Filed 8/8/16

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

MORLIN ASSET MANAGEMENT LP et 

al., 

Cross-complainants and 

 Appellants,

v.

EDWARD M. MURACHANIAN,

 Cross-defendant and

 Respondent.

 B259800

 (Los Angeles County

 Super. Ct. No. BC504083)

APPEAL from judgments and an order of the Superior Court for the County of 

Los Angeles. Gregory Keosian and Donna Fields Goldstein, Judges. Affirmed.

Horvitz & Levy, Mitchell C. Tilner, Stephen E. Norris; Kuluva, Armijo & Garcia 

and Sherry L. Grguric for Cross-complainants and Appellants.

Williams Iagmin and Jon R. Williams for Cross-defendant and Respondent.

__________________________________________
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SUMMARY

This is an appeal from the grant of summary judgment on two cross-complaints

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-complaints against 

Edward Murachanian (the tenant), a dentist who rents an office suite in the building. The 

tenant had hired plaintiff’s employer to clean the carpets in his second-floor suite.

The tenant moved for summary judgment on the cross-complaints on the grounds

that plaintiff claimed his injury was caused by a defect in the common areas of the 

building for which the landlords had the exclusive right of management 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 rights to indemnity and apportionment 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 landlords only against claims for injuries 

occurring within the tenant’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.
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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 dangerous 

condition because the treads and risers did not conform to the building code or industry 

standards in various respects. 

During discovery, these facts came to light:

A medical report from Dr. Daniel Skenderian stated that, while carrying soapy 

water up a flight of stairs, plaintiff “had apparently spilled some water and slipped and 

fell face first, hitting his face and jaw.” Dr. Skenderian’s report stated that plaintiff 

“volunteered that there was soap in the water that made the spills on the stairs more 

slippery.” Dr. Skenderian later testified at his deposition that plaintiff corroborated the 

information in the medical records. Dr. Skenderian’s recollection of what plaintiff told 

him was that “he was carrying soapy water, water spilled, and he stepped 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 spilled 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 allegations 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 conditions causing him to fall with great force on the steps.” 

Ivan Bell, the building 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 occasion 
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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 “saw 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 landlords filed cross-complaints against the tenant for

equitable indemnity (alleging any injuries to plaintiff were caused by the tenant); 

apportionment of fault; declaratory relief; and express indemnity under the terms of the 

lease. The landlords alleged the lease required the tenant to defend and indemnify them, 

and to purchase liability insurance naming them as additional insureds. 

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. 

The tenant’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, involving 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 reasonably 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 his motion for summary judgment. 

He testified that several years before plaintiff’s accident, Mr. Bell “asked us to inform 
5

them when we were going to have any work done such as a carpet cleaning 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.” 

The tenant did not know whether his office staff notified Mr. Bell about the carpet 

cleaning that took place on the date of plaintiff’s accident. 

The landlords opposed the motion for summary judgment, contending the 

evidence established “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 landlords contended there were triable issues, including the extent 

of the agency and whether the tenant was negligent for creating the condition 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 against claims “involving the Premises, which has a limited 

definition and does not include ‘stairwells.’ ” Because it was undisputed that plaintiff 

was injured on the stairwells, within the common areas (defined as “all areas and 

facilities outside the Premises,” 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 apportionment 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 tenant and plaintiff.

Judgments were entered in the tenant’s favor on the cross-complaints, and the trial 

court awarded the tenant $12,000 in attorney fees. The landlords filed timely appeals 

from the judgments and the attorney fee order.
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Along with their 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 Review

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 performing 

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 evidentiary doubts or 

ambiguities in [the landlords’] favor.” (Saelzler v. Advanced Group 400 (2001) 25 

Cal.4th 763, 768.) Summary judgment is appropriate where “all the papers submitted 

show that there is no triable issue as to any material fact and that the moving 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 [tenant].”
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Both parties variously invoke several 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.”].)

The tenant points to the definitions of lease terms, including the leased premises, 

which are limited to suite No. 204; the common areas, which are outside the suite and 

include the stairwells; and provisions giving the landlords exclusive control and 

management of the common areas and the responsibility for keeping the common areas in 

good condition and repair. The landlords point to a provision exempting them from 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 described liability 

insurance. The landlords 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 performed in the Building except as 

approved by [landlords].” 

3. The Indemnity Clause Bars the Cross-complaints.

The tenant agreed to indemnify the landlords for claims “arising out of, involving 

or in connection with” his use or occupancy of the dental suite. The landlords 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.” 
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But this 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 

indemnified . . . 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 read 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 the 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 [which 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 within 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 occupation 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 the tenant had not hired Arax to 

clean the carpets does not mean the standard indemnity clause applies here. At oral 

argument, counsel for the landlords conceded that the landlords could not seek indemnity 

if a defect in the stairs for which they were responsible caused the accident. They point 

out that cases such as Hollander and City of Oakland involve circumstances where the 
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accident is indisputably caused by the lessor’s negligent maintenance of the common area 

over which the lessor had exclusive control. 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 caused 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 

unaffected by the ultimate cause of the accident.1 The factual questions the landlords 

raise about plaintiff’s negligence and Arax’s negligent supervision 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 contract 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 by 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. Crossmotions for summary judgment by both insurers were denied. (Id. at pp. 1012-1013.) 

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 coverage are not the 

same principles governing noninsurance indemnity agreements. (See Crawford, supra, 

44 Cal.4th at p. 552.) 
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Finally, to 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 Witkin (10th ed. 2005) Summary of 

Cal. Law, Torts, § 123, 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 under the indemnity clause in this case, 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 happened 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 control 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, supra, 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 

properly granted summary judgment.

The only basis the landlords assert for reversal of the attorney fee order is that the 

summary judgments were erroneous. Because we have concluded otherwise, we likewise 

affirm the attorney fee order.

DISPOSITION

The judgments and the order awarding attorney fees are affirmed. Respondent

shall recover his costs on appeal.

GRIMES, J.

WE CONCUR:

 RUBIN, Acting P. J. FLIER, J.