Superior Court of California 

County of Los Angeles – West District  

Beverly Hills Courthouse / Department 205 

 

 

BACKGROUND 

This case arises from the sale of an allegedly defective home.  Plaintiffs Claire Deligne Meyer and the Meyer Family Trust are the current owners of the home located at 30478 Morning View Drive, Malibu, California 90265 (the “Property”).  They brought the underlying action against the sellers, GNL Investments, LLC (“GNL”), TL&M Enterprises, LLC (“TLM”) and two individuals they claim owned and controlled GNL and TLM (George Chakar and Dritan Kapidanja).  Plaintiffs allege that the Sellers actively concealed defects in the Property during the sale.   

The Sellers countersued the general contractor, Louis George Tankalakis dba Elias Construction (“Elias”).  Elias then cross-complained against MOE Defendants, alleging claims for (1) equitable indemnity, (2) breach of implied warranty, (3) negligence, (4) contribution and (5) breach of contract.  Elias amended its cross-complaint to substitute LC Engineering Group, Inc., dba CalWest Geotechnical (“LCE”) in place of “MOE 11”.  LCE provided professional geotechnical engineering consultation services for the project.    

This hearing is on LCE’s demurrer to the cross-complaint filed by Elias.  LCE argues that (1) the entire cross-complaint fails because LCE does not owe a duty to Elias who was not LCE’s client or the owners of the property, and (2) the contract claims (second and fifth causes of action) fail because there was no contract between LCE and Elias.  After the demurrer was filed, the parties stipulated to dismiss the breach of contract claim.  Elias maintains that the parties also agreed to dismiss the breach of implied warranty claim.  (Opp. at 3:18-20.)   

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.)  

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 requires that before the filing of a demurrer, the moving 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.  (Code Civ. Proc., § 430.41(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).)  Thereafter, the moving party shall file and serve a declaration detailing their meet and confer efforts. (Code Civ. Proc., § 430.41(a)(3).)  Defendant submits the Declaration of Steven Jensen who attests the parties met and conferred extensively, including exchanging case authorities.  This satisfies the meet and confer requirements of Code Civ. Proc., §430.41.   

DISCUSSION 

LCE argues that the negligence claim against it cannot survive demurrer under Weseloh Family Ltd. vs. K.L. Wessel Construction Co., because it was not in contractual privity with Elias.  The Court agrees.    

In Weseloh Family Ltd. vs. K..L. Wessel Construction Co. (2004) 125 Cal.App.4th 152, a structural engineer had been hired by a subcontractor to design a retaining wall. When the wall failed, the owner sued the general contractor and the subcontractors, and the general contractor then filed a cross-complaint for indemnity against the structural engineer.  Neither the owner nor the general contractor was in contractual privity with the structural engineer.  The Court of Appeal upheld summary judgment in favor of the structural engineer, concluding that the engineer owed no duty of care sufficient to create grounds for equitable indemnity based upon the tort of comparative fault or negligence.   

In Lynch v. Peter & Associates, Engineers, Geologists, Surveyors, Inc. (2024) 104 Cal.App.5th 1181, the court clarified the scope of Weseloh.  There, a homeowner hired a general contractor to perform a remodel of her home who, in turn, hired a geotechnical consultant to perform professional services. The court held that the geotechnical consultant owed a duty of care to the homeowner, and summary judgment in favor of the consultant was improper under the facts.  The court held that Weseloh “should not be interpreted to create a rule that a subcontractor who provides only professional services can never be liable for general negligence to a property owner ... with whom no contractual privity exists.”  (Id. at 173.)  Thus, Lynch was limited to a claim brought by a homeowner against a sub-contractor.    

Similarly, in Beacon Residential Community Assn. v. Skidmore, Owings, & Merrill LLP (2014) 59 Cal. 4th 568, the Supreme Court held that an architect involved in the design and construction of mass-produced tract housing owed a duty of care to the ultimate purchasers of the homes built as part of the project. The court did not hold that the duty of care extended any farther and did not hold that the other contractors on the project could allege a duty on the part of another contractor in the absence of privity.  

