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CLINTON & CLINTON ELECTRONICALLY
CHRISTOPHER T. OLSEN (State Bar No. 143915) FILED
MARK B. BRUEGGEMANN (State Bar No. 183660) Barat eee
100 Oceangate, Fourteenth Floor
Long Beach, CA 90802 10/13/2017
Telephone: (562) 216-5000 BY:SANDRA SCHIRO
Facsimile: (562) 216-5001 PePeP Cert
Attorneys for Defendant, THYSSENKRUPP ELEVATOR CORPORATION
SUPERIOR COURT FOR THE STATE OF CALIFORNIA
FOR THE COUNTY OF SAN FRANCISCO
MARIA CALDERON, ) Case No. CGC-16-550973
)
Plaintiff, )
)
v. ) THYSSENKRUPP ELEVATOR
) CORPORATION’S 1). ADDITIONAL
CITY AND COUNTY OF SAN ) UNDISPUTED MATERIAL FACTS; and
FRANCISCO (AIRPORT DIVISION); SAN ) 2). RESPONSE TO MOVING PARTIES’
FRANCISCO INTERNATIONAL ) SEPARATE STATEMENT OF
AIRPORT; KONE CORPORATION; ) UNDISPUTED MATERIAL FACTS
THYSSENKRUPP ELEVATOR )
CORPORATION and DOES | through 25, |) [ThyssenKrupp’s Opposition to Motion for
inclusive, ) Summary Adjudication filed concurrently
) herewith]
Defendants. )
J Date: October 26, 2017
) Time: 9:30 a.m.
) Dept.: 302
AND RELATED CROSS-ACTIONS )
) RESERVATION NO.: 06300928-15
)
Pursuant to Code of Civil Procedure section 437c subd. (b)(3) and Cal. Rules of Court, Rule
3.1350, opposing party, ThyssenKrupp Elevator Corporation (“ThyssenKrupp”) hereby submits the
following opposition to Defendant, City and County of San Francisco’s (“SFO”) Motion for Summary
Adjudication:
1.) ThyssenKrupp’s Separate Statement of Additional Undisputed Material Facts; and
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THYSSENKRUPP ELEVATOR CORPORATION'S |). ADDITIONAL UNDISPUTED MATERIAL FACTS; and 2).
RESPONSE TO MOVING PARTIES’ SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTSIL.) ThyssenKrupp’s Response to City and County of San Francisco’s Separate Statement of
Undisputed Material Facts:
I. ThyssenKrupp’s Separate Statement of Additional Undisputed Material Facts:
Pursuant to Code of Civil Procedure section 437c subd. (b)(3), in addition to facts set forth in
SFO’s Separate Statement, ThyssenKrupp hereby sets forth other material facts that ThyssenKrupp
contends are relevant to the determination of the issues raised by SFO.
The following additional undisputed material facts are offered in opposition to SFO’s Motion for
Summary Adjudication.
ThyssenKrupp contents that it has set forth sufficient evidence in the Separate Statement of
Additional Undisputed Material for the denial of SFO’s Motion for Summary Adjudication.
Further Evidence that SFO’s Motion for Summary Judgment should be denied:
Additional Undisputed Material Facts with Opposing Party’s Response With
Supporting Evidence Supporting Evidence
1. Indemnification provision cited and relied upon | 1.
for the instant Motion, expressly excludes “where
such loss, damage, injury, liability or claim is the
result of the active negligence or willful
misconduct of City and is not contributed to by any
act of, or by any omission to perform some duty
imposed by law or agreement on Contractor, its
subcontractors or either’s agent or employee.”
Agreement, pg. 6, section 16, attached as Exhibit
A to Avakian Decl. 92
2. There has been no determination made by the trier | 2.
of fact as to causation of any party.
Court is requested to take judicial notice of the Court
Docket/Register of Actions for this matter and current
status of this litigation.
3. SFO has not submitted one piece of admissible 3.
evidence that ThyssenKrupp’s conduct fell below the
standard of care.
Court is requested to take judicial notice of the Court
Docket/Register of Actions for this matter and current
status of this litigation.
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THYSSENKRUPP ELEVATOR CORPORATION’S 1). ADDITIONAL UNDISPUTED MATERIAL FACTS; and 2).
RESPONSE TO MOVING PARTIES’ SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTSa DH Ww
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Additional Undisputed Material Facts with
Supporting Evidence
Opposing Party’s Response With
Supporting Evidence
4. SFO has not submitted one piece of admissible
evidence that ThyssenKrupp breached the contract
between the parties.
Court is requested to take judicial notice of the Court
Docket/Register of Actions for this matter and current
status of this litigation.
4,
5. SFO has not submitted one piece of admissible
evidence that SFO or its employees satisfied the
standard of care
Court is requested to take judicial notice of the Court
Docket/Register of Actions for this matter and current
status of this litigation.
6. There has been no determination made by the trier
of fact as to only to SFO’s active negligence or wilful
misconduct.
Court is requested to take judicial notice of the Court
Docket/Register of Actions for this matter and current
status of this litigation.
7. Plaintiff's First Amended Complaint alleges at
paragraph 7 that “public entity defendants had
notice of the dangerous condition involving the
escalator for a long time to have protected against
it and/or the negligent or wrongful conduct by said
defendants’ employees acting within the course
and scope of their employment created the
dangerous condition. As a result of the escalator’s
malfunction and the dangerous conditions imposed
by the escalator, the plaintiff was harmed and
injured as alleged herein as a result of said
conditions which were a substantial factor in
causing the Plaintiff harm.”
