Case Number: BC504083 Hearing Date: May 23, 2014 Dept: 91

The Motion for Summary Adjudication by Cross-Complainant, MCD Arcade Lane, LLC, filed on 3/7/14 is DENIED. Cross-Complainant has not established, based on the undisputed material facts proffered, that it is entitled to a duty to defend and indemnify Cross-Defendant based on the provisions of the parties’ Lease Agreement. Cal Code Civ Procedure § 437c(p)(2).

The parties rely primarily on Crawford v. Weather Shield Mfg., Inc., 44 Cal. 4th 541, 568 (Cal. 2008) which states that the duty to defend arises immediately if the claims are “founded upon” claims described in the contract. Crawford v. Weather Shield Mfg., Inc., 44 Cal. 4th 541, 568 (Cal. 2008). The parties do not dispute the material facts relevant to the issues to be adjudicated.

Plaintiff allegedly slipped on steps on property owned/controlled by Cross-Complainant MCD Arcade Lane, LLC (hereafter “Arcade.”) UF 1. Cross-Defendant (hereafter “Tenant”) leased the premises from the Arcade, and the Lease was in effect at the time of the incident. UF 6.
There is no dispute that Tenant hired Arax Carpet Co to clean carpets at Tenant’s dental office and further that Plaintiff was employed by Arax. UF 9-10.

The language of the material portions of the Lease Agreement, including the defense/indemnity provisions are not in dispute.

Section 2.7 defines “Common Areas” as “all areas and facilities outside the PREMISES.” UF 17.

While Arcade did not proffer the language defining “PREMISES,” Tenant proffers it at AF 34. “PREMISES” is confined to the leased premises “known as Suite 204.” AF 34.

The defense and indemnity provision is not in dispute. It covers claims ar0ising from “use and occupancy of the PREMISES by the lessee.” UF 19.

Arcade argues in Reply that the Lease agreement extends the duty to defend/indemnify for injuries arising from the PREMISES as well as OTHER PARTS OF THE BUILDING, which would arguably include the Common Areas where Plaintiff fell. However, Arcade relies on a different provision that limits its own liability for injuries to persons. This provision is irrelevant to the issue of Tenant’s duty to defend or indemnify. It is contained in a separate provision. The issue here is not LESSOR’S liability for Plaintiff’s injury. UF 20 and Section 8.8 of the Lease.

Arcade also relies on section 8.2 of the Lease, which requires Tenant to obtain and keep in force a Commercial General Liability policy to protect against claims for bodily injury “arising out of the ownership, use occupancy or maintenance of the PREMISES and all areas appurtenant thereto.” UF 18 and evidence cited therein. The existence of this provision does not establish that Cross-Defendant owed a duty to defend or indemnify against claims occurring on the PREMISES and ALL AREAS. It does not concern the Tenant’s duty to defend or indemnify and is contained in a separate provision.

While Cross-Complainant correctly argues that the duty to defend arises upon the filing of the suit, the suit must contain allegations that under the contract language, “trigger the obligation to defend.” Reply 7: 11-13. Crawford supports this interpretation. Crawford at 568. However, Cross-Complainant has not established that the duty is triggered by the contract language which limits the scope of the duty to defend and indemnify to claims arising out of use or occupancy of the PREMISES.

Accordingly, the motion is DENIED because Cross-Complainant has not established that Cross-Defendant’s duty to defend or indemnify is triggered where the material provision limits the duty to “liabilities arising out of, involving, or in connection with, the use and/or occupancy of the PREMISES by Lessee.” UF 19.

Cross-Complainant argues that Section 8.7 must be read in conjunction with 8.2 (covering the duty to buy a CGL policy) and 8.8. However 8.8 is a different provision limiting Lessor’s liability for damage. It does not address the various contexts in which Cross-Defendant’s duty to defend or indemnify arises. “The PREMISES” is expressly defined as Cross-Defendant’s rented suite. UF 34. Plaintiff fell on the property, and specifically on the stairs. UF 8 and 12. Based on Plaintiff’s additional facts, the COMMON AREAS are defined as all areas and facilities outside the Premises and within the exterior boundary line of the Project, which expressly includes “common entrances, lobbies, corridors and stairwells.” AF 35. Lease ¶ 2.7