Preview
1
2 A PROFESSIONAL CORPORATION
William E. Camy, SBN 291397
3 Alison J. Southard, SBN 335716
2180 Harvard Street, Suite 500
4 Sacramento, CA 95815
5 TEL: 916.929.1481
FAX: 916.927.3706
6 EMAIL: wcamy@porterscott.com
asouthard@porterscott.com
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Attorneys for Defendant/Cross-Complainant, WASCO RECREATION AND PARK DISTRICT
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Exempt from filing fee pursuant to Government Code section 6103
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SUPERIOR COURT OF THE STATE OF CALIFORNIA
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FOR THE COUNTY OF KERN
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13 TYNA POWELL, Case No.: BCV-22-100328
14 Plaintiff, MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT OF CROSS-
15 vs. COMPLAINANT WASCO RECREATION AND
PARK DISTRICT’S OPPOSITION TO CROSS-
16 WASCO RECREATION AND PARK DEFENDANTS WASCO TIGERSHARKS AND
DISTRICT, CITY OF WASCO and DOES 1 HDI GLOBAL SPECIALTY SE’S MOTION FOR
17 through 50, inclusive, SUMMARY JUDGMENT
18 Defendants. Date: April 17, 2024
Time: 8:30
19 Dept.: H
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/ Complaint filed: February 10, 2022
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF CROSS-COMPLAINANT WASCO RECREATION
AND PARK DISTRICT’S OPPOSITION TO WASCO TIGER SHARKS AND HDI GLOBAL SPECIALTY SE’S MOTION
FOR SUMMARY JUDGMENT
1 TABLE OF CONTENTS
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I. INTRODUCTION ................................................................................................................... 1
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II. STATEMENT OF FACTS ...................................................................................................... 1
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A. Renting Barker Park ............................................................................................................ 2
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B. Facility Use Agreement ....................................................................................................... 2
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C. The Subject Incident............................................................................................................ 4
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D. The District’s Tender of Defense, WTSC’s Denial, and Pleadings .................................... 5
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E. Dispute as to Where Plaintiff Fell ....................................................................................... 6
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F. Settlement of Plaintiff’s Claims Against the District .......................................................... 7
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III. LEGAL STANDARD .............................................................................................................. 7
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12 IV. WTSC’S MOTION FOR SUMMARY JUDGMENT MUST BE DENIED ........................... 8
13 A. There is a Triable Issue of Fact as to Whether Cross-Defendants are
Liable for Express and/or Equitable Indemnity ....................................................................... 8
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1. There are triable issues of fact as to whether the FUA’s express indemnity provision
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And HDI’s additional insured endorsement apply................................................................... 9
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2. There are triable issues of fact as to whether Cross-Defendants are liable
17 Under a theory of equitable indemnity .................................................................................. 10
18 B. There are Triable Issues of Material Fact as to Whether Cross-Defendants
Owe a Duty to Defend and Indemnify the District Against Plaintiff’s
19 Claims, and Thus Whether they Breached That Duty .......................................................... 13
20 1. The indemnity provision should not be strictly construed against the District.................. 13
21 2. The indemnity provision clearly applies to Plaintiff’s claims ........................................... 13
22 3. Cross-Defendants Owed the District a Duty to Defend ..................................................... 16
23 4. There are Triable Issues of Fact Regarding Declaratory Relief and Breach of Contract .. 17
24 C. Cross-Defendants Misunderstood the Court’s Ruling on the District’s
Motion for Summary Adjudication ........................................................................................ 18
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D. WTSC’s Public Policy Argument is Unpersuasive........................................................... 18
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V. CONCLUSION ...................................................................................................................... 20
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF CROSS-COMPLAINANT WASCO RECREATION
AND PARK DISTRICT’S OPPOSITION TO WASCO TIGER SHARKS AND HDI GLOBAL SPECIALTY SE’S MOTION
FOR SUMMARY JUDGMENT
1
TABLE OF AUTHORITIES
2
3 Cases
4 Acceptance Ins. Co. v. Syufy Enterprises,
5 (1999) 69 Cal.App.4th 321 ................................................................................................................... 18
Aguilar v. Atlantic Richfield Co.,
6 (2001) 25 Cal.4th 826 ............................................................................................................................. 7
Alcaraz v. Vece,
7 (1997) 14 Cal.4th 1149 ................................................................................................................... 11, 12
8 American Casualty Company of Reading, PA,
supra, 125 Cal.App.4th ......................................................................................................................... 18
9 C.L., supra,
159 Cal.App.3d at p. ............................................................................................................................... 8
10 C.W. v. Howe Partners Inc. v. Mooradian,
11 (2019) 43 Cal.App.5th 688 ................................................................................................................... 12
City of Oakland v. Oakland etc. Sch. Dist.,
12 (1956) 141 Cal.App.2d 733 .................................................................................................................. 15
City of Watsonville v. Corrigan,
13
(2007) 149 Cal.App.4th 1542 ......................................................................................................... 13, 18
14 Corwin v. Los Angeles Newspaper Service Bureau, Inc.,
(1971) 4 Cal.3d 842 ................................................................................................................................ 7
15 Crawford v. Weather Shield Mfg., Inc.,
(2008) 44 Cal.4th 541 .................................................................................................................... passim
16
E.L. White, Inc. v. Huntington Beach,
17 (1978) 21 Cal.3d 497 .............................................................................................................................. 8
Estate of Houseley,
18 (1997) 56 Cal.App.4th 342 ............................................................................................................... 7, 13
Fireman’s Fund Ins. Co. v. Discover Property & Cas. Ins. Co.,
19
(N.D. Cal. 2009) 2009 WL 2591394 .................................................................................................... 16
20 Goldman v. Ecco-Phoenix Elec. Corp.,
(1964) 62 Cal.2d 40 .............................................................................................................................. 15
21 Hartford v. State of California,
22 (1996) 41 Cal.App.4th 1564 ................................................................................................................. 16
Heppler v. J.M. Peters Co.,
23 (1999) 73 Cal.App.4th 1265 ........................................................................................................... 13, 14
Hollander v. Wilson Estate Co.,
24 (1932) 214 Cal. 582 .............................................................................................................................. 15
25 Johnston v. De La Guerra Properties,
Inc. (1946) 28 Cal.2d 394 ..................................................................................................................... 11
26 Lipson v. Superior Court,
(1982) 31 Cal.3d 362 .............................................................................................................................. 7
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF CROSS-COMPLAINANT WASCO RECREATION
AND PARK DISTRICT’S OPPOSITION TO WASCO TIGER SHARKS AND HDI GLOBAL SPECIALTY SE’S MOTION
FOR SUMMARY JUDGMENT
Maryland Casualty Co. v. Nationwide Ins. Co.,
1
(1998) 65 Cal.App.4th 21 ..................................................................................................................... 16
2 McManis v. San Diego Postal Credit Union,
(1998) 61 Cal.App.4th 547 ............................................................................................................... 7, 13
3 McMillan Homes Construction, Inc. v. National Fire & Marine Insurance Company,
(2019) 35 Cal.App.5th 1042 ................................................................................................................. 16
4
Montrose Chemical Corp. v. Superior Court,
5 (1993) 6 Cal.4th 287 ....................................................................................................................... 17, 18
Morlin Asset Management LP v. Murachanian (“Morlin”,
6 ) (2016) 2 Cal.App.5th 184. (Motion, 10:20-22.) ....................................................................... 8, 14, 15
7 People ex rel. Dept. Pub. Wks. v. Daly City Scavenger Co.,
(1971) 19 Cal.App.3d 277 ...................................................................................................................... 8
8 Preston v. Goldman,
(1986) 42 Cal.3d 108 ...................................................................................................................... 11, 12
9 Schlitz Brewing Co.,
10 supra, 109 Cal.App.3d at p. .................................................................................................................. 13
Sprecher v. Adamson Companies,
11 (1981) 30 Cal.3d 358 ............................................................................................................................ 11
Staats v. Vintner’s Golf Club, LLC,
12 (2018) 25 Cal.App.5th 826 ................................................................................................................... 11
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Statutes
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California Civil Code section 2778(5) ................................................................................................ 15, 16
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF CROSS-COMPLAINANT WASCO RECREATION
AND PARK DISTRICT’S OPPOSITION TO WASCO TIGER SHARKS AND HDI GLOBAL SPECIALTY SE’S MOTION
FOR SUMMARY JUDGMENT
1 I. INTRODUCTION
2 Cross-Defendant Wasco Tigersharks Swim Club (“WTSC”) and HDI GLOBAL SPECIALTY SE’s
3 (“HDI”) Motion for Summary Judgment (“Motion”) is premised on its proffered “undisputed” fact that
4 WTSC only rented the pool at Barker Park, and not the grassy area where Plaintiff Tyna Powell (“Plaintiff”)
5 fell, on the day in question. To support this claim, WTSC relies on the self-serving testimony from its
6 President, Joaquin Castillo. However, WTSC ignores the mountain of contradicting evidence, including: (1)
7 Wasco Recreation and Park District (“District”) Manager, Chris Serna, testified that WTSC paid for a
8 “whole park rental,” which included the right for WTSC to use and exclude the general public from the
9 grassy area of the park where Plaintiff fell; (2) WTSC expected its approximately 500 guests would use,
10 and its guests did in fact use, the grassy area where Plaintiff fell; (3) WTSC’s spectators were not allowed
11 on the pool deck and the adjacent bleachers only sat 50-75 people, thus necessitating WTSC’s guests use
12 the grassy areas; and (4) WTSC expressly instructed its hundreds of spectators to set up their gear throughout
13 the grassy area of the park, including where Plaintiff fell. WTSC also ignores Plaintiff’s allegations that
14 WTSC controlled the area where she fell, and her allegations control for the purposes of evaluating where
15 Cross-Defendants owe the District a duty of defense. Clearly, there is a disputed fact on this seminal issue
16 which requires Cross-Defendants’ Motion be denied. Other issues further command this Motion be denied.