Plaintiff's First Amended Complaint, attached as
Exhibit A to the Declaration of Matthew T. Brand
("Brand Decl."), 2
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THYSSENKRUPP ELEVATOR CORPORATION’S 1). ADDITIONAL UNDISPUTED MATERIAL FACTS; and 2).
RESPONSE TO MOVING PARTIES’ SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTSWw nN
IL ThyssenKrupp’s Response to SFO’s Separate Statement of Undisputed Material Facts.
Undisputed Material Facts with Supporting
Evidence
Opposing Party’s Response With
Supporting Evidence
1. Plaintiff filed a First Amended Complaint on
May 2, 2016 alleging causes of action against City
and Contractor for a Dangerous Condition of
Public Property and Negligence.
Plaintiff's First Amended Complaint, attached as
Exhibit A to the Declaration of Matthew T. Brand
("Brand Decl."), | 2
1, Disputed. Plaintiff has alleged one Cause
of Action for Damages - which appears to be
for Negligence occasioned by Dangerous
Condition on Public Property.
Plaintiff's Complaint, attached as Exhibit A to
the Declaration of Matthew T. Brand ("Brand
Decl."), 42
2. Plaintiff alleges that on July 1, 2015, she was
traveling up an escalator at the San Francisco
International Airport ("SFO") when the escalator
suddenly and unexpectedly stopped abruptly,
causing her to fall and sustain personal injury.
Plaintiffs First Amended Complaint, pg.2,
paragraph 5, attached as Exhibit A to Brand Decl.,
2
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2. Undisputed that this paraphrases
Plaintiff's Complaint at paragraph 5.
Plaintiffs Complaint, paragraph 5, attached as
Exhibit A to Brand Decl., { 2
3. The subject incident occurred on the “up”
escalator closest to the Delta Air Lines baggage
carousels in Terminal 1 of SFO, on Escalator 512
(“ES-512"), with the Contractor being responsible
for maintenance, repairs, and servicing of all
escalators in Terminal 1 at SFO, including ES-512,
pursuant to an agreement between City and
Contractor.
Declaration of Martin Look (“Look Decl.”). 42
3. Objection. Lacks foundation (Evid. Code,
§ 403). Declarant lacks personal knowledge/
Speculation (Evid. Code, § 702 (a)), as to the
subject escalator. The Agreement sets forth
the obligations of the parties.
Agreement, pg. 2, section 4, also Appendix A,
pgs. A-2, A-3, A-5, sections 2, 3, 4, and 9,
attached as Exhibit A to Avakian Decl., | 3
4, In July of 2016, City sent a written tender for
defense and indemnity to Contractor to defend the
City against Plaintiffs claims.
Brand Decl., 73
4, Undisputed that counsel for SFO sent
correspondence to counsel for ThyssenKrupp
Elevator Corporation, regarding defense and
indemnity in the underlying matter.
5. Contractor did not accept the City's tender.
Brand Decl., 14
5. ThyssenKrupp Elevator Corporation has
appeared in this action, and is investigating
the request by SFO and the claims of Plaintiff.
6. City filed a Cross-Complaint against Contractor
on August 2, 2016, asserting as relevant for
purposes of this motion, the Fifth Cause of Action
for Declaratory Relief Re: Duty to Defend, which
acted as another tender of defense to Contractor.
City's Cross-Complaint, Fifth Cause of Action,
attached as Exhibit B to Brand Decl. 5
6. Undisputed that SFO filed a Cross-
Complaint against ThyssenKrupp Elevator
America, on August 2, 2016, asserting a Fifth
Cause of Action for Declaratory Relief Re:
Duty to defend.
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THYSSENKRUPP ELEVATOR CORPORATION'S 1). ADDITIONAL UNDISPUTED MATERIAL FACTS; and 2).
RESPONSE TO MOVING PARTIES’ SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTSUndisputed Material Facts with Supporting
Evidence
Opposing Party’s Response With
Supporting Evidence
7. On April 6, 2017, City sent another tender letter
by email and mail to Contractor.
City's tender letter, attached as Exhibit C to Brand
Decl. 1 6
7. Undisputed that counsel for SFO sent the
referenced correspondence.
8. To date, Contractor has not accepted City's
tender.
Brand Decl. 47
8. ThyssenKrupp Elevator Corporation has
appeared in this action, and is investigating
the request by SFO and the claims of Plaintiff.
9. City entered into an Agreement, No. 9313, with
Contractor on October 15, 2013 ("Agreement"),
regarding repairs, maintenance, and servicing of the
escalators at the San Francisco International
Airport.
Declaration of Cynthia Avakian ("Avakian Decl."),
2; Agreement, attached as Exhibit A to the
Avakian Decl., 2
9. SFO and ThyssenKrupp Elevator America
entered into Agreement No. 9313, dated
October 15, 2013, commencing January 1,
2014, for the maintenance of the escalators at
the San Francisco International Airport,
pursuant to the terms set forth therein.
Declaration of Cynthia Avakian ("Avakian
Decl."), 4 2; Agreement, attached as Exhibit A
to the Avakian Decl., 42
10. The Agreement term expires on December 31,
2018.
Agreement, pg.2, section 2, attached as Exhibit A
to the Avakian Decl., | 2
10. Undisputed.
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THYSSENKRUPP ELEVATOR CORPORATION’S 1). ADDITIONAL UNDISPUTED MATERIAL FACTS; and 2).
RESPONSE TO MOVING PARTIES’ SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS4 nO uw
Undisputed Material Facts with Supporting
Evidence
Opposing Party’s Response With
Supporting Evidence
11. Contractor agreed pursuant to Section 4 of the
Agreement, and Appendix A of the Agreement, to
be responsible for:
Agreement Section 4, Services Contractor
Agrees to Perform:
The Contractor agrees to perform the services
provided for in Appendix A, "Services to be
Provided by Contractor," attached hereto and
incorporated by reference as though fully set forth
herein.
