Case Name: Karen Frugoli O’Hare v. LinkedIn Corporation, et al.
Case No.: 16-CV-291808

This is a personal injury lawsuit. A defective electronic gate closed on plaintiff Karen Frugoli O’Hare (“Plaintiff”) at the Sunnyvale campus of defendant LinkedIn Corporation (“LinkedIn”) causing injury to her left arm and side. (Compl., p. 4.) Plaintiff asserted causes of action against LinkedIn and doe defendants for negligence, premises liability, and products liability. She subsequently filed doe amendments naming, among others, defendant Cushman & Wakefield of California, Inc. (“CWCI”), who was the property manager at the campus.

CWCI filed a cross-complaint asserting causes of action against cross-defendants DoorKing, Inc. (“DoorKing”), Nortek Security & Control (“Nortek”), and Able Engineering Services, Inc. (“Able”) for equitable indemnity, contribution, declaratory relief, and negligence. CWCI additionally asserts a cause of action against DoorKing and Nortek for strict products liability and causes of action against Able for express indemnity and breach of contract.

Currently before the Court is CWCI’s motion for summary adjudication of the issue of Able’s duty to defend it in this lawsuit. CWCI, as property manager, hired Able to maintain the property and argues Able must defend it pursuant to their agreement.

The hearing on the motion was originally scheduled for November 14, 2017. With the agreement of the parties and for the reasons set forth in the previous order, incorporated by reference herein, the Court continued the hearing on the motion to February 20, 2018 to give Able an opportunity to file a sur-reply in response to evidence presented with CWCI’s reply.

For context and as previously explained, after evaluating all of the parties’ arguments, objections to evidence, and requests for judicial notice, the Court concluded the motion for summary adjudication turned on a single issue of fact: whether CWCI is a subsidiary of Cushman & Wakefield, Inc. such that it comes within the definition of the term “Manager” as used in the duty-to-defend clause. CWCI neglected to present evidence along with its moving papers to show a subsidiary relationship, but Able nearly cured this evidentiary gap in opposing the motion. For this reason, and because CWCI presented evidence along with its reply showing it is a wholly-owned subsidiary of Cushman & Wakefield, Inc., the Court continued the hearing on the motion to give Able an opportunity to respond. (See Reply at pp. 3:16-4:11; Cenkus Decl., ¶ 3.) Able did not file a sur-reply. Accordingly, it is undisputed CWCI is a subsidiary of Cushman & Wakefield, Inc. such that it comes within the definition of the term “Manager” in the duty-to-defend clause.

For the reasons set forth herein and in the Court’s previous order, there are no triable issues of material fact and Able is obligated to defend CWCI in this lawsuit pursuant to the duty-to-defend clause in the Service Contract. Consequently, CWCI’s motion for summary adjudication of the issue of Able’s duty to defend is GRANTED.