FP Contracting v. Doo-Rite Painting CA2/1 ( 2023 )

Filed 12/26/23 FP Contracting v. Doo-Rite Painting CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
FP CONTRACTING, INC., B322722
Cross-complainant and (Los Angeles County
Appellant, Super. Ct. No. BC616313)
v.
DOO-RITE PAINTING, INC.,
Cross-defendant and
Respondent.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Teresa A. Beaudet, Judge. Affirmed.
Murchison & Cumming and Darin W. Flagg for
Cross-complainant and Appellant.
Schlichter, Shonack & Keeton, Steven C. Shonack and
Joel L. Williams for Cross-defendant and Respondent.
____________________________
This is an appeal from a judgment entered after the trial
court granted a renewed summary judgment motion in a cross-
defendant’s favor as to an indemnification claim for personal
injury liability. Finding no error, we affirm.
The trial court ruled that a provision in a subcontract
between cross-complainant and appellant FP Contracting, Inc.
(FP) and cross-defendant and respondent Doo-Rite Painting, Inc.
(Doo-Rite) barred FP’s express indemnity and declaratory relief
claims. The provision states that Doo-Rite has no obligation to
indemnify and defend FP for “any claims arising from the active
negligence or sole willful misconduct of Owner or [FP] or their
agents or employees . . . .” (See Factual & Procedural
Background, post.) The subcontract required Doo-Rite to provide
painting services at a Food 4 Less store.
A Doo-Rite employee sued for personal injury alleging he
was injured when a driver of a tractor-trailer backed into a
stationary container that hit the Doo-Rite employee.1 One of the
defendants in that action, Alpha Beta Company doing business as
Food 4 Less (Alpha Beta), filed a cross-complaint for indemnity
against FP, and FP in turn filed a cross-complaint against Doo-
Rite for express indemnity and declaratory relief. In granting
Doo-Rite’s renewed summary judgment motion, the trial court
found as a matter of law that the “Owner” referenced in the
subcontract was Ralphs Grocery Company (Ralphs), Ralphs
employed the driver of the tractor-trailer, and the Doo-Rite
employee’s claims arose from the driver’s active negligence.
On appeal, FP argues the trial court erred in sustaining
Doo-Rite’s objections to interrogatory responses in which
1 FP and Doo-Rite are the only parties to this appeal.
2
Alpha Beta stated the driver was its employee, and there is a
triable issue regarding whether the Doo-Rite employee’s claims
arose from the driver’s active negligence.
We reject FP’s first argument because, even assuming
arguendo Alpha Beta’s discovery responses were admissible, no
reasonable fact finder could find Alpha Beta employed the driver.
There is no dispute that Alpha Beta’s discovery responses were
based on its initial mistaken belief that the driver was its
employee, Ralphs’s counsel attested that Ralphs owned the
tractor-trailer and it was being driven by a Ralphs employee,
Ralphs was the owner of the store where the incident occurred,
one of FP’s officials testified that the driver was wearing a Ralphs
uniform, and the driver admitted Ralphs was his employer. As to
FP’s second argument, there is no triable issue of fact as to
whether the Doo-Rite employee’s personal injury claims arose
from the driver’s active negligence, given that the driver backed
the tractor-trailer into a stationary container that allegedly hit
the Doo-Rite employee and caused him to suffer injuries.
FACTUAL AND PROCEDURAL BACKGROUND2
FP entered into a subcontract with Doo-Rite to provide
painting services for a renovation project at a Food 4 Less store
2 We derive our Factual and Procedural Background in
part from undisputed aspects of the trial court’s rulings and
admissions made by the parties in their appellate briefing. (See
Baxter v. State Teachers’ Retirement System (2017)
18 Cal.App.5th 340, 349, fn. 2 [utilizing the summary of facts
provided in the trial court’s ruling]; Artal v. Allen (2003)
111 Cal.App.4th 273, 275, fn. 2 [“ ‘[A] reviewing court may make
use of statements [in briefs and argument] . . . as admissions
against the party [advancing them].’ ”].)
3
that is owned by Ralphs. The subcontract contains an express
indemnity provision, which states in pertinent part: “To the
fullest extent permitted by law, Subcontractor shall indemnify,
hold harmless and defend Owner, Contractor and their agents,
employees, sureties and representatives from all claims,
demands, causes of actions [sic] and liabilities of every kind and
nature whosoever [sic] arising out of or in connection with
Subcontractor’s operations, work performed under this
Agreement, and the scope of work identified in this Agreement.
