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

I. Background

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. Able opposes the motion and objects to portions of CWCI’s evidence. Both parties filed requests for judicial notice.

II. Evidentiary Matters

A. Requests for Judicial Notice

1. CWCI’s Request for Judicial Notice

CWCI requests judicial notice of the complaint, the doe amendments naming both it and Able as defendants, its cross-complaint, and Able’s answer to the cross-complaint. A court may take judicial notice of court records. (Evid. Code, § 452, subd. (d).) More specifically, it is “proper to take judicial notice that a [ ] complaint made certain allegations, so long as judicial notice of the truth of those allegations [is] not taken.” (Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1564, citing Magnolia Square Homeowners Assn. v. Safeco Insurance Co. (1990) 221 Cal.App.3d 1049, 1056-57.) A court does not presume the truth of the allegations or facts in the pleadings. (Ibid.) With that scope in mind, these pleadings are proper subjects of judicial notice. CWCI’s request for judicial notice is therefore GRANTED.

2. Able’s Request for Judicial Notice

Able requests judicial notice of the fact that Cushman & Wakefield, Inc. is a separate and distinct entity from CWCI based on statements of information filed with the California Secretary of State by Cushman & Wakefield, Inc. in 2016 and by CWCI in 2017. (Able’s Request for Judicial Notice (“RJN”) at p. 2.)

A court may take judicial notice of “[f]acts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.” (Evid. Code, § 452, subd. (h).)

Here, however, the statements of information do not constitute sources of reasonably indisputable accuracy or show CWCI and Cushman & Wakefield, Inc. are separate and distinct entities.

First, the mere fact that a document prepared by private parties is on file with a state agency does not demonstrate it is a source of reasonably indisputable accuracy. (See Hughes v. Blue Cross of Northern California (1989) 215 Cal.App.3d 832, 856.) Although an individual identified as Kelly Lettman prepared the statements for both entities, he or she did not sign the attestation that the information “is true and correct.” (Able’s RJN, Exs. A & B.) Consequently, these statements prepared by private parties, although on file with the California Secretary of State, do not constitute indisputably accurate sources of information.

Second, the fact for which these statements are offered cannot be accurately determined from their contents. These documents show Cushman & Wakefield, Inc. and CWCI filed statements of information in 2016 and 2017, respectively. These statements, prepared by the same individual, list different principle addresses but the same Chief Executive Officer and Secretary. Given the similarities in the statements of information, including the entities’ names, it appears these entities likely have some relationship to each other. The statements do not, however, actually show the nature of the relationship between the entities at a single point in time because they are from different years.

Finally, and most significantly, these statements do not support the assertion for which Able relies upon them. Able requests judicial notice of the fact that these entities are separate and distinct more generally but in fact relies on these statements to support the assertion that CWCI and Cushman & Wakefield, Inc. were separate and distinct entities in 2015, at the time of Plaintiffs’ injuries and while the Service Contract was in effect. These statements do not indisputably show the entities were separate and distinct in 2015 because they were filed after the fact, in 2016 and 2017. For these reasons, Able’s request for judicial notice is DENIED.

B. Objections to Evidence

Able presents three objections to CWCI’s evidence, which are wholly without merit.

1. Objection Nos. 1-2

Able objects to paragraph 3 of the declaration of Julian Bennett and lines 3 through 5 in paragraph 4 of the declaration of Jason Sosnick on the grounds of lack of foundation and authenticity.

“Foundation” is a colloquial term used to describe a wide variety of requirements for the admissibility of evidence. (See People v. Porter (1947) 82 Cal.App.2d 585, 588; People v. Modell (1956) 143 Cal.App.2d 724, 729-30.) Because the term “foundation” is so broad, a generic objection on the ground there is a lack of foundation for the evidence is inadequate. (Modell, supra, 143 Cal.App.2d at pp. 729-30.) To make a proper objection, Able must identify the “alleged defect so that the ruling may be made understandingly and the objection obviated if possible.” (Porter, supra, 82 Cal.App.2d at 588.) Able does not, so its objection is improper.

Able also makes authenticity objections. It is true that the proponent of a writing must authenticate it before it may be admitted. (People v. Goldsmith (2014) 59 Cal.4th 258, 266, citing Evid. Code, §§ 250 [defining writing], 1401 [requiring authentication].) Yet, as a preliminary matter, Able frames its objections as directed to testimonial aspects of these declarations. Able does not object to the writings to which the declarations refer.

