Pending - Other Pending
Personal Injury - Other Personal Injury
HELLENBECK M. DAVID
DOES 1 TO 25
E&S RING MANAGEMENT CORP.
GSI GROUP INC.
GAJEWSKI KAREN A. ESQ.
COLLINS COLLINS MUIR & STEWART LLP
ALDERMAN DANIEL S. ESQ.
12/21/2017: COMPLAINT-PERS. INJURY, PROP DAMAGE, WRONGFUL DEATH (2 PAGES)
5/15/2019: Stipulation to Continue Trial/FSC [and Related Motion/Discovery Dates] Personal Injury Courts Only (Department 91, 92, 93, 97)
5/22/2018: DEFENDANTS CROSS DEFENDANT GS1 GROUP INC.S ANSWER TO DEFENDANT E AND S RING MANAGMENT CORP.S CROSS COMPLAINT
5/16/2018: NOTICE OF ERRATA TO PLAINTIFFS COMPLAINT CCP 469-475
4/19/2018: DEFENDANT GS1 GROUP INCS ANSWER TO PLAINTIFF M.DAVID HALLENBECKS COMPLAINT
4/17/2018: ANSWER TO COMPLAINT
4/17/2018: SUMMONS CROSS-COMPLAINT
3/27/2018: PROOF OF SERVICE SUMMONS
Docket[Proposed Order] and Stipulation to Continue Trial, FSC (and Related Motion/Discovery Dates) Personal Injury Courts Only (Central District); Filed by GSI Group, Inc. (Defendant)[+] Read More [-] Read Less
DocketDEFENDANTS CROSS DEFENDANT GS1 GROUP INC.S ANSWER TO DEFENDANT E AND S RING MANAGMENT CORP.S CROSS COMPLAINT[+] Read More [-] Read Less
DocketAnswer; Filed by GSI Group, Inc. (Defendant)[+] Read More [-] Read Less
DocketNOTICE OF ERRATA TO PLAINTIFFS COMPLAINT CCP 469-475[+] Read More [-] Read Less
DocketNotice; Filed by M. David Hellenbeck (Plaintiff)[+] Read More [-] Read Less
DocketDEFENDANT GS1 GROUP INCS ANSWER TO PLAINTIFF M.DAVID HALLENBECKS COMPLAINT[+] Read More [-] Read Less
DocketAnswer; Filed by GSI Group, Inc. (Defendant)[+] Read More [-] Read Less
DocketSUMMONS CROSS-COMPLAINT[+] Read More [-] Read Less
DocketAnswer; Filed by E&S Ring Management Corp. (Defendant)[+] Read More [-] Read Less
DocketCross-Complaint; Filed by E&S Ring Management Corp. (Defendant)[+] Read More [-] Read Less
DocketCROSS-COMPLAINT[+] Read More [-] Read Less
DocketANSWER TO COMPLAINT[+] Read More [-] Read Less
DocketPROOF OF SERVICE SUMMONS[+] Read More [-] Read Less
DocketProof-Service/Summons; Filed by M. David Hellenbeck (Plaintiff)[+] Read More [-] Read Less
DocketComplaint; Filed by M. David Hellenbeck (Plaintiff)[+] Read More [-] Read Less
DocketCOMPLAINT-PERS. INJURY, PROP DAMAGE, WRONGFUL DEATH (2 PAGES)[+] Read More [-] Read Less
DocketSUMMONS[+] Read More [-] Read Less
Case Number: ****7722 Hearing Date: December 10, 2019 Dept: 2
Cross-Complainant E&S Ring Management Group’s Motion for Summary Adjudication on Cross-Complaint against Cross Defendant GS1 Group, Inc. is GRANTED in part and DENIED in part. The Court grants summary adjudication in favor of E&S Ring Management Group on the issue of the duty to defend. The Court denies summary adjudication on the other issues without prejudice; the motion on the other issues is premature.
ALLEGATIONS IN THE RELEVANT PLEADINGS
Plaintiff M. David Hallenbeck has sued GS1 Ground Inc. (“GS1”) and E&S Ring Management Corp. (“E&S”) for general negligence. Plaintiff alleges that he was soaking in a Jacuzzi at his Marina del Rey apartment complex when he noticed security guards locking the gate that provided an exit to the pool area. Plaintiff alerted the guards to his presence and was ordered by the guards to exit the location through a different gate, which required Plaintiff to traverse two stairwells while dripping wet. Plaintiff protested, but the guards insisted. As he was being hurried along by the guards, Plaintiff slipped on the wet steps, and fell down half a flight of stairs, causing him to incur injuries.
