Case Name: Rinek v. Nevada DeAnza Family Limited Partnership, et al.
Case No.: 17CV312781

After full consideration of the evidence, the separate statements submitted by the parties, and the authorities submitted by each party, the court makes the following rulings:

According to the allegations of the first amended cross-complaint (“FAXC”), on September 28, 2015, cross-complainant Nevada DeAnza Family Limited Partnership (“NDFLP”), and cross-defendant Bright Horizons Children’s Centers, LLC (“BHCC”) entered into a written lease agreement for premises at 4935 Stevens Creek Blvd. in Santa Clara. (See FAXC, ¶ 15.) Cross-defendant Bright Horizons Family Solutions, Inc. (“BHFSI”) executed a guaranty to NDFLP, unconditionally guaranteeing rent, and all other charges, costs, obligations and liabilities reserved in the lease, and the performance of BHCC of its covenants and agreements therein contained. (See FAXC, ¶ 16.) The lease contained an indemnity clause in section 6(a). (See FAXC, ¶ 17.) Plaintiff Larry Rinek (“Plaintiff”) filed a complaint against NDFLP, BHCC, BHFSI and the City of Santa Clara, alleging that on November 3, 2016, he was injured as a result of a bicycle accident caused by a sharp rise in the roadway surface, caused by the defendants’ negligence. (See FAXC, ¶¶ 4-9, exh. A.) NDFLP asserts that it is entitled to indemnity from BHCC and BHFSI (collectively, “the BH entities”). (See FAXC, ¶¶ 17-30.) On January 25, 2018, NDFLP filed the FAXC against the BH entities and the City of Santa Clara, asserting causes of action for:

1) Comparative negligence;
2) Implied contractual indemnity;
3) Express indemnity
4) Equitable indemnity; and,
5) Declaratory relief.

The BH entities move for summary judgment, or, in the alternative, for summary adjudication of each cause of action, on the ground that each cause of action against them lack merit. NDFLP also moves for summary adjudication of the third and fifth causes of action of its FAXC.

Bright Horizon entities’ burden on summary judgment/adjudication

“A defendant seeking summary judgment must show that at least one element of the plaintiff’s cause of action cannot be established, or that there is a complete defense to the cause of action. … The burden then shifts to the plaintiff to show there is a triable issue of material fact on that issue.” (Alex R. Thomas & Co. v. Mutual Service Casualty Ins. Co. (2002) 98 Cal.App.4th 66, 72; internal citations omitted; emphasis added.)

“The ‘tried and true’ way for defendants to meet their burden of proof on summary judgment motions is to present affirmative evidence (declarations, etc.) negating, as a matter of law, an essential element of plaintiff’s claim.” (Weil et al., Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2007) ¶ 10:241, p.10-91, citing Guz v. Bechtel National Inc. (2000) 24 Cal.4th 317, 334; emphasis original.) “The moving party’s declarations and evidence will be strictly construed in determining whether they negate (disprove) an essential element of plaintiff’s claim ‘in order to avoid unjustly depriving the plaintiff of a trial.’” (Id. at § 10:241.20, p.10-91, citing Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1107.)

“Another way for a defendant to obtain summary judgment is to ‘show’ that an essential element of plaintiff’s claim cannot be established. Defendant does so by presenting evidence that plaintiff ‘does not possess and cannot reasonably obtain, needed evidence’ (because plaintiff must be allowed a reasonable opportunity to oppose the motion.) Such evidence usually consists of admissions by plaintiff following extensive discovery to the effect that he or she has discovered nothing to support an essential element of the cause of action.” (Id. at ¶ 10:242, p.10-92, citing Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854-855.)