This indemnity and duty to defend shall apply regardless of any
passive negligent act or omission of Owner or Contractor, or their
agents or employees. However, Subcontractor’s obligation to
indemnify and defend pursuant to this Agreement shall not
pertain to any claims arising from the active negligence or sole
willful misconduct of Owner or Contractor or their agents or
employees . . . .” The subcontract defines the “Contractor” as FP
and the “Subcontractor” as Doo-Rite.
After FP and Doo-Rite executed the subcontract, one of
Doo-Rite’s employees, Onesimo Benitez Hernandez, reported to a
location near the store’s loading dock to prepare the area for
painting. At around the same time, Rudolfo Trujillo attempted to
back a tractor-trailer up to a loading ramp near where
Hernandez was working. In the course of attempting this
maneuver, Trujillo backed the tractor-trailer into a stationary
container. Hernandez alleges that the tractor-trailer pushed the
stationary container into him causing him injury.
Hernandez and Maricela Benitez (plaintiffs) filed the
instant personal injury action against The Kroger Co. (Kroger);
Ralphs; Food 4 Less Holdings, Inc.; and Alpha Beta. Plaintiffs
4
later dismissed Kroger; Ralphs; and Food 4 Less Holdings, Inc.
without prejudice.
Alpha Beta filed a cross-complaint for declaratory relief and
indemnification against Doo-Rite and FP. FP later filed a second
amended cross-complaint against Doo-Rite; Alpha Beta; Ralphs;
Kroger; and Kroger Dedicated Logistics Co. FP alleged causes of
action for express indemnity, breach of contract, and declaratory
relief against Doo-Rite.
Doo-Rite moved for summary judgment or, in the
alternative, summary adjudication as to FP’s second amended
cross-complaint. The trial court issued an order denying
summary judgment but granting summary adjudication as to
FP’s breach of contract cause of action.3
Doo-Rite filed a renewed motion for summary judgment.
The trial court granted the renewed motion on the ground that
the indemnity provision in the subcontract barred FP from
recovering on its express indemnity and declaratory relief causes
of action against Doo-Rite. In particular, the court found as a
matter of law that Trujillo was employed by Ralphs, Ralphs is the
“Owner” referenced in the indemnity provision, and plaintiffs’
claims arose out of Trujillo’s active negligence.
The trial court subsequently entered judgment in favor of
Doo-Rite on FP’s second amended cross-complaint. FP timely
appealed the judgment.
3 FP does not challenge the trial court’s order granting
Doo-Rite’s motion for summary adjudication on the breach of
contract claim.
5
APPLICABLE LAW
“ ‘Summary judgment is appropriate only “where no triable
issue of material fact exists and the moving party is entitled to
judgment as a matter of law.” ’ [Citation.]” (Barenborg v. Sigma
Alpha Epsilon Fraternity (2019) 33 Cal.App.5th 70, 76
(Barenborg).) “Under summary judgment law, ‘ “[t]here is a
triable issue of material fact if, and only if, the evidence would
allow a reasonable trier of fact to find the underlying fact in favor
of the party opposing the motion in accordance with the
applicable standard of proof.” [Citation.]’ . . . [Citation.]”
(Lares v. Los Angeles County Metropolitan Transportation
Authority (2020) 56 Cal.App.5th 318, 331–332 (Lares).) A court
applying this standard must “view the evidence in the light most
favorable to the nonmoving party and draw all reasonable
inferences in its favor.” (See Barenborg, at p. 76.)
“ ‘We review the ruling on a motion for summary judgment
de novo, applying the same standard as the trial court.’
[Citation.]” (Barenborg, supra, 33 Cal.App.5th at p. 76.) “ ‘[A]
different analysis is required for our review of the trial court’s . . .
rulings on evidentiary objections. Although it is often said that
an appellate court reviews a summary judgment motion ‘de novo,’
the weight of authority holds that an appellate court reviews a
court’s final rulings on evidentiary objections by applying an
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abuse of discretion standard. [Citations.]’ [Citation.]”4 (Michaels
v. Greenberg Traurig, LLP (2021) 62 Cal.App.5th 512, 521.)
“ ‘ “A judgment or order of a lower court is presumed to be
correct on appeal, and all intendments and presumptions are
indulged in favor of its correctness.” [Citation.]’ [Citation.]
