MURILLO VS CITY OF TEMECULA, CALIFORNIA

3. CASE # CASE NAME HEARING NAME HEARING ON PETITION FOR APPROVAL CVME2610855 IN RE: VICTOR GARCIA OF TRANSFER OF STRUCTURED SETTLEMENT PAYMENT RIGHTS Tentative Ruling: Petition is approved.

4. CASE # CASE NAME HEARING NAME MURILLO VS CITY OF MOTION FOR SUMMARY JUDGMENT ON

TEMECULA, CALIFORNIA CROSS-COMPLAINT Tentative Ruling: Motion for Summary Judgment is Denied. Alternative for Summary Adjudication is Denied.

Background - Plaintiffs Guadalupe Murillo and Esteban De Los Santos (“Plaintiffs”) filed the present action against multiple parties, including Defendant OHL USA, Inc. (“OHL”), regarding the death of their 23-year-old son, Steven De Los Santos (“decedent”), on January 24, 2019. Plaintiffs Complaint alleges decedent fell from an asphalt walkway and top of concrete wall he was walking on at the Murrieta Creek Flood Control channel, near 28822 Old Town Front St. in Temecula, that was the subject of a public works improvement project. OHL was the general contractor on the project causing his death. They assert two causes of action: 1) Dangerous Condition of Public Property; and 2) Negligence.

Plaintiffs later determined they needed to add the United States as a defendant, so they filed a separate action – Guadalupe Murillo and Esteban De Los Santos v. United States of America, et al, USDC Central District case No. 5:20-cv-00212-JGB-DTBx (“Plaintiffs’ Federal Action”). In that Complaint, Plaintiffs alleged decedent’s fall was the result of the improper design, installation and maintenance of the two-wire fence that had been installed along the top of the concrete walls along Murrieta Creek during the improvement project.

Once the federal action was filed, the parties filed a stipulation to stay the present action. The Court entered an order staying the present case on September 3, 2020.

OHL then filed a separate federal lawsuit against Ferreira Construction Co., Inc. dba Ferreira Coastal Construction Co. (“Ferreira”) seeking contractual and equitable indemnity regarding the claims asserted by the plaintiffs – case No. 5:23-CV-00397- JGB-SHK (“OHL’s Federal Action”).

The Central District subsequently granted summary judgment in favor of the United States in Plaintiffs’ Federal Action. The Court found that the dangerous condition— whether the drop-off or the two-wire fence itself—was open and obvious and thus the United States did not owe a duty of care to decedent. The United States was dismissed. Defendants City of Temecula (“Temecula”), Riverside County Flood Control and Water Conservation District (“Riverside District”) also moved for summary judgment based on their lack of ownership and control over the Project at the time of the incident, which was granted. OHL filed a motion for summary judgment only on the issue of

causation – specifically that Plaintiffs could not establish that Mr. De Los Santos fell over the purportedly unsafe two-wire railing. The Court found that while OHL met its initial burden, in the light most favorable to Plaintiffs, whether Mr. De Los Santos fell over the two-wire fence was a genuine issue of material fact that must be resolved at trial. Because OHL only attacked the causation element of negligence, its MSJ was denied.

Once the United States was no longer a part of the Federal Action, Plaintiffs chose to prosecute their claims in the instant case in which OHL is the sole remaining defendant. The parties filed a stipulation to lift the stay imposed by the court, set a TSC, extend the 5-year rule, agreed to utilize discovery obtained during the pendency of the dismissed federal case in this action, and agreed that all factual and legal findings in the federal court litigation shall be treated as the “law of the case” for purposes of this action. An order pursuant to the stipulation was filed on July 17, 2024, and the stay was lifted.

The parties to Plaintiffs’ Federal Action entered into a stipulation on July 24, 2024, to voluntarily dismiss the case without prejudice.

In August 2024, OHL’s counsel requested from Ferreira’s counsel a stipulation to dismiss OHL’s Federal Action. Ferreira did not agree. OHL’s counsel reviewed the court file for the instant case and determined a trial date was never set in the present action. Accordingly, OHL proceeded to file a cross-complaint against Ferreira on August 15, 2024. OHL then filed a motion to voluntarily dismiss its Federal action without prejudice. Ferreira opposed the motion. On September 13, 2024, the Central District Court granted OHL’s motion to voluntarily dismiss the Federal Action without prejudice.