17 For example, Cross-Defendants proffered as undisputed that Plaintiff fell at a sprinkler valve, but she did
18 not. Cross-Defendants also proffered that the additional insured endorsement solely identifies the pool but
19 ignore that, pursuant to the unambiguous terms of the Facility Use Agreement (“FUA”), WTSC was required
20 to “name the Wasco Recreation and Park District, its officers, employees, agents, and volunteers as
21 additional insureds.” These are just some of many examples, discussed in more detail herein, of triable
22 issues that require a denial of Cross-Defendants’ Motion. The District thus requests the Court deny this
23 Motion so it can finally have its day in Court to obtain the relief it is entitled to.
24 II. STATEMENT OF FACTS
25 A. Renting Barker Park
26 Barker Park is available to rent to members of the public. (District’s Separate Statement of Disputed
27 Material Facts (“D.S.S.”), No. 1.) The District uses a fee schedule whereby renters pay different fees
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF CROSS-COMPLAINANT WASCO RECREATION
AND PARK DISTRICT’S OPPOSITION TO WASCO TIGER SHARKS AND HDI GLOBAL SPECIALTY SE’S MOTION
FOR SUMMARY JUDGMENT
1 depending on the type of rental. (D.S.S., No. 2.) The District requires any organization hosting an event
2 with one hundred people or more to rent the entire park, rather than one facility within the park, due to the
3 large size of the event (called a “whole park rental”). (D.S.S., No. 3.) If a renter pays for a “whole park
4 rental” the renter has the right, if they choose, to exclude members of the general public from the park,
5 including the grassy areas of the park. (D.S.S., No. 4.) In 2021, in contrast to a “whole park rental,” small
6 group renters who only rented the pool facility did not obtain the right to exclude the public from other
7 areas of the park, including the grassy areas surrounding the pool facility. (D.S.S., No 5.) In 2021, the fee
8 for up to 50 people to rent just the pool facility was $185 for one hour and forty-five minutes. (D.S.S., 6.)
9 B. Facility Use Agreement
10 On or about June 17, 2021, WTSC and the District executed an FUA for WTSC’s use of District
11 facilities from June 1, 2021, through July 31, 2021. (D.S.S., No. 7.) For the Court’s reference, the location
12 of the pool within the park is depicted in the aerial image below. (Ex. G to the IOE, Serna Decl., ¶ 3; Ex. F
13 to the IOE, Aerial Image.) Prior to entering the FUA, then-interim District Manager Maria Christina Serna
14 (“Ms. Serna”) discussed the terms of the FUA with WTSC president Joaquin Castillo. (D.S.S., 8.) During
15 these conversations, Ms. Serna explained that the FUA
16 encompassed a “whole park rental” and that WTSC
17 was paying a fee for a “whole park rental.” (D.S.S, 9.)
18 Ms. Serna explained that, pursuant to the “whole park
19 rental,” WTSC would have the power to exclude
20 members of the general public from the park, including
21 but not limited to the grassy areas surrounding the pool
22 and the covered shelters. (D.S.S, 10.)
23 Additionally, by way of the FUA, WTSC paid
24 a fee for a “whole park rental” for the “A Meet” on
25 June 19, 2021, the date of the subject incident. (D.S.S.,
26 No. 11.) Due to large size of the event, i.e., more than one hundred people, WTSC rented the entire park.
27 (D.S.S., No. 12.) Thus, WTSC obtained control of all of the areas of the park, including the right to exclude
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF CROSS-COMPLAINANT WASCO RECREATION
AND PARK DISTRICT’S OPPOSITION TO WASCO TIGER SHARKS AND HDI GLOBAL SPECIALTY SE’S MOTION
FOR SUMMARY JUDGMENT
1 the general public from the grassy areas (where Plaintiff alleges she fell) on the day of the incident. (D.S.S.,
2 No. 13.) On WTSC’s website, it provided the following information for attendees of “A Meets”:
“The A Meets are held on Saturdays and are the main event of a swim team. The day begins early
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when families pack up all of their gear (shade canopies, lawn chairs, blanket, ice chest, picnic items.
4 . . Families set up their ‘camp’ in designated areas - look for other Tigershark families as we
usually set up our gear in the same general area, although there is no requirement to do this. . .
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Swimmers and families ‘hang out’ in the camp area socializing, stretching, and otherwise
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waiting for their events . . . Swimmers and families come and go from the camp to the pool as
7 they swim their event and cheer on the other swimmers competing.” (D.S.S., No. 16.)
8 WTSC paid a $200 fee for its “A Meet” on the date of the incident, in addition to one District staff
9 member at the rate of $14.00 per hour for eight hours of general maintenance for each meet.1 (D.S.S., No.
10 15.) The FUA required WTSC to provide a list of maintenance duties for the District employee to complete.
11 (D.S.S., No. 17.) WTSC also had the right to place warnings—such as cones, caution tape, signs, or
12 markings—on the areas it controlled to warn its guests of any perceived potential hazards. (D.S.S., No.
13 18.) The District expected (as does well-established landlord-tenant law) that WTSC would either remedy
14 or warn against such potential hazards on its own, or inform the District of any of any District facility that
15 WTSC perceived to be potentially hazardous. (D.S.S., Nos. 19-20.) In and prior to 2021, the District
16 understood that on WTSC swim meet days, including the day of the subject incident, WTSC expected its
17 guests would have the right to use and expressly instructed its guests to use the grassy areas (including the
18 area where Plaintiff alleges she fell) for their gear, including pop up tents, chairs, ice chests, etc. (D.S.S.,
19 No. 21.) By executing the FUA, WTSC also had the right to exclude the general public from those areas.
20 (D.S.S., No. 22.) Additionally, there are four “shelters” at Barker Park which provide relief from sun or
21 weather. (D.S.S., No. 23.) The shelters are generally available for the public to rent, but were not available
22 to rent on WTSC swim meet days, pursuant to the FUA. (D.S.S., No. 24.)
23 The FUA required WTSC to procure insurance and name “the Wasco Recreation and Park District,
24 its officers, employees, agents, and volunteers as additional insureds” on the policy “prior to the use of the
25 facility.” (D.S.S., No. 25.) The FUA further provided: “A certificate of insurance naming the District as
26
27 1
By contrast, in 2021, the fee for up to 50 people to rent just the pool facility was $185 for one hour and forty-five minutes.
(D.S.S., No. 6.)
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF CROSS-COMPLAINANT WASCO RECREATION
AND PARK DISTRICT’S OPPOSITION TO WASCO TIGER SHARKS AND HDI GLOBAL SPECIALTY SE’S MOTION
FOR SUMMARY JUDGMENT
1 additional insured must be in possession of the District Manager prior to practice or season begins [sic].”
2 (D.S.S., No. 26.) WTSC in fact obtained insurance and named the District as an additional insured. (D.S.S.,
3 No. 27.) Additionally, the FUA included a “Hold Harmless and Indemnification Clause” which stated:
4
“HOLD HARMLESS AND INDEMNIFICATION: Wasco Tiger Sharks Swim Club assume full
5 responsibility for accidents or damages which may arise out of use of the District Property, including
without limitation from maintenance and cleanliness of the facilities or property usage. In that
6 regard; Wasco Tiger Sharks Swim Club agree(s) to shall indemnify, defend, and hold harmless
Wasco Recreation and Park District, its officers, employees, and agents from any and all losses,
7
costs, expenses, claims, liabilities, actions, or damages, including liability for injuries to any
8 person or persons or damage to property arising at any time out of or in any way related to
the Wasco Tiger Sharks Swim Club’s use or occupancy of a facility or property controlled by
9 the Wasco Recreation and Park District, unless solely caused by the gross negligence or willful
10 misconduct of Wasco Recreation and Park District, its officers employees, or agents with this
agreement and use of Property.” (Emphasis Added.)
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12 (D.S.S., No. 28.) WTSC further agreed:
13 “The Wasco Tiger Sharks Swim Club shall indemnify, defend, and hold harmless Wasco
14 Recreation and Park District, its officers, employees, and agents from any and all losses, costs,
expenses, claims, liabilities, actions, or damages, including liability for injuries to any person
15 or persons or damage to property arising at any time out of or in any way related to the Wasco
Tiger Sharks Swim Club’s use or occupancy of a facility or property controlled by the Wasco
16 Recreation and Park District, unless solely caused by the gross negligence or willful misconduct
17 of Wasco Recreation and Park District, its officers employees, or agents.” (Emphasis Added.)
(D.S.S., No. 29.)
18
19 C. The Subject Incident
20 Pursuant to the terms of the FUA, on June 19, 2021, WTSC hosted a swim meet at Barker Park.
21 (D.S.S., No 30.) The day prior to the swim meet, WTSC posted information regarding the meet on their
22 Instagram page. (D.S.S. No. 31.) In the post, WTSC encouraged attendees of the June 19, 2021, swim meet
23 to “Bring Your Own Canopies Tomorrow. Sit with Friends & Cheer on our Tigersharks!” (D.S.S. No. 32.)
24 There were hundreds of individuals in attendance. (D.S.S, No. 33.) Plaintiff was one of the attendees who
25 went to watch her grandson compete in the swim meet hosted by WTSC. (D.S.S., No. 34.) Plaintiff, as well
26 as hundreds of other swim meet spectators, was sitting in the grassy area surrounding the pool. (D.S.S., No.
27 35.) While there was seating available on the bleachers adjacent to the pool, those bleachers only sat 50 to
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF CROSS-COMPLAINANT WASCO RECREATION
AND PARK DISTRICT’S OPPOSITION TO WASCO TIGER SHARKS AND HDI GLOBAL SPECIALTY SE’S MOTION
FOR SUMMARY JUDGMENT
1 75 people, and could not accommodate the hundreds of spectators who came to watch the event. (D.S.S.,
2 No. 36.) Indeed, WTSC did not allow spectators to enter the gate and pool area, “because the swimmers
3 and the officials . . . were on the pool deck.” (D.S.S., No. 37.)
4 Plaintiff’s grandson was competing in the swim meet and his event was approaching, so Plaintiff
5 walked toward the playground to find him. (D.S.S., No. 39.) While walking toward the playground to
6 retrieve her grandson for his swimming event, Plaintiff rolled her ankle and fell. (D.S.S., No. 40.) As
7 discussed further in Section II(F), it is unclear what caused Plaintiff to fall. (D.S.S. 56-70.) Plaintiff claims
8 she stepped into a depressed sprinkler valve, but she did not inspect what caused her to fall and the only
9 witness who did inspect where she fell, Jeff Boyd, testified there was no such defect. (D.S.S. Nos. 56, 57,
10 59, 65-66, 69-70.) Further, the area where Plaintiff testified she fell is not where the sprinkler valve exists.
11 (D.S.S., Nos. 65-70.) Thus, a reasonable inference is that Plaintiff simply misstepped because she was
12 distracted while looking for her grandson and rolled her ankle due to mildly imperfect terrain.
13 D. The District’s Tender of Defense, WTSC’s Denial, and Pleadings
14 The District tendered its defense of Plaintiff’s action to Cross-Defendants on multiple occasions,
15 but Cross-Defendants rejected the tender. (D.S.S. Nos. 41-47.) Thus, the District filed the instant cross-
16 complaint, and operative First Amended Cross-Complaint (“FACC”) against Cross-Defendants. (D.S.S.
