SUMMARY ADJUDICATION GRANTED ESTABLISHING DUTY TO DEFEND

The Los Angeles Superior Court granted summary adjudication on a contractual right to a defense in a trip-and-fall action. OLG’s client, a commercial landlord, had leased the premises to a national telecommunications company for use as a service center. The landlord was later sued when the tenant’s customer tripped and fell in the premises’ parking lot. The triple-net commercial lease agreement required the tenant to indemnify and defend the landlord for all claims, damages, liability, and expenses arising out of the tenant’s use of the premises, except in cases of the landlord’s gross negligence or willful misconduct. Upon receiving the complaint, the landlord tendered its defense to the tenant, who failed to assume it.

OLG filed a motion for summary adjudication, seeking a declaration that the tenant owed a defense because the plaintiff’s claims fell squarely within the scope of the tenant’s contractual duty. OLG argued that the landlord’s contractual right to a defense was based on the plaintiff’s allegations and arose immediately upon tender, regardless of whether indemnity was ultimately owed. OLG successfully countered the tenant’s technical argument that the 20+-year-old lease was inadmissible because its signers were no longer employed by the parties, proving its validity with notarized signatures and an employee’s declaration. Additionally, OLG convinced the court that summary adjudication could be granted even though the entire declaratory relief action would not be fully resolved, as C.C.P. § 437c, the summary adjudication statute, expressly authorizes courts to summarily adjudicate an “issue of duty.” OLG further overcame the tenant’s argument that a subrogation waiver in a lease amendment abrogated the tenant’s defense obligations by explaining that the waiver only applied to property damage, not third-party liability claims.

The Los Angeles Superior Court agreed with OLG on all points, finding that the tenant owed the landlord a duty to defend under the lease’s express terms.

Sherri Matta wrote and argued the winning motion for summary adjudication.