Judge: Barbara M. Scheper, Case: 21STCV32125, Date: 2023-10-25 Tentative Ruling
Case Number: 21STCV32125 Hearing Date: January 22, 2024 Dept: 30
Calendar No.
Hidden Ridge Lot
9 LLC v. Kennco Plumbing Inc., et al., Case No. 21STCV32125
Tentative Ruling
re: Cross-Defendant’s Demurrer to the
First Amended Cross-Complaint
Cross-Defendant
Uponor demurs to the First Amended Cross-Complaint. The demurrer is sustained without leave to
amend as to the negligence claim and otherwise overruled. Cross-Defendant is ordered to answer within
ten (10) days of today’s date.
On August 31, 2021, plaintiff Hidden Ridge, Lot 9, LLC (“Plaintiff”)
commenced this action against defendants All Creative Construction, Inc. and
Kennco Plumbing (“Cross-Complainant”) (collectively “Defendants”).
In February 2013, defendant All Creative entered into a
construction contract with Paradise Estate Properties, LLC to perform work on a
residential property (the “Property”). (Comp. ¶¶ 1, 12.) Paradise Estate
subsequently transferred and assigned its rights under the contract to Plaintiff.
(Comp. ¶ 13.)
In May 2013, defendant All Creative entered into an
agreement with defendant Kennco to provide labor and materials necessary to
complete water, waste, and gas systems at the Property. (Comp. ¶ 14.)
Hidden Ridge alleges that defects in the Property’s plumbing
has caused water penetration and damage to the Property. (Comp. ¶ 15.) The
Complaint asserts claims against Defendants for breach of contract, breach of
express warranty, negligence, and breach of contract.
On April 1, 2022, Kennco filed its Cross-complaint, against
only Roe Defendants, and later amended it to add Uponor as a cross-defendant. On
November 2, 2023, Kennco filed its First Amended Cross-Complaint (“FACC”). The
FACC alleges claims for negligence, implied indemnity, and declaratory relief.
Uponor filed this demurrer to the FACC on December 4, 2023. Kennco opposed the
demurrer and Uponor replied.
In reviewing the legal sufficiency of a complaint against a demurrer, a
court will treat the demurrer as admitting all material facts properly pleaded,
but not contentions, deductions, or conclusions of law. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318 (Blank); C & H Foods Co.
v. Hartford Ins. Co. (1984) 163 Cal.App.3d 1055, 1062.) It is well settled
that a “demurrer lies only for defects appearing on the face of the
complaint[.]” (Stevens v. Superior Court
(1999) 75 Cal.App.4th 594, 601.) “The rules by which the sufficiency of a
complaint is tested against a general demurrer are well settled. We not only
treat the demurrer as admitting all material facts properly pleaded, but also
give the complaint a reasonable interpretation, reading it as a whole and its
parts in their context.” (Guclimane Co.
v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 38 (internal quotes
omitted).) For purposes of ruling on a demurrer, the complaint must be
construed liberally by drawing reasonable inferences from the facts pleaded. (Wilner v. Sunset Life Ins. Co. (2000) 78
Cal.App.4th 952, 958.)
When ruling on a demurrer, the Court may only consider the complaint’s allegations
or matters which may be judicially noticed. (Blank, supra, 39 Cal.3d at p. 318.) The Court may not consider any
other extrinsic evidence or judge the credibility of the allegations plead or
the difficulty a plaintiff may have in proving his allegations. (Ion Equip. Corp. v. Nelson (1980) 110
Cal.App.3d 868, 881.) A demurrer is properly sustained only when the complaint,
liberally construed, fails to state facts sufficient to constitute any cause of
action. (Kramer v. Intuit Inc. (2004)
121 Cal.App.4th 574, 578.)
Uponor demurs to the entire FACC
and the first three causes of action on the ground that they are conclusory and
exclusively based on “opinion and belief”. It is well-established that a
complaint must be liberally construed against a demurrer. The Court agrees with
Kennco that the FACC states sufficient facts, including the following:
·
Kennco was a plumbing subcontractor and
installed Uponor’s piping at the Property (FACC ¶13);
·
There were multiple leaks at the Property due to
defects in the piping manufactured by Uponor (FACC ¶¶11-12),
·
Such defects are well-known in the U.S. and gave
rise to class-actions against Uponor brought by property owners for damages
sustained due to Uponor’s piping failure (FACC ¶14);
·
Plaintiff suffered damages due to the multiple
leaks of Uponor’s defective piping at the Property (FACC ¶¶15, 18);
·
Plaintiff brought an action against Kennco;
·
Kennco subsequently brought an action against
Uponor because Kennco incurred damages, is not liable for Uponor Aquapex’s
manufacture defects, and Uponor’s design and manufacturing defects caused
piping failures at the Property and damages to respective parties.
Uponor demurs to the first cause of action for negligence because Kennco did
not allege a current injury and because the claim is barred by the economic
loss rule. Uponor’s first argument fails because Kennco clearly states in the
FACC that it has suffered injuries:
“As a proximate result of Uponor’s and other Cross-Defendants’ negligent
conduct, Kennco has been damaged in an amount to be shown according to proof at
trial, including but not limited to, the cost of repairing and replacing the
defective materials and workmanship, testing and investigation of such
defective materials and workmanship, lost rents and income, as well as other
incidental and consequential damages including but not limited to, any and all amounts
of damages alleged by Plaintiff.”
(FACC ¶29.)
As to Uponor’s second argument, the
Court finds the Greystone holding controlling. Greystone is on
point because the operative facts are similar to the facts at hand. Greystone
is a home builder that brought an action against a manufacturer of defective
plumbing fittings for damages it incurred to replace the defective fittings. There, the Court of Appeal for the Fourth
District held that “[b]oth before the passage of the Right to Repair Act and
after, ordinary product manufacturers having no special knowledge of the manner
in which their products will be used by a particular builder do not have a
“special relationship” with the builder that would support a negligence cause
of action for economic losses.” (Greystone Homes, Inc. v. Midtec, Inc.
(2008) 168 Cal. App. 4th 1194, 1231.)
Accordingly, Uponor’s demurrer is
sustained as to the negligence cause of action without leave to amend.
Uponor demurs to the indemnity claim on the ground that it is precluded
by the economic loss rule because Kennco made no allegation that Uponor caused
damage to property other than a defective product. This argument disregards
clear statements in the FACC that (1) leaks damaged the Property and (2) the
leaks were caused by Uponor. (FACC. ¶¶12-15, 31-33.)
Accordingly, Uponor’s demurrer is overruled as to the indemnity cause of
action.
Uponor demurs to the declaratory relief claim on the ground that it is
predicated on the indemnity claim which is legally barred. This argument fails
in light of the Court’s finding that Kennco’s indemnity claim is proper.
Accordingly, Uponor’s demurrer is overruled as to the declaratory relief
cause of action.