NDFLP’s burden on summary adjudication of the third and fifth causes of action

The moving party bears the initial burden of production to make a prima facie showing that there are no triable issues of material fact—one sufficient to support the position of the party in question that no more is called for. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850-851.) Plaintiffs moving for summary judgment bear the burden of persuasion that each element of the cause of action in question has been proved, and hence that there is no defense thereto. (Cal. Code Civ. Proc. § 437c.) Plaintiffs, who bear the burden of proof at trial by preponderance of evidence, therefore “must present evidence that would require a reasonable trier of fact to find the underlying material fact more likely than not—otherwise he would not be entitled to judgment as a matter of law, but would have to present his evidence to a trier of fact.” (Aguilar, supra, 25 Cal.4th at p.851.)

Requests for judicial notice

In opposition to the BH entities’ motion, and in support of its own motion, NDFLP requests judicial notice of the complaint and the FAXC. The request for judicial notice is GRANTED as to their existence. (See Evid. Code § 452, subd. (d); see also Lockley v. Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875, 882 (stating that “[w]hile the Court is free to take judicial notice of the existence of a document in a court file, the Court may not take judicial notice of the truth of hearsay statements in decisions and court files”; also stating that “[c]ourts may not take judicial notice of allegations in affidavits, declarations and probation reports in court records because such matters are reasonably subject to dispute and therefore require formal proof”); see also Day v. Sharp (1975) 50 Cal.App.3d 904, 914.)

With its reply brief, NDFLP also requests judicial notice of documents—declarations, its opposition, objections—filed in opposition to the BH entities’ motion. The request for judicial notice of these documents is DENIED.

The fourth cause of action for equitable indemnity

It is undisputed that NDFLP contracted with the BH entities, and that NDFLP contends that the BH entities are obligated to indemnify it pursuant to these agreements. (See Khaziri decl. in opposition to BH entities’ motion for summary judgment, ¶¶ 5, 16-18, exh. A; see also Khaziri decl., in support of NDFLP’s motion for summary adjudication, ¶¶ 5, 12-14, exh. A; see also Dreier decl. in support of BH entities’ motion for summary judgment, ¶¶ 1-6, exhs. 1-3.) Section 6(a) of the lease agreement is the provision which defines the indemnity obligations. (See Khaziri decl. in opposition to BH entities’ motion for summary judgment, ¶¶ 16-18; see Khaziri decl., in support of NDFLP’s motion for summary adjudication, ¶¶ 12-14; see also NDFLP’s opposition to BH entities’ motion for summary judgment, pp.5:12-24 (stating that “[u]nder Section 6(a) of the Lease, BHCC is obligated to defend and indemnify NDFLP as follows”), 12:9-14 (stating that “under Section 6(a)(i), BHCC is obligated to indemnify, defend and save harmless NDFLP from all claims arising “from any accident, injury or damage whatsoever to any person or the property of any person, occurring in, on or about the Premises where such accident, damage or injury… is claimed to have resulted from any negligence or willful and wrongful act or omission on the part of [BHCC]… [t]his promise was guaranteed by BHFS, Inc. in the Guaranty”), 12:23-27 (stating that “under section 6(a)(ii), BHCC is obligated to indemnify, defend and save NDFLP harmless from all claims arising ‘from or in connection with the conduct or management of the Premises… or any thing or work whatsoever done, or any condition created on or about the Premises… [t]his promise was guaranteed by BHFS, Inc. in the Guaranty”); see also NDFLP’s separate statement in opposition to BH entities’ motion for summary judgment, additional material facts nos. 16, 21-22; see also NDFLP’s separate statement in opposition to BH entities’ motion for summary judgment, undisputed material facts nos. 169-216 (incorporating additional material facts nos. 16, 21 and 22 in opposing the motion for summary judgment as to the fourth cause of action for equitable indemnity).)

