Opinion
A159199
02-24-2021
HUMBOLDT WASTE MANAGEMENT AUTHORITY, Cross-Complainant and Appellant, v. GRIFFIN DEWATERING CORPORATION, Cross-Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Humboldt County Super. Ct. No. DR160325)
Humboldt Waste Management Authority (Humboldt) and Griffin Dewatering Corporation (Griffin) are defendants in a negligence action filed by Daniel Hogan, who sustained personal injuries when he fell into a hole at Humboldt's landfill. The trial court granted Griffin summary judgment, finding that it had completed and Humboldt had accepted the work Griffin performed at the landfill many years before Hogan was injured. Thereafter, Humboldt's cross-complaint against Griffin for indemnification was dismissed pursuant to a motion for judgment on the pleadings. In this appeal from the judgment on the cross-complaint in favor of Griffin, Humboldt contends the trial court erred by using the completed and accepted doctrine to bar its cross-claims. We reject this contention but will remand the case to give Humboldt an opportunity to amend its cross-complaint.
BACKGROUND
I. The Completed and Accepted Doctrine
Under the completed and accepted doctrine, a construction contractor can avoid tort liability for injury or damage to a third party resulting from the condition of the contractor's work after that work has been completed and accepted by the owner of the property where the injury occurred. (Neiman v. Leo A. Daly Co. (2012) 210 Cal.App.4th 962, 969-972 (Neiman).) The doctrine is controversial and subject to many exceptions. (See Annot., Modern status of rules regarding tort liability of building or construction contractor for injury or damage to third person occurring after completion and acceptance of work; "completed and accepted" rule (1999) 74 A.L.R.5th 523 (Annotation).) However, it is followed in California. (Neiman, at pp. 969-972; Jones v. P.S. Development Co., Inc. (2008) 166 Cal.App.4th 707, 712 (Jones) overruled on another ground in Reid v. Google, Inc. (2010) 50 Cal.4th 512, 532, fn. 7; Sanchez v. Swinerton & Walberg Co. (1996) 47 Cal.App.4th 1461, 1466-1471 (Sanchez).)
California's rationale for adopting the completed and accepted doctrine is that "liability for the safety of a contractor's work shifts to the owner upon acceptance of the work, that is, when the owner has had an opportunity to examine the work, and thereafter represents that it is safe." (Jones, supra, 166 Cal.App.4th at p. 717.) In explaining why California adheres to the doctrine, courts focus on the tort concepts of duty and causation: " ' "By acceptance and subsequent use, the owners assume to the world the responsibility of its sufficiency, and to third parties, the liability of the contractors has ceased, and their own commenced." [Citation.] In other words, having a duty to inspect the work and ascertain its safety before accepting it, the owner's acceptance represents it to be safe and the owner becomes liable for its safety.' " (Ibid.; see also Sanchez, supra, 47 Cal.App.4th at p. 1466.) "Stated another way, 'when the owner has accepted a structure from the contractor, the owner's failure to attempt to remedy an obviously dangerous defect is an intervening cause for which the contractor is not liable.' " (Neiman, supra, 210 Cal.App.4th at p. 969.)
One material limitation of the completed and accepted doctrine is that it "applies to patent defects, but not latent defects. 'If an owner fulfilling the duty of inspection, cannot discover the defect, then the owner cannot effectively represent to the world that the construction is sufficient; he lacks adequate information to do so.' " (Neiman, supra, 210 Cal.App.4th at p. 969.)
II. Hogan's Personal Injury Action
In June 2016, Hogan filed the underlying action for damages resulting from a 2015 injury he sustained while working at Humboldt's landfill. In his operative first amended complaint, Hogan alleged he was employed by a contractor performing work at the landfill when he walked "around a piece of equipment being operated by a co-employee" and "fell approximately twelve feet into an unmarked test well known as 'Old GP-4.' " The test well was supposed "to have been filled in sometime in 2006, but instead remained unfilled and unmarked and hidden" from Hogan's view "by tall grass."
In a first cause of action for negligence, Hogan alleged that Humboldt, Griffin, and others caused his injuries by failing to warn of the existence of Old GP-4 and by failing to "properly mark or fill in [the] test well." In a second cause of action for premises liability, Hogan alleged that Humboldt breached its duty to maintain the landfill free of unmarked hazards.
