Enforcing exculpatory clause - defense strategy matters as does competence May 26, 2025

KEN KIRSCHENBAUM, ESQ
ALARM - SECURITY INDUSTRY LEGAL EMAIL NEWSLETTER / THE ALARM EXCHANGE
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Enforcing exculpatory clause - defense strategy matters as does competence
May 26,  2025
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Enforcing exculpatory clause - defense strategy matters as does competence
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   Hindsight sometimes blurs the how you would approach a matter. Figuring out how to defend a lawsuit as opposed to reading the judge's decision [whether you agree or disagree with it] are very different. In recent case in California the employee of a tenant was hurt when she tripped in a pot hole; she sued the landlord. The tenant had a lease and the lease had an exculpatory clause exonerating the landlord from any liability. The landlord's defense attorneys decided to file a motion for summary judgment. The court dismissed the case on the basis of the exculpatory clause in the lease. The employee appealed; the appellate court reversed the lower court and reinstated the action.
   So here you had the defense attorneys assessing the defense strategy and decide to seek summary judgment to avoid the trial. The judge granted the motion, so the defense attorneys were no doubt congratulating themselves on a defense strategy well executed. Problem was that both the defense attorneys and the judge got it wrong, which we know now for sure because the appellate court pronounced it wrong.
  Lawyers and judges, like every other professional, tradesman or worker, come in all kinds of varieties, skills and competence. While you don't always have the luxury of selecting your defense counsel, sometimes you do. And, you always have the option of arming yourself with a proper contract, a decision you can make today.
   The principles in the case are applicable to the alarm / security business, because all of you, except a handful of diehard dummies, use contracts of some sort containing protective language, again of some sort. You feel protected, as did this landlord and its defense attorneys, and judge apparently.
   The appellate court started with a well known legal principle, a party is not bound by a contract they did not sign or otherwise consent or assent to. That's the first principle of law the defense attorneys and the judge apparently overlooked, or got wrong. The second well known legal principle is that the party making the motion for summary judgment has the burden of establishing that there are no issues of fact that could support a cause of action. The moving party should know that it is incumbent on them to make the argument of no factual issues and then it's the judge's burden to decide if the burden has been met. As the appellate court ruled, the defense attorneys did not address the factual issues that could have established that the employee of the tenant agreed to the lease terms as part of the employee's employment, and the judge missed it.
   Another legal issue common in the alarm / security industry, when it comes to the contracts, is the requirement that the subscriber, the party signing the contract, agrees to indemnify the alarm company. Either this lease did not have an indemnity provision or the defense lawyers missed it or didn't bother addressing it; that was another mistake though not mentioned in this case.
   Here is the decision, thankfully a short one.
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Court of Appeal, Second District, Division 8, California.
Myranda Isabelle DE LA CRUZ, Plaintiff and Appellant,
v.
MISSION HILLS SHOPPING CENTER LLC et al., Defendants and Respondents.
B333182
Filed April 28, 2025
Synopsis
Background: Employee of shopping center tenant brought action against shopping center owner, among others, arising from accident in which employee tripped on pothole in shopping center parking lot. The Superior Court, Los Angeles County, No. 20STCV28647, Anne Hwang, J., granted summary judgment for owner. Employee appealed.
Holding: The Court of Appeal, Wiley, J., held that exculpatory clause in contract between owner and tenant did not preclude employee's action.
Reversed and remanded.
Opinion
WILEY, J.
*1 Myranda De la Cruz tripped on a pothole in a Mission Hills shopping center parking lot. An entity called Triwell Properties managed the shopping center. We refer to the shopping center and Triwell Properties together as Mission. After De la Cruz sued, Mission moved for summary judgment in this tort case on the basis of a contract. The contract was between Mission and De la Cruz's employer, which was a tenant in the shopping center. The contract contained an exculpatory clause that relieved Mission from any liability for negligent or wrongful acts. The motion did not explain why De la Cruz was bound by a contract she had not signed. The trial court granted summary judgment.
12This was error. The usual rule is that you must agree to a contract to be bound by it. (Civ. Code, § 1565.) It was Mission's burden on summary judgment to explain why its motion had a legal basis. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 845, 849–850, 107 Cal.Rptr.2d 841, 24 P.3d 493 (Aguilar).) Mission failed to offer a winning theory, and the court erred in granting the motion. We reach this conclusion on independent review. (Id. at p. 860, 107 Cal.Rptr.2d 841, 24 P.3d 493.)
34Mission asserts De la Cruz forfeited this argument by failing to present it to the trial court. De la Cruz's opposition to Mission's motion did not mention the parties to the contract excluded her. We have discretion, however, to consider forfeited claims. (City of Clovis v. County of Fresno (2014) 222 Cal.App.4th 1469, 1477, 166 Cal.Rptr.3d 763.) We exercise this discretion with considerable reluctance, for the forfeiture rule rests on sound principles. But this legal error was foundational, because contracts require assent.
Mission argues the question might involve factual issues. It argues that “it is conceivable” that De la Cruz might have contracted with her tenant employer to incorporate the contract between the employer and Mission. Or perhaps De la Cruz's conduct implied agreement with a contract she did not sign. When moving for summary judgment, however, it was Mission's burden to connect these speculative dots into a cogent line about why it was entitled to judgment as a matter of law. (Aguilar, supra, 25 Cal.4th at pp. 845, 849, 107 Cal.Rptr.2d 841, 24 P.3d 493.) Mission failed in this endeavor.
DISPOSITION
We reverse the judgment and award costs to Appellant. On remand, the trial court shall enter a new order denying Respondents’ summary judgment motion.
We concur:
STRATTON, P. J.
VIRAMONTES, J.
All Citations
--- Cal.Rptr.3d ----, 2025 WL 1218040
End of Document   © 2025 Thomson Reuters. No claim to original U.S. Government
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Ken Kirschenbaum,Esq
Kirschenbaum & Kirschenbaum PC
Attorneys at Law
200 Garden City Plaza
Garden City, NY 11530
516 747 6700 x 301
ken@kirschenbaumesq.com
www.KirschenbaumEsq.com