Filed 8/8/16 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

MORLI N ASSET MANAGEMENT LP et al.,

Cross

- complainants and

Appellants
,

v.

EDWARD M. MURACHAN IAN ,

Cross

- d efendant and Respondent

. B259800
(Los Angeles County Super. Ct. No. BC504083 )

APPEAL from judgment s and an order of the Superior Court for the County of Los Angeles

. Gregory Keosian and Donna Fields Goldstein , Judge s

. Affirmed.

Hor vitz & Levy, Mitchell C. Tilner
, Stephen E. Norris; Kuluva, Armijo & Garcia and Sherry L. Grguric for Cross

- complainants and Ap pellant s

.

W illiams Iagmin and Jon R. Williams for Cross

- defendant and Responde nt.

__________________________________________2 SUMMARY This is an appeal from the grant of summary judgment on two cross

- complaint s for indemnity and apportionment of fault. Plaintiff Jose Luis Anguiano filed this lawsuit
after he was injured when he slipped on the stairs in the common area of a commercial building. He was at the building to clean the carpets in the dental suite of a tenant in the building. Plaintiff sued the owners of the building and its managers , Morlin Asset Management LP and Morlin Management Corporation (the landlords ), for negligence and premises liability. The landlords each filed virtually identical cross

- complain ts against Edward Murachanian (the tenant ), a dentist who rents an office suite in the building. The
tenant h ad hired plaintiff’s employer to clean the carpets in his second

- floor suite. The tenant moved for summary judgment on the cross

- complaint s on the ground s that plaintiff claimed his injury was caused by a defect in the common areas of the building for whic h the landlords had the exclusive right of managem ent and control, and the tenant’ s lease provided he was only liable to indemnify the landlords for injuries
incurred within his suite. The landlords opposed the motion, arguing there were material disputed facts, including whether plaintiff was at fault for spilling a bucket of soapy water in which he slipped and fell; whether the tenant was at fault for failing to fulfill his duty under the lease to notify the landlords that someone was coming to clean the carpet, thus depriving
them of an opportunity to take steps to spare plaintiff from carrying heavy buckets of water up the stairway; and whether the stairway was defective. The landlords contended
the determination of their right s to indemnity and apporti onment of fault rested on how these disputed facts were resolved. The trial court granted the tenant’ s motion for summary judgment, finding the lease obligated the tenant to indemnify the l andlords only against claims for injuries occurring within the ten ant’ s office suite , not in the common areas

. We affirm the judgments, as well as the court’s order awarding attorney fees to the

tenant.3 FACTS
Plaintiff was an employee of Arax Carpet Co. Cross

- defendant tenant engaged Arax to clean the carpets in his dental suite

. Arax sent plaintiff and another man to do the
work on October 4, 2012

. As he walked up a flight of stairs, plaintiff slipped, falling forward and suffering severe injuries

. Plaintiff sued the landlords
, claiming the stairs presented a dange rous condition because the treads and risers did not conform to the b uilding c ode or industry
standards in various respects

. During discovery
, these facts came to light : A m edical report from Dr. Daniel Skende rian stated that, while carrying soapy

water up a flight of stairs, plaintiff “ had apparently spilled some water and slipped and
fell face fi rst, hitting his face and jaw. ” Dr. Skende rian’s report stated that plaintiff “volunteered that there was soap in the water that made the spills on the stairs more slippery.” Dr. Skende rian later testified at his deposition that plaintiff corroborated the
information in the medical records. Dr. Skende rian’s recollection of what plaintiff told him was that “he was carrying soapy water, water spilled, and he st epped in the spill and slipped.” A medical report and deposition testimony from Dr. Michelle Ward stated essentially the same thing: that plaintiff told her that he was carrying buckets of soapy water upstairs; the “bucket caught on the stair, water spil led and on his next step he slipped and fell forward.” When plaintiff was asked in discovery to state facts upon which he based any contention that his actions or omissions were not the sole cause of the incident, plaintiff responded with the same allega tions he made in the complaint about the dangerous condition of the stairs, in violation of statute or industry standards, and said: “As he
climbed [ the ] stairs carrying heavy buckets of water, Plaintiff made contact with one or all of these dangerous con ditions causing him to fall with great force on the steps.”
I van Bell, the build ing engineer for the property, was deposed and testified that he
told the tenant he wanted to be notified “whenever Arax comes out” so that he could
“make sure the hoses were run properly.” (This was because of a previous occasion4

when he “caught them [ ( Arax ) ] with the hose going up the stairs,” and he told the tenant that “it was a problem the way they were putting the hose” on that occasion.) Mr. Bell
testified that he “sa w them [ ( Arax ) ] do it wrong,” and he told the tenant that “ ‘[y]ou have to let me know every time they come.’ ”
In April and May 2014
, the landlord s filed cross