III. Humboldt's Cross-Complaint
Humboldt filed a cross-complaint for equitable indemnity, contribution, and declaratory relief against Griffin, which it amended in March 2019. In its first cause of action for indemnification, Humboldt incorporated by reference allegations in Hogan's complaint for the limited purpose of setting forth Hogan's claims. Humboldt denied liability for Hogan's accident and alleged that if it was "in some manner responsible" to Hogan or any third party, its liability "would be based solely upon a derivative form of liability not resulting from [its own] conduct . . ., but only from an obligation imposed upon [it] by law." Therefore, Humboldt alleged, it was entitled to "complete indemnity" from Griffin.
In its second cause of action for apportionment, Humboldt alleged that Griffin was wholly or partially responsible for any injuries or damages that Hogan incurred and if Humboldt was held liable to Hogan, Griffin should be required to pay a share of the judgment that was "in proportion to" Griffin's "comparative negligence, fault or legal liability" in causing the damages, and it should also be required to reimburse Humboldt for any payment it makes to Hogan "in excess of [its] proportional share of negligence."
Finally, Humboldt sought a judicial declaration regarding the respective rights and duties of Humboldt and Griffin. Humboldt alleged it was entitled to this relief because Griffin disputed Humboldt's contention that if Humboldt was "in any way liable" for Hogan's injuries, "said liability will be the responsibility, in whole or in part, of [Griffin]."
IV. Griffin's Summary Judgment Motion
In February 2019, Griffin filed a motion for summary judgment against Hogan, arguing that Hogan's sole claim against Griffin for negligence failed as a matter of law for two independent reasons. First, the completed and accepted doctrine establishes that Griffin's liability and duty of care to Hogan terminated in 2006, when Griffin completed drilling work that it conducted at the landfill and Humboldt accepted Griffin's completed work. Second, Hogan had no evidence to establish that the hole he fell into in 2015 was the hole Griffin drilled in 2006, when it performed work at the landfill.
In support of this motion, Griffin alleged the following facts were undisputed: On July 25, 2006, Griffin entered into a contract with Humboldt to "abandon" the Old GP-4 well on Humboldt's landfill pursuant to the engineering plans of Winzler & Kelly, predecessor in interest of defendant GHD, Inc. To complete its work, Griffin was required to drill down into the well, remove casing and then fill the well with grout and bentonite to the top of the grade. Griffin completed its work pursuant to the specifications of Winzler & Kelly. Winzler & Kelly supervised and "signed off" on Griffin's work as "completed and accepted." Griffin's work was also monitored and overseen by defendant SCS Field Services. After Griffin completed its work in August 2006, it had no obligation to return to the landfill, and it was subsequently paid in full for its work.
Griffin alleged there was also undisputed evidence that, at some time after Griffin completed its work, Humboldt discovered erosion at the site of the abandoned well and, in October or November 2006, Humboldt performed additional work at the site to address the problem, which included filling " 'sinkholes.' " Subsequent projects conducted at the landfill prior to Hogan's accident also impacted soil in or around the well, including a road installation, an excavation project, and formation of a trench.
Regarding Humboldt's investigation of Hogan's accident, Griffin maintained that the following facts were undisputed: Humboldt landfill manager Mark Springman inspected the area where Hogan was injured, concluded that the dimensions of the hole Hogan fell into were different than the dimensions of Old GP-4, and was unable to determine whether the hole was in the same location as Old GP-4.
Opposing Griffin's summary judgment motion, Hogan argued there was a triable issue of material fact as to whether the hole he fell into had been drilled by Griffin because Humboldt employee Jill Duffy had identified the hole as Old GP-4. Hogan also argued there was a triable issue whether Griffin's work created a latent defect that caused Hogan's injury, in which case the completed and accepted doctrine would not apply.
Humboldt filed a declaration by Jill Duffy in support of Hogan's opposition to Griffin's motion for summary judgment. Duffy stated that she has been Humboldt's Executive Director since November 2012. After Hogan's 2015 accident, Duffy personally viewed the hole where Hogan is alleged to have fallen. She identified the hole as Old GP-4 based on her review of available records, which included a map produced by Winzler & Kelly. Duffy also relied on the fact that other Humboldt "[s]taff" referred to the location as Old GP-4.