Agreement, Appendix A, Services to be
Provided by Contractor:
Section 2. Description of Services-General
..Contractor shall be responsible for the continual
maintenance, repair, annual inspection, hoist way
rope replacement, load testing, unlimited
emergency repair work on all the escalators in any
buildings owned and to be owned by the
Commission (City) as listed in Appendix C of this
Agreement.
a. The Contractor shall maintain and provide for
safe reliable operation of all escalators, including
but not limited the preventative maintenance and
duties set forth herein, replacement of all parts and
components, state inspection and certification....,
and evaluation of equipment operation and safety
standards.
b. Contractor shall furnish, at its own expense, all
tools, equipment, supplies, diagnostic devices,
personnel, and equipment necessary to maintain
and provide safe reliable operation throughout the
entire term of the contract and in accordance with
the latest adopted editions of ASME A17.1-Safety
Code for Elevators and Escalators, ASME Al
7.2-Inspectors Guide for Elevators and Escalators,
and ASME A17.3- Safety Code for Existing
Elevators and Escalators.
c. The Contractor shall be responsible for
coordinating, preparing and submitting all elevator
information, safety and inspection report, and any
other necessary reports to the Department of
Industrial Safety to obtain operating permits for all
escalators.
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11. Undisputed that Agreement Section 4,
Services Contractor Agrees to Perform states,
in part:
The Contractor agrees to perform the services
provided for in Appendix A, "Services to be
Provided by Contractor," attached hereto and
incorporated by reference as though fully set
forth herein.
Undisputed that Agreement, Appendix A,
Services to be Provided by Contractor states,
in part,:
Under the direction of Commission,
Contractor shall be responsible for the
continual maintenance, repair, annual
inspection, hoist way rope replacement, load
testing, unlimited emergency repair work on.
all the escalators in any buildings owned and
to be owned by the Commission (City) as
listed in Appendix C of this Agreement.
[emphasis added on section omitted from
moving parties Undisputed Material Facts].
Undisputed, that the rest of the cited language
is stated in part, but does not completely set
forth the entire agreement.
Agreement, pg. 2, section 4, also Appendix A,
pgs. A-2, A-3, A-5, sections 2, 3, 4, and 9,
attached as Exhibit A to Avakian Decl., {2
THYSSENKRUPP ELEVATOR CORPORATION’S 1). ADDITIONAL UNDISPUTED MATERIAL FACTS; and 2).
RESPONSE TO MOVING PARTIES’ SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTSes wn
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Undisputed Material Facts with Supporting
Evidence
Opposing Party’s Response With
Supporting Evidence
Section 3. Service Requests
Contractor shall respond to all Service Requests
from the Commission. Contractor shall repair
broken equipment and correct unsafe conditions
immediately upon discovering, or receiving notice,
of the breakdown of equipment or the existence of
an unsafe condition whether or not Contractor
receives a Service Request from the Commission.
Section 4. Preventative Maintenance
In addition to any other work required by this
Agreement, Contractor shall perform all necessary
preventative maintenance required for safe reliable
operation as specified by the ASME standards and
in conformance with the specifications including in
the Manufacturer’s System Operations Manuals,
Maintenance Manuals, and Service Procedures for
each elevator. Contractor shall provide professional
analysis of equipment operational efficiency and
evaluation of current standards, practices, and
procedures for extending equipment useful life.
Section 9. Contractor to Comply with Laws
Contractor shall make periodic tests and service
inspections of all equipment as required by the
contract documents, as well as ASME A17.1,
A17.2, ASME 17.3, including supplement and
amendments to any of these documents. Contractor
shall provide written reports of said test(s) and
submit said reports to the Commission.
Agreement, pg. 2, section 4, also Appendix A, pgs.
A-2, A-3, A-5, sections 2, 3, 4, and 9, attached as
Exhibit A to Avakian Decl., ]2
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THYSSENKRUPP ELEVATOR CORPORATION’S 1). ADDITIONAL UNDISPUTED MATERIAL FACTS; and 2).
RESPONSE TO MOVING PARTIES’ SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS.Ww NO
Undisputed Material Facts with Supporting
Evidence
Opposing Party’s Response With
Supporting Evidence
12. Pursuant to Appendix A, section 2 and 2(a) of
Agreement, and Appendix C of the Agreement,
Contractor was responsible for the continual
preventative maintenance, repair, annual
inspection...on all escalators...as listed in
Appendix C of this Agreement, which includes ES-
512, so as to provide for safe reliable operation.
Agreement, Appendix A, pg. A-2, section 2 and
2(a), also Appendix C, pg. C-1, attached as
Exhibit A to Avakian Decl., 42
12. Undisputed that Appendix A, section 2,
states in part, that “Under the direction of
Commission, Contractor shall be
responsible for the continual maintenance,
repair, annual inspection, hoist way rope
replacement, load testing, unlimited
emergency repair work on all the escalators
in any buildings owned and to be owned by
the Commission (City) as listed in Appendix
C of this Agreement.”
Undisputed that Appendix A, section 2(a) of
Agreement, states in part, “The Contractor
shall maintain and provide for safe reliable
operation of all escalators, including but not
limited the preventative maintenance and
duties set forth herein, replacement of all
parts and components, state inspection and
certification...., and evaluation of equipment
operation and safety standards.”
Agreement, Appendix A, pg. A-2, section 2
and 2(a), also Appendix C, pg. C-3, attached
as Exhibit A to Avakian Decl., 42
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THYSSENKRUPP ELEVATOR CORPORATION’S 1). ADDITIONAL UNDISPUTED MATERIAL FACTS; and 2).
