Judge: Elaine W. Mandel, Case: 24SMCV03323, Date: 2025-04-17 Tentative Ruling

Case Number: 24SMCV03323    Hearing Date: April 17, 2025    Dept: P

Tentative Ruling

Poli v. Brilliant General Maintenance, Case no. 24SMCV03323

Hearing date April 17, 2025

Cross-Defendant WPG Malibu’s Demurrer to Defendant Brilliant’s Cross-Complaint

Plaintiff Polie sues defendants Brilliant General Maintenance, Inc., Michael Koss Enterprises, Inc., Washington Prime Group, Inc., 3835 Cross Creek LLC and WPG Malibu LLC for injuries sustained after a slip and fall in a puddle of water. Brilliant cross-complains against the remaining defendants. WPG demurs to Brilliant’s claim for total implied indemnity.

“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 allege essential facts “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.

Brilliant asserts WPG failed to adequately meet and confer prior to filing the demurrer and did not return calls. Decl. Kim paras. 2-5. WPG sent a meet and confer letter and says Brilliant failed to respond to calls. Decl. Benkner paras. 3-4; exh. B. Failing to meet and confer is not grounds to overrule a demurrer. Cal. Code Civ. Proc. §430.41(a)(4). The parties are encouraged to facilitate communications prior to filing future motions.

WPG argues the implied indemnity claim fails because Brilliant does not allege existence of a contractual duty between the parties. Brilliant argues total implied indemnity “apportions an actively negligent party for complete liability where other negligent parties were only passively or vicariously negligent.” See E.L. White, Inc. v. City of Huntington Beach (1978) 138 Cal.App.3d 366, 376. Brilliant alleges it was not negligent, and, if found liable, such liability is only via passive or vicarious liability through cross-defendants. Cross-Compl. para. 8.

Implied indemnity, where it exists, is a contractual obligation. See Prince v. Pacific Gas & Electric Co. (2009) 45 Cal.4th 1151, 1160. “A claim for implied contractual indemnity is a form of equitable indemnity.” Id. at 1166. “An action for implied contractual indemnity… is grounded upon the indemnitor’s breach of duty owing to the indemnitee to properly perform its contractual duties.” West v. Superior Court (1994) 27 Cal.App.4th 1625, 1633. Brilliant must allege existence of a contractual duty between it and WPG to state a claim for total implied indemnity. Brilliant fails to state what, if any, contractual duty WPG owed to BGM and allegedly failed to perform. SUSTAINED with 20 days leave to amend.