Judge: Alison Mackenzie, Case: 22STCV236853, Date: 2023-12-19 Tentative Ruling
Case Number: 22STCV236853 Hearing Date: December 19, 2023 Dept: 55
NATURE OF PROCEEDINGS:
Defendant/Cross-Complainant/Cross-Defendant
LINDA V. ARMOR’S Demurrer to Cross-Complaint of Defendants/Cross-Complainants/Cross-Defendants
TAYLOR EQUITIES 17, LLC, RI 1812 APARTMENTS LLC, RHET APARTMENTS, LLC, AND RI
III APARTMENTS, LLC.
The demurrer is sustained without leave to amend, only
as to the 14th Cause of Action for Declaratory Relief and is
otherwise overruled. Twenty days to
answer.
Demurring party’s request for judicial notice is
denied.
On 1/9/23, plaintiffs LEO GONZALEZ et al. filed a First
Amended Complaint (“FAC”) containing twelve causes of action based on
allegations that plaintiffs are tenants at 625 S. Burlington Ave., Los Angeles,
which has uninhabitable conditions, including cockroach infestations,
widespread mold contamination, open exposure to raw sewage, plumbing issues,
faulty and insufficient utilities, structural defects, and deficient security.
On 5/17/23, Defendants/Cross-Complainants TAYLOR
EQUITIES 17, LLC (property buyer); RH CENTENNIAL APARTMENTS, LLC; RHET
APARTMENTS, LLC, and RI III APARTMENTS, LLC (collectively, “Cross-Complainants”),
filed a Cross-Complaint, alleging that cross-defendants’ conduct, including LINDA
V. ARMOR’S (seller), caused the tenants to suffer the injuries alleged in their
FAC.
Now, Cross-Defendant LINDA V. ARMOR (“Cross-Defendant”)
demurs to the claims alleged against her in the Cross-Complaint: 1)
Nondisclosure of Material Facts (Civil Code § 1102, et seq and Common Law); 3)
Express Indemnity; 10) Breach of the Implied Covenant of Good Faith and Fair
Dealing; 11) Equitable Indemnity; 12) Contribution; 13) Apportionment of Fault;
and 14) Declaratory Relief. Cross-Defendant
also seeks judicial notice of the purchase agreement for the subject property that
she entered into with Defendant/Cross-Complainant TAYLOR EQUITIES 17, LLC. Cross-Complainants
oppose the demurrer and request for judicial notice.
Judicial
Notice of Purchase Agreement
Cross-Defendant requests judicial notice of the
purchase agreement, which she contends demonstrates that Cross-Complainants released
Cross-Defendant from the claims in the Cross-Complaint for indemnity, breach of
covenant of good faith and fair dealing, contribution, and apportionment.
Judicial notice of contracts is generally improper. Freemont Indem. Co. v. Fremont General
Corp. (2007) 148 Cal.App.4th 97, 114-15 (court ruling on
demurrer cannot take judicial notice of contract allegedly ambiguous or
unenforceable). Courts have taken judicial notice of contracts not attached to
complaints, where the complainants provided or referenced them in their
briefing, without objection from the opposing party. San Francisco Unif. Sch. Dist. ex rel.
Contreras v. Laidlaw Transit, Inc. (2010) 182 Cal. App. 4th 438, 444 n.5 (citing
Performance Plastering v. Richmond American Homes of California, Inc.
(2007) 153 Cal.App.4th 659, 666, fn. 2).
Courts properly take judicial notice of facts in legal, operative
documents, such as contracts, where the complainant does not allege or argue
any facts inferring a contrary conclusion.
Intengan v. Bac Home Loans Servicing LP (2013) 214 Cal.App.4th
1047, 1054.
The Cross-Complaint and
opposition do not admit the existence of the purchase agreement, let alone
attach the purchase agreement or incorporate it by reference. Rather, the
Cross-Complaint contradicts any term in the purchase agreement regarding waiver
and release of claims, by alleging the agreement between Cross-Complainants and
Cross-Defendant provides for express indemnity and an implied covenant of good
faith and fair dealing (e.g., Cross-Complaint, ¶¶ 55, 107). The opposition argues
against judicial notice of the contract because it is not recorded, not authenticated,
not incorporated by reference to the Cross-Complaint, and the relevance of the
terms in the purchase agreement are disputed by Cross-Complainants. These arguments
are well taken. Given the Cross-Complaint’s contradictory allegations regarding
Cross-Defendant’s obligations under the purchase agreement and
Cross-Complainants’ objecting to the Court taking judicial notice of the
contract, the Court concludes that judicial notice of the purchase agreement is
unauthorized by law. Cross-Defendant’s arguments that the indemnity, contribution,
apportionment, and breach of the implied covenant of good faith and fair
dealing claims fail under the terms of the purchase agreement therefore have no
support and no merit.
