Judge: Christopher K. Lui, Case: 23STCV09310, Date: 2025-02-25 Tentative Ruling
Case Number: 23STCV09310 Hearing Date: February 25, 2025 Dept: 76
Plaintiff
alleges that Defendants were responsible for placing K-Rails in such a way that
caused stormwaters to be diverted from their normal drainage patters and to
cross Sunset Plaza Drive in front of Plaintiff’s property such that it caused
damage to Plaintiff’s property by cutting a large gulley the entire length of
Plaintiff’s property. This caused the
City of Los Angeles Department of Building and Safety to issue an order to
comply class II slope failure, which caused Plaintiff to incur at least hundreds
of thousands of dollars to repair, and for a buyer to cancel the purchase of
the property.
Cross-Complainants Dobkin
Construction, Inc., a California Corporation (Doe 1), Steve Konsker, Trustee of
the Konsker 2009 Irrevocable Family Trust, dated July 7, 2009 and Mitchell
Konsker, Trustee of the Konsker 2009 Irrevocable Family Trust, dated July 9,
2009 filed a Cross-Complaint for indemnity and related causes of action.
Cross-Defendants Vladimir
Elmanovich and Vladimir Elmanovich Architect Inc. demur to the Second Amended
Cross-Complaint.
TENTATIVE RULING
Cross-Defendants Vladimir
Elmanovich and Vladimir Elmanovich Architect Inc.’s demurrer to the Second
Amended Cross-Complaint is OVERRULED as to the second and third causes of
action and SUSTAINED without leave as to the fourth and fifth causes of
action.
Cross-Defendants are to answer
the remaining allegations of the Second Amended Cross-Complaint within 10 days.
ANALYSIS
Demurrer
Meet and Confer
The
Declaration of Tiffany E. Garrick reflects that the meet and confer requirement
set forth in CCP § 430.41 was satisfied.
Discussion
Cross-Defendants Vladimir
Elmanovich and Vladimir Elmanovich Architect Inc. (collectively VEA) demur to
the Second Amended Cross-Complaint (“2ACC”) as follows:
1. Second Cause
of Action (Equitable Indemnification).
Cross-Defendants argue that there
is no tort liability as to VEA because VEA owed no duty to Cross-Complainants,
and thus no basis for equitable indemnity.
It is well settled in California that equitable indemnity is only
available among tortfeasors
who are jointly and severally liable for the plaintiff's injury. (Citations
omitted.) With limited exception, there must be some basis for tort liability
against the proposed indemnitor. (Citation omitted.) “Generally, it is based on
a duty owed to the underlying plaintiff [citations], although vicarious
liability [citation] and strict liability [citation] also may sustain
application of equitable indemnity. In addition, implied
contractual indemnity between the indemnitor and the indemnitee can
provide a basis for equitable indemnity. [Citation.]” [*1041] (Citation
omitted.)
(Stop Loss Ins. Brokers, Inc. v. Brown &
Toland Medical Group (2006) 143 Cal.App.4th 1036, 1040-41 [italics in
original, underlining added].)
However:
Equitable indemnity is one manner by
which joint tortfeasors may apportion such joint and several liability. “The
right to indemnity flows from payment of a joint legal obligation on another's
behalf. [Citations.]” (Citation
omitted.) “[J]oint and several liability
in the context of equitable indemnity is fairly expansive. … [I]t is not
limited to ‘the old common term “joint tortfeasor” … .’ It can apply to acts
that are concurrent or successive, joint or several, as long as they create a
detriment caused by several actors. [Citation.] [¶] One factor is
necessary, however. With limited exception, there must be some basis
for tort liability against the proposed indemnitor. [Citation.]” (Citation
omitted.)
(Greystone Homes, Inc. v. Midtec, Inc. (2008) 168
Cal.App.4th 1194, 1208 [bold emphasis and underlining added.)
As
discussed below re: the fifth cause of action, the 2ACC alleges that, as to
Plaintiff’s property, VEA drafted and/or approved plans which caused
Plaintiff’s property to be constructed in such a manner that it was too low for
the related property line, which caused Plaintiff’s property to be subject to
water intrusion unrelated to Defendants/Cross-Complainants’ placement of the
K-Rails across Sunset Plaza Drive. (2ACC, ¶ 39.) This states facts which would,
if proven, constitute VEA’s negligence as to Plaintiff’s property. Thus,
if such negligence was a contributing factor to the damage to Plaintiff’s
property, Cross-Complainants—who were responsible for placing the K-Rails—may
be able to obtain equitable indemnity from Cross-Defendant VEA in the
percentage of fault attributable to VEA’s negligence. This does not depend on
whether VEA committed a tort as against Cross-Complainants, but rather, whether
VEA committed a tort against Plaintiff.