- complaint s against the tenant for equitable indemnity (alleging any injuries to plaintiff were caused by the tenant ); apportionment of fault; declaratory relief; and express indemnity unde r the terms of the
lease. The l andlords alleged the lease required the tenant to defend and indemnify them, and to purchase liability insurance naming them as ad ditional insured s

. In June 2014, the tenant moved for summary judgment. He contended the lease agreement did not provide express indemnity for plaintiff’s alleged injuries because the accident did not occur within his leased premises, but instead within the common areas; he did not cause or contribute to plaintiff’s alleged injuries, so there was no basis for implied or equitable indemnity; and at all times he procured the necessary liability insurance naming the landlords as additional insureds.
T he t en ant ’s evidence included , among other evidence, a copy of the lease, containing this indemnification clause:
“8.7 Indemnity. Except for Lessor’s gross negligence or willful misconduct, Lessee shall indemnify, protect, defend and hold harmless the Premises, Lessor and its agents , Lessor’s master or ground lessor, partners and Lenders, from and against any and all claims, loss of rents and/or damages, liens, judgments, penalties, attorneys’ and consultants’ fees expenses and/or liabilities arising out of, inv olving or in connection with, the use and/or occupancy of the Premises by Lessee. If any action or proceeding is brought against Lessor by reason of any of the foregoing matters, Lessee shall upon notice defend the same at Lessee’s expense by counsel reas onably satisfactory to Lessor and Lessor shall cooperate with Lessee in such defense. Lessor need not have first paid any such claim in order to be defended or indemnified.” (Italics and boldface added.)
The tenant was deposed six days after he filed hi s motion for summary judgment

. He testified that several years before plaintiff’ s accident, Mr. Bell “asked us to inform5

them when we were going to have any work done such as a carpet clea n ing or air conditioning service when we were having somebody come over onto the premises.” “We’d notify Ivan Bell. So if he had any concerns or needed to be there when any of this work was being done by any of the contractors he had ample time and notice to be there.”
T he t enant did not know whether his office staff n otified Mr. Bell about the carpet cleaning that took place on the date of plaintiff’s accident.
The l andlords opposed the motion for summary judgment, contend ing the
evidence establish ed “that plaintiff created the condition which caused his fall”; that plaintiff was acting as an agent for the tenant ; and that the tenant was responsible for plaintiff’s actions. The l andlords contended there were triable issues , including the extent of the agency and whether the tenant was negligent for creating the condi tion that caused or contributed to plaintiff’s fall and injuries. The trial court granted the tenant ’s motion for summary judgment on the
landlords ’ claim for express indemnity, finding the lease obligated the tenant to indemnify the landlords only again st claims “involving the Premises, which has a limited
definition and does not include ‘stairwells.’ ” Be cause it was undisputed that plaintiff was injured on the stairwells, within the common areas (defined as “all areas and
facilities outside the Premis es,” including stairwells, the control of which is expressly
reserved to the landlords ), the trial court concluded the tenant had no indemnification obligation. The court also granted summary judgment on the landlords ’ claims for equitable indemnity and ap portionment of fault, reasoning it was undisputed that the tenant did not exercise any control over the common areas. The court rejected the landlords ’ agency theory
, finding no law or facts to support the existence of an agency relationship between
the t enant and plaintiff. Judgment s were entered in the tenant ’s favor on the cross

- complaint s , and t he trial
court awarded the tenant $12,000 in attorney fees. The l andlords filed timel y appeal s from the judgment s and the attorney fee order

.6

Along with the ir opening brief, the landlords requested, and we now grant, judicial notice of documents showing plaintiff settled with the landlords and his complaint was dismissed with prejudice on June 2, 2015.
DISCUSSION As we explain below, we conclude as a matter of law that the indemnification clause in the lease does not extend to claims or liabilities arising out of this accident in
the common areas over which the tenant had no control. Summary judgment was therefore proper in this case.
1. The Standard of Revi ew We review an order granting summary judgment de novo, “ considering all the evidence set forth in the moving and opposition papers except that to which objections
have been made and sustained. ” ( Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317,
334