Thus, ‘ “ ‘it is the appellant’s responsibility to affirmatively
demonstrate error’ ” ’ by ‘ “ ‘supply[ing] the reviewing court with
some cogent argument supported by legal analysis and citation to
the record.’ ” [Citation.]’ [Citations.]” (Association for
Los Angeles Deputy Sheriffs v. County of Los Angeles (2023)
94 Cal.App.5th 764, 776–777 (Association for Los Angeles Deputy
Sheriffs).) The presumption of correctness applies “ ‘[e]ven when
our review on appeal “is de novo,” ’ ” meaning that although we
“ ‘would not be bound by, or . . . required to show any deference
to, the trial court’s conclusion[s,]’ ” the scope of our review “ ‘ “is
limited to issues which have been adequately raised and
supported in [the appellant’s opening] brief. [Citations.] . . . ” ’
[Citation.] . . . [Citation.]” (See Golden Door Properties, LLC v.
County of San Diego (2020) 50 Cal.App.5th 467, 554–555.)
“Additionally, ‘[w]hen the error is one of state law only, it
generally does not warrant reversal unless there is a reasonable
probability that in the absence of the error, a result more
4 We agree with Doo-Rite that FP “waived any argument
that the renewed motion [for summary judgment] was
procedurally improper” when FP failed to raise that contention
on appeal. (See Cahill v. San Diego Gas & Electric Co. (2011)
194 Cal.App.4th 939, 956 (Cahill) [“ ‘ “When an appellant fails to
raise a point, or asserts it but fails to support it with reasoned
argument and citations to authority, we treat the point as
waived.” ’ ”].)
7
favorable to the appealing party would have been reached.’
[Citation.] An appellant bears the burden of satisfying this state
law prejudice standard.” (Association for Los Angeles Deputy
Sheriffs, supra, 94 Cal.App.5th at p. 777.)
DISCUSSION
As we noted in our Factual and Procedural Background,
ante, the express indemnity provision of FP’s and Doo-Rite’s
subcontract provides that Doo-Rite’s “indemnity and duty to
defend [obligations] shall apply regardless of any passive
negligent act or omission of Owner or Contractor, or their agents
or employees,” but this “obligation to indemnify and defend . . .
shall not pertain to any claims arising from the active negligence
or sole willful misconduct of Owner or Contractor or their agents
or employees . . . .”
Under this provision, FP’s express indemnity cause of
action against Doo-Rite fails if three elements are satisfied:
(1) Ralphs is the “Owner” referenced in the indemnity provision;
(2) Trujillo was Ralphs’s employee; and (3) plaintiffs’ claims arose
from Trujillo’s active—and not passive—negligence. FP does not
contest the trial court’s rulings that (1) Ralphs is the “Owner” for
the purpose of the indemnity provision; and (2) FP cannot prevail
on its declaratory relief cause of action if FP’s express indemnity
claim fails as a matter of law. Rather, FP argues there are
triable issues of material fact regarding the identity of Trujillo’s
employer and whether “Trujillo was actively negligent . . . .”
Those arguments fail for the reasons set forth below.
8
A. Any Error In Sustaining Doo-Rite’s Evidentiary
Objections Was Harmless Because There Is No
Triable Issue Regarding the Identity of Trujillo’s
Employer
FP argues it established a triable issue regarding the
identity of Trujillo’s employer by directing the trial court to
(1) a response to one of FP’s special interrogatories in which
Alpha Beta referred to Trujillo as its former employee, and
(2) a response to one of plaintiffs’ form interrogatories in which
Alpha Beta indicated that Trujillo was its employee. After Alpha
Beta served its responses to these interrogatories, the trial court
granted a motion filed by Ralphs; Alpha Beta; Kroger; and Kroger
Dedicated Logistics Co. (collectively, the Kroger Parties) to
withdraw responses to certain requests for admission in which
Alpha Beta had admitted Trujillo was its employee. In support of
that motion, the Kroger Parties admitted that Ralphs was
Trujillo’s employer, and they asserted that Alpha Beta’s prior
admissions to the contrary were made in error.
Doo-Rite objected to FP’s introduction of Alpha Beta’s
interrogatory responses on the grounds that this evidence was
“[i]rrelevant” and “contradict[ed] . . . deposition testimony.”
FP argues the trial court erred in sustaining these objections
because the interrogatory responses had not been amended or
withdrawn; “[i]t is not proper for the court to weigh evidence at
the summary judgment stage”; FP was not “contradict[ing] its
own admissions through the use of an affidavit” but instead
“simply utiliz[ing] another party’s discovery responses”; and
although FP’s superintendent testified at his deposition that
“Trujillo was wearing a shirt with a Ralphs’ emblem,” this FP
9
official did not “unequivocally admit that Trujillo was a Ralphs’
employee . . . .”