RESPONSE TO MOVING PARTIES’ SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTSes WN
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Undisputed Material Facts with Supporting
Evidence
Opposing Party’s Response With
Supporting Evidence
13. Contractor agreed to, pursuant to
Section 16 of the Agreement:
Section 16. Indemnification:
Contractor shall indemnify and save harmless
City and its officers, agents and employees from,
and, if requested, shall defend them against any
and all loss, cost, damage, injury, liability, and
claims thereof for injury to or death of a person,
including employees of Contractor or loss of or
damage to property, arising directly or indirectly
from Contractor’s performance of this
Agreement, including, but not limited to,
Contractor’s use of facilities or equipment
provided by City or others, regardless of the
negligence of, and regardless of whether liability
without fault is imposed or sought to be imposed
on City, except to the extent that such indemnity
is void or otherwise unenforceable under
applicable law in effect on or validly retroactive
to the date of this Agreement, and except where
such loss, damage, injury, liability or claim is the
result of the active negligence or willful
misconduct of City and is not contributed to by
any act of, or by any omission to perform some
duty imposed by law or agreement on Contractor,
its subcontractors or either’s agent or employee.
The foregoing indemnity shall include, without
limitation, reasonable fees of attorneys,
consultants and experts and related costs and
City’s costs of investigating any claims against
the City. In addition to Contractor’s obligation to
indemnify City, Contractor specifically
acknowledges and agrees that it has an immediate
and independent obligation to defend City from
any claim which actually or potentially falls
within this indemnification provision, even if the
allegations are or may be groundless, false or
fraudulent, which obligation arises at the time
such claim is tendered to Contractor by City and
continues at all times thereafter.
13. Undisputed that paragraph/section 16.
entitled “Indemnification” of the
Agreement, is as stated.
Agreement, pg. 6, section 16, attached as
Exhibit A to Avakian Decl. §2
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THYSSENKRUPP ELEVATOR CORPORATION’S 1). ADDITIONAL UNDISPUTED MATERIAL FACTS; and 2).
RESPONSE TO MOVING PARTIES’ SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTSUndisputed Material Facts with Supporting
Evidence
Opposing Party’s Response With
Supporting Evidence
Contractor shall indemnify and hold City
harmless from all loss and liability, including
attorney’s fees, court costs and all other litigation
expenses for any infringement of the patent
rights, copyright, trade secret or any other
proprietary right or trademark, and all other
intellectual property claims of any person or
persons in consequence of the use by City, or any
of its officers or agents, of articles or services to
be supplied in the performance of this
Agreement.
Agreement, pg. 6, section 16, attached as Exhibit
A to Avakian Decl. 2
DATED: October 12, 2017 CLINTON & CLINTON
Cn
Christopher T. Olsen, B
Attorney for Defendant
ThyssenKrupp Elevator Corporation
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THYSSENKRUPP ELEVATOR CORPORATION’S 1). ADDITIONAL UNDISPUTED MATERIAL FACTS; and 2).
RESPONSE TO MOVING PARTIES’ SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTSv PROOF OF SERVICE
STATE OF CALIFORNIA )
COUNTY OF LOS ANGELES)
Tam employed in the County of Los Angeles, State of California, Iam over the age of 18 and not
a party to the within action; my business address is 100 Oceangate, 14" Floor, Long Beach, California
90802.
On October 12, 2017, 1 served the foregoing document described as THYSSENKRUPP
ELEVATOR CORPORATION’S 1). ADDITIONAL UNDISPUTED MATERIAL FACTS; and
2). RESPONSE TO MOVING PARTIES’ SEPARATE STATEMENT OF UNDISPUTED
MATERIAL FACTS on all interested parties in this action by placing a true and correct copy thereof,
enclosed in a sealed envelope addressed as follows:
SEE ATTACHED SERVICE LIST
(BY MAIL) I placed a true copy in a sealed envelope addressed as indicated above, on the
above-mentioned date. Iam familiar with the firm’s practice of collection and processing
correspondence for mailing. It is deposited with the U.S. Postal Service on that same day in
the ordinary course of business. I am aware that on motion of party served, service is
presumed invalid if postal cancellation date or postage meter date is more than one day after
date of deposit for mailing in affidavit.
I] (BY OVERNIGHT NEXT DAY DELIVERY) On the above-mentioned date, I placed a true
copy of the above-mentioned document(s) in a sealed envelope or package to be delivered via
overnight delivery to the party(ies) listed above.
4 (BY FACSIMILE) From facsimile number (562) 216-5001, I caused each such document to
be transmitted by facsimile machine, to the parties and numbers indicated above, pursuant to
Rule 2008. The facsimile machine | used complied with California Rules of Court, Rule
2003(3) and no error was reported by the machine. Pursuant to Rule 2008(e)(4), I caused the
machine to print a transaction record of the transmission, a copy of which is attached to the
original of this declaration.
EXECUTED on October 12, 2017, at Long Beach, California.
(STATE) I declare under penalty of perjury under the laws of the State of California that
the above is true and correct.
4 (FEDERAL) I declare that I am employed in the office of a member gf the bar of this court
at whose direction the service was nfade.
C Dr “> Jy
Lfullffeea le
Regina J Buco} a Jt
IE O
THYSSENKRUPP ELEVATOR CORPORATION'S 1)! ADDITIONAL UNDISPUTED MATERIAL FACTS; and 2).
RESPONSE TO MOVING PARTIES’ SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS.ATTACHED SERVICE LIST
Roger D. Hecht
FARLING, HECHT & DAVIS, LLP.