Presumably, Able in fact intended to object to the Service Contract and work orders attached to the declarations. (See Bennett Decl., Ex. A; Sosnick Decl., Ex. A.) A document is authentic if the evidence shows “the writing is what the proponent of the evidence claims it is.” (Evid. Code, § 1400.) Both declarations contain sworn statements describing and identifying the exhibits and the witnesses’ knowledge of and familiarity with them. (Bennett Decl., ¶¶ 1-3; Sosnick Decl., ¶¶ 1-4.) This is sufficient to show the Service Contract and work orders are what CWCI claims they are. (See, e.g., Ambriz v. Kelegian (2007) 146 Cal.App.4th 1519, 1527 [attorney’s statement that documents were what they purported to be was sufficient to overcome generic authenticity objection at summary judgment].) Thus, Able’s authenticity objections lack merit.

Accordingly, Objection Nos. 1 and 2 are OVERRULED.

2. Objection No. 3

Able objects to lines 5 through 8 in paragraph 4 of the declaration of Jason Sosnick on the grounds of lack of foundation, mischaracterization of evidence, speculation, and lack of personal knowledge.

Able’s generic objection on the ground of lack of foundation is unmeritorious for the same reasons set forth above.

The objection on the ground of “mischaracterization of evidence” is improper because it is a ground for objecting to the form of a question asked on cross-examination or statements made in closing arguments, not direct testimony presented by declaration. (See Chavez v. Zapata Ocean Resources, Inc. (1984) 155 Cal.App.3d 115, 124 [discussing proper objections to the form of a question]; see also People v. Davis (2005) 36 Cal.4th 510, 550-51 [discussing objection to and cure for prosecutor’s misstatement of evidence during closing arguments].) When counsel asks leading questions on cross-examination, the question itself necessarily makes up a significant portion of the answer put in evidence because, without it, the yes or no answer tendered by the witness lacks context. (See, e.g., People v. Tully (2012) 54 Cal.4th 952, 1035.) The same is not true for open-ended responses provided on direct examination or, for example, in a declaration. (Ibid.) Able’s objection on this ground lacks merit because it is not a proper objection to the type of evidence presented.

Able’s objection of “speculative” lacks merit because it is a ground for objecting to a hypothetical question or an expert’s conclusion based on a hypothetical scenario that is not supported by the evidence, which is not at issue here. (Neumann v. Bishop (1976) 59 Cal.App.3d 451, 462-63.) In paragraph 4, Sosnick describes how he processed work orders for the electronic gate. (Sosnik Decl., ¶ 4.) He does not make statements based on a hypothetical question or scenario. Thus, his testimony simply is not speculative.

Able’s objection on the ground the witness lacks personal knowledge is unmeritorious because Sosnick specifically attests that he has personal knowledge of the facts set forth in his declaration. (Sosnick Decl., ¶ 1.) He states he worked for CWCI as a “Workplace Account Coordinator” from May 2015 until July 2016, which corroborates his statement that he has personal knowledge of the facts in his declaration, including paragraph 4. Furthermore, there is no evidence contradicting his representation.

Consequently, Objection No. 3 is OVERRULED.

III. Standard of Review

A party may move for summary adjudication of an issue of duty on the ground that a cross-defendant either owed or did not owe a duty to the cross-complainant. (Code Civ. Proc., § 437c, subd. (f)(1).) “A motion for summary adjudication shall be granted only if it completely disposes of . . . an issue of duty.” (Code Civ. Proc., § 437c, subd. (f)(1).)

With respect to insurance contracts, an insured moving for summary adjudication of an issue of the duty to defend bears the initial burden of showing the third party’s pleading raises a potential for coverage. (Atlantic Mutual Insurance Co. v. J. Lamb, Inc. (2002) 100 Cal.App.4th 1017, 1032.) If the insured carries this initial burden, the burden then shifts to the responding insurer to show the claim in fact is not covered such that the insurer owes no duty. (Ibid.) As the California Supreme Court has explained, “the insured need only show that the underlying claim may fall within policy coverage; the insurer must prove it cannot.” (Montrose Chemical Corp. v. Super. Ct. (1993) 6 Cal. 4th 287, 300.)

