Marquez v. Look Cinemas II, LLC, et al

19. Marquez v. Look Cinemas II, LLC, et al, Case No. CIVSB2428912 Defendant Spirit’s Motion for Summary Adjudication on Cross Complaint 7/24/26, 9:00 a.m., Dept. S-17

Tentative Ruling The Court would GRANT1 Spirit’s motion for summary adjudication as to Look Cinemas’ duty to defend them in this action pursuant to paragraph 9.1 of the lease.

Case Summary This is, essentially, a premises liability matter. Defendant Look ran the theater premises; Defendant Spirit owned the premises; and Defendant Morrison was the property manager. Plaintiff was lawfully on the property when she fell due to a purportedly hazardous and dangerous condition. As such, on October 8, 2024, she filed suit alleging (1) negligence and (2) premises liability.

On December 5, 2024, Defendant Spirit filed a Cross-Complaint against Look for (1) contractual indemnity; (2) equitable indemnity; (3) contribution; (4) breach of sub-contracts; and (5) declaratory relief.

On April 4, 2024, an amended Cross Complaint was filed asserting the same causes but including a corrected caption.

On July 1, 2025, Plaintiff filed a dismissal without prejudice as to Defendant Morrison.

Statement of Law Summary judgment is proper where there is no triable issue as to any material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c(c).)

The analysis requires three steps: First, the court must identify the issues framed within the pleading. (AARTS Productions, Inc. v. Crocker National Bank (1986) 179 Cal.App.3d 1061, 1064- 1065.)

Second, it must determine whether the moving party has established facts sufficient to negate the claim and justify a judgment in movant’s favor. (Ibid.)

Third, and finally, when a summary judgment motion, as a prima facie matter, justifies a judgment, the court must determine whether the opposition demonstrates the existence of a triable issue of material fact. (Ibid.)

The court’s sole function on a motion for summary judgment is issue finding, not issue determination. (See Zavala v. Arce (1997) 58 Cal.App.4th 915, 926.)

1 Materials considered: Complaint; Cross-Complaint; Answer to Cross-Complaint; motion for summary adjudication as to the Cross-Complaint; Request for judicial notice; Campbell Declaration, Senior Vice President and Assistant General Counsel, Risk and Litigation for Realty Income Corporation, parent company for Spirit Master Funding X, LLC; separate statement and replies; Look Cinemas filed an opposition declaration of Kimberly Byrge, Esq. and their own separate statement and replies by Spirit; reply and request for judicial notice.

A summary adjudication motion is subject to the same rules and procedures as a summary judgment motion. (Lomes v. Hartford Financial Service Group, Inc. (2001) 88 Cal.App.4th 127, 131.)

Material Facts Defendant/Cross-Complainant Spirt entered into a lease agreement with Defendant/Cross- Defendant Look that became effective on May 11, 2021. (UMF, 1.)

Plaintiff filed a complaint on October 8, 2024, against Spirit and Look. (UMF, 3.)

Plaintiff alleges that her fall caused her personal injuries. (UMF, 5.)

Plaintiff alleged that Look owned, controlled, and operated the Property. (UMF, 6 [undisputed that this was Plaintiff’s contention but not an admitted fact.]

Plaintiff alleges that Spirit owned the Property. (UMF, 7.)

On June 15, 2024, Spirit tendered Plaintiff Marquez’s claim to. (UMF, 8.)

On April 4, 2025, Spirit filed a first amended crosscomplaint against Look. (UMF, 9.)

To date, Look Cinemas has denied that it has any obligation to defend Spirit in this instant action. (UMF, 10.)

Notably, Section 9.1 of the lease states, in pertinent part, that tenant shall indemnify and hold harmless against losses “relating in any way to the Leased Premises or caused by, incurred or resulting from Tenant’s operations or by Tenant’s use and occupancy . . . .” (UMF, 2.)

Section 16.9 of the lease agreement defines “Losses” as meaning all claims, suits, liabilities (including, without limitation, strict liabilities), actions, proceedings, obligations, debts, damages, losses, Costs, diminution in value, fines, penalties, interest charges, fees, judgments, awards, amount paid in settlement and damages of whatever kind or nature, inclusive of bodily injury and property damage to third parties (including without limitation, attorneys’ fees and other Costs of defense.) (UMF, 11.)

Look’s Additional Material Facts: At the time of the incident in May 2024, Look had leased the premises, from Spirit pursuant to a lease agreement. (UAMF, 2.)

On or about May 4, 2024, Plaintiff was an invitee at the premises when she tripped and fell and sustained injury due to an alleged dangerous condition of the floor, specifically the flooring materials. (UAMF, 4.)

Disputed Additional Material Facts: The lease agreement contained an indemnity provision that required Look to indemnify Spirit for occurrences at the premise resulting only from Look’s use and operation of the property. (DAMF, 3.)

The provision also acknowledges the following: Tenant shall indemnify, protect, defend and hold harmless... excluding losses suffered by an Indemnified Party arising out of the gross negligence or willful misconduct of such Indemnified Party.” (Ibid. [disputed. The lease agreement contained an indemnity provision that required Look to “indemnify, protect, defend and hold harmless each of the Indemnified Parties from and against any and all Losses . . . relating in any way to the Leased Premises . . .”].)

