Judge: Deborah C. Servino, Case: 30-2018-00976189, Date: 2022-12-09 Tentative Ruling
Cross-Defendant Clayton Builders, Inc.’s motion for judgment on the pleadings as to Defendants and Cross-Complainants Nathan Menard and Menarch, Inc.’s (“Cross-Complainants”) Cross-Complaint, is granted with 30 days leave to amend.
Request for Judicial Notice
Cross-Complainants’ request for judicial notice is granted as to the Complaint filed in Nanci v. Clayton Builders, Inc. (Orange County Superior Court case no. 30-2022-01279818). The request for judicial notice of documents filed in the instant case is denied. It is unnecessary to ask the court to take judicial notice of materials previously filed in this case. “[A]ll that is necessary is to call the court’s attention to such papers.” (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2020) ¶ 9.53.1a.)
Relevant Background
As relevant here, the Complaint in this action alleges that Plaintiffs Thomas and Leigh Nanci hired Cross-Complainants for architectural services to provide design development drawings and construction drawings in the construction of a duplex in Seal Beach. (Complaint, at ¶ 29.) Plaintiffs allege Cross-Complainants designed a building that did not comply with the city’s height restrictions due to incorrect grading. (Complaint, at ¶ 36.) This caused delay. Beyond that, once construction had begun it was determined that the height problem created by the plans had not been fixed. As a result, construction was halted, and the top floor/roof had to be demolished and rebuilt. (Complaint, at ¶ 37.)
On April 23, 2018, Cross-Complainants filed their Cross-Complaint. (ROA 18.) The Cross-Complaint includes causes of action for comparative indemnity, total equitable indemnity, and declaratory relief against ROES 21-100. (Cross-Complaint, at ¶¶ 16-27.) On June 23, 2021, Cross-Complainants added Clayton Builders, Inc. as a Cross-Defendant to the Cross-Complaint as ROE 21. (ROA 124.) Clayton Builders, Inc. answered on 9/3/21. [ROA #126.]
Then, about a year later, on September 8, 2022, Plaintiffs filed a separate action (Nanci v. Clayton Builders, Inc., Orange County Superior Court case no. 2022-01279818 [the “related action”]), naming Clayton Builders, Inc. as a defendant. (Req. for Jud. Not., Exh. 1; see Notice of Related Case [ROA 164].)
Motion for Judgment on the Pleadings
Pursuant to Code of Civil Procedure section 438, subdivision (b)(1), a party may move for judgment on the pleadings. A defendant may move for a judgment on the pleadings on the ground that the complaint does not state facts sufficient to constitute a cause of action against that defendant. (Code Civ. Proc., § 438, subd. (c)(1)(B); Stoops v. Abbassi (2002) 100 Cal.App.4th 644, 650.)
The grounds for a motion for judgment on the pleadings “shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice. Where the motion is based on a matter of which the court may take judicial notice pursuant to Section 452 or 453 of the Evidence Code, the matter shall be specified in the notice of motion, or in the supporting points and authorities, except as the court may otherwise permit.” (Code Civ. Proc., § 438, subd. (d); see, Burnett v. Chimney Sweep (2004) 123 Cal.App.4th 1057, 1063 [subject to certain exceptions, extrinsic evidence should not be considered in a motion for judgment on the pleadings].)
Comparative Indemnity and Apportionment of Fault (Third Cause of Action)
“The elements of a cause of action for 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.” (Expressions at Rancho Niguel Assn. v. Ahmanson Developments, Inc. (2001) 86 Cal.App.4th 1135, 1139.) Equitable indemnity applies only among defendants who are jointly and severally liable to the plaintiff. (GEM Developers v. Hallcraft Homes of San Diego, Inc. (1989) 213 Cal.App.3d 419, 430.) With limited exception, there must be some basis for tort liability against the proposed indemnitor. (Munoz v. Davis (1983) 141 Cal.App.3d 420, 425.) Joint and several liability in the context of equitable indemnity is fairly expansive. It can apply to acts that are concurrent or successive, joint or several, as long as they create a detriment caused by several actors. Vicarious liability, strict liability, and implied contractual indemnity between the indemnitor and the indemnitee can also provide a basis for equitable indemnity. (BFGC Architects Planners, Inc. v. Forcum/Mackey Construction, Inc. (2004) 119 Cal.App.4th 848, 852–853.)
