The opinion of the court was delivered by: Judge Gary Allen Feess United States District Court
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The trial of the third-party complaint and related counterclaim came on for hearing on December 14 and December 15, 2010. Having heard the evidence and the closing arguments of the parties, the Court issues the following findings of fact and conclusions of law in this case. For reasons discussed in more detail below, the Court concludes that neither party has met its burden of proving its affirmative case and neither will recover anything in this lawsuit. A judgment to that effect is set forth in a separate document.
On November 26, 2006, a two-alarm fire
broke out on the roof of the Magnolia Plaza 627
strip mall ("Magnolia Plaza") in Long Beach, California.
The fire originated inside one of two large wooden
cupolas on the mall's roof, where Cingular Wireless, LLC ("Cingular")
had installed a cellular communications site. The laundromat below the
cupola ("Coin Laundry") sustained significant fire damage for which it
was insured under a policy issued by plaintiff Crusader Insurance
Company ("Crusader"). Crusader paid Coin Laundry's claim and later
filed the present suit against Cingular. Cingular's successor, New
Cingular Wireless PCS, LLC ("New Cingular"), settled with Crusader and
filed a third-party claim against Magnolia Plaza seeking to recover
sums paid in settlement. Magnolia counterclaimed against New Cingular
for the damages it incurred in the form of lost rent and the costs of
a security guard employed at the strip mall while the repairs were
being made to the fire-damaged portions of the structure.
New Cingular presents three affirmative claims for relief: a breach of contract claim based on the alleged breach of the lease agreement; a claim for negligence based on an ordinary negligence theory and on a theory of res ipsa loquitur; and a claim for indemnification under the contract for losses attributable to acts or omissions of Magnolia Plaza.
Breach of Lease: New Cingular bases its breach of lease claim on allegations that Magnolia Plaza violated the lease's requirements that it maintain the premises in "good and tenantable condition" and that it ensure that New Cingular had "sole, actual, quiet and peaceful use, enjoyment and possession" of the portion of the roof that New Cingular leased from Mangolia Plaza. Essentially, New Cingular argues that the ground-level utility room door, which allows access to a ladder that leads to the roof of the structure, allowed unauthorized persons to access the roof and make use of, or intrude into, the burned structure. New Cingular theorizes that these unauthorized third persons caused the fire that disrupted its quiet and peaceful use of its leased premises.
Negligence: The negligence claim is based on substantially the same facts. New Cingular contends that Magnolia Plaza was aware that unauthorized persons were accessing the roof and that its failure to install a deadbolt on the utility room door and to otherwise maintain it in good working order allowed such persons to access the roof and cause the fire. New Cingular also claims that it is entitled to recover damages under a res ipsa loquitur theory. It argues that a fire does not ordinarily occur in the absence of someone's negligence, that Magnolia Plaza had exclusive control over the roof, and that it therefore should be held responsible for the fire that broke out in New Cingular's leased premises.
Indemnification: This claim is brought under Paragraph 9(b) of the lease agreement, under which Magnolia Plaza agrees to indemnify New Cingular for any injury "arising directly from the actions or failure to act of Landlord or its employees or agents, or Landlord's breach of any provision of this Agreement, except to the extent attributable to the negligent or intentional act or omission of Tenant, its employees, agents or independent contractors." (Ex. 33.) Based on the same facts that support its breach of contract and negligence claims, New Cingular claims that Magnolia Plaza should indemnify it for its losses: its $40,000 settlement with Crusader, over $82,000 spent to replace damaged equipment, and over $207,000 in attorneys' fees and other litigation costs.
Magnolia Plaza counterclaims for indemnification under Paragraph 9(a) of the lease agreement. Paragraph 9(a) obligates the tenant to indemnify the landlord for any injury or loss "arising directly from the installation [or] use . . . of the Communication Facility or Tenant's breach of any provision of this Agreement, except to the extent attributable to the negligent or intentional act or omission of Landlord, its employees, agents or independent contractors." (Ex. 33.) Magnolia Plaza seeks recovery of $15,210 incurred for building security, $126,104 in lost rent from Coin Laundry, and an unspecified amount of attorneys' fees and costs associated with the present litigation.
In the late morning of November 26, 2006, a fire broke out in a cupola mounted on the southeast corner of the roof of the Magnolia Plaza strip mall in Long Beach. (Ex. 119 at 1, 6.) The cupola, which housed cellular communications equipment owned and operated by New Cingular, was enclosed and accessible only through a secured door on the west side of the cupola. (Ex. 119 at 22, 40.) The Long Beach Fire Department (LBFD) received an alarm at 11:39 a.m., and the first units arrived at 11:42 a.m. (Id. at 1.) LBFD personnel initially accessed the roof via ladders and made forcible entry into the cupola by prying open the door leading into the interior of the cupola. After the fire flashed through the entryway as it received more oxygen, firefighters quickly ...