The facts as pleaded by Elias are similar to the facts in Weseloh, not Lynch or Beacon.  In the absence of contractual privity between Elias and LCE, and given Elias is not the homeowner, there is no basis to find that LCE owes a duty to Elias which would give rise to a claim of negligence. 

As to the claim of indemnity, the right to indemnity flows from payment of a joint legal obligation on another's behalf.  (Western Steamship Lines, Inc. v. San Pedro Peninsula Hospital (1994) 8 Cal.4th 100, 110.) Thus, “a fundamental prerequisite to an action for partial or total equitable indemnity is an actual monetary loss through payment of a judgment or settlement.”  (Id., italics added; see also E. L. White, Inc. v. City of Huntington Beach (1978) 21 Cal.3d 497, 506 (“It is well settled that a cause of action for implied indemnity does not accrue or come into existence until the indemnitee has suffered actual loss through payment.”); Boyajian v. Ordoubadi (2010) 184 Cal.App.4th 1020, 1027, 110 Cal. Rptr. 3d 469 (“a cause of action for equitable indemnity does not exist until the underlying loss is paid”).) 

In the present case, the cross-complaint does not allege that Elias has suffered an “actual monetary loss.” (Western Steamship, 8 Cal.4th at p. 110.) To the contrary, it alleges that Elias has yet to suffer such a loss: “In equity and in good conscience, if Cross-Defendants and Moes should be found liable for the claimed damages or injuries, then Cross-Complainant is entitled to equitable indemnity, apportionment of liability, and contribution from Cross-Defendants and Moes, and the each of them, according to their respective faults, by way of amounts paid in settlement by Cross-Complainant or judgment rendered against Cross-Complainant in this action, in an amount that is currently not ascertainable.”  (Cross-Compl. paragraph 11, italics added.)  Accordingly, Elias has not stated a claim for equitable indemnity. 

The Court now turns to Elias’ claim for contribution.  Like an action for equitable indemnity, an action for equitable contribution does not accrue “until payment is made, because one is injured by another's wrongful act when one pays more than one’s proper share.” (Croskey et al., Cal. Practice Guide: Insurance Litigation (The Rutter Group 2017) ¶ 15:297, p. 15-56; see also Fireman's Fund Ins. Co. v. Sparks Const., Inc. (2004) 114 Cal.App.4th 1135, 1151 (claims for equitable indemnity and contribution did not accrue until joint tortfeasor paid injured party's claim); Smith v. Parks Manor (1987) 197 Cal. App. 3d 872, 879 (“Where the claim is one for indemnification or contribution, it accrues when the indemnitee or party seeking contribution suffers a loss through payment of a judgment debt (or settlement) or through payment of more than his fair share of damages.”).) 

Here, the cross-complaint does not allege that Elias paid any amounts to the homeowners.  To the contrary, it alleges that Elias has yet to make such a payment: “In the event that Defendants obtain a judgment against Cross-Complaint, in in [sic] the event the Cross-Complainant settles with Defendant, or with any other party, Cross-Complainant alleges that any injuries and/or damages suffered by Defendant, or any other party, were contributed to by the tortious conduct or other fault of Cross-Defendants and Moes, and the each of them, and that Cross-Defendants and Moes liable to contribute and reimburse Cross-Complaint for any and all liable assessed pursuant to California Code of Civil Procedure §875.”  (Cross-Compl. paragraph 21, italics added.)  Accordingly, Elias’ claim for contribution also fails as a matter of law. 

CONCLUSION AND ORDER 

Based on the foregoing, the Court SUSTAINS the demurrer without leave to amend, as Elias has not shown how it can successfully amend the Complaint to cure the defects noted above.   

 

IT IS SO ORDERED. 

 

DATED:  May 20, 2025 ___________________________ 

Edward B. Moreton, Jr. 

Judge of the Superior Court