Ferreira believed a trial date had been set in the instant case before the Court imposed the stay in 2020. Ferreira argued this meant OHL should have obtained leave of court before filing a cross-complaint. OHL’s counsel reviewed the court’s file again and found “it is somewhat unclear as to whether there actually was a trial date” but since the docket indicates a jury trial was, at one point, set for September 4, 2020 (along with a TSC, strangely), OHL dismissed its cross-complaint against Ferreira.3 On December 17, 2024, this court granted OHL’s motion for leave to file a Cross-Complaint (XC) against Ferreira alleging claims for contractual indemnity and equitable indemnity based on the allegation that Ferreira constructed a two-wire cable fence along the top of the Murrieta Creek channel and Plaintiffs’ allege their son fell to his death from an area at the top of the channel to the floor of the channel.

On August 8, 2025, the court heard OHL’s motion for summary adjudication against the underlying Plaintiffs’ negligence claim. The court denied summary judgment motion, granted summary adjudication on OHL’s duty to warn based on issue preclusion from the federal open-and-obvious finding, and denied adjudication on whether OHL had a broader duty to safeguard the public against the completed two-wire fence.

Cross-Defendant Ferreira (Ferreira) now moves for summary judgment of the crosscomplaint, or alternatively summary adjudication of each cause of action alleged

3 Leave of court is required to file a cross-complaint once a trial date has been set, even if that trial date is later vacated. (See Loney v. Sup. Ct. (Moneta) (1984) 160 Cal.App.3d 719, 723.)

therein. (C.C.P., § 437c.) As to the 1st cause of action for express contractual indemnity (Issue One), Ferreira argues it had completed its work on the Project in accordance with the plans and specifications of the US Army Corps of Engineers, that OHL witness Michael Kelly conceded Ferreira fulfilled their contract obligations and had done their part, and that Attachment D’s safety requirements apply only when Subcontractor renders services at the Project Site. As to the 2nd cause of action for equitable indemnity (Issue Two), Ferreira relies on four independent grounds, no ownership/control, completed-and-accepted, open-and-obvious (invoking the August 8, 2025 MSJ order), and arguing Ferreira is entitled to derivative design immunity under Yearsley and Campbell-Ewald.

Ferreira asks the Court to dismiss the entire crosscomplaint or, failing that, adjudicate both causes of action in its favor.

In opposition, OHL argues that the indemnity trigger is broad and requires only a minimal causal connection or incidental relationship and given that it is entirely undisputed that Ferreira installed guardrails or other restraining devices, the Plaintiffs’ claims indisputably are arising from or in connection with Ferreira’s obligations under the subcontract. It argues Ferreira’s completion-date defense fails because the Section 13 indemnity shall extend to Claims occurring after this Subcontract is terminated as well as while it is in force, and points to change-order evidence that Ferreira was still performing work months later.

On equitable indemnity, OHL takes the unusual position that Ferreira's open-and-obvious and derivative-immunity arguments would be well taken should this Court decide to reconsider its prior ruling on OHL’s motion for summary adjudication regarding those issues, urging the Court to reconsider its August 8, 2025 order because the Federal Court’s open and obvious finding actually defeats all duties that OHL would have owed to the plaintiffs - and therefore defeats all grounds for OHL’s equitable indemnity claim.

OHL expressly concedes that derivative sovereign immunity is entirety correct and is an appropriate, if not mandatory, basis for summary judgment, but adds this Court to date has declined to apply the doctrine to this matter, as previously requested by OHL so relief on that ground requires reconsideration first.

Ferreira seizes on OHL’s opposition as containing dispositive concessions that OHL has argued that there is no fault on the part of OHL or Ferreira, that OHL completely agrees that Ferreira can have no liability on an equitable indemnity claim because the two-wire fence has already been found by the Federal Court to be open and obvious, and that Ferreira is entitled to derivative design immunity. On Issue One, Ferreira argues OHL offered no admissible evidence that Decedent’s death arose from or in connection with the installation of the two-wire cable.