On October 3, 2019, the trial court granted Griffin summary judgment. The 5-page order contains a factual summary in which the court stated that the following facts were either undisputed by the parties or established by undisputed evidence: In July and August 2006, Griffin completed its work on a project to decommission the Old GP-4 test well at the Humboldt landfill. Humboldt accepted Griffin's work by August 2006, at the latest. Thereafter, Griffin had no obligation to monitor or maintain the work that Humboldt had accepted. In October/November 2007, Humboldt noticed erosion and sinkholes in the area where Griffin had performed its work and addressed these issues by conducting additional filling.
In its order, the court observed that Griffin's statement of undisputed facts indicated that Humboldt's additional work was done in 2006, but Griffin's evidence established that the work was actually done in 2007.
On the merits, the court found that Griffin was entitled to summary judgment on the ground that the completed and accepted doctrine bars recovery by relieving Griffin of its duty of care. (Citing Sanchez, supra, 47 Cal.App.4th 1466.) The court rejected Hogan's contention that there was a triable issue of fact as to whether Griffin created a latent defect, such that it could not have been detected by the owner prior to Hogan's accident, even upon reasonable inspection. In this regard, the court observed that the hole Hogan fell into "was substantial by all accounts"; the injury occurred nine years after Griffin's work was completed and accepted; during the "intervening years," Humboldt performed additional work at the site of Old GP-4 to address erosion and sinkholes; and, approximately six years after Griffin completed its work, Humboldt began the process of closing its landfill, which involved multiple activities that impacted the soil at the site where Hogan was injured in 2015.
V. Griffin's Motion for Judgment on the Pleadings
On October 10, 2019, Griffin filed an ex parte application for an order shortening time to hear Griffin's motion for judgment on the pleadings or dismissal of cross-claims and a complaint in intervention that had been filed against Griffin in Hogan's personal injury action. Griffin requested ex parte relief due to the fact that its motion was based on the court's summary judgment ruling, which had only recently been decided, and the fact that a trial date had been set for early November. On October 11, the court held a hearing on Griffin's application to shorten time and granted it.
On October 15, 2019, Griffin filed its notice of motion and motion for judgment on the pleadings or, in the alternative, to dismiss Humboldt's cross-complaint. In the same pleading, Griffin moved to dismiss a cross-complaint by SCS Field Services, and to be dismissed from a complaint in intervention filed by Hogan's workers' compensation insurance carrier. According to Griffin's motion, the challenged pleadings all sought "equitable indemnity, contribution, and similar equitable claims" but "no contribution or indemnity [was] owed by Griffin where it owed no duty to [Hogan]" and was not "liable or at fault" for Hogan's injuries. This motion was supported by a memorandum of law and accompanying request for judicial notice of the relevant pleadings and the order granting Griffin summary judgment of Hogan's negligence claim.
In its memorandum in support of this motion, Griffin made a new additional argument about Humboldt's cross-complaint. Acknowledging that Humboldt had not alleged a cause of action for express indemnity, Griffin nevertheless argued that such a claim would also be barred by the summary judgment order establishing that Griffin did not owe a duty to Hogan. In presenting this argument, Griffin stated: "Typically express indemnity clauses, such as the one at issue in this case between [Humboldt] and Griffin, require the claim for which indemnity is sought to 'arise out of' an act or omission of the indemnitor [Griffin]. Here, the underlying claim does not arise out of any act or omission on the part of Griffin because as this Court has held, Griffin owned no duty to [Hogan]. Therefore, Griffin's contractual obligation to indemnify cannot be triggered because the underlying claim for which indemnity would be sought does not arise out of any act or omission by Griffin."
Humboldt did not oppose Griffin's motion for judgment on the pleadings or appear at the October 2019 hearing on that motion. At the conclusion of the hearing, the court granted Griffin's motion and signed its proposed order. The order grants Griffin's request for judicial notice and motion for judgment on the pleadings and contains separate findings as to each pleading covered by the order. Regarding Humboldt, the order states: "Griffin is entitled to Judgment on the entirety of the Cross-Complaint filed by [Humboldt] and all causes of action contained therein plead[ed] against Griffin including any and all claims for express indemnity against Griffin in this action, and [Humboldt's] Cross-Complaint is dismissed with prejudice as to Griffin only."
