indemnity clause in California

2025Co. v. Loo (1996) 46 Cal.App.4th 1794, 1797 .) Respondent was entitled to recover as defense costs the attorney fees it incurred in the litigation against Mid-Century. “[A] promise of indemnity against claims, demands, or liability ‘embraces the costs of defense against such claims, demands, or liability’ insofar as such costs are incurred reasonably and in good faith. ([Civil Code,] § 2778, subd. 3, italics added.)” (Crawford, supra, 44 Cal.4th at p. 553 ; see also Myers Building Industries, supra, 13 Cal.App.4th at p. 971, fn. 20 [attorney fees incurred in a third party claim “are recoverabl

2024Also in support of its finding of a duty to defend, the trial court quoted the following from Myers Building Industries, Ltd. v. Interface Technology, Inc. (1993) 13 Cal.App.4th 949 : “A clause which contains the words ‘indemnify’ and ‘hold harmless’ is an indemnity clause which generally obligates the indemnitor to 20 reimburse the indemnitee for any damages the indemnitee becomes obligated to pay third persons. [Citation.] Indemnification agreements ordinarily relate to third party claims.” (Id. at p. 969.) The trial court then stated, “ ‘[T]his general rule does not apply if the parties to

1986“An indemnity clause phrased in general terms will not be interpreted ... to provide indemnity for consequences resulting from the indemnitee’s own actively negligent acts.” (Italics added, Markley v. Beagle (1967) 66 Cal.2d 951, 962 [ 59 Cal.Rptr. 809 , 429 P.2d 129 ].) “Mere nonfeasance, however, such as a negligent failure to discover a dangerous condition arising from the work will not preclude indemnity under a general clause . . . .” (Ibid.) Thus, if an indemnity clause does not specifically address itself to the issue of an indemnitee’s negligence, it is referred to as a “general indemn

1986“An indemnity clause phrased in general terms will not be interpreted ... to provide indemnity for consequences resulting from the indemnitee’s own actively negligent acts.” (Italics added, Markley v. Beagle (1967) 66 Cal.2d 951, 962 [ 59 Cal.Rptr. 809 , 429 P.2d 129 ].) “Mere nonfeasance, however, such as a negligent failure to discover a dangerous condition arising from the work will not preclude indemnity under a general clause . . . .” (Ibid.) Thus, if an indemnity clause does not specifically address itself to the issue of an indemnitee’s negligence, it is referred to as a “general indemn

2014Case law explains: “[I]f a party seeks, in a noninsurance agreement, to be indemnified for protections beyond those afforded by the doctrines of implied or equitable indemnity—for his or her own active negligence, or regardless of the indemnitor’s fault—the language on the point must be particularly clear and explicit and will be construed strictly against the indemnitee. [Citation.] [¶] This rule applies when the indemnitee seeks to be indemnified for claims made by the other party to the contract— the indemnitor—itself. ‘A clause which contains the words “indemnify” and “hold harmless” is an

2013(E.g., Rooz v. Kimmel, supra, 55 Cal.App.4th at p. 586 [indemnification clause provided that indemnitee had been requested to act as an accommodation and without consideration; indemnitor agreed to protect indemnitee against “ ‘all liabilities . . . which may be sustained or incurred by [indemnitee] under, or arising directly or indirectly out of’ ” the acts it had been requested to perform].) Putting it another way, as one court explained, “If [the] parties go out of their way and say ‘we really, really mean it,’ language clearly contemplating exculpation may be enforced.” (Queen *251 Villas

2017“In Rossmoor[, supra, 13 Cal.3d 622 ], our Supreme Court described the governing law as follows: ‘If an indemnity clause does not address itself to the issue of an indemnitee’s negligence, it is referred to as a “general” indemnity clause. [Citations.] While such clauses may be construed to provide indemnity for a loss resulting in part from an indemnitee’s passive negligence, they will not be interpreted to provide indemnity if an indemnitee has been actively negligent. [Citations.] [¶] Provisions purporting to hold an owner harmless “in any suit at law” [citation], “from all claims for damag