We need not resolve whether the trial court abused its
discretion in sustaining Doo-Rite’s evidentiary objections because
any such error was harmless. Specifically, even if Alpha Beta’s
interrogatory responses were admissible, they do not give rise to
a triable issue of material fact regarding the identity of Trujillo’s
employer.
In granting Doo-Rite’s summary judgment motion, the trial
court explained that “[t]he Kroger Parties[ ] filed a declaration of
their counsel in support of the motion to withdraw admissions,
who indicated that the truck . . . was owned by . . . Ralphs
Grocery Company and was driven by a Ralphs Company
employee.”5 According to the court, the Kroger Parties’ counsel
also attested that the attorney’s “client confirmed that an error in
their notes had indicated the incident occurred at a Food 4 [L]ess
Store, when the incident should have been reported as a motor
vehicle accident with a Ralphs Grocery Company truck.”6 The
court further observed: (1) FP did not dispute that “Ralphs is the
owner of th[e] Food 4 Less store” where “the subject incident
occurred”; (2) FP’s superintendent “testified in his deposition in
this action that the driver was in [a] Ralphs uniform and that he
5 Although the Kroger Parties’ counsel stated in her
declaration that “[t]he truck which hit Plaintiff was owned by . . .
Ralphs Grocery Company” (italics added), this appears to be
based on counsel’s mistaken belief that the tractor-trailer itself
had hit Hernandez.
6 Admittedly, the Kroger Parties’ counsel did not identify
with precision which client made this error. Nevertheless, this
ambiguity has no apparent bearing on the instant appeal.
10
was identifiable as a Ralphs truck driver”; and (3) “Trujillo
testified that Ralphs was his employer at the time of the subject
accident.” FP does not challenge any of these findings on appeal,
nor does FP contest Alpha Beta’s claim that it had mistakenly
identified Trujillo as its employee.
We acknowledge that in ruling on a summary judgment
motion, “ ‘ “the court may not weigh the [nonmovant’s] evidence
or inferences against the [movant’s evidence] as though it were
sitting as the trier of fact . . . .” ’ [Citation.]” (See Lares, supra,
56 Cal.App.5th at pp. 331–332.) Nevertheless, as we noted in our
Applicable Law, ante, “ ‘ “[t]here is a triable issue of material fact
if, and only if, the evidence would allow a reasonable trier of fact
to find the underlying fact in favor of the party opposing the
motion in accordance with the applicable standard of proof.
[Citation.] . . .” ’ [Citation.]” (Lares, at pp. 331–332.) Given the
aforesaid evidence that Ralphs employed Trujillo and that Alpha
Beta’s representations to the contrary were made in error,
no rational factfinder could find that Alpha Beta was
Trujillo’semployer. (Cf. People v. Schlimbach (2011)
193 Cal.App.4th 1132, 1142, fn. 9 [“[A] trial court may weigh the
credibility of a declaration submitted in opposition to a summary
judgment motion and grant the motion ‘where the declaration is
facially so incredible as a matter of law that the moving party
otherwise would be entitled to summary judgment.’ ”].)
Therefore, FP fails to establish the trial court prejudicially erred
in sustaining Doo-Rite’s evidentiary objections.
We acknowledge that according to Doo-Rite, “Hernandez
originally asserted claims against several different Kroger
entities but was persuaded to dismiss all of them without
prejudice except for Alpha Beta based on assurance from the
11
Kroger entities’ attorneys that Alpha Beta employed Trujillo and
was the proper party defendant.” On appeal, however, FP
does not claim prejudice from Alpha Beta’s repudiation of its
prior representations that it was Trujillo’s employer.
Accordingly, we need not resolve that issue sua sponte. (See
Cahill, supra, 194 Cal.App.4th at p. 956.)
We further observe that any such argument would likely
fail because the record suggests that FP did not suffer any such
prejudice. In the course of granting the Kroger Parties’ motion to
withdraw Alpha Beta’s admissions, the trial court noted, in an
order issued more than six months before the court granted Doo-
Rite’s renewed summary judgment motion, that Alpha Beta’s and
Ralphs’s counsel had represented that the attorney was “willing
to stipulate that Ralphs be substituted in as a defendant in place
of Alpha Beta, that Alpha Beta/Ralphs w[ould] amend discovery
responses to reflect proper answers from Ralphs, and that Alpha
Beta w[ould] make a person most knowledgeable regarding who
is Mr. Trujillo’s employer available for deposition.” On account of
counsel’s representations, the court “order[ed] that Plaintiffs
and/or FP may pursue additional discovery related to the issue of
Mr. Trujillo’s employer.” The court also explained, “[A]ll parties
ha[d] been on notice of this issue for two years” because in
October 2019, the court had denied Ralphs’s motion for leave to
“amend various answers filed by Alpha Beta by substituting
Ralphs for Alpha Beta.”