On November 12, 2019, the trial court entered judgment in favor of Griffin, dismissing Hogan's complaint, Humboldt's cross-complaint, and all other claims that were filed against Griffin in this action (the 2019 judgment). Regarding Humboldt specifically, the 2019 judgment states: "Judgment is hereby entered in favor of Cross-Defendant Griffin Dewatering Corporation and against Cross-Complainant Humboldt Waste Management Authority as to the entirety of its Cross-Complaint and all causes of action contained therein pl[e]d against Griffin Dewatering Corporation including any and all claims for express indemnity against Griffin Dewatering Corporation in this action, and Humboldt Waste Management Authority shall take nothing from Cross-Defendant Griffin Dewatering Corporation."
On December 20, 2019, Humboldt filed a notice of appeal from the October 2019 order granting Griffin judgment on the pleadings, which is not an appealable order. However, because the record shows that the 2019 judgment was entered before Humboldt filed its notice of appeal, this court "will liberally construe the appeal to have been taken from the judgment of dismissal." (Los Altos Golf & Country Club v. County of Santa Clara (2008) 165 Cal.App.4th 198, 202.)
DISCUSSION
Humboldt seeks reversal of the part of the 2019 judgment dismissing its cross-complaint, contending it alleged a valid claim for indemnification against Griffin or that it can allege a valid claim if given the opportunity to amend. Judgment on the pleadings " 'is equivalent to a demurrer.' " (People ex rel. Harris v. Pac Anchor Transportation, Inc. (2014) 59 Cal.4th 772, 777.) We derive the pertinent facts from properly pleaded allegations and judicially noticeable matters, and our standard of review is de novo. (Ibid.)
I. Humboldt Did Not Allege A Valid Claim Against Griffin
We begin with Humboldt's contention that its cross-complaint states a valid cause of action for indemnification. Generally, indemnity "refers to 'the obligation resting on one party to make good a loss or damage another party has incurred.' " (Prince v. Pacific Gas & Electric Co. (2009) 45 Cal.4th 1151, 1157 (Prince).) California recognizes two types of indemnity: express indemnity and equitable indemnity. (Id. at p. 1158.) In the present case, Humboldt did not purport to allege a cause of action for express indemnity. Thus, the issue is whether it has stated a valid claim against Griffin for equitable indemnity.
Equitable indemnity " 'is premised on a joint legal obligation to another for damages,' but it 'does not invariably follow fault.' [Citation.] Although traditional equitable indemnity once operated to shift the entire loss upon the one bound to indemnify, the doctrine is now subject to allocation of fault principles and comparative equitable apportionment of loss." (Prince, supra, 45 Cal.4th at p. 1158, fn. omitted.) " ' "The elements of a cause of action for [equitable] indemnity are (1) a showing of fault on the part of the indemnitor and (2) resulting damages to the indemnitee for which the indemnitor is . . . equitably responsible." ' " (C.W. Howe Partners Inc. v. Mooradian (2019) 43 Cal.App.5th 688, 700.)
Here, the record supports the trial court's finding that Humboldt cannot allege a valid cause of action against Griffin for equitable indemnity because judicially noticed evidence establishes that Griffin is not liable for Hogan's injuries. "A key restrictive feature of traditional equitable indemnity is that, on matters of substantive law, the doctrine is 'wholly derivative and subject to whatever immunities or other limitations on liability would otherwise be available' against the injured party." (Prince, supra, 45 Cal.4th at pp. 1158-1159.)
Ignoring indemnity law, Humboldt contends the completed and accepted doctrine cannot be invoked as a defense to Humboldt's indemnification claim and that the trial court committed an error of law by finding otherwise. Humboldt's characterization of the trial court's ruling is misleading. The court applied the completed and accepted doctrine to bar Hogan's negligence claim against Griffin after finding that there were no triable issues regarding Griffin's completion of its work on Old G-4 and Humboldt's acceptance of that work. However, the court did not find that the completed and accepted doctrine was a defense to Humboldt's cross-claims. It granted judgment on the pleadings as to those cross-claims because judicially noticed evidence—its ruling on Griffin's summary judgment motion—establishes that Griffin is not legally responsible for Hogan's injuries.