As the BH entities argue, “where parties have expressly contracted with respect to the duty to indemnify, the extent of that duty is generally determined from the contract and not by reliance on the independent doctrine of equitable indemnity.” (Maryland Casualty Co. v. Bailey & Sons, Inc. (1995) 35 Cal.App.4th 856, 864; see also Girard v. Delta Towers Joint Venture (1993) 20 Cal.App.4th 1741, 1751 (stating same); see also Morlin Asset Management LP v. Murachanian (2016) 2 Cal.App.5th 184, 192 (stating same); see also Rossmoor Sanitation, Inc. v. Pylon, Inc. (1975) 13 Cal.3d 622, 628.) Here, as stated above, there is clearly an express contract with respect to the duty to indemnify. The BH entities have met their burden to demonstrate that the fourth cause of action lacks merit as against them.

In opposition, NDFLP argues that “BHCC and BHFS, Inc. disregard NDFLP’s right to plead in the alternative.” (NDFLP’s opposition to BH entities’ motion for summary judgment, p.19:13.) “From a pleading standpoint, a party may plead in the alternative and may make inconsistent allegations.” (Id. at p.19:13-15, citing Adams v. Paul (1995) 11 Cal.4th 583, 593.) Without citing to any authority, NDFLP argues that “until the express indemnity claim is adjudicated in favor of NDFLP, the equitable indemnity claim is still viable and proper, and therefore summary adjudication is premature and should be denied.” (Id. at p.19:17-19.)

While it is true that a plaintiff—or, in this case, a cross-complainant—may plead in the alternative, a motion for summary judgment is an evidentiary motion, not a motion for judgment on the pleadings that only looks at the allegations of the pleading. Here, as stated above, NDFLP has asserted in its opposition to the BH entities’ motion that “[u]nder Section 6(a) of the Lease, BHCC is obligated to defend and indemnify NDFLP from the claims alleged by Plaintiff in his Complaint” and that “[t]his promise was guaranteed by BHFS, Inc. in the Guaranty.” NDLFP has not suggested in its opposition exactly what equitable principles of implied indemnity come into play, much less present evidence to support those principles. In fact, in opposition to the motion for summary judgment as to the fourth cause of action, NDFLP states in its separate statement, that the BH entities are “obligated to defend and indemnify NDFLP from the claims alleged by Plaintiff in the Complaint… [u]nder Section 6(a)_ of the Lease… [and u]nder the Guaranty….” (See NDFLP’s separate statement in opposition to BH entities’ motion for summary judgment, additional material facts nos. 16, 21-22, incorporated by reference in its opposition to undisputed material facts nos. 169-216.) Thus, NDFLP fails to demonstrate or argue the existence of a triable issue of material fact as to the fourth cause of action for equitable indemnity. BH entities’ motion for summary adjudication of the fourth cause of action is GRANTED.

The evidence to which NDFLP objects is not the basis for the Court’s ruling as to the fourth cause of action.

