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Green v. Southern California Edison Co.1/31/2002
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
Southdown, Inc., dba Transit Mixed Concrete (Southdown) hired a number of contractors to perform work on Southdown's cement plant. Herbert Green, an employee of a subcontractor (plaintiff), was injured on the property, and sued Southdown and others. Southdown then cross-complained against various entities, including Nu West Fabrication & Rubber Supply Company (Nu West), alleging that they were bound to defend and indemnify Southdown in connection with plaintiff's lawsuit.
Nu West moved for summary adjudication on Southdown's express indemnity cause of action, and also moved for a determination that it had entered into a good faith settlement with plaintiff, for the purpose of establishing that it had no liability under Southdown's causes of action for equitable and implied indemnity. Both Nu West's motions were granted, and a final, appealable judgment was entered as between Nu West and Southdown. Southdown appeals, contending that Nu West did not meet its burden as to the motion for summary adjudication. We agree, and reverse.
FACTUAL AND PROCEDURAL BACKGROUND
After being sued by plaintiff, Southdown cross-complained against Machineryland, Inc., Southern California Edison Company, and Roes 1 through 100 (collectively cross-defendants) for implied indemnity, equitable indemnity, declaratory relief (a declaration that cross-defendants were required to pay the total amount of any verdict in favor of plaintiff), and express indemnity. Soon after the cross-complaint was filed, Southdown served Nu West as "Roe 1" in the cross-complaint.
Southdown's cause of action for express indemnity specifically referred to and incorporated by reference a written agreement dated "5-14-97" (the May 1997 Agreement). This cause of action stated that " n or about May 14, 1997 and June 3, 1998, Southdown . . . and Cross-Defendant Machineryland, Inc., and ROES 1-100, inclusive, entered into an agreement whereby Cross-Defendant agreed to provide services to Southdown . . . to defend, indemnify and hold harmless . . . and to name [Southdown] as an additional insured on Cross-Defendant's insurance policy and [Southdown] agreed to pay Cross-Defendant for said services."
The May 1997 Agreement stated that it was between Machineryland, Inc. and Southdown, and stated that its terms applied to any claims made by any third party on account of personal injury or death or property damage "caused by, arising out of, or in any way incidental to, or in connection with the performance or nonperformance of the work hereunder, . . ." There was no description of what "the work hereunder" might mean. The May 1997 Agreement was signed by "James R. [illegible]" for "Contractor" ("Contractor" having been earlier defined in the May 1997 Agreement as Machineryland, Inc.) and by Dale Martinez on behalf of Southdown.
Soon thereafter, Nu West filed and served a motion for summary adjudication against Southdown, which motion was supported by declarations from Nu West's attorney, Bruce Todd, and its vice-president, Terry Riches. According to this motion, Southdown had sent Nu West a letter dated June 14, 2000, accompanied by a written agreement dated August 13, 1996 (the August 1996 Agreement). The June 14, 2000 letter asserted that, at Southdown's behest, Nu West had signed the August 1996 Agreement, thereby promising to defend and
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