. )
A cross

- defendant moving for summary judgment must show “ that one or more elements of the cause of action . . . cannot be established, or that there is a complete
defense to that cause of action. ” ( Code Civ. Proc., § 437c, subd. ( p )(2) .) “In performin g our de novo review, we must view the evidence in a light favorable to [ the landlords ] as the losing party [citation], liberally construing [their] evidentiary submission while strictly scrutinizing [ the tenant’ s ] own showing, and resolving any evidentiar y doubts or ambiguities in [ the landlords’ ] favor.” ( Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768 .) S ummary judgment is appropriate where “all the papers submitted show that there is no triable issue as to any material fact and that the movi ng party is entitled to a judgment as a matter of law.” (Code Civ. Proc., § 437c, subd. (c).)
2

. The Lease Provisions We quoted above the indemnity clause in the parties’ lease , requiring the tenant to indemnify and defend the landlords and their agents ( except for their gross negligence or willful misconduct) against all claims and liabilities “ arising out of, involving or in connection with, the use and/or occupancy of the Premises by [ t enant ] .”7

Both parties variously invoke severa l other provisions of the lease, and both point out that the lease must be construed as a whole. (Civ. Code, § 1641 [“ The whole of a contract is to be taken together, so as to give effect to every part, if reasonably practicable, each clause helping to interpret the other. ”].)
T he t enant points to the definition s of lease terms, including the leased premises
, which are limited to s uite No. 204 ; the common areas, which are outside the suite and include the stairwells; and provisions giving the landlords exclusive control and

man agement of the common areas and the responsibility for keeping the common areas in good condition and repair. T he l andlords point to a provision exempting them f rom all liability for injury or damage to the person or property of the tenant or the tenant ’s employees, contractors or others “in or about the Premises,” from any cause, whether the injury results from conditions arising “ upon the Premises

. . . or from other sources or places, ” and a provision requiring the tenant to maintain specifically descri bed liability
insurance. The l andlords also point to the rules and regulations appended to the lease and initialed by the parties. These include a rule stating that the tenant “shall not employ any service or contractor for services or work to be perform ed in the Building except as approved by [ l andlords ] .”
3

. Th e Indemnity Clause Bars the Cross

- c omplaint s . The t enant agreed to indemnify the landlords for claims “arising out of, involving
or in connection with” his use or occupancy of the dental suite. The l andlords contend the term “arising out of” should be liberally construed in favor of the promisee (here, the landlords). For this proposition, the landlords cite Vitton Construction Co., Inc. v. Pacific
Ins. Co. (2003) 110 Cal.App.4th 762, 766 (and many other insurance cases) , where the
court observed that “ ‘ California courts have consistently given a broad interpretation to
the terms “arising out of” or “arising from” in various kinds of insurance provisions. ’ ” Here, the landlords say, “[w]ere it not for [ the tenant’s] use of the leased premises to operate his dental office, including his hiring of Arax to clean the carpet within the leased premises, [plaintiff] would not have been ascending the stairwell and would not have been injured.”8

But t his is not an insurance case. And as the Supreme Court instructs, “[t]hough indemnity agreements resemble liability insurance policies, rules for interpreting the two classes of contracts do differ significantly.” ( Crawford v. Weather Shield Mfg., Inc. ( 2008) 44 Cal.4th 541, 552 ( Crawford ) [a “public policy concern influences to some degree the manner in which noninsurance indemnity agreements are construed”].) “For example, it has been said that if one seeks, in a noninsurance agreement, to be
indemnifi ed

. . . regardless of the indemnitor’s fault

. . . language on the point must be particularly clear and explicit, and will be construed strictly against the indemnitee.” ( Ibid. ) In accordance with this principle, the indemnification clause cannot be rea d as the landlords suggest. Of course, “ [ i ] n a remote sense,” the accident would not have occurred if the tenant had not hired Arax to clean the carpets in his dental suite, and in that sense
, the
accident could be said to arise from the tenant’s use of th e suite. (See Hollander v.
Wilson Estate Co. (1932) 214 Cal. 582, 584, 585 [construing the tenant’s agreement to indemnify for claims “ ‘arising

. . . in or about or connected with’ ” the demised premises; “ [ i] n a remote sense, of course, the elevator [wh ich dropped to the basement injuring the tenant] is a means of ‘ connection ’ between the street and the demised premises” ; but elevator was “ owned, controlled, operated and maintained exclusively by
the defendant ” and “ can hardly be supposed to have been a subject wi thin the scope of the lease”]; see also City of Oakland v. Oakland etc. Sch. Dist. (1956) 141 Cal.App.2d 733, 735 , 737 ( City of Oakland ) [construing the lessee’s agreement to indemnify the lessor for claims “ ‘arising out of the use and occupatio n of the premises by the lessee ’ ”; the indemnity clause did not apply to an injury incurred when a third party stepped in a
hole in a walkway used for ingress and egress to and from the leased premises ].) To say the accident would not have occurred if th e tenant had not hired Arax to clean the carpets does not mean the standard indemnity clause applies here. At oral argument, counsel for the l andlords concede d that the landlords could not seek indemnity if a defect in the stairs for which they were respo nsible caused the accident. T hey point
out that cases such as Hollander and City of Oakland in volve circumstances where the9