First
Cause of Action - Civil Code Section 1102
Cross-Defendant argues that the first cause of action alleging
a violation of Civil Code Section 1102 fails because Section 1102.03 requires
disclosures from a seller of a single-family residential property, but
the subject property was a multi-family property. As to statutory claims,
parties must plead facts demonstrating a right to recover under the statute. G.H.I.I. v. MTS, Inc. (1983) 147
Cal.App.3d 256, 273. Complainants need
only allege a prima facie violation of a statute and need not address the
statutory exceptions. See Ribas v. Clark (1985) 38 Cal.
3d 355, 362 (“because the complaint alleges a prima facie violation of section
631, subdivision (a), it is defendant’s burden on this demurrer to show on the
face of the pleadings that she comes within the exception of subdivision (b) of
the statute.”).
The Cross-Complaint, paragraph 12, does not admit that
the subject property is a multiple residence apartment building, but instead only
references the FAC’s allegations to that effect. And Cross-Defendant’s reliance
on the purchase agreement to support her argument is unavailing because the
Court denied the request to judicially notice that contract. A multi-residence
statutory exception therefore need not be addressed in the Cross-Complaint.
Third,
Eleventh, Twelfth, and Thirteenth Causes of Action –Indemnity, Contribution,
Apportionment
Express
Indemnity
Cross-Defendant argues that the Cross-Complaint does
not allege the elements of an express indemnity claim. But this is incorrect. The
elements of a claim for express indemnity are: 1) contract defining the obligation for one
party to make good as to a loss another party incurred; and occurrence of loss
the other party incurred or of some other legal consequence of conduct of
another party. Rossmoor Sanitation,
Inc. v. Pylon, Inc. (1975) 13 Cal. 3d 622, 628. The Cross-Complaint alleges
a written agreement obligating Cross-Defendant to defend, indemnify, and hold
harmless Cross-Complainants (Cross-Complaint, ¶ 55). It also alleges facts describing
the relationship between the parties and Cross-Complainants’ alleged damages. (Id.,
¶¶ 16, 17, 58, 61.) The claim therefore is sufficiently pled.
Accrual
In addition to arguing that these claims fail under
the terms of the purchase agreement, Cross-Defendant argues that the indemnity,
contribution, and apportionment claims fail because they have not yet accrued.
But complainants need not wait for a judgment for the indemnity-type claims to
be ripe for alleging. See, e.g., Allen v. Southland Plumbing (1988) 201
Cal. App. 3d 60, 65 (“A defendant may properly bring a declaratory
cross-complaint for indemnity in the original tort action even though ‘for
statute of limitations purposes, the defendant’s indemnity action does not
accrue until he has suffered actual loss through payment.’"); Postley v. Harvey (1984) 153 Cal. App.
3d 280, 285 (“a tort defendant may file
a cross-complaint against a third party when the defendant properly alleges
entitlement to indemnity from such a party, should the plaintiff prevail on the
original complaint.”).
Joint
Tortfeasors
Cross-Defendant argues that the equitable indemnity
and apportionment claims also fail because she did not owe any contractual or
legal duty as a joint tortfeasor to Plaintiffs in the underlying action, after
she sold the Property to Cross-Complainant TAYLOR EQUITIES 17, LLC. In the
context of equitable indemnity, joint and several liability is expansive, not
limited to the traditional meaning of “joint tortfeasor,” and can apply to acts
that are concurrent, successive, joint, or several, where they create a
detriment caused by several actors. Greystone
Homes, Inc. v. Midtec, Inc. (2008) 168 Cal. App. 4th 1194, 1208. See also Considine Co. v. Shadle (1986)
187 Cal. App. 3d 760, 769 (“A defendant sued for breach of contract may have a
right of implied indemnity against a third person whose wrong caused the
defendant’s breach.”).
Here, the Cross-Complaint sufficiently alleges Cross-Defendant’s
creation of undisclosed uninhabitable conditions for which Cross-Complainants
are sued in the FAC (e.g., Cross-Complaint ¶¶ 12, 16, 35, 107, 113, 119; dem.,
10:11). The Cross-Complaint also sufficiently alleges that Cross-Defendant is
vicariously liable for any liability imposed upon Cross-Complainants in the
underlying action. (Id., ¶¶ 115-16.) The indemnity and apportionment claims
therefore withstand demurrer.
Fourteenth
Cause of Action - Declaratory Relief
Cross-Defendant’s argument that the declaratory relief
claim does not allege an actual controversy is well-taken. “Contentions are
waived when a party fails to support them with reasoned argument and citations
to authority.” Moulton Niguel Water
Dist. v. Colombo (2003) 111 Cal. App. 4th 1210, 1215. Cross-Complainants have somewhat conceded the
declaratory relief claim, and certainly cited no authorities to support maintaining
the claim (opp., p. 9). Therefore, the
Court sustains the demurrer without leave to amend as to that claim.