96 N. Third Street, Suite 660
San Jose, CA 95112
roger@fhdllp.com
Tel: (408) 295-6100 Fax: (408) 299-0396
Attorneys for Plaintiff, Maria Calderon
Felicia P. Jafferies
LeCLairRyan, LLP
44 Montgomery Street, Suite 3100
San Francisco, CA 94104
T: (415) 391-7111
Attorneys for Defendant/Cross-Complainant,
City and County of San Francisco
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THYSSENKRUPP ELEVATOR CORPORATION’S 1). ADDITIONAL UNDISPUTED MATERIAL FACTS; and 2).
RESPONSE TO MOVING PARTIES’ SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS
Preview
On Oo F WN B CLINTON & CLINTON ELECTRONICALLY CHRISTOPHER T. OLSEN (State Bar No. 143915) FILED MARK B. BRUEGGEMANN (State Bar No. 183660) Barat eee 100 Oceangate, Fourteenth Floor Long Beach, CA 90802 10/13/2017 Telephone: (562) 216-5000 BY:SANDRA SCHIRO Facsimile: (562) 216-5001 PePeP Cert Attorneys for Defendant, THYSSENKRUPP ELEVATOR CORPORATION SUPERIOR COURT FOR THE STATE OF CALIFORNIA FOR THE COUNTY OF SAN FRANCISCO MARIA CALDERON, ) Case No. CGC-16-550973 ) Plaintiff, ) ) v. ) THYSSENKRUPP ELEVATOR ) CORPORATION’S 1). ADDITIONAL CITY AND COUNTY OF SAN ) UNDISPUTED MATERIAL FACTS; and FRANCISCO (AIRPORT DIVISION); SAN ) 2). RESPONSE TO MOVING PARTIES’ FRANCISCO INTERNATIONAL ) SEPARATE STATEMENT OF AIRPORT; KONE CORPORATION; ) UNDISPUTED MATERIAL FACTS THYSSENKRUPP ELEVATOR ) CORPORATION and DOES | through 25, |) [ThyssenKrupp’s Opposition to Motion for inclusive, ) Summary Adjudication filed concurrently ) herewith] Defendants. ) J Date: October 26, 2017 ) Time: 9:30 a.m. ) Dept.: 302 AND RELATED CROSS-ACTIONS ) ) RESERVATION NO.: 06300928-15 ) Pursuant to Code of Civil Procedure section 437c subd. (b)(3) and Cal. Rules of Court, Rule 3.1350, opposing party, ThyssenKrupp Elevator Corporation (“ThyssenKrupp”) hereby submits the following opposition to Defendant, City and County of San Francisco’s (“SFO”) Motion for Summary Adjudication: 1.) ThyssenKrupp’s Separate Statement of Additional Undisputed Material Facts; and -1- THYSSENKRUPP ELEVATOR CORPORATION'S |). ADDITIONAL UNDISPUTED MATERIAL FACTS; and 2). RESPONSE TO MOVING PARTIES’ SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTSIL.) ThyssenKrupp’s Response to City and County of San Francisco’s Separate Statement of Undisputed Material Facts: I. ThyssenKrupp’s Separate Statement of Additional Undisputed Material Facts: Pursuant to Code of Civil Procedure section 437c subd. (b)(3), in addition to facts set forth in SFO’s Separate Statement, ThyssenKrupp hereby sets forth other material facts that ThyssenKrupp contends are relevant to the determination of the issues raised by SFO. The following additional undisputed material facts are offered in opposition to SFO’s Motion for Summary Adjudication. ThyssenKrupp contents that it has set forth sufficient evidence in the Separate Statement of Additional Undisputed Material for the denial of SFO’s Motion for Summary Adjudication. Further Evidence that SFO’s Motion for Summary Judgment should be denied: Additional Undisputed Material Facts with Opposing Party’s Response With Supporting Evidence Supporting Evidence 1. Indemnification provision cited and relied upon | 1. for the instant Motion, expressly excludes “where such loss, damage, injury, liability or claim is the result of the active negligence or willful misconduct of City and is not contributed to by any act of, or by any omission to perform some duty imposed by law or agreement on Contractor, its subcontractors or either’s agent or employee.” Agreement, pg. 6, section 16, attached as Exhibit A to Avakian Decl. 92 2. There has been no determination made by the trier | 2. of fact as to causation of any party. Court is requested to take judicial notice of the Court Docket/Register of Actions for this matter and current status of this litigation. 3. SFO has not submitted one piece of admissible 3. evidence that ThyssenKrupp’s conduct fell below the standard of care. Court is requested to take judicial notice of the Court Docket/Register of Actions for this matter and current status of this litigation. -2- THYSSENKRUPP ELEVATOR CORPORATION’S 1). ADDITIONAL UNDISPUTED MATERIAL FACTS; and 2). RESPONSE TO MOVING PARTIES’ SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTSa DH Ww 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Additional Undisputed Material Facts with Supporting Evidence Opposing Party’s Response With Supporting Evidence 4. SFO has not submitted one piece of admissible evidence that ThyssenKrupp breached the contract between the parties. Court is requested to take judicial notice of the Court Docket/Register of Actions for this matter and current status of this litigation. 4, 5. SFO has not submitted one piece of admissible evidence that SFO or its employees satisfied the standard of care Court is requested to take judicial notice of the Court Docket/Register of Actions for this matter and current status of this litigation. 6. There has been no determination made by the trier of fact as to only to SFO’s active negligence or wilful misconduct. Court is requested to take judicial notice of the Court Docket/Register of Actions for this matter and current status of this litigation. 