Although the indemnity agreement at issue here is a noninsurance agreement, no California decision in the noninsurance context suggests a court should deviate from the burden-shifting approach applied in the insurance context, which follows the general standard for motions for summary adjudication of entire causes of action and affirmative defenses. (See, e.g., UDC-Universal Development v. CH2M Hill (2010) 181 Cal.App.4th 10, 18-21; Crawford v. Weather Shield Manufacturing, Inc. (2008) 44 Cal.4th 541, 565, fn. 12.) Accordingly, the Court follows the approach used in the insurance context in evaluating whether CWCI and Able carry their burdens here.

As related to the standard of review, Able devotes most of its opposition to arguing CWCI may not move for summary adjudication of the issue of its duty to defend because resolution of this issue would not dispose of an entire cause of action. This argument is wholly without merit.

First, this argument is not supported by the text of the statute, which specifically authorizes a motion for summary adjudication of an issue of duty on its own. (Code Civ. Proc., § 437c, subd. (f)(1).) Moreover, the statute states “[a] motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (Ibid., italics added.) In other words, the particular subject of the motion, whether a claim or an issue of duty, must be capable of complete resolution through summary adjudication. The statute does not require complete resolution of a cause of action for purposes of a motion for summary adjudication of an issue of duty. (Ibid.)

Second, Able’s reliance on dicta from Regan Roofing Company v. Superior Court (1994) 24 Cal.App.4th 425 does not support its argument. In that case, the appellate court discussed the policy behind the summary judgment and adjudication process — to expedite litigation by completely disposing of claims and defenses at an early stage — in aid of its analysis of the issue on appeal. (Regan Roofing, supra, 24 Cal.App.4th at 433-34.) Yet, it explicitly declined to hold “that outside the insurance context, there may never be an appropriate summary adjudication of a particular contractual duty.” (Id. at pp. 437-38.) Thus, while the appellate court discussed whether summary adjudication of an issue of duty would resolve other questions in the litigation or completely dispose of claims in furtherance of the policy behind the procedure, it did not hold that summary adjudication of an issue of duty must completely dispose of a cause of action to be proper. (Id. at pp. 433-35.) Such a rule would, in any event, be inconsistent with the plain language of the statute.

Furthermore, the appellate court’s actual holding, which is not particularly clear, does not apply here because the California Supreme Court explicitly disapproved of the reasoning behind it. (See, e.g., Crawford, supra, 44 Cal.4th at 564-65; see also Linden Partners v. Wilshire Linden Associates (1998) 62 Cal.App.4th 508, 517-19; UDC-Universal Development, supra, 181 Cal.App.4th at 22-23.) The appellate court essentially concluded that the trial court improperly adjudicated issues of subcontractors’ duties to defend a general contractor without first resolving underlying issues of liability relevant to the subcontractors’ duties to indemnify. (Regan Roofing, supra, 24 Cal.App.4th at 436-37; see also Linden Partners, supra, 62 Cal.App.4th at 517 [“The basis for the holding by the appellate court was that the issue of duty was not ripe for resolution.”].) In reaching this conclusion, the appellate court “did not directly address the question of whether the duty to defend was a separate obligation from the provision requiring indemnification of damages paid, but appears to have assumed the two were interdependent.” (UDC-Universal Development, supra, 181 Cal.App.4th at 22, original italics.) Yet, “the duty to defend is distinct from the duty to indemnify, a point reinforced in Crawford.” (Ibid.) Thus, in Regan Roofing, “the Court of Appeal erred” in presuming these duties were interdependent such that it could not summarily adjudicate the issue of the duty to defend without first adjudicating the issue of the duty to indemnify, which depends (unlike the duty to defend) on ultimate determinations of liability. (Crawford, supra, 44 Cal.4th at pp. 564-65.)

In actuality, as the California Supreme Court explained, “[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.” (Crawford, supra, 44 Cal.4th at 554.) “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.” (Ibid., original italics.) Thus, contrary to Able’s argument, the duty to defend is a separate and distinct issue that can be summarily adjudicated before an ultimate determination of liability and indemnification obligations. The Court therefore reaches the merits of the motion.

IV. Merits of Motion

CWCI moves for summary adjudication on the ground Able is contractually obligated by the parties’ Service Contract to defend it in this litigation.