Attachment D’s site-services trigger and Attachment B’s maintenance of installed fencing and temporary fencing and security exclusion foreclose the site-wide safety theories OHL invokes. It disparages the change-order evidence as an unauthenticated and inadmissible hearsay to support an unsubstantiated claim that Ferreira was doing work on the subject premises after the accident. On Issue Two, Ferreira refuses to be tied to OHL’s reconsideration ask, contending OHL’s prior counsels failure to properly argue the correct merits in support of OHL’s dispositive motion to the Federal Court and/or this Court cannot, and should not, be imputed on Ferreira’s dispositive motion request, and treats OHL’s derivativeimmunity concession as sufficient standing alone to grant adjudication.

Request for Judicial Notice – Cross-Defendant Ferreira requests notice of five court records: OHL’s cross-complaint, Plaintiffs’ complaint, this court's August 8, 2025, minute

order, the federal court’s April 16, 2021, civil minute order, and the July 23, 2024, joint stipulation to lift stay. All five are court records and are properly noticeable. Unopposed Request is Granted. (Evid. Code, § 452(d).)

Objections - Plaintiffs and OHL submitted various objections to OHL’s evidence. In ruling on a motion for summary judgment, the court need only rule on those evidentiary objections that it deems material to disposition of the motion. (C.C.P., § 437c(q).) None of the objections are material to the disposition of the motion.

Standard -A motion for summary judgment shall be granted when no triable issue of material fact exists or the issue is one of law and the action can be terminated in favor of the moving party without the necessity of trial. (C.C.P., § 437c; Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) A defendant has met his or her burden under C.C.P., § 437c(p)(2) of showing a cause of action has no merit if that party has shown that one or more of the elements of the cause of action cannot be established, or that there is a complete defense to that cause of action.

Once that burden has been met, the burden shifts to the opposing party to produce admissible evidence showing a triable issue of material fact exists. (C.C.P., § 437c(p)(2); Arcienaga v. Bank of San Bernardino (1997) 52 Cal.App.4th 213, 231.) Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.)

Code of Civil Procedure section 437c(f)(1) permits the court to grant summary adjudication as to one or more causes of action, affirmative defenses, claims for damages, or issues of duty if that cause of action, defense, or issue has no merit or cannot be maintained as a matter of law. The same burden-shifting framework and record-construction rules that govern summary judgment apply with equal force to summary adjudication: the moving party must first produce evidence sufficient to negate an essential element or establish a complete defense as to the targeted claim or issue, whereupon the burden shifts to the opposing party to raise a triable issue of material fact on that discrete claim or issue.

Merits - In November 2016, OHL and Ferreira entered into a subcontract for Ferreira to construct the two-wire cable fence along the top of the Murrieta Creek channel. Section 13 of the subcontract provides: Subcontractor shall defend, indemnify, and save harmless Contractor, including its officers, directors, partners, joint venturers, agents, employees, affiliates, parents and subsidiaries, and each of them, of and from any and all claims, demands, causes of action, damages, costs expenses, actual attorneys’ fees, losses or liabilities, in law or in equity, of every kind of nature whatsoever (claims) arising out of or in connection with Subcontractor’s obligations under the Subcontract.

The indemnity obligation extends to “Claims occurring after this Subcontract is terminated as well as while it is in force” and applies to the fullest extent permitted by law. Section 13 carves out an exception: Subcontractor, however, shall not be obligated to indemnify Contractor for claims arising from the active negligence, sole negligence or willful misconduct of Contractor, or its agents, employees or independent contractors who are directly responsible to Contractor, or for defects in design furnished by such persons, or for Claims that do not arise out of the Work.

Attachment D to the Subcontract provides safety requirements and specifies that these safety requirements apply “[w]hen Subcontractor renders services at the Project Site.” Attachment B to the Subcontract relates to exclusions to the Subcontract and explicitly excluded maintenance of installed fencing and temporary fencing and security from Ferreira’s scope of subcontract work. The subcontract also provides that No payment, including final payment, shall be evidence of the performance of the Agreement by the Subcontractor, either in whole or in part, and no payment shall be construed as an acceptance or defective or incomplete work, and the Subcontractor shall remain responsible and liable for its performance being in strict compliance with the Agreement.