In sum, we reject FP’s assertion that the trial court
reversibly erred by sustaining Doo-Rite’s objections to
Alpha Beta’s interrogatory responses.
12
B. FP Fails To Establish a Triable Issue Regarding
Whether Plaintiffs’ Claims Arose From Trujillo’s
Active Negligence
“Passive negligence is found in mere nonfeasance, such as
the failure to discover a dangerous condition or to perform a duty
imposed by law. [Citations.] Active negligence, on the other
hand, is found if [a tortfeasor] has personally participated in an
affirmative act of negligence, was connected with negligent acts
or omissions by knowledge or acquiescence, or has failed to
perform a precise duty which the [tortfeasor] had agreed to
perform. [Citations.] ‘The crux of the inquiry is to determine
whether there is participation in some manner by the [tortfeasor]
in the conduct or omission which caused the injury beyond the
mere failure to perform a duty imposed upon him by law.’
[Citation.]” (See Rossmoor Sanitation, Inc. v. Pylon, Inc. (1975)
13 Cal.3d 622, 629 (Rossmoor Sanitation, Inc.).)
“Whether conduct constitutes active or passive negligence
depends upon the circumstances of a given case and is ordinarily
a question for the trier of fact; active negligence may be
determined as a matter of law, however, when the evidence is so
clear and undisputed that reasonable persons could not disagree.”
(Rossmoor Sanitation, Inc., supra, 13 Cal.3d at p. 629.)
FP argues that a jury could find Trujillo did not act
negligently in backing up the tractor-trailer, but instead by
failing to check his mirrors, ask for help, or get out of the vehicle
to check his surroundings before backing up the tractor-trailer.
FP contends that if the jury finds Trujillo was negligent because
he failed to undertake any of these safety measures, then
plaintiffs’ claims arose from his passive negligence.
13
Whether Trujillo engaged in active negligence does not
hinge on whether his affirmative conduct, in and of itself, will be
found to have been negligent by the trier of fact. Rather, the key
consideration is Trujillo’s degree of involvement in the injury-
causing event.7 For instance, in Morgan v. Stubblefield (1972)
6 Cal.3d 606 (Morgan), a contractor’s decision to dig a hole that
led to the plaintiffs’ injury was not, in and of itself, conduct
amounting to active negligence. Rather, the contractor’s decision
to dig the hole and leave it “uncovered . . . with no device to hold
it in place” and “insufficient illumination . . . for safety, all in
violation of construction safety orders,” constituted active
negligence.8 (See Morgan, at pp. 612, 626–627.) Put differently,
even though the contractor’s liability for negligence arose in part
from certain omissions, it was still deemed to have “participated
in an affirmative act of negligence which caused the injury” such
that the contractor was “guilty of active negligence as a matter of
law.” (See id. at pp. 626–627.)
Here, Trujillo “participated in some manner in the
conduct . . . which caused the injury” by backing up the tractor-
trailer. (See Morgan, supra, 6 Cal.3d at p. 626.) Thus, regardless
of whether Trujillo breached his duty of care to plaintiffs by
7 (See Rossmoor Sanitation, Inc., supra, 13 Cal.3d at p. 629
[“ ‘The crux of the inquiry is to determine whether there is
participation in some manner by the [tortfeasor] in the conduct or
omission which caused the injury beyond the mere failure to
perform a duty imposed upon him by law[,]’ ” italics added].)
8 The plaintiffs were “electricians who were seriously
injured when they fell from a rolling scaffold which toppled over
after one of its wheels fell into [the] hole . . . .” (See Morgan,
supra, 6 Cal.3d at pp. 612–613.)
14
virtue of certain omissions (e.g., failure to check his mirrors), no
reasonable factfinder could conclude that his liability for
negligence arises solely from his “ ‘failure to perform a duty
imposed upon him by law’ ” as would be required to conclude that
his negligence was merely passive. (See Rossmoor Sanitation,
Inc., supra, 13 Cal.3d at p. 629.) Accordingly, the trial court did
not err in ruling as a matter of law that plaintiffs’ claims arose
from Trujillo’s active negligence.
DISPOSITION
The judgment is affirmed. Cross-defendant and respondent
Doo-Rite Painting, Inc. is awarded its costs on appeal.
NOT TO BE PUBLISHED.
BENDIX, J.
We concur:
ROTHSCHILD, P. J.
WEINGART, J.
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