2012-00134016-CU-PO

Cheryl Cruzon vs. Snegg and Snegg LP

Nature of Proceeding: Motion for Summary Adjudication

Filed By: Wood, Ted Daniel

The motion of Defendant and Cross-Complainant Steve Daniels d/b/a Steve’s Small
Car (“Steve’s”) for summary adjudication of issues is DENIED.

Overview

This is a personal injury case. Plaintiff Cheryl Cruzon (“Cruzon”) has pleaded against
Steve’s and Co-Defendant/Cross-Defendant Snegg and Snegg, L.P. (“Snegg”) causes
of action for premises liability and negligence. According to Cruzon, she fell over an
unmarked, poorly lit speed bump on property that Snegg owns and which is adjacent
to the commercial premises Steve’s leases from Snegg. Cruzon’s causes of action
have not yet been adjudicated or otherwise resolved.

In his cross-complaint against Snegg, Steve’s has pleaded causes of action for
express indemnity, equitable indemnity and declaratory relief. Steve’s now moves for
an order that he is entitled to the following judicial declarations of his rights and duties
vis-à-vis Snegg: (1) Snegg is required to indemnify and hold harmless Steve’s against
Cruzon’s claims in this action; (2) Snegg is required to contribute to any judgment
rendered against Steve’s in this action; and (3) Snegg is obligated to reimburse
Steve’s for all fees and costs incurred in the defense of Cruzon’s action. Steve’s
predicates all three issues on the same set of 19 material facts. Accordingly, if one of
these 19 facts is disputed, then the entire motion must be denied. (CCP § 437c(c).)

Discussion

The facts leading to Cruzon’s alleged injuries are largely undisputed: on the morning of
February 1, 2011, she deposited her car keys into a Steve’s door slot, walked to the
end of the parking lot where a friend was waiting to pick her up, and tripped over a
speed bump before she reached her friend’s car. (Undisputed Material Facts (“UMF”)
10-14.) Based on the terms of Steve’s lease with Snegg, Snegg is exclusively
responsible for the parking area where Cruzon fell. (UMF 2-8.) However, the lease
obligates Steve’s to indemnify and hold Snegg harmless for personal injuries in or
about the leased premises, except for injuries caused by Snegg’s negligence or willful
acts:

Tenant shall indemnify and hold Landlord harmless against and from any
and all claims arising from Tenant’s use of the Premises for the conduct
of its business or from any activity, work or other thing done, permitted or
suffered by Tenant in or about the Premises …Tenant, as a material part
of the consideration to Landlord, shall assume all risk of damage to
property or injury to persons, in or about the Premises, from any cause
other than Landlord’s negligence or willful acts, and Tenant waives all
claims in respect thereof against Landlord. (See Daniels Decl., Exh. A at 5-6 [ellipsis and emphasis added].)

There is no dispute that Cruzon was on the parking lot adjacent to Steve’s premises in
order to patronize Steve’s business. (See UMF 11; Wood Decl., Exh. A at 15:6-89.)
Hence, Cruzon’s legal claims appear to “arise from” Steve’s “use of the Premises for
the conduct of its business or from any activity, work or other thing done, permitted or
suffered by [Steve’s] in or about the Premises.” In other words, under the lease,
Steve’s can only prevail on its causes of action against Snegg if the latter’s negligence
or willful acts caused Cruzon’s alleged injuries.

At this point, whether Snegg was negligent involves triable issues of material fact.
Steve’s emphasize that, because the lease saddled Snegg with the duties to control
and maintain the parking lot, there is no way that Steve’s could have caused Cruzon’s
injuries. Under the lease’s indemnity provision, however, Steve’s assumed such
liability unless Snegg was negligent or acted willfully. Thus, the narrow question in
determining Snegg’s liability to Steve’s for indemnity is not whether Steve’s was or was
not negligent, but rather whether Snegg was negligent/acted willfully. If Cruzon was
the only negligent party, and Snegg was non-negligent in its maintenance of the
parking lot and speed bump, then there would be no basis for Steve’s to prevail
against Snegg.

In an attempt to demonstrate that Snegg’s negligence does not rest on any triable
issues of material fact, Steve’s has produced evidence that (1) Snegg had exclusive
responsibility for the parking lot/speed bump and (2) Cruzon tripped over the speed
bump. (UMF 5-8, 14.) Although Cruzon alleges in her complaint that she tripped over
the speed bump because the area was poorly lit and the speed bump was unmarked,
Steve’s has not produced any such evidence. As a consequence, Steve’s evidence
does not preclude a reasonable inference that Cruzon tripped over the speed bump
solely because she was not paying attention. Such an inference requires the court to
deny the motion; whether Snegg was negligent, and thus whether Steve’s
contractually assumed liability for Cruzon’s alleged injuries, involve triable issues of
material fact.

In denying the motion, the court is aware that two of the issues presented in the
moving papers are whether Steve’s is entitled to a declaration that Snegg is liable for
equitable indemnity or contribution, not merely for express contractual indemnity.
Steve’s reliance on these legal theories does not alter the court’s conclusion because
the availability of equitable indemnity or contribution rests upon the terms of the lease,
which required Steve’s to assume the risk of Cruzon’s injury unless Snegg was
negligent or acted willfully. Thus, the threshold question to liability on any theory is
whether Snegg was negligent/acted willfully. Because Snegg’s negligence/willfulness
involve triable issues of material fact, Steve’s is not entitled to summary adjudication
on any theory raised in the moving papers.

Finally, the court is aware of Steve’s argument that the lease cannot be construed
such that the parking lot, which is under Snegg’s exclusive control, is nonetheless “in
or about” the leased premises within the purview of the indemnity provisions. As noted
above, if the parking lot is “in or about” the leased premises, or if Cruzon’s alleged
injuries “arose” from Steve’s business activities, then Steve’s has waived all claims
against Snegg unless Snegg was negligence or acted willfully. Snegg counters that
the phrase “in or about” is ambiguous and requires extrinsic evidence of its meaning, Steve’s has failed to submit.

Although the court is inclined to disagree with Steve’s on this point of contractual
interpretation, it need not resolve the issue. The lease does not require Snegg to
indemnify Steve’s for anything. Only Steve’s has undertaken a contractual duty to
indemnify. Hence, even if Steve’s assumption of liability under the lease did not
include Cruzon’s accident because her fall was not “in or about” the premises, that
alone would not entitle Steve’s to indemnity or contribution. To receive indemnity or
contribution, Steve’s was required to show that Snegg contributed to Cruzon’s alleged
injuries, and Steve’s has not made a sufficient showing for reasons discussed above.

Steve’s request for judicial notice is GRANTED.

Steve’s evidentiary objections are SUSTAINED.

The minute order is effective immediately. No formal order pursuant to CRC 3.1312 or
further notice is required.