Superior Court of California 

County of Los Angeles – West District 

Beverly Hills Courthouse / Department 205 

 

 

 

BACKGROUND 

This dispute arises out of the construction of an approximately 18,000 square foot home in Pacific Palisades, California, located at 15954 Alcima Avenue (the “Property”).  The general contractor for the project, Defendant Suarez Build Construction Inc. (“Suarez”), is alleged to have breached its construction contract, performed work below the minimum standard of care, and was not properly licensed at all times during the construction of the Property.   

Suarez did not complete the construction project at the Property.  After Suarez was removed, the owner engaged Building Solutions and Design (“BSD”) and James West dba James West Roofing & Waterproofing Consultant (“West”).  BSD was engaged by the Property owner to provide project management services, and West provided consulting services related to windows and waterproofing. 

Ultimately, the owner of the Property removed and replaced the windows at the Property that had been installed by Suarez.  The owner now seeks to recover damages from Suarez and disgorgement penalties under Bus. & Prof. Code § 7031.     

Suarez filed a cross-complaint against BSD, West and others.  As to BSD and West (“Moving Defendants”), Suarez alleges the consultation that led to the windows being removed was prohibited by law as West was not licensed.  Suarez claims the Moving Defendants owe it a duty to indemnify for defense costs and damages related to the costs of the removal and reinstallation of the windows.   

Suarez’s cross-complaint alleges six claims for (1) breach of oral contract, (2) services rendered, (3) foreclosure of mechanic’s lien, (4) breach of implied warranty of correctness of plans and specifications, (5) declaratory relief: duty to indemnify and (6) declaratory relief: duty to indemnify.  Only the sixth cause of action is alleged against the Moving Defendants.   

Suarez alleges “if there is any liability related to [the] removal, waterproofing and reinstallation of the windows on the part of Suarez to [the owner] …  [any] damages were proximately caused by BDS and West’s unlawful, negligent and careless conduct resulting in the windows being removed, waterproofed and reinstalled in violation of Bus. & Prof. Code sec. 70261(b), 7114(a) and 7116.”  (First Amended Cross-Complaint (“FACC”) ¶ 56.)   

Suarez further alleges that “if [owner] recovers against Suarez, then Suarez should be entitled to equitable apportionment of the liability against BDS and West … according to the extent of their respective responsibilities for the injuries and damages sustained by [owner] as a result of any judgment returned against Suarez based upon [owner’s] operative cross-complaint.  Suarez, therefore, seeks equitable/partial/total indemnity against BDS and West … for any amounts that may be paid by way of judgment or settlement or any amounts expended for investigation, attorney’s fees, court costs and such other and further expenses as may be incurred in the defense of said claim.”  (FACC ¶ 58.)    

This hearing is on Moving Defendants’ demurrer and motion to strike.  Moving Defendants argue that to claim declaratory relief, a plaintiff must plead some relationship giving rise to rights and duties, and here, there is no relationship between Suarez and the Moving Defendants.             

LEGAL STANDARD 

“[A] demurrer tests the legal sufficiency of the allegations in a complaint.” (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.)  A demurrer can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable.  (See Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994 (in ruling on a demurrer, a court may not consider declarations, matters not subject to judicial notice, or documents not accepted for the truth of their contents).)  For purposes of ruling on a demurrer, all facts pleaded in a complaint are assumed to be true, but the reviewing court does not assume the truth of conclusions of law. (Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 967.)  

A demurrer to a complaint may be general or special.¿ A general demurrer challenges the legal sufficiency of the complaint on the ground it fails to state facts sufficient to constitute a cause of action. (Code Civ. Proc. § 430.10, subd. (e).)¿ A special demurrer challenges other defects in the complaint, including whether a pleading is uncertain. (Code Civ. Proc. § 430.10, subd. (f).)¿ The term uncertain means “ambiguous and unintelligible.”¿ (Id.)¿ A demurrer for uncertainty should be sustained if the complaint is drafted in such a manner that the defendant cannot reasonably respond, i.e., the defendant cannot determine what issues must be admitted or denied, or what counts are directed against the defendant. (Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616.)¿ 

Further, the court may, upon motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading.  (Code Civ. Proc. § 436, subd. (a).)  The court may also strike all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. (Code Civ. Proc., § 436 subd. (b).)  The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Code Civ. Proc. § 437.) 

Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (See Goodman v. Kennedy (1976) 18 Cal.3d 335, 349 (court shall not “sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment”); Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028, 1037 (“A demurrer should not be sustained without leave to amend if the complaint, liberally construed, can state a cause of action under any theory or if there is a reasonable possibility the defect can be cured by amendment.”).)  The burden is on the complainant to show the Court that a pleading can be amended successfully. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) 

MEET AND CONFER 

Code Civ. Proc. §§ 430.41 and 435.5 requires that before the filing of a demurrer or motion to strike, the moving party “shall meet and confer in person or by telephone” with the party who filed the pleading that is subject to demurrer or motion to strike for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer or motion to strike.  (Code Civ. Proc. §§ 430.41(a), 435.5(a).)  The parties are to meet and confer at least five days before the date the responsive pleading is due. (Code Civ. Proc. §§ 430.41(a)(2), 435.5(a)(2).)  Thereafter, the moving party shall file and serve a declaration detailing their meet and confer efforts. (Code Civ. Proc. §§ 430.41(a)(3), 435.5(a)(3).)  Moving Defendants submit the Declaration of Nathaniel P. Cade, which shows the parties met and conferred by telephone and email.  Accordingly, Moving Defendants have satisfied the meet and confer requirements of §§ 430.41 and 435.5. 

 

DISCUSSION        

Demurrer 

Moving Defendants argue that there is no claim for declaratory relief because Moving Defendants owed no duty to Suarez.  The Court agrees. 

“To qualify for declaratory relief, a party would have to demonstrate its action presented two essential elements: (1) a proper subject of declaratory relief, and (2) an actual controversy involving justiciable questions relating to the party’s rights or obligations.”  (Jolley v. Chase Home Finance, LLC (2013) 213 Cal.App.4th 872, 909.)   

The law is settled that a defendant may cross-complain for equitable indemnity in the form of an action for declaratory relief.  (Valley Circle Estates v. VTN Consolidated, Inc. (1983) 33 Cal.3d 604, 612; Babb v. Superior Court (1971) 3 Cal.3d 841, 849 n.5.)   

California common law recognizes a right of equitable indemnity under which “liability among multiple tortfeasors may be apportioned according to the comparative negligence of each ... The test for indemnity is thus whether the indemnitor and indemnitee jointly caused the plaintiff’s injury.”¿(AmeriGas Propane, LP. v. Landstar Ranger, Inc.¿(2010) 184¿Cal.App.4th¿981, 989, citing¿Children's Hospital v. Sedgwick¿(1996) 45¿Cal.App.4th¿1780, 1786.)  

Equitable indemnity requires no contractual relationship.  It is “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.”  (C.W. Howe Partners Inc. v. Mooradian (2019) 43 Cal.App.5th 688, 700 (citations and internal quotations omitted).)  “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.” (Id.) (citations and internal quotations omitted.) 

Here, Moving Defendants argue there is no actual controversy relating to the party’s rights and obligations because it owes no duty to Suarez.  Suarez argues that Moving Defendants owe it a duty under Code Civ. Proc. §1029.8 and Bus. & Prof. Code §7031.  Moving Defendants counter that Code Civ. Proc. §1029.8 requires injury as a result of defendants’ performance of services for which a license is required, and Bus. & Prof. Code §7031 only creates a claim for a “person who utilizes the services of an unlicensed contractor.”  The Court agrees with Moving Defendants. 

Section 1029.8 provides that “any unlicensed person who causes injury or damage to another person as a result of providing goods or performing services for which a license is required … shall be liable to the injured person for treble the amount of damages assessed in a civil action in any court having proper jurisdiction.”  While Suarez claims this statute creates a duty to Suarez on the part of Moving Defendants, it has cited no authority (and the Court has found none) that has ever extended § 1029.8 to a claim by one contractor against another.     

Likewise, Bus. & Prof. Code § 7031 provides that: “[A] person who utilizes the services of an unlicensed contractor may bring an action in any court of competent jurisdiction in this state to recover all compensation paid to the unlicensed contractor[.]”  Here, there is no dispute that Suarez did not use the services of Moving Defendants for work requiring a license.  Neither does the FACC allege that Suarez paid any sums to Moving Defendants that would be recoverable under § 7031(b).   

Given the foregoing, the Court sustains the demurrer to the sixth cause of action for declaratory relief without leave to amend.  Suarez has not met its burden to show the cross-complaint can be successfully amended, and in any event, the Court concludes the defects noted in the demurrer cannot be cured by further amendment.   

Motion to Strike  

Moving Defendants seek to strike the sixth cause of action on the same grounds as their demurrer.  Given its ruling on the demurrer, the Court denies as moot the motion to strike.   

CONCLUSION 

Based on the foregoing, the Court SUSTAINS Cross-Defendants Building Solutions and Design and James West’s demurrer to the First Amended Cross-Complaint, without leave to amend and DENIES as moot the motion to strike.   

 

IT IS SO ORDERED. 

 

DATED: November 28, 2023 ___________________________ 

Edward B. Moreton, Jr. 

Judge of the Superior Court