“Parties to a contract [ ] may define therein their duties toward one another in the event of a third party claim against one or both arising out of their relationship.” (Crawford, 44 Cal.4th at 551.) As with an insurance contract, a noninsurance indemnity agreement “may require one party to indemnify the other, under specified circumstances, for moneys paid or expenses incurred by the latter as a result of such claims.” (Ibid., original italics, citing Civ. Code, § 2772 [defining indemnity].) The parties “may also assign one party, pursuant to the contract’s language, responsibility for the other’s legal defense when a third party claim is made against the latter.” (Ibid., original italics.)

The duty to defend is separate and distinct from the duty to indemnify. (Crawford, supra, 44 Cal.4th at pp. 564-65.) Civil Code section 2778, subdivision (4) “places in every indemnity contract, unless the agreement provides otherwise, a duty to assume the indemnitee’s defense, if tendered, against all claims ‘embraced by the indemnity.’” (Id. at p. 557.) Additionally, parties are free to use a “duty-to-defend clause” to “clearly and explicitly create a defense duty not dependent on the ultimate resolution of issues, such as [a party’s] fault, that would only be determined after the duty arose.” (Id. at p. 562.)

“Since indemnity agreements are construed under the same rules which govern the interpretation of other contracts, the indemnity agreement must be interpreted so as to give effect to the mutual intention of the parties.” (City of Bell v. Super. Ct. (2013) 220 Cal.App.4th 236, 247.) “In interpreting an express indemnity agreement, the courts look first to the words of the contract to determine the intended scope of the indemnity agreement. (Id. at pp. 247-48.) “The intention of the parties is to be ascertained from the ‘clear and explicit’ language of the contract, and if possible, from the writing alone. [Citation.]” (Id. at p. 248.) “Unless given some special meaning by the parties, the words of a contract are to be understood in their ‘ordinary and popular sense,’ focusing on the usual and ordinary meaning of the language used and the circumstances under which the agreement was made. [Citations.]” (Ibid.)

CWCI presents a Service Contract executed on June 10, 2015, by Cushman & Wakefield, Inc. and Able. (Bennett Decl., Ex. A.) Julian Bennett — an Accounts Manager at CWCI from April 2015 through August 2016 who worked as the on-site property manager at LinkedIn’s Sunnyvale campus — states this Service Contract was the operative agreement for maintenance services in effect between Able and “Cushman & Wakefield.” (Bennett Decl., ¶¶ 1-3.)

The Service Contract identifies LinkedIn as the “Owner,” Able as the “Contractor,” and Cushman & Wakefield, Inc. as the “Manager.” (Bennett Decl., Ex. A at p. 1.) Able agreed to provide the services in Schedule A of the Service Contract as well as “any additional services which may be reasonably requested by Owner or Manager from time to time during the term.” (Bennett Decl., Ex. A at p. 2.) Schedule A identifies the scope of services as “[d]uties as are traditional to maintenance engineers including (if applicable)” operation, maintenance, and repair of air, heating, refrigeration, water, and sanitation systems on the campus. (Bennett Decl., Ex. A at p. 19.) Operation, repair, and maintenance of electronic gates is not specifically enumerated, but “[m]inor repair and maintenance of electrical systems” is listed. (Bennett Decl., Ex. A at p. 19.)

Paragraph 21 of the Service Contract, entitled “Indemnification,” provides as follows:

(a) Contractor shall indemnify and hold harmless Manager and Owner and their respective subsidiaries, affiliates, shareholders, directors, officers, partners and employees from and against any and all liability, claims and demands on account of damage to any property or injury to persons including death resulting therefrom, losses, damages, expenses (including attorneys’ fees and investigation costs), payments, recoveries and judgments in connection therewith arising out of or caused in any manner by the acts or omissions of Contractor, its suppliers, employees, agents or subcontractors or the performance or failure to perform any Services under this Agreement or the breach of any representation warranty, or the breach of any other provision or obligation set forth herein by Contractor, or Contractor’s suppliers, employees or agents or subcontractors.

(b) [Omitted.]

(c) Contractor shall, at its own expense, defend any and all actions brought against Manager or Owner based upon any of the foregoing and shall pay all attorney’s fees and all other expenses, and promptly discharge any judgments, settlements or compromises arising therefrom. Contractor’s liability under this paragraph shall survive the expiration or termination of this Agreement, but this shall not be construed to mean that Contractor’s liability does not survive as to other provisions of this Agreement.