Humboldt insists that Griffin's non-liability to Hogan is irrelevant to a judicial determination of the efficacy of any claim Humboldt has against Griffin because California courts have long "held" that the completed and accepted doctrine applies "only" to claims asserted by a third party, not claims by owners against their contractors. The cases Humboldt cites for this proposition involve negligence claims asserted by third parties. (Neiman, supra, 210 Cal.App.4th 962; Sanchez, supra, 47 Cal.App.4th 1461, Jones, supra, 166 Cal.App.4th 707.) None of these cases considers how application of the completed and accepted doctrine in that context might affect a property owner's related claim for equitable indemnity.
Humboldt also relies on Stewart v. Cox (1961) 55 Cal.2d 857, 863 (Stewart), which is inapposite because it did not involve any third party injury. In that case, homeowners whose property was damaged by water that escaped from their pool brought a negligence action against the contractor and two subcontractors who had participated in the pool construction. (Id. at pp. 859-860.) After plaintiffs settled with two defendants, they obtained a money judgment against Cox, who installed concrete in the pool. (Id. at p. 860.) Applying foreseeability of harm principles, the Stewart court affirmed the judgment, holding that "[u]nder all the circumstances Cox should not be exempted from liability if negligence on his part was the proximate cause of the damage to plaintiffs." (Id. at p. 863.)
Because the tort victims in Stewart were the property owners rather than a third party, the completed and accepted doctrine was not at issue. By contrast, Humboldt has not attempted to allege a cause of action for negligence against Griffin or anyone else in this case. Here, Humboldt attempts to allege cross-claims for equitable indemnity and contribution, which depend on allegations that Griffin is wholly or partially liable for Hogan's injuries. Humboldt cites no authority supportive of its contention that California law precludes Griffin from defending a claim for equitable indemnity by establishing that it is not liable for the underlying harm.
Humboldt contends that a contractor's nonliability to a third party under the completed and accepted doctrine should not have the effect of protecting the contractor from incurring liability to the property owner because the doctrine is a vestige of the antiquated privity rule, and privity is not a requirement for holding a contractor liable to a property owner, as illustrated by Stewart, supra, 55 Cal.2d at p. 863. Some states may ground the completed and accepted rule in a privity requirement. (Annot., supra, 74 A.L.R.5th at p. 2a.) But in California, the doctrine is a liability-shifting mechanism that implements a policy judgment regarding the respective duties of the contractor and property owner in cases involving a third party injury. (Neiman, supra, 210 Cal.App.4th at p. 969; Sanchez, supra, 47 Cal.App.4th at p. 1466; Jones, supra, 166 Cal.App.4th at p. 712.)
Taking a different tack, Humboldt contends that the "very existence" of a contractual relationship between a property owner and contractor "establishes the basis for a claim by the owner for implied contractual indemnity against the contractor," which does not depend on the contractor's personal liability to the injured third party. Again, Humboldt misunderstands the law.
In California, implied contractual indemnity was once regarded as "distinct from both express and equitable indemnity, [but] it is now to be viewed as a form of equitable indemnity." (Jocer Enterprises, Inc. v. Price (2010) 183 Cal.App.4th 559, 573.) "Traditional equitable indemnity and implied contractual indemnity share a key feature that distinguishes them from express indemnity: unlike express indemnity, neither traditional equitable indemnity nor implied contractual indemnity is available 'in the absence of a joint legal obligation to the injured party.' . . . Thus, no indemnity may be obtained from an entity that has no pertinent duty to the injured third party [citation], that is immune from liability [citation], or that has been found not to be responsible for the injury [Citation]." (Id. at pp. 573-574.)
Contrary to Humboldt's appellate argument, implied contractual indemnity is "simply . . . 'a form of equitable indemnity.' " (Prince, supra, 45 Cal.4th at p. 1157.) Indeed, Prince compels the conclusion that Humboldt has no claim against Griffin for implied contractual indemnity. In that case, PG&E's immunity from liability to a child injured by an electrical power line barred the property owner's cross-complaint against PG&E, which was based "on an implied contractual indemnity theory." (Id. at p. 1165.) By the same token, the fact that Griffin is not liable for Hogan's injuries precludes Humboldt from using an implied contractual indemnity theory to salvage its cross-complaint.
On a different theory, however, the contractual relationship between Humboldt and Griffin will turn out to be relevant.
II. The Court Erred By Barring A Claim That Was Not Pleaded
By separate argument, Humboldt contends the trial court erred by entering a judgment that purports to bar Humboldt from recovering on a cause of action for express indemnification. We agree.