Plaintiff has asserted a single cause of action for negligence against GS1 and E&S. Plaintiff alleges that Defendant GS1 provided the security guards, who were acting in the course and scope of their employment with GS1. Plaintiff further alleges that GS1 was negligent in the hiring, retention and assignment of the guards. Plaintiff alleges that Defendant E&S was the property management company for the property and was negligent the assignment, training, retention and supervision of the security guards, and that the guards were acting as agents of E&S at the time of the accident. Plaintiff’s entire complaint is based on the actions of the security guards.
E&S has filed a cross-complaint against GS1 Group Inc., asserting causes of action for indemnification, apportionment of fault, declaratory relief, breach of contract and express indemnity. In the declaratory relief cause of action, E&S seeks a declaration that GS1 is “obligated to protect, defend, indemnify, save and hold harmless” E&S and “to pay judgment, verdict and all costs, attorney fees and expenses that the cross-complaint herein in such action and to pay judgment, verdict and all costs, attorneys fees and expsens” that E&S may incur. As to the breach of contract and express indemnity claims, E&S alleges that GS1 failed to comply with contractual obligations to defend and indemnify E&S from the allegations in Plaintiff’s complaint.
E&S now seeks summary adjudication on the following issues in its cross-complaint: (1) third cause of action for declaratory relief; (2) fourth cause of action for breach of contract; (3) fifth cause of action for express indemnity; (4) GS1’s alleged duty to defend E&S; and (5) GS1’s alleged duty to indemnify E&S.
UNDISPUTED FACTS AND ADDITIONAL MATERIAL EVIDENCE
E&S provides property management services at the apartment complex at issue, and acts as an agent of the owner. E&S contracted with GS1 to provide patrol services at the complex pursuant to a written contract dated February 1, 2017. Pursuant to the contract, GSI is required to provide, among other things, uniformed courtesy patrol personnel to patrol the property and secure all areas (including the pool area). The contract contains the following language in paragraph 17.1.:
“Contractor [GS1] shall indemnify, defend and hold harmless Agent [E&S] and Owner and their respective owners, officers, agents and employees from and against any claims, damages, losses, court costs and attorney’s fees: (a) arising out of this contract; (b) arising out of the provision of services; (c) arising out of the failure of [GS1] to provide the services; (d) for the injury or death of any person or for damage to any property arising in connection with the services; (f) arising out of the negligence or willful or intentional misconduct of [GS1] or any of their respective owners, officers, agents or employees.” The contract further provides that GSI agrees to waive all rights of subrogation in regard to its indemnity obligations and that the indemnity obligations shall survive termination of the contract.
Plaintiff’s complaint was filed on 12/21/2017. E&S tendered this matter to GSI on or about 1/4/2019, demanding a defense and indemnity in accordance with the contract. Counsel for E&S again tendered the matter to GSI in writing on or about 3/14/2018. To date, despite several conversations among counsel for the parties, GSI and/or GSI’s insurer has refused to accept E&S’s tender of this matter of its duties to defend and indemnify E&S pursuant to the terms of the contract. E&S has performed its obligations to GS1 under the contract.
SUMMARY JUDGMENT STANDARD
When a plaintiff seeks summary judgment, the plaintiff’s burden is to produce admissible evidence sufficient to establish each element of a cause of action (or issue of duty) entitling the plaintiff to judgment. CCP ; 437c(p)(1); SBCC, Inc. v. St. Paul Fire & Marine Ins. Co. (2010) 186 Cal.App.4th 383, 388. Defendant has no evidentiary burden unless and until plaintiff produces admissible evidence sufficient to establish each element of a cause of action or issue of duty. See, e.g., Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850. If the plaintiff meets its initial burden, the burden shifts to the defendant to show through admissible evidence that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. CCP ; 437c(p)(1). It is not plaintiff’s initial burden to disprove affirmative defenses. CCP ; 437c(p)(1); Consumer Cause, Inc. v. SmileCare (2001) 91 Cal.App.4th 454, 468.
