. LA COURT CONNECT IS AVAILABLE.



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