"Express indemnity refers to an obligation that arises ' "by virtue of express contractual language establishing a duty in one party to save another harmless upon the occurrence of specified circumstances." ' [Citation.] Express indemnity generally is not subject to equitable considerations or a joint legal obligation to the injured party; rather, it is enforced in accordance with the terms of the contracting parties' agreement." (Prince, supra, 45 Cal.4th at p. 1158.)
In the present case, Humboldt did not allege or attempt to allege a cause of action against Griffin for express indemnity. Moreover, although Griffin expressly confirmed the existence of an indemnity agreement with Humboldt during the lower court proceedings, it did not argue that Humboldt was required to pursue its claim for express indemnity in this litigation. "Unlike joinder of parties, joinder of causes is always permissive. The plaintiff may, if he or she desires, bring separate actions on each cause of action even though they come within the allowable joinder classes." (4 Witkin Cal. Procedure (5th ed. 2020) Pleadings, § 340; see also National Union Fire Ins. Co. of Pittsburgh, PA v. Tokio Marine & Nichido Fire Ins. Co. (2015) 233 Cal.App.4th 1348, 1357, fn. 5 ["there is no requirement that an indemnitee file a cross-complaint against its indemnitor in the third party action"].)
The record does not disclose why the trial court granted Griffin a judgment that purports to preclude Humboldt from recovering on a cause of action for express indemnification even though such a claim was never alleged. Not only does this aspect of the judgment raise procedural concerns, it appears to rest on Griffin's erroneous legal theory that it cannot be liable to Humboldt for express indemnity because it owed no duty of care to Hogan. A joint legal obligation to the injured party is not a prerequisite for enforcement of an indemnity contract. (Prince, supra, 45 Cal.4th at p. 1158.) Thus, the judicial determination that Griffin owed no tort duty of care to Hogan does not preclude Humboldt from establishing that Griffin assumed a contractual duty to indemnify Humboldt, and the part of the judgment purporting to bar a future claim for express indemnity cannot be sustained.
III. Humboldt's Request To Amend Its Pleading
Humboldt's final contention is that it can amend its cross-complaint to allege a claim for express indemnity. To support this argument, Humboldt requests judicial notice of a June 21, 2006 contract between Humboldt and Griffin (the 2006 contract).
Griffin contends the question whether Humboldt has a viable claim for express indemnity is a new issue not properly raised for the first time on appeal. (Citing e.g. Rand v. Board of Psychology (2012) 206 Cal.App.4th 565, 590.) On the same ground, Griffin opposes Humboldt's request for judicial notice, pointing out that Humboldt failed to present the 2006 contract to the trial court for its consideration in the first instance. (Citing, e.g. Brosterhous v. State Bar (1995) 12 Cal.4th 315, 325-326.) These objections are not well taken. Griffin put this matter at issue in the trial court by seeking dismissal of a claim for express indemnity that had not actually been alleged by Humboldt. And in any event, an appellant may propose new facts and a new theory for the first time on appeal from a judgment on the pleadings, in order to show that the trial court abused its discretion in not granting leave to amend. (Kempton v. City of Los Angeles (2008) 165 Cal.App.4th 1344, 1347; Connerly v. State of California (2014) 229 Cal.App.4th 457, 462-464.)
Indisputably, Humboldt's request for judicial notice of the 2006 contract is relevant to our consideration of Humboldt's new theory that it has a claim against Griffin for express indemnification. However, we are not persuaded by Humboldt's contention that this contract is judicially noticeable as an "official act[]" of a federal or state branch of government. (Evid. Code, § 452, subd. (c).) Instead, we take notice of the contract as a matter "not reasonably subject to dispute and . . . capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy." (Evid. Code, § 452, subd. (h).) Griffin contends that the copy of the contract provided by Humboldt has not been adequately authenticated, but cites no authority requiring formal authentication at this juncture. Griffin itself conceded in the trial court that its contract with Humboldt includes an indemnification clause, and neither here nor in the trial court has it suggested that the language framing its indemnification obligations differs from what appears in the proffered document. We take judicial notice of the copy of the contract produced by Hogan for the limited purpose of determining whether it is reasonably likely that Humboldt can amend its cross-complaint to state a valid claim for express indemnity.
