Case Number: BC593798??? Hearing Date: July 22, 2016??? Dept: 92
JORGE RAGDE, SR., et al.,
Plaintiff(s),
vs.
DORIS R. PERSINGER, et al.,
Defendant(s).
Case No.: BC593798
[TENATATIVE] ORDER GRANTING DEFENDANT, PERSINGER TRUST?S MOTION FOR SUMMARY ADJUDICATION; DENYING DEFENDANTS? MOTION FOR SUMMARY JUDGMENT AND ALL OTHER REQUESTS FOR SUMMARY ADJUDICATION; DENYING CROSS-COMPLAINANT?S MOTION FOR SUMMARY ADJUDICATION1. Facts
Plaintiffs, Jorge Ragde, Sr. and Lucille Ragde filed this action against Defendants, Doris R. Persinger, Persinger Trust, and Classic Property Management for damages arising out of a trip and fall.
2. Motion for Summary Judgment
Defendants move for summary judgment or, alternatively, summary adjudication. Their primary contention is that there was no dangerous condition on the property as a matter of law. In the alternative, they contend neither Doris R. Persinger, in her personal capacity, nor the Persinger Trust, is a proper defendant in the action.
a. No dangerous condition
As noted above, Defendants? primary contention is that they are entitled to summary judgment because the property was not in a dangerous condition as a matter of law, so they did not breach any duty to Plaintiff.
Both parties submitted evidentiary objections with their opposition and reply papers. The Court finds a ruling on objection 2 with the moving papers and similar objection 1 with the reply papers is dispositive of the motion. Both of these objections are sustained. Both parties? experts used the wrong date for the incident in their declarations, and therefore the declarations lack foundation.
Defendants can only meet their moving burden through their expert declaration, as this is the declaration upon which they rely to contend the property was not dangerous as a matter of law. Because the declaration lacks foundation, the motion for summary judgment is denied. The motion for summary adjudication (issues two, four, and five) on the ground of lack of breach is similarly denied.
b. Doris R. Persinger
Persinger, in her individual capacity, contends she is entitled to judgment as a matter of law because she does not personally own the subject property. Persinger contends she transferred ownership of the property to the Persinger Family Trust on 7/20/90. Persinger supports this fact (fact 40) with the Declaration of Ruby Clausen, ?2. Plaintiff does not object to ?2 of the Clausen Declaration, and therefore Defendant met her moving burden to show she had no ownership interest in the property at the time of the fall.
Plaintiff contends fact 40 is disputed. Plaintiff relies on the Declaration of Robert Ounjian, Plaintiff?s attorney, ?7 to support this conclusion. At ?7, Ounjian declares that Exhibit E is a copy of correspondence from Defense Counsel agreeing that the property was owned by Persinger, not by the Trust. Exhibit E to the Ounjian declaration is a letter from Defense Counsel, dated 6/21/16, in which Counsel states that, without Clausen?s knowledge, the property was taken out of the Trust before Persinger?s death. In reply, Defendants argue that Persinger is now deceased, and no litigation against her can be continued.
Notably, Persinger did not make a motion for summary judgment on the ground that she was dead; she made the motion on the ground that she did not own the property. It appears she died sometime after the motion was filed. The opposition raises triable issues concerning whether she owned the property, as opposed to the Trust owning the property, and therefore the motion is denied. The parties are encouraged to work out any issues concerning dismissal of Persinger in light of her death and continuation of the litigation solely against the proper heir/successor-in-interest between themselves.
c. Trust
The Persinger Trust moves for summary judgment on the ground that a trust cannot sue or be sued, and can only appear in litigation through its trustee, who must be the named party to the action. Defendants are correct. See Presta v. Tepper (2009) 179 Cal.App.4th 909, 914. The Trust?s motion for summary adjudication is granted.
The Court notes that Plaintiff filed an amendment to the complaint naming Clausen, as trustee for the trust, as a doe defendant on 7/14/16, and Clausen, in her capacity as trustee, filed an answer on 7/15/16. It therefore appears this issue has largely been handled between the parties.
3. Motion for Summary Adjudication
Defendant, Classic Real Estate Management, Inc. (?Classic?) moves for summary adjudication of its cross-complaint for indemnification and declaratory relief against Cross-Defendants, Doris R. Persinger and the Persinger Trust (collectively ?Persinger?). Classic argues that the language in the parties? agreement compels adjudication in its favor as a matter of law. Persinger argues the language in the parties? contract does not compel adjudication, and also argues that the case against Persinger, as an individual, is improper because Persinger recently passed away, and the case against the Trust is improper because a trust must be sued through its trustee.
a. Parties? Contract
Classic relies on the parties? ?Full-Service Management Agreement,? dated 8/06/14 and attached as Exhibit B to the moving papers, to support its position that it is entitled to judgment as a matter of law. Specifically, Classic relies on two provisions on page 4, under the section heading ?Terms,? which provide the following:
– Owner shall indemnify and save the Agent harmless from any and all costs, expenses, attorney?s fees, suits, liabilities, damages from or connected with the management of the property by Agent, or the performance or exercise of any of the duties, obligations, powers, or authorities herein or hereafter granted to Agent.
– Owner shall not hold Agent liable for any error of judgment, or for any mistake of fact or law, or for anything which Agent may do or refrain from doing hereinafter, except in cases of willful misconduct or gross negligence.
Classic argues that the foregoing language is sufficient to obligate Persinger to indemnify Classic even if Classic was negligent in this action. Classic contends there are no allegations of willful misconduct or gross negligence on its part, and therefore it is entitled to judgment as a matter of law.
The parties largely agree on the law in this area. An indemnification agreement cannot create an obligation for one party to indemnify another party for the other party?s own negligence unless the agreement includes clear and concise language obligating the first party to do so. See Centex Golden Const. Co. v. Dale Tile Co. (2000) 78 Cal.App.4th 992.
Classic argues the language in the second paragraph, quoted above, concerning willful misconduct and gross negligence, makes clear that absent willful misconduct or gross negligence, Persinger has the obligation to indemnify Classic. As Persinger correctly notes in opposition, any ambiguity in the parties? contract must be construed against the indemnitee and also against the drafter of the contract. See Edmondson Property Management v. Kowck (2007) 156 Cal.App.4th 197 (agreement construed against proposed indemitee); Alberts v. American Cas. Co. of Reading, Pa. (1948) 88 Cal.App.2d 891 (agreement construed against drafter). In this case, Classic was the drafter of the contract.
The Court finds the first paragraph, above, does not include language specifically making clear that Classic is to be indemnified even for its own negligence. The Court finds the second paragraph does include such language, but appears to apply only to bar Persinger from suing Classic unless Classic engages in gross negligence or affirmative misconduct. The second paragraph is not, on its face, an indemnification agreement, but instead is a waiver agreement. Classic failed to show the parties? agreement obligates Persinger to indemnify Classic if Classic, as opposed to Persinger, is negligent.
Classic, in reply, argues Persinger is estopped from arguing Classic was negligent in connection with Plaintiff?s claims. Classic did not, in its motion, argue that it was not negligent. It did not provide facts in the separate statement to show that it was not negligent. It provided only fact 13, which states that it was not grossly negligent and did not engage in willful misconduct. Classic cannot raise this new argument in reply, and the Court will not make a determination as to whether Persinger is estopped from claiming Classic was negligent.
4. Conclusion
Defendants? motion for summary judgment is denied. Defendants? motion for summary adjudication of Plaintiff?s claims against the Persinger Trust is granted. The motion for summary adjudication is denied on all additional grounds.
Cross-Complainant?s motion for summary adjudication is denied.