Judge Elaine W. Mandel, Case Number: 23SMCV06042, Date: 2025-02-11 Tentative Ruling

Judge: Elaine W. Mandel, Case: 23SMCV06042, Date: 2025-02-11 Tentative Ruling

Case Number: 23SMCV06042 Hearing Date: February 11, 2025 Dept: P

Tentative Ruling

USAA Casualty Insurance Company v. Miller, Case no. 23SMCV06042

Hearing date February 11, 2025

Cross-Defendants Shepards’ Demurrer to Miller’s Cross-Complaint

Plaintiff USAA Casualty Insurance Company, as subrogee of Zach and Anne Hilder, sues defendant Miller for negligence, breach of contract and negligent hiring. Plaintiff alleges the Hilders purchased a property from Trevor and Melissa Shepard; Miller was the Shepards’ agent. Plaintiff named the Shepards and dismissed them 2/21/24. Plaintiff alleges the property had a leaking faucet which was disclosed to the Hilders, necessitating a water shutoff. Plaintiff alleges Miller entered the property, lowered the water pressure and subsequently turned it back on without fixing the faucet, resulting in water damage.

Miller cross-complains against the Shepards for equitable indemnity, contribution, declaratory relief and express indemnity. The Shepards demur to Miller’s claims for equitable indemnity, contribution and declaratory relief.

The Shepards request judicial notice of their dismissal from plaintiff’s complaint, entered by the court 2/21/24. Cal. Evid. Code §452(d) allows for judicial notice of records of this court. GRANTED.

“The function of a demurrer is to test the sufficiency of the complaint as a matter of law.” Holiday Matinee, Inc. v. Rambus, Inc. (2004) 118 Cal.App.4th 1413, 1420. A complaint “is sufficient if it alleges ultimate rather than evidentiary facts” Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 550, but plaintiff must set forth the essential facts of the case “with reasonable precision and with particularity sufficient to acquaint [the] defendant with the nature, source and extent” of the plaintiff’s claim. Doheny Park Terrace Homeowners Ass’n., Inc. v. Truck Ins. Exchange (2005) 132 Cal.App.4th 1076, 1099. In reviewing the legal sufficiency of a complaint against a demurrer, a court will treat the demurrer as admitting all material facts properly pleaded. Blank v. Kirwan (1985) 39 Cal.3d 311, 318; C & H Foods Co. v. Hartford Ins. Co. (1984) 163 Cal.App.3d 1055, 1062.

The Shepards demur to Miller’s claim for equitable indemnity. The cross-complaint does not allege its own facts, instead incorporating plaintiff’s complaint. A cross-complaint can incorporate a complaint by reference. Pine Terrace Apartments, L.P. v. Windscape, LLC (2009) 170 Cal.App.4th 1, 18-19. Yet the operative complaint must contain facts to support the cross-complainant’s causes of action. Id. To plead a claim for equitable indemnity Miller must plead: (1) fault of the Shepards and (2) damages to Miller for which the Shepards are equitably responsible. Bailey v. Safeway, Inc. (2011) 199 Cal.App.4th 206, 217.

The Shepards are alleged to have turned off the water, disclosed the faucet’s defects, promised to repair the faucet and ordered a new part. Complaint paras. 10-12, 15. Miller is alleged to have lowered the water pressure and turned the water back on. Complaint paras. 16-17. No allegations are made that Miller told anyone of his actions, nor that he was acting on the Shepard’s request when he turned the water back on. This is insufficient to establish fault on the part of the Shepards. SUSTAINED with leave to amend.

The Shepards demur to Miller’s second claim for contribution. To bring a contribution claim, there must be “a money judgment [that] has been rendered jointly against two or more joint defendants in a tort action[.]” Cal. Code Civ. Proc., §875(a). A cross-complaint does not state a cause of contribution where it has not pled that there has been money judgment rendered jointly against two or more defendants. See General Elec. Co. v. State ex rel. Dept. of Public Works (1973) 32 Cal.App.3d 318.

Neither the complaint nor cross-complaint alleges a judgment has been rendered jointly against the Shepards and cross-complainant. Further, the Shepards are not joint defendants under the complaint because plaintiff dismissed them. See RJN Exh. 1. SUSTAINED with leave to amend.

The Shepards demur to Miller’s third claim for declaratory relief. To qualify for declaratory relief, a claimant must demonstrate: “(l) a proper subject of declaratory relief, and (2) an actual controversy involving justiciable questions relating to [the party's] rights or obligations." Wilson & Wilson v. City Council of Redwood City (2011) 191 Cal.App.4th 1559, 1582. A court may sustain a demurrer to a declaratory relief cause of action where (1) “an adequate remedy exists for the parties to resolve their dispute” and (2) “there are no allegations suggesting declaratory relief will regulate future conduct by the parties[.]” See Osseous Techs. of Am., Inc. v. DiscoveryOrtho Partners LLC (2010) 191 Cal.App.4th 357.

The Shepards argue the declaratory relief claim is duplicative of the equitable and express indemnity claims. All three arise from the filing of the complaint and seek the same remedy -- the Shepards’ indemnification of Miller. Cross-Complaint paras. 12, 18, 24. Further, the claim for declaratory relief offers no allegations that the claim would regulate future conduct by the parties. The claim seeks declaratory relief in the form of indemnification for past actions and makes no mention of ongoing or future acts. Cross-Complaint para. 18. The third claim is duplicative of the first and fourth claims. SUSTAINED with leave to amend.

Fifteen days leave to amend as to the above.