"An indemnitee seeking to recover on an agreement for indemnification must allege the parties' contractual relationship, the indemnitee's performance of that portion of the contract which gives rise to the indemnification claim, the facts showing a loss within the meaning of the parties' indemnification agreement, and the amount of damages sustained. [Citations.]" (Four Star Electric, Inc. v. F & H Construction (1992) 7 Cal.App.4th 1375, 1380.)
Humboldt directs our attention to a provision in the 2006 contract, which appears in the "GENERAL CONDITIONS" section, under the subheading "LIABILITY FOR ACCIDENTS." This provision states, in part: "The Contractor shall be liable for any and all loss, accident, neglect, injury, or damage to person, life or property which may be the result of or may be caused by their building operations or their execution of this Contract, and for which the OWNER might be held liable . . . ."
The parties disagree about how to construe this provision. Griffin characterizes it as a " 'general indemnity clause' " that does not entitle Humboldt to indemnity "where it was actively negligent." (Citing Oltmans Construction Co. v. Bayside Interiors, Inc. (2017) 10 Cal.App.5th 355, 362.) Humboldt argues that the provision creates a broad right to contractual indemnity, which covers Hogan's accident even if Humboldt was actively negligent in causing it. This debate is premature; the question at this juncture is only whether Humboldt can allege a claim for express indemnity, not whether the claim can be proven.
Griffin argues that this debate should be resolved on appeal because the trial court already found that Humboldt was actively negligent when it granted Griffin summary judgment, and this finding is sufficient to preclude Humboldt from holding Griffin liable for express indemnity. This argument misconstrues the factual record and the governing law. The summary judgment proceeding pertained exclusively to Hogan's negligence claim against Griffin; Humboldt's rights and liabilities were not adjudicated there. Furthermore, the court granted Griffin summary judgment on Hogan's negligence claim based solely on the completed and accepted doctrine defense. This doctrine implements a policy judgment that the property owner's duty to a third party essentially supplants the duty of the contractor when the requirements of the doctrine are otherwise met. (Jones, supra, 166 Cal.App.4th at p. 712; Neiman, supra, 210 Cal.App.4th at p. 969.) Accordingly, the contractor is released from liability to a third party without any determination of who was or was not negligent, or if negligence was committed at all.
Although we decline to interpret the scope of the indemnification provision quoted above, we note that the "GENERAL CONDITIONS" section of the contract contains another indemnification provision appearing under the subheading "INSURANCE REQUIREMENTS," which states: "To the fullest extent permitted by law, the Contractor shall indemnify, defend and hold harmless the OWNER [and others] from and against all claims, damages, losses and expenses, . . . arising out of or resulting from the performance of the Work, provided that any such claim, damage, loss or expense is (1) attributable to bodily injury . . . or the injury to or destruction of tangible property . . . and (2) is caused in whole or in part by any negligent act or omission of the Contractor . . ., regardless of whether or not it is caused in part by a party indemnified hereunder; excepting only such claims as are caused by the sole negligence or willful misconduct of the OWNER."
This provision is relevant to our resolution of this appeal for two reasons. First, it reinforces for an independent reason our conclusion that the trial court did not err by granting judgment on the pleadings with respect to Humboldt's cross-complaint for equitable indemnity and contribution. "Where, as here, the parties have expressly contracted with respect to the duty to indemnify, the extent of that duty must be determined from the contract and not by reliance on the independent doctrine of equitable indemnity." (Rossmoor Sanitation, Inc. v. Pylon, Inc. (1975) 13 Cal.3d 622, 628; see also McCrary Construction Co. v. Metal Deck Specialists, Inc. (2005) 133 Cal.App.4th 1528, 1536; Oltmans Construction Co. v. Bayside Interiors, Inc., supra, 10 Cal.App.5th at pp. 361-362.)
Second, this provision establishes a contractual basis for Humboldt to allege a cause of action against Griffin for express indemnity. Thus, Humboldt has carried its "burden to show there is a reasonable possibility the [cross-complaint's] defects can be cured by amendment." (Adams v. Bank of America, N.A. (2020) 51 Cal.App.5th 666, 671; see also p. 675.)
DISPOSITION
The part of the 2019 judgment granting Griffin judgment on the pleadings as to Humboldt's cross-complaint is reversed and the matter is remanded to the trial court with directions to grant Humboldt leave to file an amended cross-complaint. The parties are to bear their own costs on appeal.
TUCHER, J. WE CONCUR: STREETER, Acting P. J.
BROWN, J.