There has been no allegation or evidence that Plaintiff slipped or tripped on debris or any foreign object or liquid substance on the floor. (DAMF, 5 [disputed. Plaintiff contends that the floor was excessively sticky].)

Plaintiff contends the dangerous condition of the floor included structural failures that did not comply with applicable building code requirements or ADA regulations for slope and handrail accessibility. (DAMF, 6 [disputed, as the only contention made in Plaintiff’s Complaint as to the dangerous condition is specifically as to the ground material. These contentions were not made in Plaintiff’s complaint. Plaintiff contends the flooring as excessively sticky/tacky].)

Plaintiff further contends that the structural condition of the flooring material was inherently unsafe, improperly selected, and unsuitable for commercial use and that the slope of the flooring itself violated applicable building code standards and ADA regulations, specifically when not accompanied by handrails. (DAMF, 7 [disputed. The only contention made in Plaintiff’s Complaint as to the dangerous condition is specifically as to the ground material. These contentions were not made in Plaintiff’s complaint. Plaintiff contends that flooring was excessively sticky/tacky].)

Prior to Look taking possession of the premises there was a major renovation to the entire building, including the floor. (DAMF, 8 [disputed. Look has provided no facts other than a witness testifying that when she visited the premises while in possession of Look Cinemas, that the appearance had been altered].)

Since taking possession of the premises, there is no evidence that Look altered, changed or modified the floor in any manner. (DAMF, 9 [disputed. Look has provided no facts other than a witness testifying that, when she visited the premises while in possession of Look, that the appearance had been altered].)

Analysis

On an express indemnity claim, the following is required: (1) contract defining the obligation of one party to make good as to a loss another party incurred; and (2) occurrence of loss the other party incurred or of some other legal consequence of conduct of another party. (McCrary Construction Co. v. Metal Deck Specialists, Inc. (2005) 133 Cal.App.4th 1528, 1536.)

“[W]here parties have expressly contracted with respect to the duty to indemnify, the extent of that duty is generally determined from the contract and not by reliance on the independent doctrine of equitable indemnity.” (Maryland Casualty Co. v. Bailey & Sons, Inc. (1995) 35 Cal.App.4th 856, 864.)

An indemnity agreement “is construed under the same rules as govern the interpretation of other contracts.” (Crawford v. Weather Shield Mfg., Inc. (2008) 44 Cal.4th 541, 552.)

“Effect is to be given to the parties’ mutual intent, as ascertained from the contract’s language if it is clear and explicit. (Crawford, supra, 44 Cal.4th p. 552 [internal citations omitted].)

“Unless the parties have indicated a special meaning, the contract’s words are to be understood in their ordinary and popular sense.” (Ibid.)

“[W]here plaintiff's complaint alleges facts embraced by the indemnity agreement, the indemnitor has a duty to defend throughout the underlying tort action unless it can conclusively show by undisputed facts that plaintiff's action is not covered by the agreement.” (Centex Home v. R-Help Construction Co., Inc. (2019) 32 Cal.App.5th 1230, 1237.)

“In the absence of a contrary intention in the language used, the law will imply, in an agreement to indemnify, an agreement to defend actions brought against the indemnitee ‘in respect to the matters embraced by the indemnity.’” (Ibid.)

“In other words, in the absence of any contrary intention, the scope of the duty to defend which is implied in an indemnification clause has the same scope as the duty to indemnify.” (Ibid.)

“Conversely, if an action is brought against the indemnitee which is not ‘embraced by the indemnity’ duty, there is no duty to defend.” (City of Bell v. Superior Court (2013) 220 Cal.App.4th 236, 249.)

Here, Look – the tenant – argues gross negligence or willful misconduct prohibits it from providing a Defense for Spirit in this case.

Look argues that building code violations constitute negligence per se and that failure to correct them can support a finding of willfulness, citing Evidence Code section 669, failure to exercise due care.

Notably, the cases cited by Look in the opposition had willfulness in the statute violated.

Spirit, on the other hand, argues that Look inspected the premises and found them adequate for its use.

Importantly, the lease language bares this out: 3.1 Grant of Lease. Landlord hereby leases to Tenant and Tenant hereby leases from Landlord, the Leased Premises in its “as is” condition, subject to the terms and provisions of this Lease. Tenant has physically inspected the Leased Premises and has examined title to the Leased Premises, as well as to the furniture, fixtures, or equipment, including without limitation the “Landlord F&E” (as defined below) located on or in the Leased Premises, and has found all of the same satisfactory in all respects for all of Tenant’s purposes.

Landlord has not made any representations or warranties, whether express or implied, regarding: (a) the condition or ownership of any of the furniture, fixtures, or equipment located on or in the Leased Premises (including without limitation the Landlord F&E) or (b) whether or not any third parties hold any lien rights with respect to such furniture, fixtures, or equipment. . . . In addition to the foregoing, Tenant shall be responsible for repair, maintenance, replacement, insurance, and any costs related to the Landlord F&E during the Term. . . . (Emphasis added.)

Moreover, Look took possession of the property in 2021, and Plaintiff’s fall occurred in 2024.

Thus, Look inspected the property; did not have an issue; and then entered into a triple net lease claiming full control of the property.

Then three years later the Plaintiff fell and now Look claims that Spirit could have had some gross negligence or willful misconduct.

However, there is no evidence as to those claims and Look took the possess “as is.”

Thus, there is no issue of material fact regarding the purported gross negligence or willful misconduct.

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