A. Duty to defend
E&S seeks summary adjudication on whether GS1 has a duty to defend GS1 in this action. A party may properly seek summary adjudication on an issue of duty, including contractual duties. Code Civ. Proc. ; 437c(f)(1); Linden Partners v. Wilshire Linden Assocs. (1998) 62 Cal. App. 4th 508, 518. When the underlying facts are undisputed, the existence and scope of duty are questions of law for the Court. Merrill v. Navegar, Inc. (2006) 26 Cal. 4th 465, 477.
Contractual duties to defend and to indemnify are two separate contractual duties; the Court may summarily adjudicate that a defendant owes the plaintiff a duty to defend in an action separate and apart from the determination whether the defendant owes a duty to indemnify. Montrose Chemical Corp. of California v. Superior Court (1993) 6 Cal. 4th 287, 298; Transamerica Ins. Co. v. Superior Court (1995) 29 Cal. App. 4th 1705, 1712-13. Courts often determine that a party has a duty to defend on summary adjudication motions. Transamerica Ins. Co., supra, 29 Cal. App. 4th at 1712-13; see also Crawford v. Weather Shield Mfg., Inc. (2008) 44 Cal. 4th 541, 564-65 (explaining that the Court of Appeal erred in Regan Roofing v. Superior Court (2008) 24 Cal. App. 4th 425, 436 in reversing summary adjudication on the duty to defend; whether a defendant has a duty to defend is properly considered at the pretrial summary adjudication stage, before the duty to indemnify can be determined).
A duty to defend is broader than a duty to indemnify. Crawford v. Weather Shield Mfg, Inc. (2008) 44 Cal. 4th 541, 553-54. “A contractual promise to ‘defend’ another against specified claims clearly connotes an obligation of active responsibility, from the outset, for the promisee's defense against such claims. The duty promised is to render, or fund, the service of providing a defense on the promisee's behalf—a duty that necessarily arises as soon as such claims are made against the promisee, and may continue until they have been resolved. This is the common understanding of the word ‘defend’ as it is used in legal parlance.” Id. at 553-54. Moreover, unless the parties’ agreement expressly provides otherwise, “a contractual indemnitor has the obligation, upon proper tender by the indemnitee, to accept and assume the indemnitee's active defense against claims encompassed by the indemnity provision.” Id. “Implicit in this understanding of the duty to defend . . . is that the duty arises immediately upon a proper tender of defense . . . and thus before the litigation to be defended has determined whether indemnity is actually owed.” Id. The duty does not depend on the outcome of the litigation and the duty to defend may arise even when there ultimately is no duty to indemnify. Id. at 547.
The Crawford decision makes clear that whether the duty to defend arises may properly be determined from the allegations in the Complaint. Id. at 558; see also Aluma Systems Concrete Construction of California v. Nibbi Bros. Inc. (2016) 2 Cal. App. 5th 820, 627 (duty to defend may depend on the framing of the third party’s complaint). Further, determining the scope of the duty to defend is an exercise in contractual interpretation that is to be decided based on the express language of the contract. McCrary Construction Co. v. Metal Deck Specialists, Inc. (2005) 133 Cal. App. 4th 1528.
Here, GS1 expressly agreed to “defend and hold harmless” E&S against any claims “arising out of the provision of services” in the contract; any claims “for the injury . . . of any person . . . arising in connection with the services”; and any claims “arising out of the negligence . . . of [GS1] or any of their . . . . agents or employees.” Plaintiff’s negligence claim against E&S clearly falls within each of these three categories; the claim is expressly based on the behavior of the security guards provided by GS1 pursuant to the terms of the agreement. Indeed, the complaint alleges that E&S is vicariously liable for the security guard’s actions because the security guards were acting as agents of E&S. The fact that the Complaint additionally alleges that E&S was itself negligent in the supervision of such guards does not change the fact that the entire claim against E&S arises out of the security guard services provided by GS1. Contrary to GS1’s argument, there is no claim for premises liability asserted.
The undisputed evidence thus establishes that GS1 has a duty to defend E&S against the claim asserted by Plaintiff against E&S in this action. E&S is entitled to summary adjudication on this issue.
GS1 cites McCrary Construction Co. v. Metal Deck Specialists, Inc. (2005) 133 Cal. App. 4th 1528 and Muth v. Urricelqui (1967) 251 Cal. App. 2d 901, 911 for the supposed proposition that active negligence on the part of an indemnitee would prohibit a claim for indemnity. GS1 makes no argument that these cases affect the duty to defend, and the cases do not address the duty to defend at all. The cases can be disregarded for this reason alone.
