Judge Elaine W. Mandel, Case Number: 22SMCV01410, Date: 2024-01-16 Tentative Ruling

Judge: Elaine W. Mandel, Case: 22SMCV01410, Date: 2024-01-16 Tentative Ruling

Case Number: 22SMCV01410 Hearing Date: January 16, 2024 Dept: P

Tentative Ruling

Fallieras v. Subaru of America, Inc, et al., Case No. 22SMCV01410

Hearing date January 16, 2024

Subaru of America’s Demurrer to the First Amended Cross-Complaint

Plaintiff Fallieras sued defendants Subaru of America (SOA) and Thousand Oaks-S, Inc. dba DCH Subaru of Thousand Oaks (DCH) alleging (1) violation of subdivision (d) of Civil Code section 1793.2 (against SOA only); (2) violation of subdivision (b) of Civil Code section 1793.2 (against SOA only); (3) violation of subdivision (a)(3) of Civil Code section 1793.2 (against SOA only); (4) breach of the implied warranty of merchantability (against SOA only); and (5) negligent repair (against DCH only). As to DCH, plaintiff alleges it failed to properly perform necessary repairs. DCH cross complained against SOA, seeking (1) express indemnity; (2) implied indemnity; (3) equitable indemnity; and (4) declaratory relief.

The FACC incorporates portions of the complaint, including that Plaintiff entered into a warranty contract with SOA, defects and nonconformities to warranty manifested within the applicable period and SOA failed to replace the vehicle or provide restitution. FACC ¶4. DCH alleges pursuant to the Dealer Agreement between SOA and DCH, DCH is entitled to defense and immunity from SOA. See FACC ¶¶ 5-17. SOA demurrers to the FACC.

Request for Judicial Notice

DCH seeks judicial notice of SOA’s cross-complaint filed by SOA. The cross-complaint falls under Evidence Code section 452(d) and 453. GRANTED.

Timeliness

SOA argues DCH’s FACC is untimely. The Court agrees; DCH’s FACC was filed after its answer and setting of the trial date. Nor did it seek leave of court for the untimely filing. See Code Civ. Proc. § 428.50. However, the court exercises discretion to consider the merits.

Express Indemnity

“An indemnitee seeking to recover on an agreement for indemnification must allege the parties’ contractual relationship, the indemnitee’s performance of that portion of the contract which gives rise to the indemnification claim, the facts showing a loss within the meaning of the parties’ indemnification agreement, and the amount of damages sustained.” Four Star Electric, Inc. v. F & H Construction (1992) 7 Cal.App.4th 1375, 1380.

SOA argues DCH cannot maintain a claim for indemnity because the only cause of action against DCH is negligent repair, for which SOA is not obligated to defend nor indemnify. DCH argues the negligent repair claim is inseparable from the Song-Beverly claims, and the prayer does not distinguish which damages are sought from each defendant.

A demurrer can only challenge defects on the face of the pleading. See Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994. The FACC does not allege sufficient facts that the Song-Beverly claims andnegligent repair claim are intertwined. There is no allegation DCH is liable for manufacturing defects or for failing to confirm the vehicle to applicable warranties.

SUSTAINED with leave to amend.

Implied Indemnity

Implied contractual indemnity is not based upon equitable considerations, but on a contractual relationship between indemnitee and indemnitor from which is implied an obligation by indemnitor to assume and pay foreseeable damages assessed against the indemnitee as a result of indemnitor's breach of contract. Bear Creek Planning Com. v. Title Ins. & Trust Co. (1985) 164 Cal.App.3d 1227, 1239. The same reasoning applies. SUSTAINED with leave to amend.

Equitable Indemnity

“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.” C.W. Howe Partners Inc. v. Mooradian (2019) 43 Cal.App.5th 688, 700, quotation marks 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. The same reasoning applies.

SUSTAINED with leave to amend.

Declaratory Relief

“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.

A cause of action for declaratory relief should not be used as a second cause of action for the determination of identical issues raised in another cause of action. General of America Insurance Co. v. Lilly (1968) 258 Cal.App.2d 465, 470. “The availability of another form of relief that is adequate will usually justify refusal to grant declaratory relief” California Ins. Guarantee Assoc. v. Superior Court (1991) 231 Cal.App.3d 1617, 1624, and a duplicative cause of action is subject to demurrer. Palm Springs Villas II Homeowners Assoc., Inc. v. Parth (2016) 248 Cal.App.4th 268, 290.

DCH asserts the complaint is uncertain as to whether the alleged defects were SOA’s manufacturing defects or caused by DCH’s negligent repairs, so SOA’s refusal to accept DCH’s tender demand presents an actual controversy. However, DCH fails to sufficiently demonstrate the negligent repair claim is derivative and stems from the Song-Beverly claims. SUSTAINED with leave to amend.