Cross-Defendant
VEA argues that Cross-Complainant’s negligent performance of a contract would
not sound in tort. However:
" 'The same act may be both a
breach of contract and a tort. Even where there is a contractual relationship
between parties, a cause of action in tort [*926] may sometimes
arise out of the negligent manner in which the contractual duty is performed .
. . .' . . . Conversely, where a contract gives rise to a duty of care,
negligence in the performance of the duty may give rise to a cause of action
for breach of contract. . . . When such a hybrid cause of action arises, the
plaintiff may pursue both legal theories of recovery until an occasion for an
election of remedies arises. . . .
(Fairchild v. Park (2001)
90 Cal.App.4th 919, 925-926.)
This cause
of action is sufficiently pled. The demurrer to the second cause of action is
OVERRULED.
2. Third
Cause of Action (Apportionment of Fault).
Cross-Defendants
argue that this cause of action fails for the same reasons the equitable
indemnity cause of action fails.
Apportionment applies to apportion loss between plaintiff
and defendants based on their responsibility for the loss. “It
is an extension of the comparative fault doctrine which allowed loss to be
apportioned between plaintiff and defendants according to their respective
responsibility for the loss.” (Greystone Homes, Inc. v. Midtec, Inc. (2008) 168 Cal.App.4th 1194, 1208.)
For the
reasons discussed below re: the second cause of action, there are sufficient
facts pled to support an apportionment of fault cause of action.
As such,
the demurrer to the third cause of action is OVERRULED.
3. Fourth
Cause of Action (Declaratory Relief).
Cross-Defendants
argue that this cause of action fails for the same reasons the equitable
indemnity cause of action fails.
(Cal. Ins. Guar. Ass'n v. Superior Court (1991) 231
Cal.App.3d 1617, 1623-24.)
Moreover, declaratory relief is not
appropriate to address past wrongs:
"The
purpose of a judicial declaration of rights in advance of an actual tortious
incident is to enable the parties to shape their conduct so as to avoid a
breach. '[D]eclaratory procedure operates prospectively, and not merely for the redress of past wrongs.
It serves to set controversies at rest before
they lead to repudiation of obligations, invasion of rights or commission of
wrongs; in short, the remedy is to be used in the interests of preventive justice, to declare rights
rather than execute them.' " (Citation omitted.) Although Roberts filed
her complaint prior to the November 2000 General Election, that election is
long past, and Roberts does not claim she has a present contractual
relationship with the Bar Association. (See Travers v. Louden (1967) 254 Cal.
App. 2d 926, 929 [62 Cal. Rptr. 654] ["[W]e have found no authority
for the proposition that declaratory relief is proper procedure when the rights
of the complaining party have crystallized into a cause of action for past
wrongs, all relationship between the parties has ceased to exist and there is
no conduct of the parties subject to regulation by the court."].) Thus,
declaratory relief is not available.
(Roberts
v. Los Angeles County Bar Assn. (2003) 105 Cal.App.4th 604, 618 [bold
emphasis added].)
Here, declaratory relief is not necessary
because it pertains to past wrongs and is duplicative of the indemnity-type
claims.
The demurrer to the fourth cause of action
is SUSTAINED without leave to amend.
5. Fifth
Cause of Action (Negligence).
Cross-Defendants
argue that the Second Amended Cross-Complaint (“2 ACC”) fails to state a cause
of action for negligence because Cross-Defendants VEA did not owe a duty of
care to Cross-Complaints, because VEA contracted with Plaintiff, and
Cross-Complainants’ alleged damages are economic.
Cross-Defendants
argue that VEA was the architect for Plaintiff’s property. This does not confer
a duty owed by VEA to Cross-Complainants. Also, Cross-Defendants argue that
there are no allegations that VEA had anything to do with the K-Rails at
Cross-Complainants’ property which Plaintiff alleges caused the property damage.
“The elements of a cause of action for negligence are (1)
a legal duty to use reasonable care, (2) breach of that duty, and (3) proximate
[or legal] cause between the breach and (4) the plaintiff's injury.
