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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

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

GEORGINA T. RIZK

 

Party Details

Plaintiff, Petitioner and Cross Defendant

TRUONG KENT

Defendants, Respondents, 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

DOES 1 TO 100

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.

8 More Parties Available

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

DORDICK GARY A. ESQ.

LAW OFFICES OF GARY A. DORDICK

Defendant and Respondent Attorneys

FORD WALKER HAGGERTY & BEHAR

LONG JAYME C. ESQ.

DENTONS US LLP

BERGSTEN ROBERT T.

WOLENSKY GARY ALAN

HOSSELLMAN CHRISTOPHER CHARLES

Cross Plaintiff Attorney

DANNER MICHAEL J. ESQ

Cross Defendant Attorneys

DANNER MICHAEL JOHN

ELKORT PAUL ANDREW

MARANGA KENNETH A. ESQ.

SCHLEIER SAMUEL QUINN

 

Court Documents

AMENDMENT TO COMPLAINT

1/30/2018: AMENDMENT TO COMPLAINT

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

SUMMONS?CROSS COMPLAINT

5/16/2018: SUMMONS?CROSS COMPLAINT

PROOF OF SERVICE SUMMONS

6/28/2018: PROOF OF SERVICE SUMMONS

NIDEC AMERICA CORPORATION AND NIDEC MOTOR CORPORATION'S ANSWER TO PLAINTIFF KENT TRUONG'S FIRST AMENDED COMPLAINT

7/27/2018: NIDEC AMERICA CORPORATION AND NIDEC MOTOR CORPORATION'S ANSWER TO PLAINTIFF KENT TRUONG'S FIRST AMENDED COMPLAINT

Answer

11/19/2018: Answer

Notice

11/30/2018: Notice

Proof of Service by Mail

12/19/2018: Proof of Service by Mail

Answer

1/15/2019: Answer

Answer

1/17/2019: Answer

Unknown

2/8/2019: Unknown

Notice

3/5/2019: Notice

Case Management Statement

5/20/2019: Case Management Statement

Case Management Statement

5/23/2019: Case Management Statement

NOTICE OF MOTION AND MOTION TO STRIKE PORTIONS OF COMPLAINT; ETC.

11/22/2017: NOTICE OF MOTION AND MOTION TO STRIKE PORTIONS OF COMPLAINT; ETC.

DEMAND FOR JURY TRIAL

11/22/2017: DEMAND FOR JURY TRIAL

PROOF OF SERVICE SUMMONS

11/6/2017: PROOF OF SERVICE SUMMONS

Unknown

11/22/2017: Unknown

84 More Documents Available

 

Docket Entries

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

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

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

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

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

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

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

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

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

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  • 03/26/2019
  • at 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
  • PROOF OF SERVICE OF SUMMONS

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

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

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  • 11/06/2017
  • PROOF OF SERVICE SUMMONS

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  • 11/06/2017
  • PROOF OF SERVICE SUMMONS

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

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  • 11/06/2017
  • PROOF OF SERVICE SUMMONS

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

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  • 06/15/2017
  • SUMMONS

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  • 06/15/2017
  • COMPLAINT FOR DAMAGES

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Tentative Rulings

Case Number: BC665309    Hearing Date: February 05, 2021    Dept: P

Tentative Ruling

Kent Truong v. The Regents of the University of California, Case No. BC665309

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: BC665309    Hearing Date: September 11, 2020    Dept: P

 Tentative Ruling

Kent Truong v. The Regents of the University of California, Case No. BC665309

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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