Case Name: Kenneth King v. Palo Alto Networks, Inc., et al.

Case No.: 17CV311008

(1) Palo Alto Networks, Inc.’s Motion for Summary Adjudication [against cross-defendant Lifeworks Restaurant Group, LLC]
(2)
(3) Palo Alto Networks, Inc.’s Motion for Summary Adjudication [against cross-defendant Brilliant General Maintenance, Inc.]
(4)

Factual and Procedural Background

On June 15, 2015, plaintiff Kenneth King (“King”) was in the course and scope of his employment with Fresh Point and was delivering produce to defendant Palo Alto Networks, Inc. (“PAN”) located at 4401 Great America Parkway in Santa Clara; and was walking toward the walk-in cooler in the kitchen when he slipped and fell on grease. (Complaint, ¶¶Prem.L-1 and GN-1.) Defendant PAN owned and controlled the property where plaintiff King fell. (Id.) Defendant PAN was aware or should have been aware of the condition of the floor and that it created a risk of harm. (Id.)

Plaintiff King is informed and believes defendants Aramark Services, Inc. (erroneously sued as Lifework Restaurant Group, LLC; hereafter, “Aramark”) and Brilliant General Maintenance, Inc. (“BGM”) provide routine and deep cleaning services at PAN. (Complaint, ¶GN-1.) Defendants had actual notice of grease on the floor. (Id.) Defendants created the dangerous condition and failed to use reasonable care to warn plaintiff King and others of the dangerous condition. (Id.) Defendants failed to provide a safe work environment for plaintiff King and others. (Id.)

On May 26, 2017, plaintiff King filed a Judicial Council form complaint against defendants PAN, Aramark, and BGM asserting causes of action for (1) Premises Liability; and (2) General Negligence.

On August 15, 2017, defendant PAN filed an answer to plaintiff King’s complaint and also filed a cross-complaint against BGM and Aramark asserting cross-claims for (1) comparative negligence; (2) equitable indemnity; (3) implied contractual indemnity; (4) express contractual indemnity; (5) apportionment of fault; and (6) declaratory relief.

On January 18, 2019, PAN filed the first of two motions now before the court, a motion for summary adjudication of the fourth cause of action of its’s cross-complaint against cross-defendant BGM.

On February 11, 2019, PAN filed the second of two motions now before the court, a motion for summary adjudication of the fourth cause of action of its’s cross-complaint against cross-defendant Aramark.

I. Cross-complainant PAN’s motion for summary judgment of the fourth cause of action of its cross-complaint [express contractual indemnity] against cross-defendant Aramark is DENIED.
II.

“The elements of a cause of action for indemnity are (1) a showing of fault on the part of the indemnitor and (2) resulting damages to the indemnitee for which the indemnitor is contractually or equitably responsible.” (Expressions at Rancho Niguel Ass’n v. Ahmanson Developments, Inc. (2001) 86 Cal.App.4th 1135, 1139.) “Indemnity may rest on a contract, express or implied, on a law, or on equitable principles of shifting the burden of the liability.” (5 Witkin, California Procedure (4th ed. 1997) Pleading, §879, p. 337.) “An indemnitee seeking to recover on an agreement for indemnification must allege the parties’ contractual relationship, the indemnitee’s performance of that portion of the contract which gives rise to the indemnification claim, the facts showing a loss within the meaning of the parties’ indemnification agreement, and the amount of damages sustained.” (Four Star Electric, Inc. v. F & H Construction (1992) 7 Cal.App.4th 1375, 1380 (Four Star).)

“For purposes of motions for summary judgment and summary adjudication: (1) A plaintiff or cross-complainant has met his or her burden of showing that there is no defense to a cause of action if that party has proved each element of the cause of action entitling the party to judgment on the cause of action.” (Code Civ. Proc., §437c, subd. (p).) Since PAN seeks summary adjudication of its cross-complaint, PAN bears the initial burden of proving each element of its cause of action for express contractual indemnity. As PAN itself argues, PAN’s cross-complaint as to LifeWorks is based upon the clear terms of the Food Services Management Agreement between PAN and Aramark Corporation, through its LifeWorks division.

PAN proffers evidence of its contractual relationship with Aramark: On January 31, 2014, PAN and LifeWorks executed between themselves the Agreement relation to PAN’s premises at 4401 Great America Parkway, Santa Clara, California 95054 (“PAN’s Premises”). Under the Agreement, PAN granted to LifeWorks “the exclusive right to provide cafeteria, and coffee bar services on [PAN’s] ground-floor cafeteria located at [PAN’s Premises]” from January 6, 2014, through January 5, 2019. The Agreement included provisions for cleaning responsibilities in the kitchen of PAN’s Premises for both LifeWorks and PAN.