Additionally, Contractor’s failure to discover or notify Subcontractor of defective or nonconforming work at the time the work, or any portion thereof, is performed or completed shall not relieve Subcontractor of full responsibility for replacing of defective or nonconforming work and all damages resulting therefrom.

Issue One: Express Contractual Indemnity (First Cause of Action) - Express contractual indemnity is governed by the parties’ agreement, and broad language requiring indemnity for claims arising out of or in connection with the subcontractor’s work requires only a minimal causal connection or incidental relationship, not proximate cause or a prior adjudication of subcontractor fault. (Continental Heller v. Amtech Mechanical Serv. (1997) 53 Cal.App.4th 500; Crawford v. Weather Shield Mfg., Inc. (2006) 136 Cal.App.4th 304, 307.)

Parties in the construction-subcontract context may allocate indemnity and defense obligations without proof of subcontractor negligence. The obligation is bounded by the subcontractor’s own scope of work, and Civil Code section 2782.05 renders indemnity provisions unenforceable to the extent the claim arises from the general contractor’s active negligence, sole negligence, willful misconduct, design furnished by the general contractor, or matters outside the subcontractor's scope. (Carter v. Pulte Home Corp. (2020) 52 Cal.App.5th 571; Oltmans Constr.

Co. v. Bayside Interiors, Inc. (2017) 10 Cal.App.5th 355, 358.)

Ferreira does not carry its initial burden under Aguilar to negate the trigger element or to show OHL cannot reasonably obtain evidence of it. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 837.) Ferreira relies principally on evidence that it completed the fence on March 12, 2018, that Kelly said Ferreira “fulfilled their contract obligations” and had “done their part” and that the Corps inspector was satisfied with installation. That showing goes to proper performance, not the contractual trigger; under the governing authorities, the trigger does not depend on proving Ferreira was negligent or that its work was defective. (Continental Heller v.

Amtech Mechanical Serv. (1997) 53 Cal.App.4th 500; Crawford v. Weather Shield Mfg., Inc. (2006) 136 Cal.App.4th 304, 307.) The subcontract covers claims “arising out of or in connection with” Ferreira’s obligations. Ferreira’s scope was the two-wire cable fence, and plaintiffs’ operative allegations expressly include negligent “designing, planning, constructing, installing, maintaining, inspecting, and repairing” of “guardrails or other restraining devices.” That facial connection is sufficient, and Ferreira’s insistence on proof of a specific negligent act does not negate the trigger.

Next, Ferreira’s temporal argument fails as a matter of law because Section 13 expressly extends indemnity to claims occurring after this Subcontract is terminated as well as while it is in force. Attachment D’s site-services phrase appears in the safetyrequirements attachment, not in Section 13 itself. The completion-date facts are also

not undisputed: deposition testimony attributed to Ferreira PMK Lyons indicates an August 2018 change order was “an increase in cable fence or cable railing and a change in our original contract documents.” Even a March 12, 2018 completion date would not defeat the trigger, given Section 13’s express survival language and the subcontract’s provisions preserving liability notwithstanding payment or non-discovery of defects. The August 8, 2025, MSJ minute order does not narrow this cross-claim: it addressed OHL’s duties to plaintiffs, denying adjudication on duty to safeguard and granting on duty to warn, and did not adjudicate the express-indemnity cross-claim or eliminate the pleaded construction-negligence theories.

Finally, Ferreira also has not established a complete Civil Code section 2782.05(a) defense. The record supports that the plans for the two-wire fence came from the Corps’ Design Division, which may limit indemnity to the extent plaintiffs pursue a pure design-defect theory, but the statute operates only to the extent of the excluded categories, and Ferreira has not shown every theory falls exclusively within them. (Oltmans Constr. Co. v. Bayside Interiors, Inc. (2017) 10 Cal.App.5th 355, 358.)

Attachment B’s exclusion of “maintenance of installed fencing” and “temporary fencing and security” presents a contract-interpretation dispute, not a complete defense. Because Ferreira sought adjudication of the entire cause of action, and the pleaded allegations regarding construction and installation of restraining devices facially implicate Ferreira’s scope, Ferreira cannot obtain judgment on the whole claim on this record. I recommend the Court deny the motion.