17 Nos. 47-48.) On or about July 19, 2022, Plaintiff filed an amendment to her complaint identifying the
18 WTSC as “DOE 11.” (D.S.S., No. 49.) Against WTSC (DOE 11), Plaintiff alleges the location she fell “was
19 negligently and carelessly installed, owned, maintained, repaired, managed, constructed, controlled,
20 inspected by Defendants.” (Emphasis Added.) (D.S.S., No. 50.) Plaintiff further alleges WTSC (DOE 11):
21 “had actual and/or constructive notice that such tripping hazard and dangerous condition existed, and failed
22 to warn members of the general public, including Plaintiff herein, of said danger or to remedy the danger.”
23 (D.S.S., No. 51.) Plaintiff further alleges against WTSC (DOE 11): “At said time and place, and at all
24 relevant times prior to the incident, the sprinkler valve box in the grassy area of the park near the playground
25 and pool was negligently and carelessly installed, owned, maintained, repaired, managed, constructed,
26 controlled, and/or inspected by DOES 1 to 50...” (D.S.S., 52.) The District previously filed a Motion for
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF CROSS-COMPLAINANT WASCO RECREATION
AND PARK DISTRICT’S OPPOSITION TO WASCO TIGER SHARKS AND HDI GLOBAL SPECIALTY SE’S MOTION
FOR SUMMARY JUDGMENT
1 Summary Adjudication as to the FACC. (D.S.S., No. 53.) The Court denied the Motion, finding there were
2 triable issues of fact as to whether Cross-Defendants’ duty to defend and indemnify ever arose. (D.S.S. 55.)
3 E. Dispute as to Where Plaintiff Fell
4 Cross-Defendants have proffered as undisputed that Plaintiff stepped into a hole at a sprinkler valve
5 box. (Cross-Defendants’ Separate Statement, No. 19.) At deposition, however, Plaintiff acknowledged she
6 never saw the hole she allegedly tripped over.
7 (D.S.S., No. 57.) Rather, Plaintiff testified she
8 believes she stepped in a hole because her son,
9 Troy Peltz (“Mr. Peltz”), told her so. (D.S.S.,
10 No. 58.) However, Mr. Peltz testified that he did
11 not witness her fall and that he was not even at
12 the park at the time of the fall. (D.S.S, No. 59-
13 61.)
14 At her deposition,
15 Plaintiff marked the location of
16 her fall with an “x” on an aerial
17 diagram. (D.S.S., No. 65.) That
18 image is depicted to the left.
19 The other witnesses who
20 Plaintiff identified has having
21 knowledge of where she fell
22 testified that Plaintiff fell
23 where the “x” is depicted.
24 (D.S.S., No. 66.) However, as
25 demonstrated by the below
26 image, the location marked with an “x” is not where the sprinkler valve exists that Plaintiff now claims
27 caused her fall. (D.S.S. No. 67.) (Note: The sprinkler valve was cautioned off by WRPD after Plaintiff’s
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF CROSS-COMPLAINANT WASCO RECREATION
AND PARK DISTRICT’S OPPOSITION TO WASCO TIGER SHARKS AND HDI GLOBAL SPECIALTY SE’S MOTION
FOR SUMMARY JUDGMENT
1 fall. (D.S.S. No. 68.)Witness Jeff Boyd saw Plaintiff on the ground after her fall and testified there was no
2 sprinkler valve at that location: “[I]t was just like a regular park. There’s you know, there was grass . . . but
3 I mean, I didn't see anything that would have, you know, said, you know, this is why she fell . . . so when
4 [Plaintiff] did talk to me . . . in 2022, she was saying that she was trying to sue Wasco for tripping over a
5 sprinkler or a ditch. . . . She said . . . she tripped over something that was there on the ground . . . I don't
6 recall seeing anything as such that, you know, caused her to trip. There was a lot of people there that day.
7 And I don’t—I don’t see how she would have tripped in that area…I – I didn't see anything. (D.S.S. 69-
8 70.) Jeff Boyd was then asked: “But you didn’t personally observe any—anything on the ground that—that
9 you think she might have tripped over?” He answered: “Not in the area where she was at.” (D.S.S. 69-70.)
10 F. Settlement of Plaintiff’s Claims Against the District
11 Plaintiff and the District have settled Plaintiff’s claims against the District and are in the process of
12 finalizing the settlement agreement. (D.S.S., No. 71.)
13 III. LEGAL STANDARD
14 The party moving for summary judgment bears the burden of persuasion that there is no triable issue
15 of material fact and that he or she is entitled to a judgment as a matter of law. (Aguilar v. Atlantic Richfield
16 Co. (2001) 25 Cal.4th 826, 850.) “Summary judgment is properly granted only when the evidence in support
17 of the moving party establishes that there is no issue of fact to be tried.” (Lipson v. Superior Court (1982)
18 31 Cal.3d 362, 374.) In examining the supporting and opposing papers, the moving party’s affidavits or
19 declarations are strictly construed and those of the opposing party are liberally construed; any doubts as to
20 the propriety of granting the motion should be resolved in the favor the party opposing them. (Corwin v.
21 Los Angeles Newspaper Service Bureau, Inc. (1971) 4 Cal.3d 842, 851-852.) “Summary judgment is
22 properly granted only when the evidence in support of the moving party establishes that there is no issue of
23 fact to be tried.” (Lipson v. Superior Court (1982) 31 Cal.3d 362, 374.) A declaration of a party opposing
24 a summary judgment motion which raises one triable issue of fact is sufficient to deny the motion.
25 (McManis v. San Diego Postal Credit Union (1998) 61 Cal.App.4th 547, 555; Estate of Houseley (1997)
26 56 Cal.App.4th 342, 359.)
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF CROSS-COMPLAINANT WASCO RECREATION
AND PARK DISTRICT’S OPPOSITION TO WASCO TIGER SHARKS AND HDI GLOBAL SPECIALTY SE’S MOTION
FOR SUMMARY JUDGMENT
1 IV. WTSC’S MOTION FOR SUMMARY JUDGMENT MUST BE DENIED
2 A. There is a Triable Issue of Fact as to Whether Cross-Defendants are Liable for Express and/or
3 Equitable Indemnity.
4 The District’s First Cause of Action for Indemnity is asserted against both Cross-Defendants. (Ex.
5 P to the IOE, Southard Decl., ¶ 3; Ex. BB to the IOE, FACC, ¶¶ 15-20.) Cross-Defendants contend the
6 District’s equitable indemnity claim fails because “one cannot assert facts supporting both express
7 indemnity and equitable indemnity in the same cause of action.” (Motion, 10:5-6.) Cross-Defendants
8 contend the express indemnity provision here, “whether or not it actually provides indemnity in this
9 instance” controls over any assertion of equitable indemnity, comparative contribution, or apportionment of
10 fault,” citing Morlin Asset Management LP v. Murachanian (“Morlin”) (2016) 2 Cal.App.5th 184, 192.
11 (Motion, 10:20-22.) The Morlin court, in turn, relied on the California Supreme Court’s decision in E.L.
12 White, Inc. v. Huntington Beach (1978) 21 Cal.3d 497, 508, for the proposition that “when parties by express
13 contractual provision establish a duty in one party to indemnify the other, ‘the extent of that duty must be
14 determined from the contract and not from the doctrine of equitable indemnity.’” (Morlin, supra, 2
15 Cal.App.5th at 192, citing E.L., supra, 21 Cal.3d 497, 508.)
16 However, the California Supreme Court in E.L. ultimately held that “[w]hen . . . the duty established
17 by contract is by the terms and conditions of its creation inapplicable to the particular factual setting before
18 the court, the equitable principles of implied indemnity may indeed come into play.” (E.L. White, Inc. v.
19 City of Huntington Beach (1978) 21 Cal.3d 497, 506–508 (emphasis added); see also C.L., supra, 159
20 Cal.App.3d at p. 757; see also People ex rel. Dept. Pub. Wks. v. Daly City Scavenger Co. (1971) 19
21 Cal.App.3d 277, 280.) Indeed, the Supreme Court in E.L. held that an equitable indemnity claim was not
22 barred where a contractual indemnity agreement excluded damages arising from the indemnitee’s active
23 negligence, and where a court had previously determined a plaintiff’s injuries were caused by the
24 indemnitee’s active negligence. (E.L., supra, 21 Cal.3d at p. 510.) “Accordingly, the principles of implied
25 equitable indemnity must be held to have come into play.” (Id.)
26 Here, while the District contends it is entitled to contractual indemnity, an alternative theory is
27 implied indemnity. There are triable issues of fact as to whether Cross-Defendants are liable to the District
28
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF CROSS-COMPLAINANT WASCO RECREATION
AND PARK DISTRICT’S OPPOSITION TO WASCO TIGER SHARKS AND HDI GLOBAL SPECIALTY SE’S MOTION
FOR SUMMARY JUDGMENT
1 under theories of both express contractual and equitable indemnity. With respect to express contractual
2 indemnity, there are issues of fact as to whether WTSC rented only the pool facility, or whether it rented
3 the entire park, and thus whether the FUA’s indemnity provision and HDI’s additional insured language
4 applies to Plaintiff’s claims. (District’s Responses to Cross-Defendants’ Separate Statement, UMF Nos. 3-
5 4, 6, 8-11, 15, 17, 21-28, 30-33, 37-39, 45; D.S.S. Nos. 3-24, 30-38.) Additionally, there are triable issues
6 of fact as to whether WTSC rented the entire park, and had a duty to inspect, warn, and remedy against
7 potential hazards existing on the grassy area where Plaintiff fell (and breached its duty by failing to do so).
8 (District’s Responses to Cross-Defendants’ Separate Statement (“C.S.S.”), Nos. 3-4, 6, 8-11, 15, 17, 21-28,
9 30-33, 37-39, 45; D.S.S. Nos. 3-24, 30-38..) Thus, summary judgment is improper as to both theories. A
10 trier of fact must decide: (1) whether the FUA’s indemnity clause and HDI’s additional insured language
11 applies to the fact of this case, and if not, (2) whether WTSC may otherwise be held liable for equitable
12 indemnity.
13 1. There are triable issues of fact as to whether the FUA’s express indemnity provision and
14 HDI’s additional insured endorsement apply.
15 Here, the FUA provides: “[WTSC] shall indemnify, defend, and hold harmless [the District] . . .
16 from any and all . . . liabilities . . . arising at any time out of or in any way related to [WTSC’s] use or
17 occupancy of a facility or property controlled by [the District], unless solely caused by the gross negligence
18 or willful misconduct of” the District or its employees. (D.S.S, No. 28.) Cross-Defendants contend the
19 indemnity provision in the FUA does not apply to Plaintiff’s claims because WTSC only rented the pool
20 facility, and not the grassy area where Plaintiff fell. (Motion, 7:23-8:20, 14:6-21:16; see also C.S.S., Nos.