For cleaning responsibilities for LifeWorks, the Agreement provides:

A. LifeWorks’ Responsibilities: LifeWorks shall maintain high standards of sanitation (at a minimum, in compliance with applicable health and safety regulations) and shall be responsible for routine cleaning and housekeeping in the food preparation and service areas (including food service equipment, kitchen floors, hoods and grease filters) and for the routine cleaning of cafeteria tables and chairs.
B.

For cleaning responsibilities for PAN, the Agreement provides:

C. [PAN’s] Responsibilities: [PAN], at its cost, shall provide regular cleaning service for cafeteria walls, windows, floors, light fixtures, draperies and blinds, and periodic waxing and buffing of floors. In addition, [PAN] shall be responsible for routine cleaning of all grease traps, duct work, plenum chambers and roof fans. [PAN] shall be responsible for trash and garbage removal and extermination service.
D.

In order to perform its cleaning duties under the Agreement, PAN contracted with BGM to perform the duties assigned to PAN under the Agreement with LifeWorks. Under the Professional Services Agreement executed between PAN and BGM on May 28, 2014, (“BGM Agreement”), BGM undertook to provide janitorial services for the PAN Premises. Included with the janitorial services to be provided by BGM was monthly deep cleaning of the cafeteria kitchen floor.

Section 12 of the Agreement between PAN and LifeWorks includes an indemnity provision:

Each party will indemnify and hold the other party and its affiliates, and their respective directors, officers and employees, harmless from any third party claim, action, suit, or other proceeding, and any damages, cost, expense or other liability (including reasonable attorneys’ fees and court costs) for bodily injury, death or property damage caused by the negligent acts or omissions of the indemnifying party arising out of the performance of the Agreement, provided, however, that this Section will not apply to the extent that the occurrence for which the party seeking indemnification hereunder was caused by such party’s sole negligence or other tortious conduct.

Under Four Star, supra, PAN (indemnitee) must establish its own performance. It is not clear that PAN has done so here in moving for summary adjudication. Regardless, the next element of a claim for indemnity under Four Star is “facts showing a loss within the meaning of the parties’ indemnification agreement.” Here, the indemnifying language states each party will indemnify the other “for bodily injury, death or property damage caused by the negligent acts or omissions of the indemnifying party….” Thus, in order to come within the meaning of the agreement, PAN must demonstrate plaintiff King’s injury was caused by the negligent acts or omissions of Aramark. Here, PAN contends liability for plaintiff King’s injury lies with either Aramark or BGM who were under contractual obligations to maintain the kitchen/ cafeteria floor where the incident occurred, but PAN has not provided any evidence that plaintiff King’s injuries were caused by either Aramark or BGM. PAN has not met its initial burden. [Four Star also requires evidence of the damages sustained by PAN, but PAN has not provided any admissible evidence of damages.]

Within its memorandum of points and authorities, PAN apparently argues Aramark has a duty to defend PAN against plaintiff King’s claims. Initially, PAN’s notice of motion for summary adjudication seeks to adjudicate the fourth cause of action of its cross-complaint. While Code of Civil Procedure section 437c, subdivision (f) allows a party to move for summary adjudication of an issue of duty, PAN has not sought this specific form of relief. Moreover, PAN relies on Crawford v. Weather Shield Mfg., Inc. (2008) 44 Cal.4th 541 (Crawford) in support of this contention. Crawford is distinguishable. In Crawford, a group of homeowners commenced a construction defect action against the home developer, JM Peters Co. (“JMP”), and the window subcontractor, Weather Shield Mfg., Inc. (“Weather Shield”). JMP cross-complained against Weather Shield for fees and costs incurred in defending the homeowners’ claims. The trial court ruled Weather Shield had to reimburse JMP’s expenses for defending. The appellate court affirmed and so did the California Supreme Court.

We focus on the particular language of the subcontract. Its relevant terms imposed two distinct obligations on Weather Shield. First, Weather Shield agreed “to indemnify and save [JMP] harmless against all claims for damages to persons or to property and claims for loss, damage and/or theft … growing out of the execution of [Weather Shield’s] work.” Second, Weather Shield made a separate and specific promise “at [its] own expense to defend any suit or action brought against [JMP] founded upon the claim of such damage … loss … or theft.”