7. Plaintiff's First Amended Complaint alleges at paragraph 7 that “public entity defendants had notice of the dangerous condition involving the escalator for a long time to have protected against it and/or the negligent or wrongful conduct by said defendants’ employees acting within the course and scope of their employment created the dangerous condition. As a result of the escalator’s malfunction and the dangerous conditions imposed by the escalator, the plaintiff was harmed and injured as alleged herein as a result of said conditions which were a substantial factor in causing the Plaintiff harm.” Plaintiff's First Amended Complaint, attached as Exhibit A to the Declaration of Matthew T. Brand ("Brand Decl."), 2 -3- THYSSENKRUPP ELEVATOR CORPORATION’S 1). ADDITIONAL UNDISPUTED MATERIAL FACTS; and 2). RESPONSE TO MOVING PARTIES’ SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTSWw nN IL ThyssenKrupp’s Response to SFO’s Separate Statement of Undisputed Material Facts. Undisputed Material Facts with Supporting Evidence Opposing Party’s Response With Supporting Evidence 1. Plaintiff filed a First Amended Complaint on May 2, 2016 alleging causes of action against City and Contractor for a Dangerous Condition of Public Property and Negligence. Plaintiff's First Amended Complaint, attached as Exhibit A to the Declaration of Matthew T. Brand ("Brand Decl."), | 2 1, Disputed. Plaintiff has alleged one Cause of Action for Damages - which appears to be for Negligence occasioned by Dangerous Condition on Public Property. Plaintiff's Complaint, attached as Exhibit A to the Declaration of Matthew T. Brand ("Brand Decl."), 42 2. Plaintiff alleges that on July 1, 2015, she was traveling up an escalator at the San Francisco International Airport ("SFO") when the escalator suddenly and unexpectedly stopped abruptly, causing her to fall and sustain personal injury. Plaintiffs First Amended Complaint, pg.2, paragraph 5, attached as Exhibit A to Brand Decl., 2 t 2. Undisputed that this paraphrases Plaintiff's Complaint at paragraph 5. Plaintiffs Complaint, paragraph 5, attached as Exhibit A to Brand Decl., { 2 3. The subject incident occurred on the “up” escalator closest to the Delta Air Lines baggage carousels in Terminal 1 of SFO, on Escalator 512 (“ES-512"), with the Contractor being responsible for maintenance, repairs, and servicing of all escalators in Terminal 1 at SFO, including ES-512, pursuant to an agreement between City and Contractor. Declaration of Martin Look (“Look Decl.”). 42 3. Objection. Lacks foundation (Evid. Code, § 403). Declarant lacks personal knowledge/ Speculation (Evid. Code, § 702 (a)), as to the subject escalator. The Agreement sets forth the obligations of the parties. Agreement, pg. 2, section 4, also Appendix A, pgs. A-2, A-3, A-5, sections 2, 3, 4, and 9, attached as Exhibit A to Avakian Decl., | 3 4, In July of 2016, City sent a written tender for defense and indemnity to Contractor to defend the City against Plaintiffs claims. Brand Decl., 73 4, Undisputed that counsel for SFO sent correspondence to counsel for ThyssenKrupp Elevator Corporation, regarding defense and indemnity in the underlying matter. 5. Contractor did not accept the City's tender. Brand Decl., 14 5. ThyssenKrupp Elevator Corporation has appeared in this action, and is investigating the request by SFO and the claims of Plaintiff. 6. City filed a Cross-Complaint against Contractor on August 2, 2016, asserting as relevant for purposes of this motion, the Fifth Cause of Action for Declaratory Relief Re: Duty to Defend, which acted as another tender of defense to Contractor. City's Cross-Complaint, Fifth Cause of Action, attached as Exhibit B to Brand Decl. 5 6. Undisputed that SFO filed a Cross- Complaint against ThyssenKrupp Elevator America, on August 2, 2016, asserting a Fifth Cause of Action for Declaratory Relief Re: Duty to defend. -4- THYSSENKRUPP ELEVATOR CORPORATION'S 1). ADDITIONAL UNDISPUTED MATERIAL FACTS; and 2). RESPONSE TO MOVING PARTIES’ SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTSUndisputed Material Facts with Supporting Evidence Opposing Party’s Response With Supporting Evidence 7. On April 6, 2017, City sent another tender letter by email and mail to Contractor. City's tender letter, attached as Exhibit C to Brand Decl. 1 6 7. Undisputed that counsel for SFO sent the referenced correspondence. 8. To date, Contractor has not accepted City's tender. Brand Decl. 47 8. ThyssenKrupp Elevator Corporation has appeared in this action, and is investigating the request by SFO and the claims of Plaintiff. 9. City entered into an Agreement, No. 9313, with Contractor on October 15, 2013 ("Agreement"), regarding repairs, maintenance, and servicing of the escalators at the San Francisco International Airport. Declaration of Cynthia Avakian ("Avakian Decl."), 2; Agreement, attached as Exhibit A to the Avakian Decl., 2 9. SFO and ThyssenKrupp Elevator America entered into Agreement No. 9313, dated October 15, 2013, commencing January 1, 2014, for the maintenance of the escalators at the San Francisco International Airport, pursuant to the terms set forth therein. Declaration of Cynthia Avakian ("Avakian Decl."), 4 2; Agreement, attached as Exhibit A to the Avakian Decl., 42 10. The Agreement term expires on December 31, 2018. Agreement, pg.2, section 2, attached as Exhibit A to the Avakian Decl., | 2 10. Undisputed. -5- THYSSENKRUPP ELEVATOR CORPORATION’S 1). ADDITIONAL UNDISPUTED MATERIAL FACTS; and 2). RESPONSE TO MOVING PARTIES’ SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS4 nO uw Undisputed Material Facts with Supporting Evidence Opposing Party’s Response With Supporting Evidence 11. Contractor agreed pursuant to Section 4 of the Agreement, and Appendix A of the Agreement, to be responsible for: Agreement Section 4, Services Contractor Agrees to Perform: The Contractor agrees to perform the services provided for in Appendix A, "Services to be Provided by Contractor," attached hereto and incorporated by reference as though fully set forth herein. Agreement, Appendix A, Services to be Provided by Contractor: Section 2. Description of Services-General ..Contractor shall be responsible for the continual maintenance, repair, annual inspection, hoist way rope replacement, load testing, unlimited emergency repair work on all the escalators in any buildings owned and to be owned by the Commission (City) as listed in Appendix C of this Agreement. a. The Contractor shall maintain and provide for safe reliable operation of all