Page 1
‘Foundational’ Error to Find Liability Release in Lease Is Binding on Tenant’s Worker—C.A.
Opinion Says Then-Los Angeles Superior Court Judge Anne Hwang Erred in Granting Summary Judgment to Owner Based on Contract Signed by Injured Party’s Employer
By a MetNews Staff Writer
Div. Eight of this district’s Court of Appeal held yesterday that a trial judge erred in granting summary judgment to a shopping center and the company that managed it, which were sued after a tenant’s employee tripped on a pothole in the parking lot, based on a lease provision purportedly limiting the defendants’ liability to store operators’ guests and workers relating to any negligent upkeep of the property.
In an opinion, authored by Justice John Shepard Wiley Jr. and joined in by Presiding Justice Maria E. Stratton and Justice Victor Viramontes, the court said that then-Los Angeles Superior Court Judge Anne Hwang (now a U.S. District Court judge for the Central District of California) erroneously applied provisions of a contract, to which the plaintiff was not a party, to resolve the tort action.
Wiley said that the fact that the plaintiff did not raise the argument that she could not be bound to a contract to which she did not agree did not prevent her from prevailing on appeal, remarking that the court exercised discretion to consider the issue because the legal error was “foundational.”
Parking Lot Injury
On or about Aug. 2, 2018, Myranda De la Cruz was injured when she tripped on a pothole while walking through the parking lot adjacent to her place of work, Smiles West Dental & Orthodontics in Mission Hills.
In July 2020, De la Cruz filed a complaint against the property owner, Mission Hills Shopping Center LLC, and various other parties, asserting negligence and premises liability causes of action. She filed an amended pleading in 2023 to add Triwell Properties Inc., the management company in charge of the strip mall, as a previously unidentified defendant.
Mission Hills and Triwell (collectively referred to in the opinion as “Mission”) filed a motion for summary judgment, citing a provision in the lease agreement between the property and Smiles West which they argue expressly provides for a release of liability relating to any injuries suffered by a tenant’s employee while on the premises.
Specifically, paragraph 8.8 of the lease provides:
“Notwithstanding the negligence or breach of this Lease by Lessor or its agents, neither Lessor nor its agents shall be liable under any circumstances for: (i) injury or damage to the person or goods, wares, merchandise or other property of Lessee, Lessee’s employees, contractors, invitees, customers, or any other person in or about the Premises….”
De la Cruz, in response, asserted that the provision only limits liability for injuries occurring “in or about the Premises,” a description that she claims does not encompass the parking facilities.
In September 2023, Hwang granted the defendants’ motion, saying that “[t]he provision is unambiguous” and declaring:
“Defendants have set forth sufficient evidence that there are no triable issues of material fact as to whether they owed Plaintiff a duty of care. The burden therefore shifts to Plaintiff. Considering the competent evidence proffered by both parties and viewing said evidence most favorably to Plaintiff, the Court finds Plaintiff has not met her burden of production in establishing that there are triable issues of material fact regarding the liability exemption provision in the lease agreement.”
Not Bound
Wiley said Hwang misunderstood the nature of the suit, writing:
“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.”
Saying “[t]he usual rule is that you must agree to a contract to be bound by it,” he opined:
“It was Mission’s burden on summary judgment to explain why its motion had a legal basis….Mission failed to offer a winning theory, and the court erred in granting the motion.”
The defendants asserted on appeal that that the argument is forfeited because De la Cruz did not raise it before the trial court. Wiley was sympathetic to that contention, but concluded:
“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….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.”
He added:
“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….Mission failed in this endeavor.”
The case is De la Cruz v. Mission Hills Shopping Center LLC, B333182.
Acting for the plaintiff was Omid Khorshidi of Khorshidi Law Firm APC, based in Beverly Hills. Representing the defendants were Cynthia E. Tobisman, Joseph V. Bui, and John J. Metzidis of the Los Angeles office of Greines, Martin, Stein & Richland LLP, as well as Marjorie E. Motooka of the Kentucky-based Law Offices of Kirk & Myers.
Copyright 2025, Metropolitan News Company