(Crawford, supra, 44 Cal.4th at p. 553; emphasis added.)

“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.” (Id. at pp. 553 – 554.) “A duty to defend another, stated in that way, is thus different from a duty expressed simply as an obligation to pay another, after the fact, for defense costs the other has incurred in defending itself.” (Id. at p. 554.) Here, the Agreement between PAN and Aramark does not include a separate and specific promise to defend.

For the above stated reasons, cross-complainant PAN’s motion for summary adjudication of the fourth cause of action of its cross-complaint against cross-defendant Aramark is DENIED.

III. Cross-complainant PAN’s motion for summary judgment of the fourth cause of action of its cross-complaint [express contractual indemnity] against cross-defendant BGM is DENIED.
IV.

In moving for summary adjudication of its express contractual indemnity claim against cross-defendant BGM, PAN begins by proffering evidence of its contractual relationship with BGM: On January 31, 2014, PAN and LifeWorks executed between themselves the Agreement relation to PAN’s premises at 4401 Great America Parkway, Santa Clara, California 95054 (“PAN’s Premises”). Under the Agreement, PAN granted to LifeWorks “the exclusive right to provide cafeteria, and coffee bar services on [PAN’s] ground-floor cafeteria located at [PAN’s Premises]” from January 6, 2014, through January 5, 2019. LifeWorks was to perform routine daily cleaning of the kitchen floor at PAN’s Premises under the LifeWorks Agreement. Under the LifeWorks Agreement, PAN retained certain cleaning duties in the kitchen of PAN’s Premises. Under the LifeWorks Agreement, PAN was to provide regular cleaning service for cafeteria walls, floors, light fixtures, draperies and blinds, and periodic waxing and buffing of floors.

In order to perform its cleaning duties under the LifeWorks Agreement, PAN contracted with BGM to perform the duties assigned to PAN. On May 28, 2014, PAN and BGM executed between themselves the BGM Agreement relating to PAN’s Premises. The BGM Agreement includes cleaning responsibilities in the kitchen of PAN’s Premises and included monthly deep cleaning of the kitchen floor. Deep cleaning was intended to include cleaning the grout work, drainage, and everything on the flooring of the kitchen. De-greasing the floors was also intended to be a party of BGM’s monthly deep cleaning. BGM performed its deep cleaning of the kitchen floor on the first Saturday of the month.

The BGM Agreement includes a provision relating to indemnification:

Supplier (BGM) agrees to indemnify, defend and hold harmless Palo Alto Networks, its subsidiaries, officers, directors, agents, successors and assigns, at its expense, from any and all claims, actions, damages, liabilities, costs and expenses, including reasonable attorneys’ fees and expenses, arising from or related to: … (e) any injury to any person (including contractor or its employees), damage to or loss of property, or any other claim arising out of or resulting from any act or omission of Supplier, its employees, agents or subcontractors in connection with or arising out of the performance of this Agreement… .

Under Four Star, supra, PAN (indemnitee) must establish its own performance. Again, it is not clear that PAN has done so here in moving for summary adjudication. Regardless, the next element of a claim for indemnity under Four Star is “facts showing a loss within the meaning of the parties’ indemnification agreement.” Here, the indemnifying language states BGM will indemnify PAN “for any and all claims … arising from or related to any injury to any person … arising out of or resulting from any act or omission of [BGM] … in connection with or arising out of the performance of this Agreement.” Thus, in order to come within the meaning of the agreement, PAN must demonstrate plaintiff King’s injury arose out of or resulted from any act or omission of BGM. Here, PAN contends liability for plaintiff King’s injury lies with either Aramark or BGM who were under contractual obligations to maintain the kitchen/ cafeteria floor where the incident occurred, but PAN has not provided any evidence that plaintiff King’s injuries were caused by either Aramark or BGM. PAN has not met its initial burden. [Four Star also requires evidence of the damages sustained by PAN, but PAN has not provided any admissible evidence of damages.]

PAN also argues BGM has a duty to defend PAN against plaintiff King’s claims. However, just as with PAN’s motion for summary adjudication against Aramark, PAN’s notice of motion for summary adjudication against BGM seeks to adjudicate the fourth cause of action of its cross-complaint in its entirety and does not specifically seek adjudication of an issue of duty. Thus, the court need not decide whether BGM had a duty to defend.

For the above stated reasons, cross-complainant PAN’s motion for summary adjudication of the fourth cause of action of its cross-complaint against cross-defendant BGM is DENIED.