Judge: Daniel M. Crowley, Case: 21STCV27035, Date: 2022-10-21 Tentative Ruling
Case Number: 21STCV27035 Hearing Date: October 21, 2022 Dept: 28
Demurrer
Having considered the moving papers, opposition, and reply, the Court rules as follows:
BACKGROUND
On July 22, 2021, Plaintiffs Frank and Candy Espinoza brought this action against Defendant California Design Center, Inc. and Does 1-25, alleging general negligence. Plaintiffs allege Defendant, while remodeling their home, uninstalled their built-in Viking Range refrigerator and moved it to their garage for continued use during the remodel. Plaintiff Candy Espinoza attempted to open the refrigerator after it was moved to the garage and it fell on her. Plaintiff Frank Espinoza was also allegedly injured when he attempted to prevent the refrigerator from falling on Candy.
On May 16, 2022, Defendant filed a cross-complaint against Cross-Defendant Viking Range, LLC, alleging a cause of action for total equitable indemnity and seeking declaratory relief for implied partial indemnity and equitable apportionment. Cross-Defendant Viking Range LLC (“Cross-Defendant”) demurred, and Defendant/Cross-Complainant California Design Center, Inc. (“Cross-Complainant”) filed a First Amended Cross Complaint (“FACC”) before the scheduled hearing.
On September 13, 2022, Cross-Defendant filed the instant demurrer. On September 29, 2022, Cross-Complainant filed an opposition. On October 5, 2022, Cross-Defendant filed a reply.
PARTY’S REQUESTS
MEET AND CONFER
Code of Civil Procedure section 430.41 states: “Before filing a demurrer pursuant to this chapter, the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.”
Cross-Defendant offers a declaration from counsel who states that she attempted to meet and confer telephonically with counsel for Cross-Complainant. (Chinn-Liu Decl. ¶ 6.) Counsel for Cross-Defendant also offers a copy of her email exchanges with counsel for Cross-Complainant. (Id., Ex. B.) The meet and confer requirement is met.
LEGAL STANDARD
“The party against whom a complaint or cross-complaint has been filed may object, by demurrer or answer as provided in Section 430.30, to the pleading on any one or more of the following grounds…The pleading does not state facts sufficient to constitute a cause of action.” (Code Civ. Proc. § 430.10.)
As a general matter, in a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) “A demurrer tests the pleading alone, and not the evidence or facts alleged.” (E-Fab, Inc. v. Accountants, Inc. Servs. (2007) 153 Cal.App.4th 1308, 1315.) As such, the court assumes the truth of the complaint’s properly pleaded or implied factual allegations. (Id.) The only issue a demurrer is concerned with is whether the complaint, as it stands, states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.)
DISCUSSION
Cross-Defendant demurs to the three causes of action in Cross-Complainant’s FACC: (1) Total Indemnity; (2) Declaratory Relief - Implied Partial Indemnity; and (3) Declaratory Relief – Equitable Apportionment.
“Equitable indemnity, which requires no contractual relationship, is premised on a joint legal obligation to another for damages; it is subject to allocation of fault principles and comparative equitable apportionment of loss. [Citation.] The elements of a cause of action for [equitable] indemnity are (1) a showing of fault on the part of the indemnitor and (2) resulting damages to the indemnitee for which the indemnitor is ... equitably responsible. [Citation.] (C.W. Howe Partners Inc. v. Mooradian (2019) 43 Cal.App.5th 688, 700.) Thus the requirements for each cause of action in Cross-Complainant’s FACC are the same.
Cross-Defendant argues the FACC does not allege a contract, agreement, relationship, or arrangement of any kind that could give rise to an express or equitable right to 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. . . . there must be some basis for tort liability against the proposed indemnitor.” (Stop Loss Ins. Brokers, Inc. v. Brown & Toland Med. Grp., (2006) 143 Cal. App. 4th 1036, 1040-41.) “At the heart of the doctrine is apportionment based on fault. At a minimum equitable indemnity requires a determination of fault on the part of the alleged indemnitor.” (City of Huntington Beach v. City of Westminster, (1997) 57 Cal. App. 4th 220, 224-25.)
Cross-Defendant argues that the FACC alleges Cross-Defendant failed to warn Cross-Defendant of the dangers of uninstalling their built-in model refrigerator, but that Cross-Defendant did not owe Cross-Complainant a duty of care. (FACC, ¶ 8.) Cross-Defendant correctly points out that equitable indemnity requires that Cross-Defendant and Cross-Complainant be joint tortfeasors—that Cross-Defendant be at fault to Plaintiff. According to Cross-Defendant, because Cross-Complainant fails to plead factual allegations that Cross-Defendant is a joint tortfeasor at fault to Plaintiff, Cross-Complainant’s causes of action fail.
However, Cross-Complainant does allege that Cross-Defendant is a joint tortfeasor at fault to Plaintiff. Specifically, Cross-Complainant pleads that “the Refrigerator did not perform as safely as an ordinary consumer would have expected it to perform when used or misused in an intended or reasonably foreseeable way, and Cross-Defendants VIKING RANGE, LLC and ROES 1-100 failed to implement alternative safer designs at the time of the manufacture/design/distribution/selling of the Refrigerator. Such failure was a substantial factor in causing Plaintiffs’ harm.” (FACC, ¶ 8.) This satisfies the requirements of equitable indemnity or contribution, as Cross-Complainant is pleading that Cross-Defendant is: (1) At fault for negligently designing their refrigerator; and (2) it resulted in the damages Cross-Complainant is being sued for. (See C.W. Howe Partners, supra, 43 Cal.App.5th at 700.)
Cross-Defendant also argues Cross-Complainant does not plead sufficient factual allegations. However, in addition to the above quoted allegations, Cross-Complainant also pleads: “Cross-Defendants VIKING RANGE, LLC and ROES 1-100, as designer, manufacturer, distributor, retailer, seller, assembler of the Viking Range Refrigerator, could have designed/manufactured/assembled the Viking Range Refrigerator in a safer way at the time the subject fridge was in its control consistent with what a reasonable consumer would have expected, and the tip over hazard was a known defect at the time the subject fridge was manufactured/designed/distributed/sold by Viking Range, when there were alternative safer designs at the time of the manufacture/design/distribution/selling of the Refrigerator.” (FACC, ¶ 8.) In conjunction with the above quoted pleadings, these are sufficient facts to allege that Cross-Defendant was comparatively at fault.
Finally, Cross-Defendant argues Cross-Complainant’s declaratory relief causes of action fail because declaratory relief requires an actual or legitimate controversy between the parties. This argument is not understood by the Court. There is a controversy between the parties. Cross-Complainant is suing Cross-Defendant for equitable indemnity and apportionment.
Accordingly, Cross-Defendant Viking Range LLC’s demurrer to the First Amended Cross-Complaint is overruled.
CONCLUSION
The Demurrer is OVERRULLED.
Pursuant to California Rules of Court 3.1320(j), Cross-Defendant has 10 days to answer.
Cross-Defendant is ordered to give notice of this ruling.