21 3, 6-11, 17, 21-31, 33-39.) Cross-Defendants further argue HDI’s additional insured endorsement language
22 is inapplicable because the policy only applied to portions of the premises leased to WTSC. (Motion, 22:1-
23 21:16; C.S.S., Nos. 34-39.)
24 There is unequivocally a factual dispute regarding WTSC’s contention that it only rented the pool
25 facility and did not rent or otherwise control the remainder of the park. (C.D.S.S. Nos. 3-4, 6, 8-11, 15, 17,
26 21-28, 30-33, 37-39, 45; D.S.S. Nos. 3-24, 30-38.) As set forth above in Section II(B), WTSC’s rental
27 constituted a “whole park rental” due to the large size of the swim meet, which drew hundreds of spectators
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF CROSS-COMPLAINANT WASCO RECREATION
AND PARK DISTRICT’S OPPOSITION TO WASCO TIGER SHARKS AND HDI GLOBAL SPECIALTY SE’S MOTION
FOR SUMMARY JUDGMENT
1 who by necessity had to spread themselves throughout the park due to limited access to the pool deck and
2 bleachers. (D.S.S., Nos. 3-24, 30-38.) By renting the entire park, WTSC obtained control of more areas of
3 the park than just the pool, including the right to exclude the general public from the grassy areas (where
4 Plaintiff alleges she fell) on the day of the incident. (D.S.S. Nos. 3-24, 30-38.) Cross-Defendants’ claim that
5 WTSC merely rented and was responsible for only the pool is belied by the factual record before this Court.
6 WTSC expected its guests would be able to use and its guests did in fact use the grassy areas where Plaintiff
7 fell. (D.S.S. Nos. 3-24, 30-38.) Moreover, WTSC expressly directed its guests to bring “their gear (shade
8 canopies, lawn chairs, blanket, ice chest, picnic items…” and to “set up their ‘camp’ in designated areas –
9 look for other Tigershark families as we usually set up our gear in the same general area…” (D.S.S. No.
10 16.) WTSC also instructed its guests “Swimmers and families ‘hang out’ in the camp area socializing,
11 stretching and otherwise waiting for their events…Swimmers and families come and go from the camp to
12 the pool as they swim their event…” (D.S.S. No. 16.) WTSC’s guests had no choice but to camp in the
13 grassy areas because there were hundreds of guests but the capacity in the bleachers next to the pool was
14 only 50-75 people and guests were not allowed on the pool deck. (D.S.S. No. 36.)
15 WTSC concedes that Plaintiff was at the park because her grandson was competing in WTSC’s swim
16 meet, and her fall occurred while she was going to retrieve her grandson because his event was approaching.
17 (C.S.S. Nos. 13-14, 18-19.) Thus, Plaintiff’s injury arose out of and/or was related to WTSC’s use of the
18 park, i.e., the swim meet. (C.S.S. Nos. 13-14, 18-19; D.S.S. Nos. 34-37, 39-40; see also Ex. A to the IOE,
19 Facilities Use Agreement (“FUA”), p. 003.) Clearly, WTSC’s motion must be denied given that there is a
20 factual dispute regarding whether WTCS was in “control” of areas beyond the pool, including the grassy
21 area where Plaintiff fell.2
22 2. There are triable issues of fact as to whether Cross-Defendants are liable under a theory of
23 equitable indemnity.
24 There are also triable issues of fact as to whether WTSC can be held liable under a theory of equitable
25 indemnity, as WTSC exercised control over the entire park, including the grassy area where Plaintiff fell,
26
2
Regardless, even if WTSC did not rent the whole park and the area where Plaintiff fell was controlled by the District, the
27 indemnity clause still applies because WTSC expressly contracted to defend and indemnify the District for injuries arising from
WTSC’s “use or occupancy of a facility or property controlled by [the District]” (D.S.S., Nos. 28-29.)
28
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF CROSS-COMPLAINANT WASCO RECREATION
AND PARK DISTRICT’S OPPOSITION TO WASCO TIGER SHARKS AND HDI GLOBAL SPECIALTY SE’S MOTION
FOR SUMMARY JUDGMENT
1 and thus owed Plaintiff and other spectators a duty to inspect, warn against, and remedy any potential
2 hazards. “‘[T]he duties owed in connection with the condition of land are not invariably placed on the person
3 [holding title] but, rather, are owed by the person in possession of the land [citations omitted] because [of
4 the possessor’s] supervisory control over the activities conducted upon, and the condition of, the land.’”
5 (Alcaraz v. Vece (1997) 14 Cal.4th 1149, 1157–58, citing Sprecher v. Adamson Companies (1981) 30 Cal.3d
6 358, 368.) The California Supreme Court has “recognized . . . that a defendant who lacks title to property
7 still may be liable for an injury caused by a dangerous condition on that property if the defendant exercises
8 control over the property.” (Id.; see also Preston v. Goldman (1986) 42 Cal.3d 108, 119 [“[W]e have placed
9 major importance on the existence of possession and control as a basis for tortious liability for conditions
10 on the land.”].))
11 A person who controls property owes a duty to “‘inspect [the premises] or take other proper means
12 to ascertain their condition’ and, if a dangerous condition exists that would have been discovered by the
13 exercise of reasonable care, has a duty to give adequate warning of or remedy it.” (Staats v. Vintner’s Golf
14 Club, LLC (2018) 25 Cal.App.5th 826, 833, citations omitted.) For instance, the California Supreme Court
15 in Johnston v. De La Guerra Properties, Inc. (1946) 28 Cal.2d 394 held that owners of a restaurant who
16 leased the restaurant, but not the walkway leading to the restaurant, exercised sufficient control over the
17 walkway such that it could be held liable to the plaintiff, who sustained injuries on the walkway. (Id. at p.
18 401 [“It is clear . . . that if the tenant exercises control over a common passageway outside the leased
19 premises, he may become liable to his business invitees if he fails to warn them of a dangerous condition
20 existing thereon.”].)
21 As discussed at length above in Section II(B), WTSC’s rental of the park on the day of the incident
22 was a “whole park rental,” whereby WTSC had the right to exclude members of the general public from the
23 entire park, and most notably, the grassy area where Plaintiff fell. (D.S.S., Nos. 3-24, 30-38.) Indeed, the
24 grassy area where Plaintiff and other witnesses testified she fell was filled with “hundreds” of spectators
25 camped out to watch the meet. (D.S.S., Nos. 3-24, 30-38.)3 Pursuant to basic landlord tenant law, WTSC
26
3
As discussed above in Section II(C), the hundreds of spectators had to spread themselves outside of the immediate pool facility
27 because the bleachers near the pool deck only sat 50 to 75 people and WTSC limited access to the pool deck to judges and
swim meet participants. (D.S.S. Nos. 36, 37.)
28
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF CROSS-COMPLAINANT WASCO RECREATION
AND PARK DISTRICT’S OPPOSITION TO WASCO TIGER SHARKS AND HDI GLOBAL SPECIALTY SE’S MOTION
FOR SUMMARY JUDGMENT
1 thus had a duty to remedy or warn against any potential hazards existing at that location on the day of the
2 incident. (Alcaraz, supra, 14 Cal.4th 1149, 1157–58; Preston v. Goldman (1986) 42 Cal.3d 108, 119.)
3 WTSC concedes it failed to inspect any areas outside the immediate pool facility or otherwise warn against
4 potential hazards, even though it knew that its hundreds of guests would be using those areas. (Motion,
5 12:11-13; D.S.S. Nos. 30-33, 35-38.) As such, there is a triable issue of fact as to whether WTSC breached
6 that duty and is thereby liable to the District for equitable indemnity. (C.W. v. Howe Partners Inc. v.
7 Mooradian (2019) 43 Cal.App.5th 688, 700 [“Equitable indemnity . . . is premised on a joint legal obligation
8 to another for damages,” and “is subject to allocation of fault principles and comparative equitable
9 apportionment of loss.”].)
10 Cross-Defendants incorrectly suggest that “[t]he District - through the deposition testimony of its
11 Person Most Knowledgeable/Qualified [Chris Serna] . . . has conceded that the Tiger Sharks had no duty to
12 inspect this area, locate any holes, fill the holes, or do anything else in connection with this area. It has
13 admitted that this was solely the District’s duty and obligation.” (Motion, 12:19-22.) The testimony relied
14 on by Cross-Defendants is inadmissible, as it calls for a legal conclusion and for speculation. (Objections to
15 Evidence, No. 1.) Further, Ms. Serna spoke in terms was testifying about general park maintenance rather
16 than legal duties with respect to the FUA. (See Ex. N to the IOE, Transcript of Deposition of Maria Christina
17 Serna (“Serna Depo.”), 43:17-45:7, 49:14-50:6.)
18 Regardless, Cross-Defendants deceptively omit Ms. Serna’s crucial testimony that, due to WTSC’s
19 “full park rental,” they would, as part of their “facility check . . . also have some responsibility in ensuring
20 their guests that we’re [sic] going to be setting up in those locations [grassy areas] were in an area where
21 there were no issues.” (D.S.S., No. 20.) WTSC further contends it had no access to the park’s sprinkler
22 system and thus could not have remedied against any dangerous condition existing there. (Motion, 8:2014,
23 11:2-14:3.) However, Plaintiff’s fall did not actually occur at a sprinkler valve. (D.S.S. Nos. 56-7-; see also
24 District’s Responses to C.S.S. No. 19.) Moreover, WTSC could have, and was expected to, inform the
25 District of any potential hazards at the park, including the area surrounding the sprinkler valve box. (D.S.S.
26 3-22; see also Alcaraz, supra, 14 Cal.4th at pp. 1157–58; Preston, supra, 42 Cal.3d at p. 119.) If WTSC
27
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF CROSS-COMPLAINANT WASCO RECREATION
AND PARK DISTRICT’S OPPOSITION TO WASCO TIGER SHARKS AND HDI GLOBAL SPECIALTY SE’S MOTION
FOR SUMMARY JUDGMENT
1 determined the area to be a hazard, it could and should have warned of the perceived hazard even if it had
2 no responsibility for installing or maintaining it. (D.S.S. Nos. 18-22.)