2014Proc., § 1856, subd. (g).) In Rossmoor, supra, 13 Cal.3d 622 , the case on which Lupe Fuentes relies, our Supreme Court stated: “If an indemnity clause does not address itself to the issue of an indemnitee’s negligence, it is referred to as a ‘general’ indemnity clause. [Citations.] While such clauses may be construed to provide indemnity for a loss resulting in part from an indemnitee’s passive negligence, they will not be interpreted to provide indemnity if an indemnitee has been actively negligent.” (Rossmoor, supra, 13 Cal.3d at p. 628 , original italics.) The Rossmoor court also emphasize

2013“A clause which contains the words ‘indemnify’ and ‘hold harmless’ is an indemnity clause which generally obligates the indemnitor to reimburse the indemnitee for any damages the indemnitee becomes obligated to pay third persons. [Citation.] Indemnification agreements ordinarily relate to third party claims.” (Myers Building Industries, Ltd. v. Interface Technology, Inc., supra, 13 Cal.App.4th at p. 969 .) “An indemnity agreement may provide for indemnification against an indemnitee’s own negligence, but such an agreement must be clear and explicit and is strictly construed against the indemni

2013“A clause which contains the words ‘indemnify’ and ‘hold harmless’ is an indemnity clause which generally obligates the indemnitor to reimburse the indemnitee for any damages the indemnitee becomes obligated to pay third persons. [Citation.] Indemnification agreements ordinarily relate to third party claims.” (Myers Building Industries, Ltd. v. Interface Technology, Inc., supra, 13 Cal.App.4th at p. 969 .) “An indemnity agreement may provide for indemnification against an indemnitee’s own negligence, but such an agreement must be clear and explicit and is strictly construed against the indemni

1984Corp. (1964) 62 Cal.2d 40, 44 [ 41 Cal.Rptr. 73 , 396 P.2d 377 ].) An indemnity clause phrased in general terms is described as a “general indemnity” clause. “[Such a clause does] not insulate the lessor against its active negligence.” (Morgan v. Stubblefield (1972) 6 Cal.3d 606, 624 [ 100 Cal.Rptr. 1 , 493 P.2d 465 ].) The indemnity provision under scrutiny here is of the general type for it does not specifically address the effects of Harvester’s negligence on its right to indemnity.

1984Corp. (1964) 62 Cal.2d 40, 44 [ 41 Cal.Rptr. 73 , 396 P.2d 377 ].) An indemnity clause phrased in general terms is described as a “general indemnity” clause. “[Such a clause does] not insulate the lessor against its active negligence.” (Morgan v. Stubblefield (1972) 6 Cal.3d 606, 624 [ 100 Cal.Rptr. 1 , 493 P.2d 465 ].) The indemnity provision under scrutiny here is of the general type for it does not specifically address the effects of Harvester’s negligence on its right to indemnity.

1986As the Court of Appeal noted recently in Stambaugh v. Superior Court (1976) 62 Cal.App.3d 231 , 236 . . .: ‘Few things would be better calculated to frustrate [section 877’s] policy, and to discourage settlement of disputed tort claims, than knowledge that such a settlement lacked finality and would lead to further litigation with one’s joint tortfeasors, and perhaps further liability.’ This observation is as applicable in a partial indemnity framework as in the contribution context.

1983This observation is as applicable in a partial indemnity framework as in the contribution context. ” (Italics added.) (See also Mill Valley Refuse Co. v. Superior Court (1980) 108 Cal.App.3d 707 [ 166 Cal.Rptr. 687 ]; City of Sacramento v. Gemsch Investment Co. (1981) 115 Cal.App.3d 869 [ 171 Cal.Rptr. 764 ]; Stambaugh v. Superior Court (1976) 62 Cal.App.3d 231, 236 [ 132 Cal.Rptr. 843 ].) The court noted: “[A] partial indemnification claim cannot properly be brought against a concurrent tortfeasor who has entered a good faith settlement with the plaintiff, because permitting such a cross-comp

2024Also in support of its finding of a duty to defend, the trial court quoted the following from Myers Building Industries, Ltd. v. Interface Technology, Inc. (1993) 13 Cal.App.4th 949 : “A clause which contains the words ‘indemnify’ and ‘hold harmless’ is an indemnity clause which generally obligates the indemnitor to 20 reimburse the indemnitee for any damages the indemnitee becomes obligated to pay third persons. [Citation.] Indemnification agreements ordinarily relate to third party claims.” (Id. at p. 969.) The trial court then stated, “ ‘[T]his general rule does not apply if the parties to

2021However, as Contractor argues, numerous cases have construed the terms “indemnify” and “hold harmless” as generally applying only to claims brought against the indemnitee by a third party. “ ‘A clause which contains the words “indemnify” and “hold harmless” is an indemnity clause which generally obligates the indemnitor to reimburse the indemnitee for any damages the indemnitee becomes obligated to pay third persons.’ ” (Zalkind, supra, 194 Cal.App.4th at p. 1024; accord, Alki Partners, supra, 4 Cal.App.5th at p. 600 ; Carr Business Enterprises, Inc. v. City of Chowchilla (2008) 166 Cal.App.4t

1984Corp. (1964) 62 Cal.2d 40, 44 [ 41 Cal.Rptr. 73 , 396 P.2d 377 ].) An indemnity clause phrased in general terms is described as a “general indemnity” clause. “[Such a clause does] not insulate the lessor against its active negligence.” (Morgan v. Stubblefield (1972) 6 Cal.3d 606, 624 [ 100 Cal.Rptr. 1 , 493 P.2d 465 ].) The indemnity provision under scrutiny here is of the general type for it does not specifically address the effects of Harvester’s negligence on its right to indemnity.

1984Corp. (1964) 62 Cal.2d 40, 44 [ 41 Cal.Rptr. 73 , 396 P.2d 377 ].) An indemnity clause phrased in general terms is described as a “general indemnity” clause. “[Such a clause does] not insulate the lessor against its active negligence.” (Morgan v. Stubblefield (1972) 6 Cal.3d 606, 624 [ 100 Cal.Rptr. 1 , 493 P.2d 465 ].) The indemnity provision under scrutiny here is of the general type for it does not specifically address the effects of Harvester’s negligence on its right to indemnity.

2011“A clause which contains the words ‘indemnify’ and ‘hold harmless’ is an indemnity clause which generally obligates the indemnitor to reimburse the indemnitee for any damages the indemnitee becomes obligated to pay third persons. [Citation.] Indemnification agreements ordinarily relate to third party claims.” (Myers Building Industries, Ltd. v. Interface Technology, Inc. (1993) 13 Cal.App.4th 949, 969 [ 17 Cal.Rptr.2d 242 ] (Myers); see also Queen Villas Homeowners Assn. v. TCB Property Management (2007) 149 Cal.App.4th 1, 5 [ 56 Cal.Rptr.3d 528 ] [quoting Myers); Wilshire-Doheny Associates, L

2011“A clause which contains the words ‘indemnify’ and ‘hold harmless’ is an indemnity clause which generally obligates the indemnitor to reimburse the indemnitee for any damages the indemnitee becomes obligated to pay third persons. [Citation.] Indemnification agreements ordinarily relate to third party claims.” (Myers Building Industries, Ltd. v. Interface Technology, Inc. (1993) 13 Cal.App.4th 949, 969 [ 17 Cal.Rptr.2d 242 ] (Myers); see also Queen Villas Homeowners Assn. v. TCB Property Management (2007) 149 Cal.App.4th 1, 5 [ 56 Cal.Rptr.3d 528 ] [quoting Myers); Wilshire-Doheny Associates, L

2013(Zalkind v. Ceradyne, Inc. (2011) 194 Cal.App.4th 1010, 1025 (Zalkind).) “‘The basic goal of contract interpretation is to give effect to the parties’ mutual intent at the time of contracting. [Citations.] When a contract is reduced to writing, the parties’ intention is determined from the writing alone, if possible. [Citation.] “The words of a contract are to be understood in their ordinary and popular sense.”’ [Citation.] When, as in this case, no extrinsic evidence is introduced, the appellate court independently construes the contract. [Citation.]” (Id. at p. 1022.) Indemnity provisions or

2013(Zalkind v. Ceradyne, Inc. (2011) 194 Cal.App.4th 1010, 1025 (Zalkind).) “‘The basic goal of contract interpretation is to give effect to the parties’ mutual intent at the time of contracting. [Citations.] When a contract is reduced to writing, the parties’ intention is determined from the writing alone, if possible. [Citation.] “The words of a contract are to be understood in their ordinary and popular sense.”’ [Citation.] When, as in this case, no extrinsic evidence is introduced, the appellate court independently construes the contract. [Citation.]” (Id. at p. 1022.) Indemnity provisions or

2013Union 6 The court’s reference to “AMA” is an abbreviation for American Motorcycle Assn. v. Superior Court (1978) 20 Cal.3d 578 , a case which first applied comparative fault principles to equitable indemnity. 12 (1972) 23 Cal.App.3d 585, 588 .) The Card court emphasized that the indemnity claim involved two distinct forms of liability—breach of contract and tortious misrepresentation.

2001In refusing to allow the attorney to seek indemnity from the original tortfeasor, the appellate court reasoned that the two were not jointly and severally liable for the same injury and it would not impose a duty on the original tortfeasor for harm resulting when the client's legal claims were incompetently managed. ( Munoz, supra, at pp. 425-27 , 190 Cal.Rptr. 400 .) Moreover, permitting indemnity for subsequent malpractice would create irreconcilable obligations for the original tortfeasor's attorney who is obligated to protect the tortfeasor's interest, but at the same time would be require

2021However, as Contractor argues, numerous cases have construed the terms “indemnify” and “hold harmless” as generally applying only to claims brought against the indemnitee by a third party. “ ‘A clause which contains the words “indemnify” and “hold harmless” is an indemnity clause which generally obligates the indemnitor to reimburse the indemnitee for any damages the indemnitee becomes obligated to pay third persons.’ ” (Zalkind, supra, 194 Cal.App.4th at p. 1024; accord, Alki Partners, supra, 4 Cal.App.5th at p. 600 ; Carr Business Enterprises, Inc. v. City of Chowchilla (2008) 166 Cal.App.4t

2016Unlike in Baldwin, there is no express language authorizing recovery of fees in an action to enforce the contract.” (Carr, supra, 166 Cal.App.4th at p. 23 .) Here, the critical provisions in the Agreement’s indemnity clause are virtually identical to the terms in Carr and in Myers .

2006Accordingly, as against the indemnitee, the indemnitor can invoke any substantive defense to liability that would be available against the injured party.... [F]or certain procedural purposes, such as statutes of limitations, an indemnity claim is an independent action. [Citation.] As to matters of substantive law, however, it is wholly derivative and subject to whatever immunities or other limitations on liability would otherwise be available." ( Id. at pp. 114— 115, 32 Cal.Rptr.2d 263 , 876 P.2d 1062 , emphasis added.) The court concluded that to the extent the statute limits the plaintiffs r

2006Accordingly, as against the indemnitee, the indemnitor can invoke any substantive defense to liability that would be available against the injured party.... [F]or certain procedural purposes, such as statutes of limitations, an indemnity claim is an independent action. [Citation.] As to matters of substantive law, however, it is wholly derivative and subject to whatever immunities or other limitations on liability would otherwise be available." ( Id. at pp. 114— 115, 32 Cal.Rptr.2d 263 , 876 P.2d 1062 , emphasis added.) The court concluded that to the extent the statute limits the plaintiffs r

1988Accordingly, we have no occasion to determine in this case whether the comparative indemnity doctrine should be applied in a situation in which a party's liability is entirely derivative or vicarious in nature. [Citations.]" (Italics added.) ( 21 Cal.3d 322, 332, fn. 5 .) Far West relies heavily on the emphasized language as suggesting that the comparative indemnity doctrine may be distinct from the total indemnity doctrine, and as leaving open the question whether the pre- American Motorcycle total equitable indemnity doctrine, rather than the comparative indemnity doctrine, should apply to a

1988Accordingly, we have no occasion to determine in this case whether the comparative indemnity doctrine should be applied in a situation in which a party's liability is entirely derivative or vicarious in nature. [Citations.]” (Italics added.) ( 21 Cal.3d 322, 332, fn. 5 .) Far West relies heavily on the emphasized language as suggesting that the comparative indemnity doctrine may be distinct from the total indemnity doctrine, and as leaving open the question whether the pre-American Motorcycle total equitable indemnity doctrine, rather than the comparative indemnity doctrine, should apply to a

2013(Ghirardo v. Antonioli (1994) 8 Cal.4th 791, 799 ; Parsons v. Bristol Development Co. (1965) 62 Cal.2d 861, 865 .) DISCUSSION The sole issue on appeal is whether, under the indemnity clause of the Lease Agreement, Charter was required to indemnify Verizon for the $600,000 Verizon paid Romero in settlement of his negligence suit against Verizon.2 We begin with the law of contractual indemnity.

1970(Parsons v. Bristol Development Co. (1965) 62 Cal.2d 861, 865 [ 44 Cal.Rptr. 767 , 402 P.2d 839 ]; Markley v. Beagle, supra, at p. 962 .) In Markley, supra, we summarized the rules governing express contracts of indemnity as follows: “An indemnity clause phrased in general terms will *257 not be interpreted, however, to provide indemnity for consequences resulting from the indemnitee’s own actively negligent acts. [Citations.] Mere nonfeasance, however, such as a negligent failure to discover a dangerous condition arising from the work will not preclude indemnity under a general clause such as

2005Conflicts of Interest Prevention In Musser, supra, 28 Cal.4th at page 281 , the trial court examined two cases which arose in the context of insurance litigation, and which dealt with whether indemnity claims were permissible, when made by concurrent counsel or cocounsel against one another for damages arising from their joint representation of a mutual client. ( Kroll, supra, 72 Cal.App.4th 1537 ; Shaffery v. Wilson, Elser, Moskowitz, Edelman & Dicker (2000) 82 Cal.App.4th 768 [ 98 Cal.Rptr.2d 419 ] (Shaffery).) In Kroll , the Court of Appeal held the policy considerations for barring such an

2005Conflicts of Interest Prevention In Musser, supra, 28 Cal.4th at page 281 , the trial court examined two cases which arose in the context of insurance litigation, and which dealt with whether indemnity claims were permissible, when made by concurrent counsel or cocounsel against one another for damages arising from their joint representation of a mutual client. ( Kroll, supra, 72 Cal.App.4th 1537 ; Shaffery v. Wilson, Elser, Moskowitz, Edelman & Dicker (2000) 82 Cal.App.4th 768 [ 98 Cal.Rptr.2d 419 ] (Shaffery).) In Kroll , the Court of Appeal held the policy considerations for barring such an

2021While broader than the standard attorney fee clause, there is no reason why it should not include the same kind of enforcement 34 expense, provided that the enforcement action is brought in good faith and is reasonably necessary.” (Id. at p. 683.) In Continental Heller, the court upheld an award of attorney fees incurred to prosecute an action to enforce an indemnity agreement because the contract “expressly provides for attorney fees incurred as the result of any breach of the contract.” (Continental Heller Corp. v. Amtech Mechanical Services, Inc. (1997) 53 Cal.App.4th 500, 508 .) The contra

2007The attorney fee award must therefore be amended to reflect only those fees incurred in the [underlying third party] personal injury action.” (Id. at p. 566.) The pertinent question under the Hillman line of cases is whether the indemnity provision contains language “which reasonably can be interpreted as addressing the issue of an action between the parties on the contract.” (Building Maintenance Service Co. v. AIL Systems, Inc. (1997) 55 Cal.App.4th 1014, 1030 [ 64 Cal.Rptr.2d 353 ]; see Continental Heller Corp. v. Amtech Mechanical Services, Inc. (1997) 53 Cal.App.4th 500, 509 [ 61 Cal.Rptr

2013Court costs shall be borne by the losing party." 27 "A provision including attorney fees as an item of loss in an indemnity clause is not a provision for attorney fees in an action to enforce the contract." (Myers, supra, 13 Cal.App.4th at p. 971 .) Alternatively stated, "the inclusion of attorney fees as an item of loss in a third party claim-indemnity provision does not constitute a provision for the award of attorney fees in an action on the contract which is required to trigger section 1717." (Carr Business Enterprises, Inc. v. City of Chowchilla (2008) 166 Cal.App.4th 14, 20 .) Because Pr

2007The attorney fee award must therefore be amended to reflect only those fees incurred in the [underlying third party] personal injury action.” (Id. at p. 566.) The pertinent question under the Hillman line of cases is whether the indemnity provision contains language “which reasonably can be interpreted as addressing the issue of an action between the parties on the contract.” (Building Maintenance Service Co. v. AIL Systems, Inc. (1997) 55 Cal.App.4th 1014, 1030 [ 64 Cal.Rptr.2d 353 ]; see Continental Heller Corp. v. Amtech Mechanical Services, Inc. (1997) 53 Cal.App.4th 500, 509 [ 61 Cal.Rptr

2015The trial court’s ruling extensively analyzed and distinguished Baldwin Builders , in which the subject attorney fees provision was located within the indemnity provision, providing “ ‘Subcontractor shall pay all costs, including attorney’s fees, incurred in enforcing this indemnity agreement [(i.e., in an action to enforce the indemnity)].’ ” (Baldwin Builders, supra, 125 Cal.App.4th at p. 1342 .) The contractor Baldwin Builders had been sued by homeowners, and in turn it sued the subcontractors for contractual indemnity, etc. The subcontractors were thus required to defend themselves against

2013Court costs shall be borne by the losing party." 27 "A provision including attorney fees as an item of loss in an indemnity clause is not a provision for attorney fees in an action to enforce the contract." (Myers, supra, 13 Cal.App.4th at p. 971 .) Alternatively stated, "the inclusion of attorney fees as an item of loss in a third party claim-indemnity provision does not constitute a provision for the award of attorney fees in an action on the contract which is required to trigger section 1717." (Carr Business Enterprises, Inc. v. City of Chowchilla (2008) 166 Cal.App.4th 14, 20 .) Because Pr

2023(Cf. Campbell v. Scripps Bank (2000) 78 Cal.App.4th 1328, 1335-1338 [denying attorney fees based on a clause that was solely an indemnity clause].) By stating that “[t]he parties . . . promise to pay . . . as well as to indemnify and hold the escrow holder 8 harmless from any and all . . . attorney fees . . . occasioned” by “any party, including costs incurred by the escrow holder in connection with . . . defending litigation . . .” (italics added), this paragraph is both an indemnity clause and a “promise to pay” fees directly incurred in litigation between the parties; to read this clause as

2013Court costs shall be borne by the losing party." 27 "A provision including attorney fees as an item of loss in an indemnity clause is not a provision for attorney fees in an action to enforce the contract." (Myers, supra, 13 Cal.App.4th at p. 971 .) Alternatively stated, "the inclusion of attorney fees as an item of loss in a third party claim-indemnity provision does not constitute a provision for the award of attorney fees in an action on the contract which is required to trigger section 1717." (Carr Business Enterprises, Inc. v. City of Chowchilla (2008) 166 Cal.App.4th 14, 20 .) Because Pr

2006(See also Munoz, supra, 141 Cal. App.3d at pp. 427-431, 190 Cal.Rptr. 400 [holding, as a separate and independent ground, that equitable and policy considerations did not support the availability of equitable indemnity to shift the attorney's malpractice liability to the driver]; Children's Hospital, supra, 45 Cal.App.4th at p. 1787 , 53 Cal.Rptr.2d 725 [concluding that equitable considerations supported *560 preclusion of the indemnity claim pursuant to the "no indemnity without liability" principle].) In light of Bay Development unequivocal holding that implied contractual indemnity is a for

2001In refusing to allow the attorney to seek indemnity from the original tortfeasor, the appellate court reasoned that the two were not jointly and severally liable for the same injury and it would not impose a duty on the original tortfeasor for harm resulting when the client's legal claims were incompetently managed. ( Munoz, supra, at pp. 425-27 , 190 Cal.Rptr. 400 .) Moreover, permitting indemnity for subsequent malpractice would create irreconcilable obligations for the original tortfeasor's attorney who is obligated to protect the tortfeasor's interest, but at the same time would be require