escalators, including but not limited the preventative maintenance and duties set forth herein, replacement of all parts and components, state inspection and certification...., and evaluation of equipment operation and safety standards. b. Contractor shall furnish, at its own expense, all tools, equipment, supplies, diagnostic devices, personnel, and equipment necessary to maintain and provide safe reliable operation throughout the entire term of the contract and in accordance with the latest adopted editions of ASME A17.1-Safety Code for Elevators and Escalators, ASME Al 7.2-Inspectors Guide for Elevators and Escalators, and ASME A17.3- Safety Code for Existing Elevators and Escalators. c. The Contractor shall be responsible for coordinating, preparing and submitting all elevator information, safety and inspection report, and any other necessary reports to the Department of Industrial Safety to obtain operating permits for all escalators. -6-4 11. Undisputed that Agreement Section 4, Services Contractor Agrees to Perform states, in part: The Contractor agrees to perform the services provided for in Appendix A, "Services to be Provided by Contractor," attached hereto and incorporated by reference as though fully set forth herein. Undisputed that Agreement, Appendix A, Services to be Provided by Contractor states, in part,: Under the direction of Commission, Contractor shall be responsible for the continual maintenance, repair, annual inspection, hoist way rope replacement, load testing, unlimited emergency repair work on. all the escalators in any buildings owned and to be owned by the Commission (City) as listed in Appendix C of this Agreement. [emphasis added on section omitted from moving parties Undisputed Material Facts]. Undisputed, that the rest of the cited language is stated in part, but does not completely set forth the entire agreement. Agreement, pg. 2, section 4, also Appendix A, pgs. A-2, A-3, A-5, sections 2, 3, 4, and 9, attached as Exhibit A to Avakian Decl., {2 THYSSENKRUPP ELEVATOR CORPORATION’S 1). ADDITIONAL UNDISPUTED MATERIAL FACTS; and 2). RESPONSE TO MOVING PARTIES’ SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTSes wn ow Orn nw 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Undisputed Material Facts with Supporting Evidence Opposing Party’s Response With Supporting Evidence Section 3. Service Requests Contractor shall respond to all Service Requests from the Commission. Contractor shall repair broken equipment and correct unsafe conditions immediately upon discovering, or receiving notice, of the breakdown of equipment or the existence of an unsafe condition whether or not Contractor receives a Service Request from the Commission. Section 4. Preventative Maintenance In addition to any other work required by this Agreement, Contractor shall perform all necessary preventative maintenance required for safe reliable operation as specified by the ASME standards and in conformance with the specifications including in the Manufacturer’s System Operations Manuals, Maintenance Manuals, and Service Procedures for each elevator. Contractor shall provide professional analysis of equipment operational efficiency and evaluation of current standards, practices, and procedures for extending equipment useful life. Section 9. Contractor to Comply with Laws Contractor shall make periodic tests and service inspections of all equipment as required by the contract documents, as well as ASME A17.1, A17.2, ASME 17.3, including supplement and amendments to any of these documents. Contractor shall provide written reports of said test(s) and submit said reports to the Commission. Agreement, pg. 2, section 4, also Appendix A, pgs. A-2, A-3, A-5, sections 2, 3, 4, and 9, attached as Exhibit A to Avakian Decl., ]2 -7- THYSSENKRUPP ELEVATOR CORPORATION’S 1). ADDITIONAL UNDISPUTED MATERIAL FACTS; and 2). RESPONSE TO MOVING PARTIES’ SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS.Ww NO Undisputed Material Facts with Supporting Evidence Opposing Party’s Response With Supporting Evidence 12. Pursuant to Appendix A, section 2 and 2(a) of Agreement, and Appendix C of the Agreement, Contractor was responsible for the continual preventative maintenance, repair, annual inspection...on all escalators...as listed in Appendix C of this Agreement, which includes ES- 512, so as to provide for safe reliable operation. Agreement, Appendix A, pg. A-2, section 2 and 2(a), also Appendix C, pg. C-1, attached as Exhibit A to Avakian Decl., 42 12. Undisputed that Appendix A, section 2, states in part, that “Under the direction of Commission, Contractor shall be responsible for the continual maintenance, repair, annual inspection, hoist way rope replacement, load testing, unlimited emergency repair work on all the escalators in any buildings owned and to be owned by the Commission (City) as listed in Appendix C of this Agreement.” Undisputed that Appendix A, section 2(a) of Agreement, states in part, “The Contractor shall maintain and provide for safe reliable operation of all escalators, including but not limited the preventative maintenance and duties set forth herein, replacement of all parts and components, state inspection and certification...., and evaluation of equipment operation and safety standards.” Agreement, Appendix A, pg. A-2, section 2 and 2(a), also Appendix C, pg. C-3, attached as Exhibit A to Avakian Decl., 42 -8- THYSSENKRUPP ELEVATOR CORPORATION’S 1). ADDITIONAL UNDISPUTED MATERIAL FACTS; and 2). RESPONSE TO MOVING PARTIES’ SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTSes WN o© Orn Dn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Undisputed Material Facts with Supporting Evidence Opposing Party’s Response With Supporting Evidence 13. Contractor agreed to, pursuant to Section 16 of the Agreement: Section 16. Indemnification: Contractor shall indemnify