But even if the cases could somehow be construed to address the duty to defend by implication, they would still be inapposite to the circumstances at issue here. McCrary concerned the scope of a duty to indemnify under language that was much narrower than the language at issue here. In that case, McCrary was a general contractor and Metal Deck Specialists was a subcontractor. A victim had been killed at a job site. In the jury trial on victim’s heirs’ wrongful death claim, the jury had found McCrary 45% at fault and Metal Deck Specialists 30% at fault. McCrary paid the percentage of the judgment that corresponded with its own degree of fault (i.e., 45% of the judgment) and then sought indemnification from Metal Deck for that amount.
The case turned on the interpretation of the express indemnity provision, which stated that Metal Deck agreed to indemnify McCrary from liability for injuries “on account of, or related to, any act or omission, or alleged act or omission” of Metal Deck. Based on this language, the Court found that Metal Deck was required to indemnify McCrary only to the extent that McCrary’s liability was based on acts or omissions of Metal Deck. Further, the Court concluded that McCrary was seeking indemnity for the portion of the victim’s heirs’ damages that the jury had found was based on McCrary’s own acts and omissions, not Metal Deck’s.
This analysis is not pertinent to the question here. First, to reiterate, the case did not concern the scope of the duty to defend; the issue was the scope of the duty to indemnify after the jury had found and had apportioned liability. Second, the language at issue here does not limit the duty to indemnify to injuries caused by acts or omissions by GS1; the language requires indemnity for any injuries arising out of or connected to GS1’s the provision of services. The entire complaint is based on the actions of the security guards provided by GS1. Even if E&S had some role in supervising the guards, the claims at issue here still arose in connection with the services that GS1 provided – i.e., the security guard services.
The “enforceability of an indemnity agreement shall primarily turn upon a reasonable interpretation of the intent of the parties” as is reflected in the agreement’s language; the active-passive negligence rubric comes into play only if it is helpful in interpreting the agreement’s language. See, e.g., Ottomans Construction Co. v. Bayside Interiors, Inc. (2017) 10 Cal. App. 5th 355, 362-63. Here, GS1 has made no showing that the rubric would be helpful in interpreting the duty to defend language in the agreement. The Court need not consider, for purposes of this motion, whether the negligence claim alleged against E&S involved alleged active or passive negligence.
Muth v. Urricelqui (1967) 251 Cal. App. 2d 901, 911 is also not on point. Muth concerned a claim for implied indemnity; it was not based on an express indemnity provision. Muth’s analysis of implied indemnity turned on the following proposition: “Where each of two persons is made responsible by law to an injured party, the one (who is passively negligent) to whom the right of indemnity inures is entitled to shift the entire liability for the loss to the other party (whose active negligence was the proximate immediate cause of the loss.)” Muth, supra, at 908. Muth expressly stated that this principle applied because the law did not recognize principles of comparative negligence or comparative fault. Id. at 909. In the years after Muth was decided, California, of course, adopted comparative fault principles, including comparative equitable indemnity. Muth’s analysis has no applicability to the interpretation of the indemnity clause at issue in this case.
Even if Muth were relevant, the decision does not help GS1 on the principle for which it is cited. GS1 claims that the fact that Plaintiff has alleged that E&S failed to supervise GS1’s own employees somehow invalidates the duty to indemnify (and, supposedly, the duty to defend as well) because that would somehow be “active” negligence. Muth has nothing to say on that factual scenario whatsoever. Defendant Muth was a grading subcontractor. Plaintiff was a general contractor who had been held liable in a prior action for damage to a homeowner’s property. Plaintiff sought indemnity from Muth and other subcontractors. Muth claimed that the other subcontractors that Plaintiff sued were agents of Plaintiff whom Plaintiff had admitted were negligent. Based on the equitable indemnity principles discussed above (i.e., those in place before comparative fault principles were incorporated into California law), Muth argued that the fact that Plaintiff’s agents were negligent precluded Plaintiff’s indemnity claim against Muth. The Court rejected this argument, noting that the other subcontractors were independent contractors and that there had been no showing that Plaintiff was directly involved in how their work was done. Thus, the negligence of those other subcontractors would not be directly attributable to Plaintiff such that Plaintiff’s right to indemnity would be cut off under the implied equitable indemnity principles that did not allow for comparative fault. The Court noted that there had been no allegations that Plaintiff had supervised or directed the manner in which those third-party contractors had performed their work.