3 There are clearly disputed issues of fact as to whether WTSC controlled the area where Plaintiff
4 fell and thus owed her a duty to inspect and safeguard against any potential hazards. Therefore, WTSC’s
5 motion for summary judgment must be denied. (Jos. Schlitz Brewing Co., supra, 109 Cal.App.3d at p. 914;
6 McManis, 61 Cal.App.4th at p. 555 [“Counter-affidavits and declarations need not prove the opposition’s
7 case; they suffice if they disclose the existence of a triable issue.”]; Estate of Houseley, supra, 56
8 Cal.App.4th at p. 359.)
9 B. There are Triable Issues of Material Fact as to Whether Cross-Defenda
Preview
1 2 A PROFESSIONAL CORPORATION William E. Camy, SBN 291397 3 Alison J. Southard, SBN 335716 2180 Harvard Street, Suite 500 4 Sacramento, CA 95815 5 TEL: 916.929.1481 FAX: 916.927.3706 6 EMAIL: wcamy@porterscott.com asouthard@porterscott.com 7 Attorneys for Defendant/Cross-Complainant, WASCO RECREATION AND PARK DISTRICT 8 Exempt from filing fee pursuant to Government Code section 6103 9 SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 FOR THE COUNTY OF KERN 11 12 13 TYNA POWELL, Case No.: BCV-22-100328 14 Plaintiff, MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF CROSS- 15 vs. COMPLAINANT WASCO RECREATION AND PARK DISTRICT’S OPPOSITION TO CROSS- 16 WASCO RECREATION AND PARK DEFENDANTS WASCO TIGERSHARKS AND DISTRICT, CITY OF WASCO and DOES 1 HDI GLOBAL SPECIALTY SE’S MOTION FOR 17 through 50, inclusive, SUMMARY JUDGMENT 18 Defendants. Date: April 17, 2024 Time: 8:30 19 Dept.: H 20 / Complaint filed: February 10, 2022 21 22 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF CROSS-COMPLAINANT WASCO RECREATION AND PARK DISTRICT’S OPPOSITION TO WASCO TIGER SHARKS AND HDI GLOBAL SPECIALTY SE’S MOTION FOR SUMMARY JUDGMENT 1 TABLE OF CONTENTS 2 I. INTRODUCTION ................................................................................................................... 1 3 II. STATEMENT OF FACTS ...................................................................................................... 1 4 A. Renting Barker Park ............................................................................................................ 2 5 B. Facility Use Agreement ....................................................................................................... 2 6 C. The Subject Incident............................................................................................................ 4 7 D. The District’s Tender of Defense, WTSC’s Denial, and Pleadings .................................... 5 8 E. Dispute as to Where Plaintiff Fell ....................................................................................... 6 9 F. Settlement of Plaintiff’s Claims Against the District .......................................................... 7 10 III. LEGAL STANDARD .............................................................................................................. 7 11 12 IV. WTSC’S MOTION FOR SUMMARY JUDGMENT MUST BE DENIED ........................... 8 13 A. There is a Triable Issue of Fact as to Whether Cross-Defendants are Liable for Express and/or Equitable Indemnity ....................................................................... 8 14 1. There are triable issues of fact as to whether the FUA’s express indemnity provision 15 And HDI’s additional insured endorsement apply................................................................... 9 16 2. There are triable issues of fact as to whether Cross-Defendants are liable 17 Under a theory of equitable indemnity .................................................................................. 10 18 B. There are Triable Issues of Material Fact as to Whether Cross-Defendants Owe a Duty to Defend and Indemnify the District Against Plaintiff’s 19 Claims, and Thus Whether they Breached That Duty .......................................................... 13 20 1. The indemnity provision should not be strictly construed against the District.................. 13 21 2. The indemnity provision clearly applies to Plaintiff’s claims ........................................... 13 22 3. Cross-Defendants Owed the District a Duty to Defend ..................................................... 16 23 4. There are Triable Issues of Fact Regarding Declaratory Relief and Breach of Contract .. 17 24 C. Cross-Defendants Misunderstood the Court’s Ruling on the District’s Motion for Summary Adjudication ........................................................................................ 18 25 D. WTSC’s Public Policy Argument is Unpersuasive........................................................... 18 26 V. CONCLUSION ...................................................................................................................... 20 27 28 i MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF CROSS-COMPLAINANT WASCO RECREATION AND PARK DISTRICT’S OPPOSITION TO WASCO TIGER SHARKS AND HDI GLOBAL SPECIALTY SE’S MOTION FOR SUMMARY JUDGMENT 1 TABLE OF AUTHORITIES 2 3 Cases 4 Acceptance Ins. Co. v. Syufy Enterprises, 5 (1999) 69 Cal.App.4th 321 ................................................................................................................... 18 Aguilar v. Atlantic Richfield Co., 6 (2001) 25 Cal.4th 826 ............................................................................................................................. 7 Alcaraz v. Vece, 7 (1997) 14 Cal.4th 1149 ................................................................................................................... 11, 12 8 American Casualty Company of Reading, PA, supra, 125 Cal.App.4th ......................................................................................................................... 18 9 C.L., supra, 159 Cal.App.3d at p. ............................................................................................................................... 8 10 C.W. v. Howe Partners Inc. v. Mooradian, 11 (2019) 43 Cal.App.5th 688 ................................................................................................................... 12 City of Oakland v. Oakland etc. Sch. Dist., 12 (1956) 141 Cal.App.2d 733 .................................................................................................................. 15 City of Watsonville v. Corrigan, 13 (2007) 149 Cal.App.4th 1542 ......................................................................................................... 13, 18 14 Corwin v. Los Angeles Newspaper Service Bureau, Inc., (1971) 4 Cal.3d 842 ................................................................................................................................ 7 15 Crawford v. Weather Shield Mfg., Inc., (2008) 44 Cal.4th 541 .................................................................................................................... passim 16 E.L. White, Inc. v. Huntington Beach, 17 (1978) 21 Cal.3d 497 .............................................................................................................................. 8 Estate of Houseley, 18 (1997) 56 Cal.App.4th 342 ............................................................................................................... 7, 13 Fireman’s Fund Ins. Co. v. Discover Property & Cas. Ins. Co., 19 (N.D. Cal. 2009) 2009 WL 2591394 .................................................................................................... 16 20 Goldman v. Ecco-Phoenix Elec. Corp., (1964) 62 Cal.2d 40 .............................................................................................................................. 15 21 Hartford v. State of California, 22 (1996) 41 Cal.App.4th 1564 ................................................................................................................. 16 Heppler v. J.M. Peters Co., 23 (1999) 73 Cal.App.4th 1265 ........................................................................................................... 13, 14 Hollander v. Wilson Estate Co., 24 (1932) 214 Cal. 582 .............................................................................................................................. 15 25 Johnston v. De La Guerra Properties, Inc. (1946) 28 Cal.2d 394 ..................................................................................................................... 11 26 Lipson v. Superior Court, (1982) 31 Cal.3d 362 .............................................................................................................................. 7 27 28 ii MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF CROSS-COMPLAINANT WASCO RECREATION AND PARK DISTRICT’S OPPOSITION TO WASCO TIGER SHARKS AND HDI GLOBAL SPECIALTY SE’S MOTION FOR SUMMARY JUDGMENT Maryland Casualty Co. v. Nationwide Ins. Co., 1 (1998) 65 Cal.App.4th 21 ..................................................................................................................... 16 2 McManis v. San Diego Postal Credit Union, (1998) 61 Cal.App.4th 547 ............................................................................................................... 7, 13 3 McMillan Homes Construction, Inc. v. National Fire & Marine Insurance Company, (2019) 35 Cal.App.5th 1042 ................................................................................................................. 16 4 Montrose Chemical Corp. v. Superior Court, 5 (1993) 6 Cal.4th 287 ....................................................................................................................... 17, 18 Morlin Asset Management LP v. Murachanian (“Morlin”, 6 ) (2016) 2 Cal.App.5th 184. (Motion, 10:20-22.) ....................................................................... 8, 14, 15 7 People ex rel. Dept. Pub. Wks. v. Daly City Scavenger Co., (1971) 19 Cal.App.3d 277 ...................................................................................................................... 8 8 Preston v. Goldman, (1986) 42 Cal.3d 108 ...................................................................................................................... 11, 12 9 Schlitz Brewing Co., 10 supra, 109 Cal.App.3d at p. .................................................................................................................. 13 Sprecher v. Adamson Companies, 11 (1981) 30 Cal.3d 358 ............................................................................................................................ 11 Staats v. Vintner’s Golf Club, LLC, 12 (2018) 25 Cal.App.5th 826 ................................................................................................................... 11 13 Statutes 14 California Civil Code section 2778(5) ................................................................................................ 