and save harmless City and its officers, agents and employees from, and, if requested, shall defend them against any and all loss, cost, damage, injury, liability, and claims thereof for injury to or death of a person, including employees of Contractor or loss of or damage to property, arising directly or indirectly from Contractor’s performance of this Agreement, including, but not limited to, Contractor’s use of facilities or equipment provided by City or others, regardless of the negligence of, and regardless of whether liability without fault is imposed or sought to be imposed on City, except to the extent that such indemnity is void or otherwise unenforceable under applicable law in effect on or validly retroactive to the date of this Agreement, and except where such loss, damage, injury, liability or claim is the result of the active negligence or willful misconduct of City and is not contributed to by any act of, or by any omission to perform some duty imposed by law or agreement on Contractor, its subcontractors or either’s agent or employee. The foregoing indemnity shall include, without limitation, reasonable fees of attorneys, consultants and experts and related costs and City’s costs of investigating any claims against the City. In addition to Contractor’s obligation to indemnify City, Contractor specifically acknowledges and agrees that it has an immediate and independent obligation to defend City from any claim which actually or potentially falls within this indemnification provision, even if the allegations are or may be groundless, false or fraudulent, which obligation arises at the time such claim is tendered to Contractor by City and continues at all times thereafter. 13. Undisputed that paragraph/section 16. entitled “Indemnification” of the Agreement, is as stated. Agreement, pg. 6, section 16, attached as Exhibit A to Avakian Decl. §2 -9- THYSSENKRUPP ELEVATOR CORPORATION’S 1). ADDITIONAL UNDISPUTED MATERIAL FACTS; and 2). RESPONSE TO MOVING PARTIES’ SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTSUndisputed Material Facts with Supporting Evidence Opposing Party’s Response With Supporting Evidence Contractor shall indemnify and hold City harmless from all loss and liability, including attorney’s fees, court costs and all other litigation expenses for any infringement of the patent rights, copyright, trade secret or any other proprietary right or trademark, and all other intellectual property claims of any person or persons in consequence of the use by City, or any of its officers or agents, of articles or services to be supplied in the performance of this Agreement. Agreement, pg. 6, section 16, attached as Exhibit A to Avakian Decl. 2 DATED: October 12, 2017 CLINTON & CLINTON Cn Christopher T. Olsen, B Attorney for Defendant ThyssenKrupp Elevator Corporation -10- THYSSENKRUPP ELEVATOR CORPORATION’S 1). ADDITIONAL UNDISPUTED MATERIAL FACTS; and 2). RESPONSE TO MOVING PARTIES’ SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTSv PROOF OF SERVICE STATE OF CALIFORNIA ) COUNTY OF LOS ANGELES) Tam employed in the County of Los Angeles, State of California, Iam over the age of 18 and not a party to the within action; my business address is 100 Oceangate, 14" Floor, Long Beach, California 90802. On October 12, 2017, 1 served the foregoing document described as THYSSENKRUPP ELEVATOR CORPORATION’S 1). ADDITIONAL UNDISPUTED MATERIAL FACTS; and 2). RESPONSE TO MOVING PARTIES’ SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS on all interested parties in this action by placing a true and correct copy thereof, enclosed in a sealed envelope addressed as follows: SEE ATTACHED SERVICE LIST (BY MAIL) I placed a true copy in a sealed envelope addressed as indicated above, on the above-mentioned date. Iam familiar with the firm’s practice of collection and processing correspondence for mailing. It is deposited with the U.S. Postal Service on that same day in the ordinary course of business. I am aware that on motion of party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit. I] (BY OVERNIGHT NEXT DAY DELIVERY) On the above-mentioned date, I placed a true copy of the above-mentioned document(s) in a sealed envelope or package to be delivered via overnight delivery to the party(ies) listed above. 4 (BY FACSIMILE) From facsimile number (562) 216-5001, I caused each such document to be transmitted by facsimile machine, to the parties and numbers indicated above, pursuant to Rule 2008. The facsimile machine | used complied with California Rules of Court, Rule 2003(3) and no error was reported by the machine. Pursuant to Rule 2008(e)(4), I caused the machine to print a transaction record of the transmission, a copy of which is attached to the original of this declaration. EXECUTED on October 12, 2017, at Long Beach, California. (STATE) I declare under penalty of perjury under the laws of the State of California that the above is true and correct. 4 (FEDERAL) I declare that I am employed in the office of a member gf the bar of this court at whose direction the service was nfade. C Dr “> Jy Lfullffeea le Regina J Buco} a Jt IE O THYSSENKRUPP ELEVATOR CORPORATION'S 1)! ADDITIONAL UNDISPUTED MATERIAL FACTS; and 2). RESPONSE TO MOVING PARTIES’ SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS.ATTACHED SERVICE LIST Roger D. Hecht FARLING, HECHT & DAVIS, LLP. 96 N. Third Street, Suite 660 San Jose, CA 95112 roger@fhdllp.com Tel: (408) 295-6100 Fax: (408) 299-0396 Attorneys for Plaintiff, Maria Calderon Felicia P. Jafferies LeCLairRyan, LLP 44 Montgomery Street, Suite 3100 San Francisco, CA 94104 T: (415) 391-7111 Attorneys for Defendant/Cross-Complainant, City and County of San Francisco -12- THYSSENKRUPP ELEVATOR CORPORATION’S 1). ADDITIONAL UNDISPUTED MATERIAL FACTS; and 2). RESPONSE TO MOVING PARTIES’ SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS