Wasco Recreation and Park Dist. v. Wasco Tiger Sharks Swim Club CA5

Filed 11/10/26 Wasco Recreation and Park Dist. v. Wasco Tiger Sharks Swim Club CA5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT WASCO RECREATION AND PARK DISTRICT, F088830 Cross-complainant and Appellant, (Super. Ct. No. BCV-22-100328) v. WASCO TIGER SHARKS SWIM CLUB et al., OPINION Cross-defendants and Respondents. APPEAL from a judgment of the Superior Court of Kern County. Bernard C. Barmann, Judge. Porter Scott, William E. Camy and David R. Norton for Cross-complainant and Appellant. Schwartz & Janzen, Steven H. Schwartz and Noel Macaulay for Cross-defendants and Respondents. -ooOoo-  Appellant Wasco Recreation and Park District (District) was sued by plaintiff Tyna Powell for injuries allegedly suffered by Powell from a trip and fall accident that occurred on District park property. Powell alleged she had come onto the property in order to watch her grandson compete in a swim meet held by Wasco Tiger Sharks Swim Club (Swim Club). District tendered its defense to Swim Club and Swim Club’s insurer, respondent HDI Global Specialty, SE (HDI) (collectively, respondents). After the tender was rejected, District cross-complained against Swim Club and HDI. District alleged that Swim Club had rented its park facilities to conduct the swim meet at the park’s community pool (the community pool), that Swim Club had agreed to defend and indemnify District against claims such as Powell’s claims, and that HDI had issued an insurance policy endorsement naming District as an additional insured on Swim Club’s insurance policy. District asserted causes of action against respondents for indemnity, apportionment of fault, declaratory relief, and breach of contract. After District filed its cross-complaint, Powell amended her complaint to substitute Swim Club in as an additional named defendant in place of DOE 11. District appeals from a judgment rendered in favor of Swim Club and HDI after the trial court granted respondents’ motion for summary judgment. In addition, District appeals from an earlier order in which the court denied District’s motion for summary adjudication of issues in its favor—i.e., whether Swim Club and HDI owed District a duty to defend it against Powell’s complaint, and whether they breached that duty. We reverse the judgment and direct the trial court to vacate its order granting respondents’ motion for summary judgment and enter a new order denying the motion. We affirm the court’s order denying District’s motion for summary adjudication and remand the case for further proceedings. 2.  FACTUAL AND PROCEDURAL BACKGROUND I. Procedural Background A. Powell’s Lawsuit On February 9, 2022, plaintiff Tyna Powell sued District, the City of Wasco, the County of Kern, and Does 1 to 50, alleging that, on or about Saturday, June 19, 2021, Powell suffered injuries from a trip and fall accident (the subject incident) that occurred on District property commonly known as Barker Pool Park located at 1280 Poplar Avenue, Wasco, California (the park). 1 Powell alleged causes of action against District and all other defendants for (1) allowing a dangerous condition to exist on public property; (2) premises liability; and (3) general negligence. Powell alleged that, on or about June 19, 2021, she had entered the park in order to watch her grandson compete in a swim meet and “stepped into a pothole in a grassy area of the park causing her to trip and fall. At the bottom of the hole was a sprinkler valve box.” Powell alleged “the sprinkler valve box in the grassy area of the park near the playground and [community] pool was negligently and carelessly installed, owned, maintained, repaired, managed, constructed, controlled, [and] inspected by [d]efendants[,]” including all DOE defendants. Powell alleged “the sprinkler valve box … was in a condition of disrepair so as to constitute a tripping hazard and danger to members of the general public, including [Powell]” and that defendants “had actual and/or constructive notice” of the hazard and “failed to warn members of the general public, including [Powell], of said danger or to remedy the danger.” 1 Powell submitted a government claim to District in connection with the subject incident on September 3, 2021, within three months of the subject incident. 3.  B. District’s Cross-Complaint Against Respondents District tendered the defense of Powell’s lawsuit to respondents on November 9, 2021, and renewed its tender on December 14, 2021, and again on April 1, 2022. Respondents declined to provide District with a defense. On April 19, 2022, District cross-complained against respondents, alleging causes of action for indemnification, apportionment of fault, declaratory relief, and breach of contract. District alleged that, on June 17, 2021, two days before the subject incident, Swim Club had executed a “Facility Use Agreement” (FUA) in which Swim Club agreed to hold District harmless and to defend and indemnify District in connection with suits of the type brought by Powell. District further alleged that Swim Club was required under the FUA to “ ‘procure and maintain, for the duration of the [Swim Club’s] use period … commercial general liability insurance’ ” naming District and “its officer, employees, agents, and volunteers as additional insureds prior to the [Swim Club’s] use of the facility,” which insurance Swim Club procured from HDI (the HDI policy). C. Powell adds Swim Club to her lawsuit as a named defendant On July 25, 2022, Powell amended her complaint to substitute Swim Club into the lawsuit as a defendant in place of DOE 11. D. District’s First Amended Cross-Complaint On February 8, 2023, District filed its first amended cross-complaint (FACC) against respondents alleging the same causes of action set forth in its original cross- complaint—i.e., indemnification, apportionment of fault, declaratory relief, and breach of contract. The breach of contract cause of action included a claim for breach of the implied covenant of good faith and fair dealing. District also alleged the FUA constituted a “whole park rental, not merely a rental of the [community] pool area” of the park, that “had [District] rented merely the [community] pool area, [it] would have charged [Swim Club] a lesser fee,” and that Swim Club “guests were permitted to use, and did in fact use, other areas of the park, 4. including the area of the subject incident.” District alleged that it “agreed ‘to not rent shelters in [the park][ 2] or hold Recreation Swim on [Swim Club] Meet days.’ ” In its cause of action for indemnification, District alleged it was entitled to a defense and indemnification from Swim Club under the terms of the FUA, and from HDI under the terms of the HDI policy, and related HDI certificate of insurance and HDI endorsement naming District as an additional insured (collectively, the HDI policy documents). In its cause of action for apportionment of fault, District alleged that, if Powell prevailed in her suit against District, it “is entitled to an apportionment of fault between [it]” and respondents. In its cause of action for breach of contract/breach of the covenant of good faith and fair dealing, District alleged that Swim Club breached the FUA, and HDI breached the HDI policy, by refusing District’s tenders of defense. In its cause of action for declaratory relief, District sought a declaration of its rights and duties with respect to Swim Club under the FUA, and with respect to HDI under the HDI policy documents. E. District’s Motion for Summary Adjudication and the Trial Court’s Ruling On May 30, 2023, District filed a motion to summarily adjudicate four issues in its favor: (1) that Swim Club was required to defend District against Powell’s complaint; (2) that Swim Club breached its contractual obligation to provide District with a defense; (3) that HDI was required to defend District against Powell’s complaint; and (4) that HDI breached its contractual obligation to provide District with a defense. Respondents opposed the motion. On August 15, 2023, the trial court heard and denied District’s motion. A formal order denying the motion was entered on November 21, 2023. 2 District alleged that “shelters … are covered areas located throughout the park that people may rent from [District] and have exclusive access to during the period of the rental.” 5.  F. Powell Settles and Dismisses Her Claims On February 5, 2024, Powell dismissed Swim Club as a defendant. On April 22, 2024, Powell, having settled her claims, dismissed her complaint in its entirety. G. Respondents’ Motion for Summary Judgment and the Trial Court’s Ruling On February 2, 2024, respondents filed their motion for summary judgment as to District’s FACC. The motion did not include a request for summary adjudication. District opposed the motion. In their motion, respondents contended that the FUA’s indemnification clause “does not cover events occurring outside the portions of [the park] actually leased by [Swim Club]” and “will not be construed to apply to common areas of [the park] under the control of the District.” Respondents also argued that Swim Club is not a joint or concurrent tortfeasor and, as a result, it has no liability to Powell under a theory of equitable/comparative indemnity or contribution. Respondents further contended the HDI policy “is limited to claims arising out of liability resulting from the ownership, maintenance or use of the [c]ommunity [p]ool in question, and [Powell’s] injury occurred in other areas of the park.” (Italics omitted.) Respondents also contended that HDI “is being sued solely as an insurer, and did not cause or contribute to the accident,” “has no conceivable liability to [Powell],” and cannot be considered a joint or concurrent tortfeasor. On August 12, 2004, the trial court ruled on the parties’ respective objections to evidence in support of, and in opposition to, the motion, and entered its order granting respondents’ motion for summary judgment. The trial court found that the undisputed evidence and legal authorities presented to it demonstrated that “[Powell’s] injury did not occur in the [c]ommunity [p]ool area … but in grassy or common areas of [the park]”; that the FUA’s indemnification clause “does not apply to events occurring in the common areas of [the park], including the 6. location of” the subject incident; and that “[t]o the extent that any indemnification clause in the [FUA] … purports to apply to events occurring in the common areas of [the park], such is not enforceable.” The trial court also found Swim Club “leased the [c]ommunity [p]ool, [but] not the entirety of [the park]”; had no duty to “maintain, inspect for, warn against or remedy any defects in the common areas of [the park], or to prevent injuries occurring in such common areas”; had no duty “to repair, remedy, or warn against any holes that might have been in the common areas of [the park]”; “had no notice of any dangerous conditions in the common areas of [the park]”; did not proximately cause any of Powell’s injuries; is not a “joint or concurrent tortfeasor[] with the District, vis-à-vis [Powell]”; and that no claim for “equitable indemnity, contribution and/or apportionment … will lie against [Swim Club].” The court determined that “[t]he claim against [Swim Club] does not arise out of the ownership, maintenance or use of that part of the premises leased to [Swim Club]” and that it was District that “had the responsibility to inspect, maintain, repair, remedy or otherwise address any defects in landscaping or maintenance in the common areas of [the park].” With regard to matters affecting HDI, the trial court found that District did not state a viable claim against HDI for equitable indemnity or contribution because “HDI is being sued solely as an insurer and is not alleged to have caused or contributed to … [Powell’s] injury”; that the HDI policy documents “appl[y] ‘only with respect to liability arising out of the ownership, maintenance or use of that part of the premises leased to [Swim Club] and shown on the [HDI policy] Schedule”; that “[t]he only portion of the premises shown on the [HDI policy] Schedule … is the ‘Wasco Community Pool,’ not [the park] as a whole”; and that “[t]he declaratory relief cause of action against HDI is derivative of the other substantive causes of action, and cannot survive their failure.” 7.  H. The Judgment on District FACC, Notices of Entry, and Appeal On August 14, 2024, the trial court entered judgment in favor of Swim Club and HDI, and against District on District’s FACC (FACC judgment). On August 30, 2024, respondents served notice of entry of both the trial court’s order granting respondents’ motion for summary judgment, and the FACC judgment. On October 23, 2024, District filed a notice of appeal of the FACC judgment and the trial court’s ruling on District’s motion for summary adjudication. Additional facts are discussed below as necessary to address District’s claims of error. DISCUSSION I. Standard of Review This appeal concerns competing motions for summary adjudication and summary judgment filed at different points in the litigation. Summary judgment motions and summary adjudication motions are “subject to the same rules and procedures.” (Lunardi v. Great-West Life Assurance Co. (1995) 37 Cal.App.4th 807, 819; Code Civ. Proc., § 437c, subd. (f)(2) 3 [“A motion for summary adjudication … shall proceed in all procedural respects as a motion for summary judgment.”].) “Both [motions] are reviewed de novo.” (Lunardi, at p. 819.) “The moving party must point to undisputed facts that compel adjudication or judgment in its favor. If the moving party is successful, the opposing party must then raise triable issues as to the other’s assertions of undisputed fact.” (Lunardi v. Great- West Life Assurance Co., supra, 37 Cal.App.4th at p. 819.) “ ‘We liberally construe the opposing party’s evidence and resolve all doubts in favor of the opposing party. [Citation.] We consider all evidence in the moving and opposition papers, except that to 3 All undesignated statutory references are to the Code of Civil Procedure unless otherwise stated. 