15, 16 15 16 17 18 19 20 21 22 23 24 25 26 27 28 iii MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF CROSS-COMPLAINANT WASCO RECREATION AND PARK DISTRICT’S OPPOSITION TO WASCO TIGER SHARKS AND HDI GLOBAL SPECIALTY SE’S MOTION FOR SUMMARY JUDGMENT 1 I. INTRODUCTION 2 Cross-Defendant Wasco Tigersharks Swim Club (“WTSC”) and HDI GLOBAL SPECIALTY SE’s 3 (“HDI”) Motion for Summary Judgment (“Motion”) is premised on its proffered “undisputed” fact that 4 WTSC only rented the pool at Barker Park, and not the grassy area where Plaintiff Tyna Powell (“Plaintiff”) 5 fell, on the day in question. To support this claim, WTSC relies on the self-serving testimony from its 6 President, Joaquin Castillo. However, WTSC ignores the mountain of contradicting evidence, including: (1) 7 Wasco Recreation and Park District (“District”) Manager, Chris Serna, testified that WTSC paid for a 8 “whole park rental,” which included the right for WTSC to use and exclude the general public from the 9 grassy area of the park where Plaintiff fell; (2) WTSC expected its approximately 500 guests would use, 10 and its guests did in fact use, the grassy area where Plaintiff fell; (3) WTSC’s spectators were not allowed 11 on the pool deck and the adjacent bleachers only sat 50-75 people, thus necessitating WTSC’s guests use 12 the grassy areas; and (4) WTSC expressly instructed its hundreds of spectators to set up their gear throughout 13 the grassy area of the park, including where Plaintiff fell. WTSC also ignores Plaintiff’s allegations that 14 WTSC controlled the area where she fell, and her allegations control for the purposes of evaluating where 15 Cross-Defendants owe the District a duty of defense. Clearly, there is a disputed fact on this seminal issue 16 which requires Cross-Defendants’ Motion be denied. Other issues further command this Motion be denied. 17 For example, Cross-Defendants proffered as undisputed that Plaintiff fell at a sprinkler valve, but she did 18 not. Cross-Defendants also proffered that the additional insured endorsement solely identifies the pool but 19 ignore that, pursuant to the unambiguous terms of the Facility Use Agreement (“FUA”), WTSC was required 20 to “name the Wasco Recreation and Park District, its officers, employees, agents, and volunteers as 21 additional insureds.” These are just some of many examples, discussed in more detail herein, of triable 22 issues that require a denial of Cross-Defendants’ Motion. The District thus requests the Court deny this 23 Motion so it can finally have its day in Court to obtain the relief it is entitled to. 24 II. STATEMENT OF FACTS 25 A. Renting Barker Park 26 Barker Park is available to rent to members of the public. (District’s Separate Statement of Disputed 27 Material Facts (“D.S.S.”), No. 1.) The District uses a fee schedule whereby renters pay different fees 28 1 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF CROSS-COMPLAINANT WASCO RECREATION AND PARK DISTRICT’S OPPOSITION TO WASCO TIGER SHARKS AND HDI GLOBAL SPECIALTY SE’S MOTION FOR SUMMARY JUDGMENT 1 depending on the type of rental. (D.S.S., No. 2.) The District requires any organization hosting an event 2 with one hundred people or more to rent the entire park, rather than one facility within the park, due to the 3 large size of the event (called a “whole park rental”). (D.S.S., No. 3.) If a renter pays for a “whole park 4 rental” the renter has the right, if they choose, to exclude members of the general public from the park, 5 including the grassy areas of the park. (D.S.S., No. 4.) In 2021, in contrast to a “whole park rental,” small 6 group renters who only rented the pool facility did not obtain the right to exclude the public from other 7 areas of the park, including the grassy areas surrounding the pool facility. (D.S.S., No 5.) In 2021, the fee 8 for up to 50 people to rent just the pool facility was $185 for one hour and forty-five minutes. (D.S.S., 6.) 9 B. Facility Use Agreement 10 On or about June 17, 2021, WTSC and the District executed an FUA for WTSC’s use of District 11 facilities from June 1, 2021, through July 31, 2021. (D.S.S., No. 7.) For the Court’s reference, the location 12 of the pool within the park is depicted in the aerial image below. (Ex. G to the IOE, Serna Decl., ¶ 3; Ex. F 13 to the IOE, Aerial Image.) Prior to entering the FUA, then-interim District Manager Maria Christina Serna 14 (“Ms. Serna”) discussed the terms of the FUA with WTSC president Joaquin Castillo. (D.S.S., 8.) During 15 these conversations, Ms. Serna explained that the FUA 16 encompassed a “whole park rental” and that WTSC 17 was paying a fee for a “whole park rental.” (D.S.S, 9.) 18 Ms. Serna explained that, pursuant to the “whole park 19 rental,” WTSC would have the power to exclude 20 members of the general public from the park, including 21 but not limited to the grassy areas surrounding the pool 22 and the covered shelters. (D.S.S, 10.) 23 Additionally, by way of the FUA, WTSC paid 24 a fee for a “whole park rental” for the “A Meet” on 25 June 19, 2021, the date of the subject incident. (D.S.S., 26 No. 11.) Due to large size of the event, i.e., more than one hundred people, WTSC rented the entire park. 27 (D.S.S., No. 12.) Thus, WTSC obtained control of all of the areas of the park, including the right to exclude 28 2 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF CROSS-COMPLAINANT WASCO RECREATION AND PARK DISTRICT’S OPPOSITION TO WASCO TIGER SHARKS AND HDI GLOBAL SPECIALTY SE’S MOTION FOR SUMMARY JUDGMENT 1 the general public from the grassy areas (where Plaintiff alleges she fell) on the day of the incident. (D.S.S., 2 No. 13.) On WTSC’s website, it provided the following information for attendees of “A Meets”: “The A Meets are held on Saturdays and are the main event of a swim team. The day begins early 3 when families pack up all of their gear (shade canopies, lawn chairs, blanket, ice chest, picnic items. 4 . . Families set up their ‘camp’ in designated areas - look for other Tigershark families as we usually set up our gear in the same general area, although there is no requirement to do this. . . 5 Swimmers and families ‘hang out’ in the camp area socializing, stretching, and otherwise 6 waiting for their events . . . Swimmers and families come and go from the camp to the pool as 7 they swim their event and cheer on the other swimmers competing.” (D.S.S., No. 16.) 8 WTSC paid a $200 fee for its “A Meet” on the date of the incident, in addition to one District staff 9 member at the rate of $14.00 per hour for eight hours of general maintenance for each meet.1 (D.S.S., No. 10 15.) The FUA required WTSC to provide a list of maintenance duties for the District employee to complete. 11 (D.S.S., No. 17.) WTSC also had the right to place warnings—such as cones, caution tape, signs, or 12 markings—on the areas it controlled to warn its guests of any perceived potential hazards. (D.S.S., No. 13 18.) The District expected (as does well-established landlord-tenant law) that WTSC would either remedy 14 or warn against such potential hazards on its own, or inform the District of any of any District facility that 15 WTSC perceived to be potentially hazardous. (D.S.S., Nos. 19-20.) In and prior to 2021, the District 16 understood that on WTSC swim meet days, including the day of the subject incident, WTSC expected its 17 guests would have the right to use and expressly instructed its guests to use the grassy areas (including the 18 area where Plaintiff alleges she fell) for their gear, including pop up tents, chairs, ice chests, etc. (D.S.S., 19 No. 21.) By executing the FUA, WTSC also had the right to exclude the general public from those areas. 20 (D.S.S., No. 22.) Additionally, there are four “shelters” at Barker Park which provide relief from sun or 21 weather. (D.S.S., No. 23.) The shelters are generally available for the public to rent, but were not available 22 to rent on WTSC swim meet days, pursuant to the FUA. (D.S.S., No. 24.) 23 The FUA required WTSC to procure insurance and name “the Wasco Recreation and Park District, 24 its officers, employees, agents, and volunteers as additional insureds” on the policy “prior to the use of the 25 facility.” (D.S.S., No. 25.) The FUA further provided: “A certificate of insurance naming the District as 26 27 1 By contrast, in 2021, the fee for up to 50 people to rent just the pool facility was $185 for one hour and forty-five minutes. (D.S.S., No. 6.) 28 3 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF CROSS-COMPLAINANT WASCO RECREATION AND PARK DISTRICT’S OPPOSITION TO WASCO TIGER SHARKS AND HDI GLOBAL SPECIALTY SE’S MOTION FOR SUMMARY JUDGMENT 1 additional insured must be in possession of the District Manager prior to practice or season begins [sic].” 2 (D.S.S., No. 26.) WTSC in fact obtained insurance and named the District as an additional insured. (D.S.S., 3 No. 27.) Additionally, the FUA included a “Hold Harmless and Indemnification Clause” which stated: 4 “HOLD HARMLESS AND INDEMNIFICATION: Wasco Tiger Sharks Swim Club assume full 5 responsibility for accidents or damages which may arise out of use of the District Property, including without limitation from maintenance and cleanliness of the facilities or property usage. In that 6 regard; Wasco Tiger Sharks Swim Club agree(s) to shall indemnify, defend, and hold harmless Wasco Recreation and Park District, its officers, employees, and agents from any and all losses, 7 costs, expenses, claims, liabilities, actions, or damages, including liability for injuries to any 8 person or persons or damage to property arising at any time out of or in any way related to the Wasco Tiger Sharks Swim Club’s use or occupancy of a facility or property controlled by 9 the Wasco Recreation and Park District, unless solely caused by the gross negligence or willful 10 misconduct of Wasco Recreation and Park District, its officers employees, or agents with this agreement and use of Property.” (Emphasis Added.) 11 12 (D.S.S., No. 28.) WTSC further agreed: 13 “The Wasco Tiger Sharks Swim Club shall indemnify, defend, and hold harmless Wasco 14 Recreation and Park District, its officers, employees, and agents from any and all losses, costs, expenses, claims, liabilities, actions, or damages, including liability for injuries to any person 15 or persons or damage to property arising at any time out of or in any way related to the Wasco Tiger Sharks Swim Club’s use or occupancy of a facility or property controlled by the Wasco 16 Recreation and Park District, unless solely caused by the gross negligence or willful misconduct 17 of Wasco Recreation and Park District, its officers employees, or agents.” (Emphasis Added.) (D.S.S., No. 29.) 18 19 C. The Subject Incident 20 Pursuant to the terms of the FUA, on June 19, 2021, WTSC hosted a swim meet at Barker Park. 21 (D.S.S., No 30.) The day prior to the swim meet, WTSC posted information regarding the meet on their 22 Instagram page. (D.S.S. No. 31.) In the post, WTSC encouraged attendees of the June 19, 2021, swim meet 23 to “Bring Your Own Canopies Tomorrow. Sit with Friends & Cheer on our Tigersharks!” (D.S.S. No. 32.) 24 There were hundreds of individuals in attendance. (D.S.S, No. 33.) Plaintiff was one of the attendees who 25 went to watch her grandson compete in the swim meet hosted by WTSC. (D.S.S., No. 34.) Plaintiff, as well 26 as hundreds of other swim meet spectators, was sitting in the grassy area surrounding the pool. (D.S.S., No. 27 35.) While there was seating available on the bleachers adjacent to the pool, those bleachers only sat 50 to 28 4 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF CROSS-COMPLAINANT WASCO RECREATION AND PARK DISTRICT’S OPPOSITION TO WASCO TIGER SHARKS AND HDI GLOBAL SPECIALTY SE’S MOTION FOR SUMMARY JUDGMENT 1 75 people, and could not accommodate the hundreds of spectators who came to watch the event. (D.S.S., 2 No. 36.) Indeed, WTSC did not allow spectators to enter the gate and pool area, “because the swimmers 3 and the officials . . . were on the pool deck.” (D.S.S., No. 37.) 