accident is indisputably caused by the lessor’s negligent maintenance of the common area
over which the lessor had exclusive contro l. This case is different, they say, because the tenant “offered no evidence that [ the landlords] negligently maintained the stairwell or that a defect in the stairwell caused the accident.” Further, they say, they offered
evidence the accident was cause d by plaintiff’s negligence, Arax’s negligent supervision of plaintiff, or the tenant’s negligence in failing to notify the landlords of the carpet cleaning. These arguments are unavailing. We are not persuaded the distinctions the landlords proffer have any relevance to the scope of the indemnification clause, an issue of contract interpretation that is

un affected by the ultimate cause of the accident. 1 T he factual questions the landlords raise about plaintiff’s negligence and Arax’s negligent supervisi on relate only to the dispute between plaintiff and the landlords , which the parties have settled

– not to the scope of the tenant’s contractual indemnification obligation

. Nor do the factual issues
about the tenant’s failure to notify Mr. Bell about the carpet cleaning have any relevance

to the scope of the tenant’s obligation to indemnify the landlords under the lease. At most, the failure to notify could arguably constitute breach of a rule in the lease ( a finding
we do not make ), but no breach of cont ract claim is before us.

1 At oral argument, counsel for the landlords cited National Fire Ins. Co. v. Federal Ins. Co. (N.D.Cal. 2012) 843 F.Supp.2d 1011 for the proposition that a lessee had a duty to indemnify a lessor for an accident that did not occur in the leased premises . In that case, a small child was killed when she fell off a hotel balcony, after wandering away from a party catered by an on

- site restaurant in a hotel ballroom being used b y the restaurant under the terms of its lease with the hotel. The restaurant’s insurer sought reimbursement of its defense and settlement costs from the hotel’s insurer. Cross

motions for summary judgment by both insurers were denied. ( Id. at pp. 1012

- 1 013.) The case turned on the court’s interpretation of insurance policies, including questions whether the restaurant’s insurer was obliged to defend and indemnify the hotel as an additional insured , whether the hotel had to first exhaust its self

- insured retention, and whether the hotel’s insurer provided only excess coverage with no obligation pending exhaustion of the restaurant’s coverage limits. The short answer to the landlords’ reliance on that case is simple: the principles governing insurance co verage are not the same principles governing noninsurance indemnity agreements. ( See Crawford , supra, 44 Cal.4th at p. 552 .)10

Finally, t o the extent the landlords are suggesting they have a right to equitable
indemnification , they are mistaken. The Supreme Court has held otherwise: “ [W] hen parties by express contractual provision establish a duty in one party to indemnify another, ‘the extent of that duty must be determined from the contract and not from the independent doctrine of equitable indemnity.’ ” ( E. L. White, Inc. v. Huntington Beach (1978) 21 Cal.3d 497, 508 , italics omitted; see also 5 Witki n (10 th ed. 2005) Summary of Cal. Law, Torts
, § 1 23, p. 225 [ “An express indemnity clause, rather than the equitable principles behind comparative indemnity, governs the scope of any duty to indemnify. ”].)
We hold that u nder the indemnity clause in this c ase, the injury to a third party that
occurred outside the dental suite, in a common area over which the landlords have exclusive control, did not arise out of the tenant’s use of the dental suite. It does not
matter that the accident would not have happe ned but for the tenant hiring the third party to clean the carpets in the dental suite, and that the third party may have been at fault. The connection between the tenant’s use of his suite and the accident in the stairwell over which the tenant had no co ntrol is too remote to have been within the contemplation of the parties when they entered into the lease. This construction of the indemnity clause is fully consistent with the law governing the interpretation of indemnification provisions ( Crawford, sup ra, 44 Cal.4th at p. 552) , and with the Hollander and City of Oakland cases construing similar language, albeit in distinguishable circumstances. The trial court

pr operly granted summary judgment. The only basis the landlords assert for reversal of the at torney fee order is that the summary judgments were erroneous. Because we have concluded otherwise, we likewise affirm the attorney fee order.
D ISPOSITION
The judgment s and the order awarding attorney fees are affirmed. Respondent
shall recover his cost s on appeal. GRIMES, J. WE CONCUR :

RUBIN, Acting P. J. FLIER, J.