8. which objections were properly sustained.’ ” (Brown v. Goldstein (2019) 34 Cal.App.5th 418, 432 (Brown).) “The trial court’s stated reasons for granting [or denying] summary judgment [or summary adjudication] are not binding on us because we review its ruling, not its rationale.” (Kids’ Universe v. In2Labs (2002) 95 Cal.App.4th 870, 878; Judicial Council of California v. Superior Court (2014) 229 Cal.App.4th 1083, 1090.) II. District’s Contentions On appeal, District contends that the protection afforded by the FUA’s defense and indemnity provision was not limited “to some narrow sliver of the property or to claims that could be traced back to [Swim Club’s] affirmative maintenance work.” Rather, the protections extended to “claims and liabilities arising out of or in any way relate to [Swim Club’s] use or occupancy of District property.” Similarly, District contends the HDI policy “independently imposed a defense obligation [on HDI] whenever the complaint and known facts created a potential for coverage.” District argues the trial court erred by “importing a ‘common area’ limitation into the FUA and by treating the absence of an express contractual duty to maintain or repair park landscaping or sprinkler systems as dispositive of the defense obligation” and should have recognized that the FUA’s defense and indemnity provision and the HDI policy entitled District to an “immediate defense once [Powell’s] complaint alleged claims potentially embraced by the FUA and [HDI policy documents].” District contends the record contains “evidence that [Swim Club’s] meet-day use extended well beyond the pool, including evidence that the event operated as a whole- park rental” and that the trial court erred in making certain evidentiary rulings in connection with respondents’ summary judgment motion. III. The Summary Judgment Motion Brought By Swim Club and HDI The motions for summary judgment and summary adjudication raise the same duty of defense issues. We first consider District’s challenge to the summary judgment 9. motion brought by respondents because the facts were more fully developed in the context of that motion. The following facts are not disputed unless otherwise stated. A. The FUA On June 17, 2021, District and Swim Club signed the FUA, which was effective for the period of June 1, 2021, through July 31, 2021—thus encompassing the date of the alleged subject incident. Recitals in the FUA read, as follows: “District is the controlling manager of the Wasco Swimming Pool located at the Northeast corner of Poplar and Poso Street,” and “Swim Club desire[s] to use the swimming pool for [its] purpose of conducting competitive swimming league and [to] have the right to sell light concessions during each meet.” The FUA also contains, without limitation, the following provisions: “District does her[e]by agree to allow … Swim Club to use existing facilities for the sole purpose of … Swim Club swim meets, practice for the same[,] and [the] selling of light food items and drink items or contract[ing] with a food facility at said meets. This will include a facility walk through at the beginning and end of [the] season.” “District agrees that the … Swim Club will be [the] sole provider for all light concession activities for all meets and activities sponsored by … Swim Club.” “Swim Club does hereby agree to pay to the District for the cost of electricity for lighting the [community] pool and deck at $20.00 per hour for all scheduled meets and practice[s] when lights are in use.” “Locking and unlocking restrooms, buildings and gates will be sole responsibility of … Swim Club and not the District. The District will provide 6 sets of keys to the … Swim Club for their season.” “District agrees to not rent shelters in [the park] or hold Recreation Swim on … Swim Club Meet days.” “District agrees to maintain the pool to the degree that swimming can be safely conducted” and that “[t]his will include trash removal during regular District hours, restroom cleaning, chemical balancing, and pool circulation.” “Swim Club agrees to police the deck, guard room and restrooms for trash and personal items left on decks or at the pool.” 10.  “Swim Club … agree[s] … to pay the District a roster fee of $20.00 per registered swimmer for … Swim Club.” “Swim Club also agree[s] to pay $200.00 for each A Meet and $100.00 per B Meet … and one [District] staff [member] at the rate of $14.00 per hour for 8 hours of general maintenance for each meet. … Swim Club will provide a list of duties to be performed by District employee. The list is to be agreed by [Swim Club’s] President and [District’s] Manager.” “Swim Club agree[s] to have a responsible certified coach on deck at all times that … Swim Club are in/on the pool premises.” In addition, Swim Club agreed “to have a designated representative at all times on the premises during the use of District property/facilities.” “Swim Club … agree[s] … to be responsible for any and all repair cost of damages to any District facility or equipment while under their care and control which derives from … Swim Club[’s] negligence.” The FUA also required Swim Club to procure and maintain commercial general liability insurance with coverage in specified amounts. In addition, the FUA contains the following provision which is of particular relevance to the appeal, and which we set out in detail: HOLD HARMLESS AND INDEMNIFICATION: … Swim Club assume[s] full responsibility for accidents or damages which may arise out of use of the District Property, including without limitation from maintenance and cleanliness of the facilities or property usage. In that regard; … Swim Club … shall indemnify, defend, and hold harmless … District, its officers, employees, and agents from any and all losses, costs, expenses, claims, liabilities, actions, or damages, including liability for injuries to any person or persons or damage to property arising at any time out of or in any way related to … Swim Club’s use or occupancy of a facility or property controlled by … District, unless solely caused by the gross negligence or willful misconduct of … District, its officers employees, or agents with this agreement and use of Property. “Swim Club shall indemnify, defend, and hold harmless … District, its officers, employees, and agents from any and all losses, costs, expenses, claims, liabilities, actions, or damages, including liability 11.  for injuries to any person or persons or damage to property arising at any time out of or in any way related to … Swim Club’s use or occupancy of a facility or property controlled by … District, unless solely caused by the gross negligence or willful misconduct of … District, its officers[,] employees, or agents.” Aside from naming conventions used to refer to the parties, there are no defined terms within the FUA. B. The Park Attributes and Swim Club’s Use of the Park Swim Club is a “non-profit [organization] which conducts swimming practices and an annual meet.” Swim Club used the community pool, its surrounding pool deck, and restrooms (collectively, community pool surround) to conduct its practices and swim meet. Swim Club rented the community pool surround (and, according to District, the entire park) pursuant to the FUA. Swim Club was holding a swim meet on the morning of June 19, 2021, the date of the subject incident. The park is a public park and, in general, is operated by District. However, District disputes that it operated the park on the date of the subject incident, contending that Swim Club operated the whole park that day pursuant to the FUA. The park has numerous facilities and amenities, including the community pool surround; “immediately adjacent covered bleachers”; “three ball fields”; “a community hall”; “a District office”; “one or more parking lots”; “a maintenance area”; “a playground”; “covered ‘shelters’ near the [community] pool and ball fields”; “acres of grass and trees and … cement pathways traveling through them.” The community pool surround “is separated from the remainder of the [p]ark by fences and gates.” Aerial photographs depict the park as consisting of two large plots of roughly equal size separated by Poplar Avenue in Wasco. It appears from the photographs that, on one side of Poplar Avenue, there are the three ball fields. The plot on the other side of Poplar Avenue houses the community pool surround, which is located near the center of the plot, and other structures and buildings dispersed throughout. 12.  “Covered bleachers beside the [c]ommunity [p]ool [surround] were available for [persons] wishing to view the swim meet[]” but District submitted evidence to the effect that “the bleachers only had a capacity to seat approximately 50 to 75 people” and, according to one witness, the swim meet drew “hundreds of hundreds of people,” which he estimated at a total of “[a] few thousand.” Swim Club’s website provided the following information for attendees: “The A Meets are held on Saturdays and are the main event of a swim team. The day begins early when families pack up all of their gear (shade canopies, lawn chairs, blanket, ice chest, picnic items. … Families set up their ‘camp’ in designated areas—look for other Tigershark families as we usually set up our gear in the same general area, although there is no requirement to do this. … Swimmers and families ‘hang out’ in the camp area socializing, stretching, and otherwise waiting for their events … Swimmers and families come and go from the camp to the pool as they swim their event and cheer on the other swimmers competing.” 