4 Plaintiff’s grandson was competing in the swim meet and his event was approaching, so Plaintiff 5 walked toward the playground to find him. (D.S.S., No. 39.) While walking toward the playground to 6 retrieve her grandson for his swimming event, Plaintiff rolled her ankle and fell. (D.S.S., No. 40.) As 7 discussed further in Section II(F), it is unclear what caused Plaintiff to fall. (D.S.S. 56-70.) Plaintiff claims 8 she stepped into a depressed sprinkler valve, but she did not inspect what caused her to fall and the only 9 witness who did inspect where she fell, Jeff Boyd, testified there was no such defect. (D.S.S. Nos. 56, 57, 10 59, 65-66, 69-70.) Further, the area where Plaintiff testified she fell is not where the sprinkler valve exists. 11 (D.S.S., Nos. 65-70.) Thus, a reasonable inference is that Plaintiff simply misstepped because she was 12 distracted while looking for her grandson and rolled her ankle due to mildly imperfect terrain. 13 D. The District’s Tender of Defense, WTSC’s Denial, and Pleadings 14 The District tendered its defense of Plaintiff’s action to Cross-Defendants on multiple occasions, 15 but Cross-Defendants rejected the tender. (D.S.S. Nos. 41-47.) Thus, the District filed the instant cross- 16 complaint, and operative First Amended Cross-Complaint (“FACC”) against Cross-Defendants. (D.S.S. 17 Nos. 47-48.) On or about July 19, 2022, Plaintiff filed an amendment to her complaint identifying the 18 WTSC as “DOE 11.” (D.S.S., No. 49.) Against WTSC (DOE 11), Plaintiff alleges the location she fell “was 19 negligently and carelessly installed, owned, maintained, repaired, managed, constructed, controlled, 20 inspected by Defendants.” (Emphasis Added.) (D.S.S., No. 50.) Plaintiff further alleges WTSC (DOE 11): 21 “had actual and/or constructive notice that such tripping hazard and dangerous condition existed, and failed 22 to warn members of the general public, including Plaintiff herein, of said danger or to remedy the danger.” 23 (D.S.S., No. 51.) Plaintiff further alleges against WTSC (DOE 11): “At said time and place, and at all 24 relevant times prior to the incident, the sprinkler valve box in the grassy area of the park near the playground 25 and pool was negligently and carelessly installed, owned, maintained, repaired, managed, constructed, 26 controlled, and/or inspected by DOES 1 to 50...” (D.S.S., 52.) The District previously filed a Motion for 27 28 5 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF CROSS-COMPLAINANT WASCO RECREATION AND PARK DISTRICT’S OPPOSITION TO WASCO TIGER SHARKS AND HDI GLOBAL SPECIALTY SE’S MOTION FOR SUMMARY JUDGMENT 1 Summary Adjudication as to the FACC. (D.S.S., No. 53.) The Court denied the Motion, finding there were 2 triable issues of fact as to whether Cross-Defendants’ duty to defend and indemnify ever arose. (D.S.S. 55.) 3 E. Dispute as to Where Plaintiff Fell 4 Cross-Defendants have proffered as undisputed that Plaintiff stepped into a hole at a sprinkler valve 5 box. (Cross-Defendants’ Separate Statement, No. 19.) At deposition, however, Plaintiff acknowledged she 6 never saw the hole she allegedly tripped over. 7 (D.S.S., No. 57.) Rather, Plaintiff testified she 8 believes she stepped in a hole because her son, 9 Troy Peltz (“Mr. Peltz”), told her so. (D.S.S., 10 No. 58.) However, Mr. Peltz testified that he did 11 not witness her fall and that he was not even at 12 the park at the time of the fall. (D.S.S, No. 59- 13 61.) 14 At her deposition, 15 Plaintiff marked the location of 16 her fall with an “x” on an aerial 17 diagram. (D.S.S., No. 65.) That 18 image is depicted to the left. 19 The other witnesses who 20 Plaintiff identified has having 21 knowledge of where she fell 22 testified that Plaintiff fell 23 where the “x” is depicted. 24 (D.S.S., No. 66.) However, as 25 demonstrated by the below 26 image, the location marked with an “x” is not where the sprinkler valve exists that Plaintiff now claims 27 caused her fall. (D.S.S. No. 67.) (Note: The sprinkler valve was cautioned off by WRPD after Plaintiff’s 28 6 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF CROSS-COMPLAINANT WASCO RECREATION AND PARK DISTRICT’S OPPOSITION TO WASCO TIGER SHARKS AND HDI GLOBAL SPECIALTY SE’S MOTION FOR SUMMARY JUDGMENT 1 fall. (D.S.S. No. 68.)Witness Jeff Boyd saw Plaintiff on the ground after her fall and testified there was no 2 sprinkler valve at that location: “[I]t was just like a regular park. There’s you know, there was grass . . . but 3 I mean, I didn't see anything that would have, you know, said, you know, this is why she fell . . . so when 4 [Plaintiff] did talk to me . . . in 2022, she was saying that she was trying to sue Wasco for tripping over a 5 sprinkler or a ditch. . . . She said . . . she tripped over something that was there on the ground . . . I don't 6 recall seeing anything as such that, you know, caused her to trip. There was a lot of people there that day. 7 And I don’t—I don’t see how she would have tripped in that area…I – I didn't see anything. (D.S.S. 69- 8 70.) Jeff Boyd was then asked: “But you didn’t personally observe any—anything on the ground that—that 9 you think she might have tripped over?” He answered: “Not in the area where she was at.” (D.S.S. 69-70.) 10 F. Settlement of Plaintiff’s Claims Against the District 11 Plaintiff and the District have settled Plaintiff’s claims against the District and are in the process of 12 finalizing the settlement agreement. (D.S.S., No. 71.) 13 III. LEGAL STANDARD 14 The party moving for summary judgment bears the burden of persuasion that there is no triable issue 15 of material fact and that he or she is entitled to a judgment as a matter of law. (Aguilar v. Atlantic Richfield 16 Co. (2001) 25 Cal.4th 826, 850.) “Summary judgment is properly granted only when the evidence in support 17 of the moving party establishes that there is no issue of fact to be tried.” (Lipson v. Superior Court (1982) 18 31 Cal.3d 362, 374.) In examining the supporting and opposing papers, the moving party’s affidavits or 19 declarations are strictly construed and those of the opposing party are liberally construed; any doubts as to 20 the propriety of granting the motion should be resolved in the favor the party opposing them. (Corwin v. 21 Los Angeles Newspaper Service Bureau, Inc. (1971) 4 Cal.3d 842, 851-852.) “Summary judgment is 22 properly granted only when the evidence in support of the moving party establishes that there is no issue of 23 fact to be tried.” (Lipson v. Superior Court (1982) 31 Cal.3d 362, 374.) A declaration of a party opposing 24 a summary judgment motion which raises one triable issue of fact is sufficient to deny the motion. 25 (McManis v. San Diego Postal Credit Union (1998) 61 Cal.App.4th 547, 555; Estate of Houseley (1997) 26 56 Cal.App.4th 342, 359.) 27 28 7 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF CROSS-COMPLAINANT WASCO RECREATION AND PARK DISTRICT’S OPPOSITION TO WASCO TIGER SHARKS AND HDI GLOBAL SPECIALTY SE’S MOTION FOR SUMMARY JUDGMENT 1 IV. WTSC’S MOTION FOR SUMMARY JUDGMENT MUST BE DENIED 2 A. There is a Triable Issue of Fact as to Whether Cross-Defendants are Liable for Express and/or 3 Equitable Indemnity. 4 The District’s First Cause of Action for Indemnity is asserted against both Cross-Defendants. (Ex. 5 P to the IOE, Southard Decl., ¶ 3; Ex. BB to the IOE, FACC, ¶¶ 15-20.) Cross-Defendants contend the 6 District’s equitable indemnity claim fails because “one cannot assert facts supporting both express 7 indemnity and equitable indemnity in the same cause of action.” (Motion, 10:5-6.) Cross-Defendants 8 contend the express indemnity provision here, “whether or not it actually provides indemnity in this 9 instance” controls over any assertion of equitable indemnity, comparative contribution, or apportionment of 10 fault,” citing Morlin Asset Management LP v. Murachanian (“Morlin”) (2016) 2 Cal.App.5th 184, 192. 11 (Motion, 10:20-22.) The Morlin court, in turn, relied on the California Supreme Court’s decision in E.L. 12 White, Inc. v. Huntington Beach (1978) 21 Cal.3d 497, 508, for the proposition that “when parties by express 13 contractual provision establish a duty in one party to indemnify the other, ‘the extent of that duty must be 14 determined from the contract and not from the doctrine of equitable indemnity.’” (Morlin, supra, 2 15 Cal.App.5th at 192, citing E.L., supra, 21 Cal.3d 497, 508.) 16 However, the California Supreme Court in E.L. ultimately held that “[w]hen . . . the duty established 17 by contract is by the terms and conditions of its creation inapplicable to the particular factual setting before 18 the court, the equitable principles of implied indemnity may indeed come into play.” (E.L. White, Inc. v. 19 City of Huntington Beach (1978) 21 Cal.3d 497, 506–508 (emphasis added); see also C.L., supra, 159 20 Cal.App.3d at p. 757; see also People ex rel. Dept. Pub. Wks. v. Daly City Scavenger Co. (1971) 19 21 Cal.App.3d 277, 280.) Indeed, the Supreme Court in E.L. held that an equitable indemnity claim was not 22 barred where a contractual indemnity agreement excluded damages arising from the indemnitee’s active 23 negligence, and where a court had previously determined a plaintiff’s injuries were caused by the 24 indemnitee’s active negligence. (E.L., supra, 21 Cal.3d at p. 510.) “Accordingly, the principles of implied 25 equitable indemnity must be held to have come into play.” (Id.) 26 Here, while the District contends it is entitled to contractual indemnity, an alternative theory is 27 implied indemnity. There are triable issues of fact as to whether Cross-Defendants are liable to the District 28 8 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF CROSS-COMPLAINANT WASCO RECREATION AND PARK DISTRICT’S OPPOSITION TO WASCO TIGER SHARKS AND HDI GLOBAL SPECIALTY SE’S MOTION FOR SUMMARY JUDGMENT 1 under theories of both express contractual and equitable indemnity. With respect to express contractual 2 indemnity, there are issues of fact as to whether WTSC rented only the pool facility, or whether it rented 3 the entire park, and thus whether the FUA’s indemnity provision and HDI’s additional insured language 4 applies to Plaintiff’s claims. (District’s Responses to Cross-Defendants’ Separate Statement, UMF Nos. 3- 5 4, 6, 8-11, 15, 17, 21-28, 30-33, 37-39, 45; D.S.S. Nos. 3-24, 30-38.) Additionally, there are triable issues 6 of fact as to whether WTSC rented the entire park, and had a duty to inspect, warn, and remedy against 7 potential hazards existing on the grassy area where Plaintiff fell (and breached its duty by failing to do so). 8 (District’s Responses to Cross-Defendants’ Separate Statement (“C.S.S.”), Nos. 3-4, 6, 8-11, 15, 17, 21-28, 9 30-33, 37-39, 45; D.S.S. Nos. 3-24, 30-38..) Thus, summary judgment is improper as to both theories. A 10 trier of fact must decide: (1) whether the FUA’s indemnity clause and HDI’s additional insured language 11 applies to the fact of this case, and if not, (2) whether WTSC may otherwise be held liable for equitable 12 indemnity. 13 1. There are triable issues of fact as to whether the FUA’s express indemnity provision and 14 HDI’s additional insured endorsement apply. 