The right of contribution arises when a co-obligor pays more than his or her share of a debt or obligation. (Hosking v. Spartan Properties, Inc. (1969) 275 Cal.App.2d 152, 157.) This claim depends on a joint liability. (f State Ready Mix, Inc. v. Moffatt & Nichol (2015) 232 Cal.App.4th 1227, 1235, fn.4 [noting indemnity arises only where “one of several joint tortfeasor judgment debtors has paid more than a pro rata share of a judgment”)(citation omitted).
“ ‘[A] cross-complaint must itself be sufficient and cannot be cured by the pleadings in the original action, that is, the complaint and answer, apart from permissible incorporation by reference.’ (Berg v. Investors Real Estate Loan Co. (1962) 207 Cal.App.2d 808, 816, 24 Cal.Rptr. 701.)” (Pine Terrace Apartments, L.P. v. Windscape, LLC (2009) 170 Cal.App.4th 1, 17.)
For this cause of action, Cross-Complainants allege that the Complaint in this action seeks damages against them, and they are not responsible. Each cross-defendant is responsible, in whole or in part, for the injuries, if any, suffered by Cross-Complainants or cross-defendants. If Cross-Complainants are judged liable, each cross-defendant should pay its share. (Cross-Complaint, at ¶¶ 19-22.) Cross-Defendants have not alleged any facts or acts in their Cross-Complaint to indicate that Clayton Builders, Inc. to be a joint tortfeaser. Reference to the Complaint in this action does not cure this defect. There has been no incorporation by reference of the Complaint in this action or the pleadings in the related action. No tort by Clayton Builders, Inc. is alleged in the Complaint.
In their opposition, Cross-Complainants point to the complaint in the related action. The complaint in the related action is not incorporated into the Cross-Complaint, and could not have been since it did not exist when the Cross-Complaint was filed. However, the Cross-Complaint could be amended to refer to the allegations in the complaint in the related action.
Clayton Builders, Inc. also argues that no indemnity claim can be stated against it under the Spearin doctrine. “But if the contractor is bound to build according to plans and specifications prepared by the owner, the contractor will not be responsible for the consequences of defects in the plans and specifications.” (United States v. Spearin (1918) 248 U.S. 132, 136 [finding in the context of a public contract that where owner gives contractor plans, owner impliedly warrants correctness of plans].) This case law does not suggest that any claim against Clayton Builders, Inc. is barred. Rather, Clayton Builders, Inc. can assert an affirmative defense based on the contention that it followed the plans provided to it. (See CACI no. 4511.) Ultimately, the trier of fact will decide whether this affirmative defense applies.
For these reasons, the motion for judgment on the pleadings as to the third cause of action is granted with 30 days leave to amend.
Total Equitable Indemnity (Fourth Cause of Action)
For this cause of action, Cross-Complainants allege that if they are found liable for any of the events alleged in Plaintiffs’ complaint, such liability will be entirely derivative, not resulting from their conduct but imposed by law, so Cross-Complainants are entitled to indemnity from Cross-Defendants. [Cross-Complaint, ¶ 25.]
For the same reasons as discussed above for the third cause of action, the motion as to the fourth cause of action is granted with 30 days leave to amend.
Declaratory Relief (Fifth Cause of Action)
The essential elements of a declaratory-relief cause of action are (1) an actual controversy between the parties regarding contractual or property rights (2) involving continuing acts/omissions or future consequences, (3) which has sufficiently ripened to permit judicial intervention and resolution, but (4) which has not yet blossomed into an actual cause of action. (Osseous Technologies of America, Inc. v. Discoveryortho Partners LLC (2010) 191 Cal.App.4th 357, 366-369.)
Code of Civil Procedure section 1061 provides: “The court may refuse to exercise the power granted by this chapter in any case where its declaration or determination is not necessary or proper at the time under all the circumstances.” Declaratory relief is properly refused with respect to issues that can and are likely to be determined in the main/underlying action. (See, e.g., General of America Ins. Co. v. Lilly (1968) 258 Cal.App.2d 465, 470–471; California Ins. Guarantee Assn. v. Superior Court (1991) 231 Cal.App.3d 1617, 1623–1624 [“Generally, an action in declaratory relief will not lie to determine an issue which can be determined in the underlying tort action . . . [t]he declaratory relief statute should not be used for the purpose of anticipating and determining an issue which can be determined in the main action; [rather] [t]he object of the statute is to afford a new form of relief where needed and not to furnish a litigant with a second cause of action for the determination of identical issues.”].)
Because the issues alleged in the declaratory relief cause of action will be determined in the indemnity claims, it appears that this claim is duplicative. The motion as to the fifth cause of action is granted with 30 days leave to amend.
Clayton Builders, Inc. shall give notice of the ruling.