There is no comparable situation alleged here. There are no third-party subcontractors alleged to have been involved in this case; the only employees at issue to which any failure to supervise is alleged are the security guards that GS1 provided. Muth does not stand for the proposition that E&S’s alleged failure to supervise GS1’s employees would somehow constitute active negligence or that it would somehow invalidate the express indemnity provision in which GS1 agreed to indemnify and defend against all claims arising out of services provided by the contract. As previously noted, the language of the agreement makes clear that the duty to defend arises because the claims against E&S are connected to the services that GS1 provided. The bottom line is that Muth simply has no relevance to whether GS1 owes a duty to defend.
The cases that GS1 cites regarding a special employment relationship similarly have no applicability to the scope of the duty to defend here. Even if a special employment relationship arose between E&S and GS1 (a proposition for which GS1 has provided no evidence), the security guards’ performance of services would still be “in connection with services” provided under GS1’s contract with E&S and the express duty to defend would still apply.
In sum, the undisputed evidence shows that E&S is entitled to summary adjudication in its favor on the issue of the duty to defend.
B. Duty to indemnify
By contrast, the duty to indemnify does not arise until liability is proven. Alumna Systems Concrete Construction of California v. Nibbi Bros. Inc. (2016) 2 Cal. App. 5th 620, 628; Crawford, supra, at p. 559 (“One can only indemnify against claims for damages that have been resolved against the indemnitee, i.e., those as to which the indemnitee has actually sustained liability or paid damages.”) Since E&S has not yet been found liable to plaintiff, the duty to indemnify has not yet arisen and the motion for summary adjudication on the duty to indemnify is premature. The motion is thus denied without prejudice as to the duty to indemnify.
C. Breach of contract claims
E&S also seeks summary adjudication on the fourth cause of action for breach of contract and the fifth cause of action for breach of the duty to indemnify. A motion for summary adjudication may be granted “only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” Here, E&S alleges that GS1 breached the contract by failing to “defend and indemnify E&S from the allegations in Plaintiff’s complaint.” While the evidence is undisputed that GS1 has breached the duty to defend, E&S cannot show at this stage of the litigation that GS1 breached any duty to indemnify since E&S has not yet been found liable. A finding that GS1 breached the duty to defend would not dispose of the entire cause of action, and thus E&S is not entitled to summary adjudication on the breach of contract claim at this time.
In addition, a plaintiff or cross-complainant can obtain summary adjudication on a cause of action only if all elements can be established, including the element of damages. A plaintiff cannot obtain summary adjudication on the liability issue and leave the damages issues for resolution at trial. See Paramount Petroleum Corp. v. Sup.Ct. (Building Materials Corp. of America) (2014) 227 Cal. App. 4th 226, 243. E&S cannot yet prove the full amount of damages from any failure by GS1 to defend or indemnify it in this action. The motion for summary adjudication is thus denied without prejudice.
D. Declaratory relief claim
E&S also seeks summary adjudication on the declaratory relief claim. In that claim, E&S seeks a declaration that GSI owes a duty both to defend and to indemnify. The Court has already granted summary adjudication in favor of E&S on the duty to defend; the declaratory relief claim would not provide for any additional material relief at this stage in the proceedings. Further, as previously noted, the request for a declaratory judgment on the duty to indemnify is premature since there has been no finding of liability against E&S. The Court may not grant the motion for summary adjudication on the entirety of the declaratory relief claim, and for that reason, the motion for summary adjudication must be denied.
Finally, a party cannot cloak a nondispositive issue in a declaratory relief count to evade the requirement that a summary adjudication must completely dispose of the cause of action. Hood v. Sup.Ct. (United Chambers Administrators, Inc.) (1995) 33 Cal. App. 4th 319, 322-323. Here, the declaratory relief claim is duplicative of the breach of contract claim. Since summary adjudication is not permitted on the breach of contract claim because, among other things, the amount of damages cannot be established at this stage of the proceeding, E&S cannot get around that barrier by seeking a declaratory relief judgment on the other elements of the claim.
In sum, the Court grants summary adjudication in favor of E&S on the issue of the duty to defend. The Court concludes, as a matter of law, that GS1 has a duty to defend E&S in Plaintiff’s action. The Court denies summary adjudication on the other issues without prejudice.
Moving party is ordered to give notice.
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