The first cause of action for comparative negligence

The BH entities move for summary adjudication on the first cause of action for comparative negligence on the ground that they neither owed a duty nor breached a duty owed to NDFLP. The BH entities assert that they did not have any notice of any alleged dangerous condition, and did not own the subject property, and thus their lone duty owed to NDFLP was that of a tenant (as to BHCC) or guarantor (as to BHFSI). In support of their assertion, the BH entities present evidence that: NDFLP owned the subject property on the date of the incident (UMF 6); BHCC entered into a lease with NDFLP (UMF 7); BHCC performed an inspection of the premises (UMF 11); and, at no time during the inspection did BHCC observe any hazard related to the trees or roots of the trees on the leased property, and later a pre-incident arborist report did not disclose any dangerous condition related thereto (UMF 12). The BH entities acknowledge that NDFLP also asserts that the BH entities owe it a duty to indemnify it for Plaintiff’s claims, but that those issues are the subject of the other remaining causes of action. Here, it is unclear what duty—other than those contractually owed to NDFLP, or those to Plaintiff—is the subject of the first cause of action. It appears that NDFLP concedes that issues regarding duty and breach of any duty are limited to those regarding indemnity as the issues regarding ownership and notice are solely discussed in such a context. (See NDFLP’s opposition to BH entities’ motion for summary judgment, p.15:28, 16:1-22 (stating that “the absence of actual or constructive notice based upon a ‘reasonable inspection’ is irrelevant to the issue of whether BHCC and BHFS, Inc. are contractually obligated to defend and indemnify NDFLP”; also stating that “whether BHCC is liable to Plaintiff under premises liability law is irrelevant to whether BHCC is liable to NDFLP under the subject contractual indemnity provision… [a]lthough the Plaintiff is suing BHCC for premises liability, the issue on this motion is BHCC’s liability to NDFLP for contractual indemnity… [t]hus, even if, arguendo, BHCC could show lack of possession or control to defeat Plaintiff’s premises liability claim, that is irrelevant to BHCC’s liability for contractual indemnity”).) Accordingly, at the very least, to the extent that the first cause of action is not one for indemnity, the BH entities have met their burden to demonstrate that it is without merit, and, as NDFLP apparently does not oppose the motion as to the first cause of action to the extent that it is not for indemnity, the BH entities’ motion for summary adjudication of the first cause of action is GRANTED to the extent that it is not a cause of action based on the indemnity provision. As will be discussed below, to the extent that the cause of action is based on the indemnity provision, it is also without merit. This ruling is not meant to preclude any finding with regards to comparative negligence between these parties as to Plaintiff’s negligence cause of action of the complaint.

The evidence to which NDFLP objects is not the basis for the Court’s ruling as to the first cause of action.

The remaining causes of action

The remaining causes of action are premised on the indemnification provision, which states:

6. Indemnity; Insurance. (a) Except to the extent any such matter arises from the gross negligence or willful misconduct of Landlord, its agents, contractors, or employees, Tenant agrees to indemnify, defend (with counsel reasonably acceptable to Landlord) and save harmless Landlord from and against all claims, loss, cost, damage or expense of whatever nature arising: (i) from any accident, injury or damage whatsoever to any person, or to the property of any person, occurring in, on or about the Premises where such accident, damage or injury results or is claimed to have resulted from any negligent or willful and wrongful act or omission on the part of Tenant or Tenant’s agents, employees or independent contractors; or (ii) from or in connection with the conduct or management of the Premises or of any business therein, or any thing or work whatsoever done, or any condition created on or about the Premises; and, in any case, occurring after the Commencement Date until the end of the Term of this Lease and thereafter so long as Tenant is in occupancy of any part of the Premises. This indemnity and hold harmless agreement shall include indemnity against all losses, damages and liabilities, and reasonable costs and expenses, incurred in or in connection with any such claim or proceeding brought thereon, and the defense thereof, including without limitation, reasonable attorney’s fees and costs at both the trial and appellate levels. The foregoing obligations shall survive any termination or expiration of this Lease….

(Khaziri decl. in opposition to BH entities’ motion for summary judgment, exh. A; see also NDFLP’s separate statement in opposition to BH entities’ motion for summary judgment, UMF 20.)

In support of its motion for summary adjudication of the third and fifth causes of action of the FAXC, and in opposition to the BH entities’ motion for summary judgment and adjudication of the second, third and fifth causes of action of the FAXC, NDFLP argues that “Plaintiff claims that (1) he sustained an accident and injury about the Premises (specifically an asphalt uplift condition in the street adjacent to the Premises that resulted from a tree or trees located on the Premises) and (2) that the injury was the result of the negligence of BHCC.” (See NDFLP’s opposition to BH entities’ motion for summary judgment, pp.11:19-28, 12:1-28, 13:1-7 (also arguing that “BHCC’s indemnity obligation is triggered merely by a claim in connection with the management of the Premises or any condition created on or about the Premises”); see also NDFLP’s memorandum of points and authorities in support of motion for summary adjudication, pp.9:18-28, 10:1-28, 11:1-6 (stating same).) NDFLP asserts that the BH entities’ motion for summary judgment must be denied and its motion for summary adjudication of the third and fifth causes of action must be granted because “[b]y accepting the condition of the Premises, including the subject trees, as of November 3, 2015, BHCC and BHFS, Inc. became solely responsible for any claims related to any conditions ‘on or about the Premises’, including the trees or conditions created by the trees about the Premises.” (See NDFLP’s opposition to BH entities’ motion for summary judgment, pp.13:8-28, 14:1-28, 15:1-6; see also NDFLP’s memorandum of points and authorities in support of motion for summary adjudication, 11:7-28, 12:1-27.)