15 Here, the FUA provides: “[WTSC] shall indemnify, defend, and hold harmless [the District] . . . 16 from any and all . . . liabilities . . . arising at any time out of or in any way related to [WTSC’s] use or 17 occupancy of a facility or property controlled by [the District], unless solely caused by the gross negligence 18 or willful misconduct of” the District or its employees. (D.S.S, No. 28.) Cross-Defendants contend the 19 indemnity provision in the FUA does not apply to Plaintiff’s claims because WTSC only rented the pool 20 facility, and not the grassy area where Plaintiff fell. (Motion, 7:23-8:20, 14:6-21:16; see also C.S.S., Nos. 21 3, 6-11, 17, 21-31, 33-39.) Cross-Defendants further argue HDI’s additional insured endorsement language 22 is inapplicable because the policy only applied to portions of the premises leased to WTSC. (Motion, 22:1- 23 21:16; C.S.S., Nos. 34-39.) 24 There is unequivocally a factual dispute regarding WTSC’s contention that it only rented the pool 25 facility and did not rent or otherwise control the remainder of the park. (C.D.S.S. Nos. 3-4, 6, 8-11, 15, 17, 26 21-28, 30-33, 37-39, 45; D.S.S. Nos. 3-24, 30-38.) As set forth above in Section II(B), WTSC’s rental 27 constituted a “whole park rental” due to the large size of the swim meet, which drew hundreds of spectators 28 9 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF CROSS-COMPLAINANT WASCO RECREATION AND PARK DISTRICT’S OPPOSITION TO WASCO TIGER SHARKS AND HDI GLOBAL SPECIALTY SE’S MOTION FOR SUMMARY JUDGMENT 1 who by necessity had to spread themselves throughout the park due to limited access to the pool deck and 2 bleachers. (D.S.S., Nos. 3-24, 30-38.) By renting the entire park, WTSC obtained control of more areas of 3 the park than just the pool, including the right to exclude the general public from the grassy areas (where 4 Plaintiff alleges she fell) on the day of the incident. (D.S.S. Nos. 3-24, 30-38.) Cross-Defendants’ claim that 5 WTSC merely rented and was responsible for only the pool is belied by the factual record before this Court. 6 WTSC expected its guests would be able to use and its guests did in fact use the grassy areas where Plaintiff 7 fell. (D.S.S. Nos. 3-24, 30-38.) Moreover, WTSC expressly directed its guests to bring “their gear (shade 8 canopies, lawn chairs, blanket, ice chest, picnic items…” and to “set up their ‘camp’ in designated areas – 9 look for other Tigershark families as we usually set up our gear in the same general area…” (D.S.S. No. 10 16.) WTSC also instructed its guests “Swimmers and families ‘hang out’ in the camp area socializing, 11 stretching and otherwise waiting for their events…Swimmers and families come and go from the camp to 12 the pool as they swim their event…” (D.S.S. No. 16.) WTSC’s guests had no choice but to camp in the 13 grassy areas because there were hundreds of guests but the capacity in the bleachers next to the pool was 14 only 50-75 people and guests were not allowed on the pool deck. (D.S.S. No. 36.) 15 WTSC concedes that Plaintiff was at the park because her grandson was competing in WTSC’s swim 16 meet, and her fall occurred while she was going to retrieve her grandson because his event was approaching. 17 (C.S.S. Nos. 13-14, 18-19.) Thus, Plaintiff’s injury arose out of and/or was related to WTSC’s use of the 18 park, i.e., the swim meet. (C.S.S. Nos. 13-14, 18-19; D.S.S. Nos. 34-37, 39-40; see also Ex. A to the IOE, 19 Facilities Use Agreement (“FUA”), p. 003.) Clearly, WTSC’s motion must be denied given that there is a 20 factual dispute regarding whether WTCS was in “control” of areas beyond the pool, including the grassy 21 area where Plaintiff fell.2 22 2. There are triable issues of fact as to whether Cross-Defendants are liable under a theory of 23 equitable indemnity. 24 There are also triable issues of fact as to whether WTSC can be held liable under a theory of equitable 25 indemnity, as WTSC exercised control over the entire park, including the grassy area where Plaintiff fell, 26 2 Regardless, even if WTSC did not rent the whole park and the area where Plaintiff fell was controlled by the District, the 27 indemnity clause still applies because WTSC expressly contracted to defend and indemnify the District for injuries arising from WTSC’s “use or occupancy of a facility or property controlled by [the District]” (D.S.S., Nos. 28-29.) 28 10 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF CROSS-COMPLAINANT WASCO RECREATION AND PARK DISTRICT’S OPPOSITION TO WASCO TIGER SHARKS AND HDI GLOBAL SPECIALTY SE’S MOTION FOR SUMMARY JUDGMENT 1 and thus owed Plaintiff and other spectators a duty to inspect, warn against, and remedy any potential 2 hazards. “‘[T]he duties owed in connection with the condition of land are not invariably placed on the person 3 [holding title] but, rather, are owed by the person in possession of the land [citations omitted] because [of 4 the possessor’s] supervisory control over the activities conducted upon, and the condition of, the land.’” 5 (Alcaraz v. Vece (1997) 14 Cal.4th 1149, 1157–58, citing Sprecher v. Adamson Companies (1981) 30 Cal.3d 6 358, 368.) The California Supreme Court has “recognized . . . that a defendant who lacks title to property 7 still may be liable for an injury caused by a dangerous condition on that property if the defendant exercises 8 control over the property.” (Id.; see also Preston v. Goldman (1986) 42 Cal.3d 108, 119 [“[W]e have placed 9 major importance on the existence of possession and control as a basis for tortious liability for conditions 10 on the land.”].)) 11 A person who controls property owes a duty to “‘inspect [the premises] or take other proper means 12 to ascertain their condition’ and, if a dangerous condition exists that would have been discovered by the 13 exercise of reasonable care, has a duty to give adequate warning of or remedy it.” (Staats v. Vintner’s Golf 14 Club, LLC (2018) 25 Cal.App.5th 826, 833, citations omitted.) For instance, the California Supreme Court 15 in Johnston v. De La Guerra Properties, Inc. (1946) 28 Cal.2d 394 held that owners of a restaurant who 16 leased the restaurant, but not the walkway leading to the restaurant, exercised sufficient control over the 17 walkway such that it could be held liable to the plaintiff, who sustained injuries on the walkway. (Id. at p. 18 401 [“It is clear . . . that if the tenant exercises control over a common passageway outside the leased 19 premises, he may become liable to his business invitees if he fails to warn them of a dangerous condition 20 existing thereon.”].) 21 As discussed at length above in Section II(B), WTSC’s rental of the park on the day of the incident 22 was a “whole park rental,” whereby WTSC had the right to exclude members of the general public from the 23 entire park, and most notably, the grassy area where Plaintiff fell. (D.S.S., Nos. 3-24, 30-38.) Indeed, the 24 grassy area where Plaintiff and other witnesses testified she fell was filled with “hundreds” of spectators 25 camped out to watch the meet. (D.S.S., Nos. 3-24, 30-38.)3 Pursuant to basic landlord tenant law, WTSC 26 3 As discussed above in Section II(C), the hundreds of spectators had to spread themselves outside of the immediate pool facility 27 because the bleachers near the pool deck only sat 50 to 75 people and WTSC limited access to the pool deck to judges and swim meet participants. (D.S.S. Nos. 36, 37.) 28 11 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF CROSS-COMPLAINANT WASCO RECREATION AND PARK DISTRICT’S OPPOSITION TO WASCO TIGER SHARKS AND HDI GLOBAL SPECIALTY SE’S MOTION FOR SUMMARY JUDGMENT 1 thus had a duty to remedy or warn against any potential hazards existing at that location on the day of the 2 incident. (Alcaraz, supra, 14 Cal.4th 1149, 1157–58; Preston v. Goldman (1986) 42 Cal.3d 108, 119.) 3 WTSC concedes it failed to inspect any areas outside the immediate pool facility or otherwise warn against 4 potential hazards, even though it knew that its hundreds of guests would be using those areas. (Motion, 5 12:11-13; D.S.S. Nos. 30-33, 35-38.) As such, there is a triable issue of fact as to whether WTSC breached 6 that duty and is thereby liable to the District for equitable indemnity. (C.W. v. Howe Partners Inc. v. 7 Mooradian (2019) 43 Cal.App.5th 688, 700 [“Equitable indemnity . . . is premised on a joint legal obligation 8 to another for damages,” and “is subject to allocation of fault principles and comparative equitable 9 apportionment of loss.”].) 10 Cross-Defendants incorrectly suggest that “[t]he District - through the deposition testimony of its 11 Person Most Knowledgeable/Qualified [Chris Serna] . . . has conceded that the Tiger Sharks had no duty to 12 inspect this area, locate any holes, fill the holes, or do anything else in connection with this area. It has 13 admitted that this was solely the District’s duty and obligation.” (Motion, 12:19-22.) The testimony relied 14 on by Cross-Defendants is inadmissible, as it calls for a legal conclusion and for speculation. (Objections to 15 Evidence, No. 1.) Further, Ms. Serna spoke in terms was testifying about general park maintenance rather 16 than legal duties with respect to the FUA. (See Ex. N to the IOE, Transcript of Deposition of Maria Christina 17 Serna (“Serna Depo.”), 43:17-45:7, 49:14-50:6.) 18 Regardless, Cross-Defendants deceptively omit Ms. Serna’s crucial testimony that, due to WTSC’s 19 “full park rental,” they would, as part of their “facility check . . . also have some responsibility in ensuring 20 their guests that we’re [sic] going to be setting up in those locations [grassy areas] were in an area where 21 there were no issues.” (D.S.S., No. 20.) WTSC further contends it had no access to the park’s sprinkler 22 system and thus could not have remedied against any dangerous condition existing there. (Motion, 8:2014, 23 11:2-14:3.) However, Plaintiff’s fall did not actually occur at a sprinkler valve. (D.S.S. Nos. 56-7-; see also 24 District’s Responses to C.S.S. No. 19.) Moreover, WTSC could have, and was expected to, inform the 25 District of any potential hazards at the park, including the area surrounding the sprinkler valve box. (D.S.S. 26 3-22; see also Alcaraz, supra, 14 Cal.4th at pp. 1157–58; Preston, supra, 42 Cal.3d at p. 119.) If WTSC 27 28 12 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF CROSS-COMPLAINANT WASCO RECREATION AND PARK DISTRICT’S OPPOSITION TO WASCO TIGER SHARKS AND HDI GLOBAL SPECIALTY SE’S MOTION FOR SUMMARY JUDGMENT 1 determined the area to be a hazard, it could and should have warned of the perceived hazard even if it had 2 no responsibility for installing or maintaining it. (D.S.S. Nos. 18-22.) 3 There are clearly disputed issues of fact as to whether WTSC controlled the area where Plaintiff 4 fell and thus owed her a duty to inspect and safeguard against any potential hazards. Therefore, WTSC’s 5 motion for summary judgment must be denied. (Jos. Schlitz Brewing Co., supra, 109 Cal.App.3d at p. 914; 6 McManis, 61 Cal.App.4th at p. 555 [“Counter-affidavits and declarations need not prove the opposition’s 7 case; they suffice if they disclose the existence of a triable issue.”]; Estate of Houseley, supra, 56 8 Cal.App.4th at p. 359.) 9 B. There are Triable Issues of Material Fact as to Whether Cross-Defenda