(Bennett Decl., Ex. A at pp. 7-8.)

The Service Contract contains an explicit duty-to-defend clause obligating Able to defend “any and all actions brought against Manager or Owner based on the foregoing.” (Bennett Decl., Ex. A at p. 8.) With that said, CWCI must show that Able’s duty obligates it to provide a defense to (1) Plaintiff’s particular claims arising from her entrapment in the gate (2) as asserted against CWCI, who is not explicitly identified in the Service Contract.

As articulated by CWCI, the duty to defend extends to claims “arising out of or caused in any manner by the acts or omissions of [Able]” in general or the performance of agreed-upon services. (See Bennett Decl., Ex. A at pp. 7-8.) The indemnification provision, including the duty-to-defend clause, does not contain any language limiting the duty to claims arising from the scope of work. (See Bennett Decl., Ex. A at pp. 7-8.) Thus, contrary to Able’s argument, which is not supported by citation to any legal authority, contractual language, or evidence, Plaintiff’s claims need not specifically implicate the scope of work as defined in the Service Contract to trigger its duty to defend. (See Opp. at pp. 10:26-11:9.)

Moreover, assuming arguendo that the indemnification clause is restricted by the scope of work, Able does not substantiate its assertion that maintenance or repair of the electronic gate was beyond the scope of services it agreed to provide. While Able offers no explanation, it presumably relies on the fact that maintenance or repair of the gate is not in the bulleted list on Schedule A. (Bennett Decl., Ex. A at p. 19.) Able apparently ignores the opening sentence, which states it has “[d]uties as are traditional to maintenance engineers . . . [.]” (Bennett Decl., Ex. A at p. 19.) Furthermore, Able ignores the express language in the body of the contract stating the services to be provided include those in Schedule A in addition to those requested on occasion. (Bennett Decl., Ex. A at p. 2.) CWCI presents evidence showing Able’s employees maintained and repaired the gate upon its request. (Sosnick Decl., Ex. A.) Thus, Able does not substantiate its argument that maintenance and repair of the gate was beyond the contractual scope of work.

Here, Plaintiff’s causes of action for negligence, premises liability, and product liability arise from her entrapment in the gate, which Able repaired on several occasions at the request of CWCI. Additionally, Plaintiff subsequently amended the complaint to name Able as a defendant. Thus, Plaintiff’s claims constitute those arising from or caused by Able’s acts or omissions both generally and in performing services within the scope of work. Able’s opposition arguments lack merit and do not raise a triable issue of material fact as to whether Plaintiff’s claims come within the scope of the duty-to-defend clause.

The second issue is whether Able’s duty extends to CWCI. CWCI argues “[t]his Service Contract governed the relationship of [CWCI] and Able as it related to Able’s work at the Subject Property at the time of the Plaintiff’s injury.” (Mem. of Pts. & Auth. at p. 3:8-10.) In opposition, Able argues the face of the Service Contract does not actually show Able was a party to the Service Contract. (Opp. at p. 4:2-6.) Able is technically correct. “Cushman & Wakefield, Inc.” with an address in New York, New York, not CWCI, executed the contract. (Bennett Decl., Ex. A at p. 1.) Additionally, CWCI is not explicitly identified anywhere in the Service Contract. Consequently, it is not obvious from the Service Contract that CWCI was a party to the agreement.

Nevertheless, Able’s argument is misguided because it is not rooted in the language of the contract. The Service Contract requires Able to “defend any and all actions brought against Manager . . . .” (Bennett Decl., Ex. A at p. 8.) Thus, Able’s duty to defend depends on whether CWCI comes within the definition of the term “Manager.”

Cushman & Wakefield, Inc. is identified as the “Manager.” (Bennett Decl., Ex. A at p. 1.) Paragraph 18 further defines the term “Manager,” stating: “For purposes of this Agreement, any reference to Manager or Owner, except for defining the contracting parties, shall be deemed to include any shareholder, officer, director, principal, partner, beneficiary, subsidiary or Affiliate [ ] of any of the foregoing, and their respective heirs, successors, and assigns.” (Bennett Decl., Ex. A at p. 6.) Accordingly, the term “Manager” as used in the indemnification clause is not limited to Cushman & Wakefield, Inc. and could extend to CWCI depending on its corporate relationship.

