Mike Brown Grandstands v. Core Tour

Filed 4/12/06 Mike Brown Grandstands v. Core Tour CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, W. Michael Hayes, Judge. Affirmed.

Carroll, Burdick & McDonough, Jeffrey D. Lyddan, Don Willenburg; Lewis Brisbois, Bisgaard & Smith and Gary M. Lape for Cross-Complainant and Appellant.

Harrington, Foxx, Dubrow & Canter, Dale B. Goldfarb, Edward W. Lukas, Jr., and Ross R. Scarberry for Cross-Defendant and Respondent.

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Cross-complainant Mike Brown Grandstands, Inc. (MBG) appeals the judgment entered after the trial court granted cross-defendant Core Tour's motion for summary judgment on MBG's cross-complaint for indemnity, apportionment of fault, declaratory relief, and express indemnity. MBG appeals, contending the trial court improperly weighed evidence. Finding no error, we affirm.

BACKGROUND

Randolph Smith sustained injuries when he was buried under scaffolding that fell off a truck being unloaded by MBG. Smith sued MBG for negligence. According to Smith's complaint, Core Tour had retained MBG to install grandstands. MBG hired Prentiss Nephew, a trucking contractor whom MBG had used before, to truck the grandstands from MBG's facility.

Smith and Nephew arrived at MBG's facilities in Nephew's truck and connected it to a flat-bed trailer already loaded with grandstand equipment by MBG's employees. After Smith and Nephew placed straps over the grandstand equipment, MBG's employees inspected the strapping and verified it was properly tied down. Nephew drove the truck to the event location with Smith as a passenger. By the time they arrived, the contents had shifted and while the straps were being untied, scaffolding fell off the truck onto Smith.

MBG cross-complained against Core Tour and others for apportionment of fault, indemnification, declaratory relief, and express indemnification. Core Tour moved for summary judgment. As to the first three causes of action, Core Tour argued it owed no duty to Smith, was not sued by Smith, and did not participate in the acts Smith alleged to be negligent. Core Tour reasoned, â€