However, the complaint alleges that “[a]t the time of the incident, plaintiff Larry Rinek was riding his bicycle eastbound on McKinley Drive, just east of the Michael Way intersection in the City of Santa Clara, when his bicycle tire hit a sharp rise in the roadway surface, the force of which tossed plaintiff off his bicycle onto the adjacent concrete sidewalk.” (Complaint, ¶ GN-1.) Clearly, the alleged injury did not occur due to any condition in or on the Premises and NDFLP concedes as much. (See NDFLP’s opposition to BH entities’ motion for summary judgment, pp.12:15 (stating “[h]ere, Plaintiff claims that…he sustained an accident and injury about the Premises”) (emphasis original), 13:21-24 (stating that “[b]y accepting the condition of the Premises, including the subject trees, as of November 3, 2015, BHCC and BHFS, Inc. became solely responsible for any claims related to any conditions ‘on or about the Premises’, including the trees or conditions created by the trees about the Premises”) (emphasis added).)

Thus, the BH entities’ indemnity obligations arise if Plaintiff’s injury arises from an accident or a condition about the Premises. Yet, the term “about” is ambiguous. In NDFLP’s reply in support of its own motion, NDFLP notes that “[t]he Oxford American Dictionary defines ‘about’ as ‘near’ or ‘around.’” (NDFLP’s reply brief in support of motion for summary adjudication, p.6:20-21.) NDFLP then continues: “Obviously, the immediately adjacent street qualifies as near or around the Premises which is defined as the entire Property then-owned by NDFLP.” (Id. at p.5:21-22.) NDFLP’s argument only highlights the fact that the term “about” is ambiguous: it is entirely unclear as to what the parties meant by “about.” According to NDFLP, it “obviously” extends to the entire surrounding streets of the premises; however, it could easily also mean immediately surrounding the premises, such as where a fence might exist. “About” could mean “in the vicinity”—a block or two away from the border of the premises—or it could mean a few inches away.

NDFLP also argues that the indemnity provision seeks to have the BH entities indemnify NDFLP for NDFLP’s own negligence. (See reply brief, pp.5:11-27, 6:1-14.) As the BH entities argue, there is an integration clause, and “the agreement for indemnification must be clear and explicit; the agreement must be strictly construed against the indemnitee.” (Price v. Shell Oil Co. (1970) 2 Cal.3d 245, 257; see also Ralph M. Parsons Co. v. Combustion Equipment Associates, Inc. (1985) 172 Cal.App.3d 211, 229 (stating “indemnity agreements must be clear and explicit and in resolving ambiguities they are construed against the indemnitee”); see also Goldman v. Ecco-Phoenix Elec. Corp. (1964) 62 Cal.2d 40, 44 (stating same).) Here, the ambiguous term “about” must be construed against NDFLP. Thus, the BH entities meet their burden to demonstrate that the complaint lacks merit against them, and, NDFLP fails to meet its burden to demonstrate that it is entitled to judgment on its third and fifth causes of action, and fails to demonstrate the existence of a triable issue of material fact as to any of its causes of action. Accordingly, the BH entities’ motion for summary judgment is GRANTED and NDFLP’s motion for summary adjudication of the third and fifth causes of action is DENIED.

The objections by NDFLP are not in conformance with Rule of Court 3.1354, and are thus, OVERRULED. Regardless, the evidence to which NDFLP objects is not the basis for the Court’s ruling.

The Court shall prepare the Order.