In its motion, CWCI does not explicitly address this issue; it simply proceeds as though it and Cushman & Wakefield, Inc. are one and the same. Neither the evidence presented initially nor the pleadings show whether CWCI had a relationship with Cushman & Wakefield, Inc. sufficient for it to qualify as the “Manager.” Ordinarily, an evidentiary gap of this nature would result in a finding that CWCI failed to carry its initial burden and denial of the motion. Here, however, the particular circumstances do not justify this outcome.

In addition to the similarity in their names, the statements of information submitted by Able showing identical management of the entities suggests Able perhaps knew, but did not disclose, the existence of a corporate relationship between the two entities. Thus, it is entirely unsurprising that CWCI shows, on reply, it is a wholly-owned subsidiary of Cushman & Wakefield, Inc. such that it comes within the definition of the term “Manager” as used in the duty-to-defend clause. (Reply at 3:16-4:11; Cenkus Decl., ¶ 3.) Put differently, Able could have addressed the contractual language, specifically the definition of the term “Manager,” to show the gap in CWCI’s evidence. Instead, Able very nearly filled the gap. Under these circumstances, the issue is whether to consider the evidence CWCI submitted in support of its reply.

“Code of Civil Procedure section 437c, subdivision (b), permits the filing of ‘[a] reply to the opposition . . .’ and does not expressly or impliedly prohibit the inclusion of evidentiary matter with the reply.” (Weiss v. Chevron U.S.A., Inc. (1988) 204 Cal.App.3d 1094, 1098; see also Code Civ. Proc., § 437c, subd. (f)(2) [procedurally, motions for summary adjudication are treated like motions for summary judgment].) “Moreover, subdivision (c) states that the motion ‘shall be granted if all the papers submitted show that there is no triable issue . . . ,’ and the court ‘shall consider all of the evidence set forth in the papers’ except that to which objections have been sustained.” (Weiss, supra, 204 Cal.App.3d at 1098, original italics.) “This unqualified reference to ‘the papers’ before the court, without limitation to documents submitted with the original motion, also supports the reasonable inference that the court should consider all admissible evidence of which the opposing party has had notice and the opportunity to respond.” (Ibid.)

CWCI provided Able with notice and an informal opportunity to respond to its reply evidence before filing it and offered to continue the hearing. (Lucey Decl., Exs. A & B.) Even so, the Court has not formally given Able an opportunity to respond to the reply evidence. Thus, it is necessary to give Able an opportunity to submit a sur-reply before considering all of the papers and evidence submitted, which, if considered, would require the Court to grant the motion for summary adjudication. (See Code Civ. Proc., § 437c, subd. (c).)
To be sure, the only other argument Able advances is that paragraph 32 excludes third-party beneficiaries from the Service Contract. Yet, paragraph 32 defines third parties as “any person or entity, other than Manager, Owner or Contractor . . . ,” which means any person or entity other than Cushman & Wakefield, Inc. and its subsidiary CWCI based on the definition of “Manager” in paragraph 18. (Bennett Decl., Ex. A at pp. 6, 11.) Able’s argument suffers from the same flaw as its broader argument that CWCI is not a party to the contract because it fails to take the language of the contract into account.

Accordingly, it is undisputed that Able owes a duty to defend “Manager” against the particular claims asserted by Plaintiff. Furthermore, it is undisputed that the definition of “Manager” includes subsidiaries of Cushman & Wakefield, Inc. Able does not dispute that CWCI tendered its defense. (See Lucey Decl., Ex. A.) Thus, the sole outstanding issue is whether CWCI is, as a matter of fact, a subsidiary of Cushman & Wakefield, Inc.

Based on the ex parte application and Order signed by the court on November 13, 2017 and, under the particular circumstances here, the Court hereby continues the hearing on the motion for summary adjudication to Tuesday, February 20. 2018 at 9:00 a.m. in Department 13 to give Able an opportunity to respond and present evidence sufficient to raise a triable issue of material fact as to whether CWCI is a subsidiary of Cushman & Wakefield, Inc. If Able chooses to file a sur-reply, it must do so no later than 14 calendar days prior to the hearing. .