Bowling Green 10 v. Ferguson Janitorial & Carpet Cleaning

Filed 7/31/06 NNN 4241 Bowling Green 10 v. Ferguson Janitorial & Carpet Cleaning CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

----

An office building owner and its building manager appeal the granting of summary judgment against their cross-complaint for express and equitable indemnity. We affirm.

FACTS

On June 28, 2002, Susan Nielsen, an employee of the California Youth Authority (CYA), tripped and injured her knee while walking in a hallway inside her office building. In June 2003, Nielsen and her husband (collectively Nielsen) filed a complaint against the office building's owner, NNN 4241 Bowling Green 10, LLC (hereafter Owner) and Owner's property manager, CB Richard Ellis, Inc. (hereafter Manager), for personal injuries and loss of consortium.

Owner filed a cross-complaint against Ferguson Janitorial and Carpet Cleaning, the company it contracted with to provide janitorial services to the building (hereafter Janitor), for express indemnity, implied and comparative indemnity, breach of contract, and declaratory relief. Subsequently, Nielsen added Janitor as a third defendant in her underlying action.

In September 2004, Owner and Manager moved for summary judgment against Nielsen. They argued they were entitled to judgment because the alleged property defect was trivial, and because they had no notice of it.

In December 2004, the trial court denied the motion. First, it could not determine whether the defect in the floor where Nielsen tripped was trivial as a matter of law. Nielsen's evidence demonstrated she tripped in an area of the hallway that leans from south to north and where a bump exists on the floor where the flooring rises to cross over a structural element of the building's framing system. The bump was shorter than a foot long, ran horizontally to the wall, was about a half an inch higher from the traveling direction, and sloped downward to the north of the hallway about one inch lower than the other side. There was also rippling in the carpet.

Second, the court determined Nielsen had introduced sufficient evidence to create a triable issue of material fact regarding whether Owner and Manager had notice of the dangerous condition. CYA's building services manager had noted the hallway leans from south to north, had known about this for four of the last five years, and had notified Manager and the State Department of General Services to work with Owner to correct the condition. There also were ongoing discussions with Manager about the rippling in the carpet.

On January 12, 2005, Janitor filed two separate motions for summary judgment. One sought judgment against Nielsen on the underlying complaint. Nielsen did not oppose this motion. Owner and Manager also did not oppose and filed no papers. The trial court granted the motion.

Janitor's second motion sought judgment against Owner on the cross-complaint. It argued it was not required as a matter of law to indemnify Owner under the language of the express indemnity clause in the contract or under the doctrine of equitable indemnity. Janitor also claimed there was no evidence showing it breached its contract with Owner, or that it was comparatively at fault for Nielsen's injuries.

The trial court granted the motion and entered judgment in favor of Janitor and against Owner. The court ruled Owner failed to meet its burden. â€