[Citation.]” (Citation omitted.) (Phillips
v. TLC Plumbing, Inc. (2009) 172 Cal.App.4th 1133, 1139.) “The existence of a duty of care toward an
interest of another worthy of legal protection is the essential prerequisite to
a negligence cause of action, determined as a matter of law by the court. (Bily
v. Arthur Young & Co. (1992) 3 Cal. 4th 370, 397 [11 Cal. Rptr. 2d 51, 834
P.2d 745].)” (Software Design & Application v. Hoefer & Arnett (1996) 49 Cal.App.4th 472, 478.)
A complaint which lacks allegations of fact to
show that a legal duty of care was owed is fatally defective. (Citation
omitted.) The existence of such a duty is properly challenged by demurrer
and is a question of law for the court. (Citations omitted.)
(Hegyes v. Unjian Enters.
(1991) 234 Cal.App.3d 1103, 1111.)
The 2ACC
alleges that, as to Plaintiff’s property, VEA drafted and/or approved plans
which caused Plaintiff’s property to be constructed in such a manner that it
was too low for the related property line, which caused Plaintiff’s property to
be subject to water intrusion unrelated to Defendants/Cross-Complainants’
placement of the K-Rails across Sunset Plaza Drive. (2ACC, ¶ 39.)
This does
not relate to the breach of a duty which VEA owed to
Defendants/Cross-Complainants because there is no indication that VEA knew that
Defendants/Cross-Complainants would one day in the future place K-Rails across
Plaintiff’s property. As such, there was no duty owed by VEA to such an
unforeseeable construction contractor working on the property located uphill
from Plaintiff’s property as to water instruction on Plaintiff’s property.
Thus, the important practical effect of
the Palsgraf rule is that liability for unforeseeable
consequences is avoided by limiting the scope of duty, rather than by
application of rules of proximate causation. In fact, the Palsgraf court
specifically stated that the question of proximate cause is not involved where
there is no negligence as to the particular plaintiff. Hence, the admonition of
writers to "'look for the duty before you talk causation,'"
because "'there is no duty to an unforeseeable plaintiff.'" (Citations
omitted.)
Thus, in determining to whom a legal
duty is owed, foreseeability is the prime element by which courts are guided.
However, the existence of a legal duty is not to be bottomed on the factor of
foreseeability alone. The Supreme [*1132] Court in Rowland v. Christian,
supra, 69 Cal.2d 108, 113, advanced the following considerations in
evaluating whether a duty of care was owed: "[T]he foreseeability of harm
to the plaintiff, the degree of certainty that the plaintiff suffered injury,
the closeness of the connection between the defendant's conduct and the
injury suffered, the moral blame attached to the defendant's conduct, the
policy of preventing future harm, the extent of the burden to the defendant and
consequences to the community of imposing a duty to exercise care with
resulting liability for breach, and the availability, cost, and prevalence of
insurance for the risk involved."
The Supreme Court, however, to ensure
recognition that the law does not champion legal redress for all foreseeable
harm, stated in Dillon v. Legg (1968) 68
Cal.2d 728, 739 [69 Cal. Rptr. 72, 441 P.2d 912, 29 A.L.R.3d 1316]: "In order
to limit the otherwise potentially infinite liability which would follow every
negligent act, the law of torts holds defendant amenable only for injuries to
others which to defendant at the time were reasonably foreseeable."
(Italics added.)
The court in Dillon sought
to confine the potential reach of foreseeability by limiting it to "those
risks or hazards whose likelihood made the conduct unreasonably dangerous"
and, then, by evaluating the nature of the injury and its causal relation to
the conduct which caused it. (68 Cal.2d at p. 739.)
Dillon was followed by Rodriquez v. Bethlehem
Steel Corp. (1974) 12 Cal.3d 382 [115 Cal. Rptr. 765, 525 P.2d 669],
wherein the court stated: "'Whether a risk is sufficiently foreseeable to
give rise to a duty of care depends on the circumstances of each case,
including the relationship of the parties and the nature of the threatened
injury.'" ( Id., at p. 399.)
. . .
(Hegyes v. Unjian Enters.
(1991) 234 Cal.App.3d 1103, 1131-32.)
Given the above facts alleged, the
2ACC does not plead facts which give rise to a duty owed by Cross-Defendants
VEA as a matter of law. As such, the demurrer to the fifth cause of action is
SUSTAINED without leave to amend.
Cross-Defendants are to answer the
remaining allegations of the Second Amended Cross-Complaint within 10 days.