4 C. The Subject Incident Powell and her family were not Swim Club members. “Powell was present to support her grandson who was a member of another swim team.” “When [Powell] arrived at the [p]ark, she went to sit with family members on the grass, underneath a canopy they had erected there.” Powell did not use the bleachers on the day of the subject incident. She never entered the community pool surround or the bleacher area, and never used the park shelters on the date of the subject incident. 4 The trial court sustained objections to the declaration of Allison Southard wherein she discussed the information contained on Swim Club’s website. However, the court overruled an objection lodged on the ground that the website information lacked authentication, and Swim Club did not dispute the content of the website in its separate statement response. As a result, we consider the referenced content of the Swim Club’s website undisputed. 13.  At some point during the day of the subject incident, Powell “started to walk over the grass and to the playground” in an effort to reach her grandson. Powell testified at deposition, “I think I stepped on the side of the hole because it was covered with grass, and my ankle rolled. And with the momentum, I went down, and it broke … my ankles, all three bones. It snapped like a twig.” 5 Two aerial photographs depict the location of Powell’s fall as being in proximity to the community pool surround, as opposed to other facilities within the park. 6 In response to special interrogatories, Powell stated that the dangerous condition she alleges caused the subject incident was a “[r]ecessed pothole containing a sprinkler valve box that was concealed by grass with no barrier or warning that allowed pedestrians to freely walk into a below grade pothole containing a sprinkler valve box.” D. Select Deposition Testimony and Declarations 1. Joaquin Castillo Joaquin Castillo was Swim Club’s head coach on the date of the subject incident. He executed the FUA on Swim Club’s behalf and was the point person who interacted with District with regard to Swim Club’s duties under the FUA. Castillo averred that “Swim Club was not using [the shelters] to sell merchandise or food or for any similar purpose.” He also averred Swim Club “does not tell or suggest 5 The trial court sustained a hearsay objection to Powell’s deposition testimony wherein she was asked how she knew the grass was covering a hole and her response was “[b]ecause you couldn’t see the hole, if you walk. It was a grassy area.” Powell testified at deposition that she was told by her son, Troy Peltz, that she had stepped in a hole but that he did not see her fall. Powell stated she “actually never saw the hole.” Peltz testified that he did not witness the subject incident but was told by a family member in the vicinity of the subject incident that his mother had “fallen into a hole that was there in the park under [a] tree.” 6 The record on appeal does not specify the precise distance of the location of Powell’s fall from the community pool surround. 14. to people what portions of the [park] anyone—including members of the general public— should use.” Castillo declared that Swim Club “had nothing whatsoever to do with the baseball fields, community hall, the District office and many other portions of the park, nor would any member of the general public have been excluded from … [the park] during the swim meet” with the exception of the community pool surround, and that it was “absurd” for District to contend Swim Club rented the entire park. According to Castillo, Swim Club has never had an ownership interest in the park; “had nothing, whatsoever, to do with the irrigation system at the park”; “did not create the hole”; “was never made aware of any grass-covered or sprinkler hole”; and was not responsible for landscaping. (Italics omitted.) All inspections by Swim Club were of the community pool surround and were conducted by Castillo. He averred he was never asked by District or anyone else to inspect the grassy areas of the park and he never did so. Castillo stated that “[d]uring the operative period of the FUA,” Swim Club “never maintained, inspected, or repaired” the park’s “common area landscaping”; “common area walkways”; “sprinkler systems”; or “any landscaping deficiencies.” However, he stated that during that period, “other entities and individuals inspected, maintained, and repaired the common areas of [the] [p]ark.” Castillo averred that “the only ‘facility walk throughs’ at ‘the beginnings and end of the season’ that the District conducted with [him] related to fenced off [community] pool and pool deck/restroom areas, which were closed off from [the] rest of [the] [p]ark” and “the only work orders provided by the District for repairs were for ‘the pool area.’ ” (Italics omitted.) Castillo declared it was always his understanding that the FUA “relate[d] exclusively to the rental of the [c]ommunity [p]ool [surround]” (italics omitted) and that 15. was “how it was always represented to [him].” No one from the District “ever suggested that it involved anything other than the [c]ommunity [p]ool [surround].” At deposition, Castillo testified in a manner largely consistent with his declaration. 2. Chris Serna Chris Serna (a.k.a. Maria Christina Serna) was the interim district manager at the time of the subject incident. She provided a declaration in opposition to respondents’ summary judgment motion. In her declaration, Serna authenticated the FUA and said that “District has facilities that are available for rent. The District uses a fee schedule whereby renters pay different fees depending on the type of rental.” She stated that, “[i]n contrast to a ‘whole park rental,’ in 2021, the fee for up to 50 people to rent just the pool facility [(presumably, the community pool surround)] was $185 for one hour and forty-five minutes.” Serna declared that she “discussed the terms of the FUA with [Swim Club] president Joaquin Castillo. During these conversations, [she] explained that the FUA encompassed a ‘whole park rental,’ and that [Swim Club] was paying a fee for a ‘whole park rental.’ ” She also “explained that, pursuant to the ‘whole park rental,’ [Swim Club] would have the power to exclude members of the general public from the park, including but not limited to the grassy areas surrounding the pool and the covered shelters.” She declared that Swim Club “paid a fee for a ‘whole park rental’ for the ‘A Meet’ on June 19, 2021, the date of the subject incident.” According to Serna, “District understood that on [Swim Club] swim meet days, including the day of the subject incident, [Swim Club] expected its guests would have the right to use the grassy areas (including the area where [Powell] alleges she fell) for pop up tents, chairs, ice chests, etc.” Although park shelters are typically available for the public to rent, District did not rent them on Swim Club swim meet days. 16.  Serna was deposed as District’s person most knowledgeable of the park’s “operation and maintenance”; “maintenance of facilities … including, but not limited to, roads, fences, equipment, structures, sidewalks, trees, and landscaping”; “maintenance of sprinkler systems”; and “inspection logs and/or maintenance sheets utilized for the maintenance of facilities.” She testified as to the identities of four District employees “in charge of maintaining the park” and further confirmed that she “oversee[s] the maintaining of the park.” She confirmed that the maintenance department inspects the park shelters and walkways daily and the grass around the shelters weekly. However, she was also asked the following questions and gave the following answers: “[Q:] So given the park[’]s approximate size of 5 acres, is there a way to make sure that there are no—is there a way to make sure that all of the grass is inspected—is all the grass inspected at [the] [p]ark?” “[A:] Staff does a—daily they walk through the property.” “[Q:] So they walk through the entire 5 acres on a daily basis?” “[A:] Yes.” At deposition, Serna testified that “when the maintenance department does a walk- through, and they come upon an area that needs to be treated, let’s say, a hole in the grass, they will immediately take care of it by filling it with dirt.” When asked how deep the hole would have to be for maintenance to fill it, Serna testified: “If it is a hole, it would be filled.” If a hole or divot is discovered “during [the [park’s] operational hours, it is handled during that time frame.” She was asked the following questions and gave the following responses: “[Q:] If a facility is rented out, would the renter of the facility be in charge of maintaining a divot like this [presumably referring to the hole Powell alleges she tripped over] at [the] [p]ark?” “[A:] I do not have an answer.” “[Q:] So