Issue Two: Equitable Indemnity (Second Cause of Action) -Equitable indemnity is wholly derivative of underlying tort liability. (Great W. Drywall v. Interstate Fire & Cas. Co. (2008) 161 Cal.App.4th 1033.) An indemnitor may invoke any substantive defense available against the injured party; Ferreira is therefore entitled to summary adjudication only if it establishes one complete defense eliminating any viable tort liability to plaintiffs. (Gray v. America West Airlines, Inc. (1989) 209 Cal.App.3d 76, 81.) The moving crossdefendant bears the initial Aguilar burden before any shift to OHL, and evidence is viewed in the light most favorable to OHL. (C.C.P., § 437c; Aguilar v. Atlantic Richfield Co., (2001) 25 Cal.4th 826, 837.) A motion for summary adjudication may be granted only if it completely disposes of an entire cause of action.

Premises-liability duty is grounded in possession and control but loss of possession does not extinguish liability for a dangerous condition the defendant affirmatively and negligently created. (Preston v. Goldman (1986) 42 Cal.3d 108.) Plaintiffs allege affirmative construction negligence in the design and installation of “guardrails or other restraining devices” and of the canal, trail, and safety railing, not merely premises liability. Ferreira’s evidence that it was off site does not, standing alone, negate that duty, and the record contains disputes about whether project work was fully complete. Ferreira has not carried its initial burden.

It next argues, the completed-and-accepted doctrine which requires completion, acceptance after a reasonable opportunity to inspect, and a patent defect. (Delon Hampton & Assocs., Chartered v. Superior Court (2014) 227 Cal.App.4th 250, 25; Mills v. Forestex (2003) 108 Cal.App.4th 625.) Ferreira provided no evidence to establish that the plaintiffs are only alleging patent defects with the fence or that the project was accepted by the owner. Again, it has not carried its initial burden.

Open and obvious ordinarily negates the duty to warn but does not categorically eliminate the duty to safeguard where encounter is reasonably foreseeable. (Gonzalez v. Mathis (2021) 12 Cal.5th 29.) The August 8, 2025 order limited issue preclusion to duty to warn and denied adjudication on the broader duty to safeguard. Open and obvious therefore does not eliminate all duties as a matter of law. Ferreira’s contrary argument is, in substance, a request for reconsideration, which requires notice and a reasonable opportunity to be heard. (C.C.P., § 1008.) OHL filed a motion for reconsideration which was denied on December 11, 2205. No other section 1008 motion has been filed, and the underlying plaintiffs, whose claims would be affected, are not before the court on this motion. Open and obvious does not defeat the broader construction-negligence theory.

Finally, Ferreira argues it is entitled to derivative sovereign immunity. Pursuant to derivative sovereign immunity, “[g]overnment contractors obtain certain immunity in connection with work which they do pursuant to their contractual undertakings with the United States.” (Campbell-Ewald Co. v. Gomez (2016) 577 U.S. 153, 166.) “That immunity, however, unlike the sovereign’s, is not absolute.” (Id.) In Yearsley v. W.A. Ross Constr. Co. (1940) 309 U.S. 18, the Supreme Court recognized derivative sovereign immunity for contractors who perform governmental functions pursuant to a federal contract.

There, a contractor hired by the federal government to build dikes along the Missouri River asserted immunity from claims that the construction caused the erosion of local property. (Id. at 19.) The Court held that the contractor was immune from liability because the work leading to the erosion “was all authorized and directed by the Government of the United States.” (Id. at 20.) The Court concluded that “if [the] authority to carry out the project was validly conferred, that is, if what was done was within the constitutional power of Congress, there is no liability on the part of the contractor for executing its will.” (Id. at 20-21.)

In contrast, where the Government agent “exceeded his authority” or that authority “was not validly conferred,” there is no derivative sovereign immunity.

OHL concedes Yearsley cannot support judgment absent reconsideration of that ruling and Ferreira’s reliance on the defense is, in substance, that invitation. Under Le Francois v. Goel (2005) 35 Cal. 4th 1094, sua sponte reconsideration requires notice and a reasonable opportunity to be heard, particularly for the underlying plaintiffs, who are not parties to this cross-claim motion. No such notice has been given, and the court has already denied OHL’s motion for reconsideration. As such, Ferreira has not met its initial burden on this theory.