2026(UDC, supra, 181 Cal.App.4th at p. 21 .) The Sixth District stated the trial court “properly rejected this position, emphasizing that the indemnity and defense clauses pertained to separate obligations.” (Ibid.) The trial and appellate courts both recognized that accepting the subcontractor’s position “would render meaningless the defense obligation and contravene Civil Code section 2778 and the Supreme Court’s admonition that a duty to defend arises out of an indemnity obligation as soon as the litigation commences and 11 The UDC court determined service of the developer’s cross-complaint ini

2026(UDC, supra, 181 Cal.App.4th at p. 21 .) The Sixth District stated the trial court “properly rejected this position, emphasizing that the indemnity and defense clauses pertained to separate obligations.” (Ibid.) The trial and appellate courts both recognized that accepting the subcontractor’s position “would render meaningless the defense obligation and contravene Civil Code section 2778 and the Supreme Court’s admonition that a duty to defend arises out of an indemnity obligation as soon as the litigation commences and 11 The UDC court determined service of the developer’s cross-complaint ini

2023To be sure, Sushi is correct that the paragraph we cite contains language that obligates the parties to “indemnify and hold [Hana] harmless” from any attorney fees “occasioned [by] any party.” Sushi is also correct that “indemnity provision[s]” “generally” “allow[] one party to recover costs incurred defending actions by third parties, not attorney fees incurred in an action between the parties to the contract.” (E.g., Alki Partners, LP v. DB Fund Services, LLC (2016) 4 Cal.App.5th 574, 600 ; Rideau v. Stewart Title of Cal., Inc. (2015) 235 Cal.App.4th 1286, 1298 ; see also Myers Building Indu

2021However, as Contractor argues, numerous cases have construed the terms “indemnify” and “hold harmless” as generally applying only to claims brought against the indemnitee by a third party. “ ‘A clause which contains the words “indemnify” and “hold harmless” is an indemnity clause which generally obligates the indemnitor to reimburse the indemnitee for any damages the indemnitee becomes obligated to pay third persons.’ ” (Zalkind, supra, 194 Cal.App.4th at p. 1024; accord, Alki Partners, supra, 4 Cal.App.5th at p. 600 ; Carr Business Enterprises, Inc. v. City of Chowchilla (2008) 166 Cal.App.4t

2016White, Inc. v. Huntington Beach (1978) 21 Cal.3d 497, 508 [ 146 Cal.Rptr. 614 , 579 P.2d 505 ], italics omitted; see also 5 Witkin, Summary of Cal. Law (10th ed. 2005) Torts, § 123, p. 225 [“An express indemnity clause, *193 rather than the equitable principles behind comparative indemnity, governs the scope of any duty to indemnify.”].) We hold that under the indemnity clause in this case, the injury to a third party that occurred outside the dental suite, in a common area over which the landlords have exclusive control, did not arise out of the tenant’s use of the dental suite.

2016White, Inc. v. Huntington Beach (1978) 21 Cal.3d 497, 508 [ 146 Cal.Rptr. 614 , 579 P.2d 505 ], italics omitted; see also 5 Witkin, Summary of Cal. Law (10th ed. 2005) Torts, § 123, p. 225 [“An express indemnity clause, *193 rather than the equitable principles behind comparative indemnity, governs the scope of any duty to indemnify.”].) We hold that under the indemnity clause in this case, the injury to a third party that occurred outside the dental suite, in a common area over which the landlords have exclusive control, did not arise out of the tenant’s use of the dental suite.

2012(Id. at p. 1084; see Peter Culley, supra, 10 Cal.App.4th at p. 1498 .) Thus, Erickson , properly read, cuts against Maxim, because it reiterates the rule that where issues of indemnity and liability overlap, apportionment is not required, and applies that same rule in a case similar to the instant case, where defense against the indemnity claim included challenging the reasonableness of the underlying settlement.

1998Our conclusion is supported by the decision in Peter Culley & Associates v. Superior Court, supra, 10 Cal.App.4th 1484 , which involved a claim of indemnity between tortfeasors.