if a facility is rented out, in other words, you don’t know if they would be responsible for filling in a divot like this?” “[A:] The renter would not be responsible for filling the hole.” “[Q:] Would the renter be responsible for inspecting the grass at [the] [p]ark for a divot like this?” “[A:] The renter would not be responsible for that.” (The latter two questions were objected to, at deposition, on several grounds, including that the questions 17. called for a legal conclusion. The objections were reasserted in opposition to respondents’ summary judgment motion. The court overruled the objections.) Serna further testified that, during the summer months, the sprinklers are checked daily, and that if it is discovered that maintenance is required, the responsible member of the maintenance crew “cautions off the area that needs repairing and fixes the sprinkler.” Serna also testified that the park’s facilities are open to the public but are available to rent. When asked if the public is still allowed in the park when the community pool is rented out, she responded, “[i]t is an open public park.” When asked whether, upon renting a park facility, the use of the park becomes exclusive, Serna clarified: “Depending on the size of the rental—it is an open park, but depending on the size, a usual rental of a pool is up to 50 people. So depending on the size of the event that is scheduled is how, you know—a regular rental does not exclude anyone, nor does a big rental, but depending on the size and how big of an event you are having does exclude people.” E. Respondents Did Not Demonstrate, as a Matter of Law, that They Had No Duty to Defend and Indemnify District 1. Arguments Advanced by the Parties In moving for summary judgment, respondents argued that District’s first cause of action for indemnification was without merit because the FUA indemnification clause “does not cover events occurring outside the portions of [the] [p]ark actually leased by [Swim Club]” and “will not be construed to apply to common areas of [the] [p]ark under the control of the District.” 7 HDI argued similarly with regard to potential coverage under the HDI policy. Thus, respondents’ summary judgment motion as to this cause of 7 Swim Club also argued the first cause of action was without merit “to the extent based upon the principles of equitable/comparative indemnity or contribution” because Swim Club had “no liability to plaintiff” and was not a “joint or concurrent tortfeasor[]” with regard to Powell’s claims. 18. action was premised on the contention that respondents had no defense and indemnity obligations because Swim Club did not rent the common area where the subject incident occurred. The trial court largely agreed with this argument. District contends Swim Club did rent the area where the subject incident occurred and that the trial court erred by determining, as a matter of law, that Swim Club rented only the community pool surround. District also contends the court erred by accepting into evidence Castillo’s “subjective interpretation” of the FUA; by not accepting Serna’s competing testimony which “explained the context of the FUA”; and by refusing to consider evidence that Swim Club “invited its hundreds of fans to set up camp at the park to watch the event.” District also contends the trial court failed to appreciate the fact that Powell’s complaint alleged Swim Club controlled the area where the subject incident occurred. 2. Analysis “The interpretation of a written instrument … is essentially a judicial function to be exercised according to the generally accepted canons of interpretation so that the purposes of the instrument may be given effect. [Citation.] … [I]ndemnity agreement[s] must be interpreted so as to give effect to the mutual intention of the parties. [Citations.] In interpreting an express indemnity agreement, the courts look first to the words of the contract to determine the intended scope of the indemnity agreement. [Citation.] The intention of the parties is to be ascertained from the ‘clear and explicit’ language of the contract, and if possible, from the writing alone. [Citations.] Unless given some special meaning by the parties, the words of a contract are to be understood in their ‘ordinary and popular sense,’ focusing on the usual and ordinary meaning of the language used and the circumstances under which the agreement was made.” (City of Bell v. Superior Court (2013) 220 Cal.App.4th 236, 247–248 (City of Bell).) In the FUA, District “agree[d] to allow [Swim Club] to use existing facilities for the sole purpose of [Swim Club] meets, practice for the same and selling of ligh