Judge: Gail Killefer, Case: 21STCV15818, Date: 2024-04-12 Tentative Ruling

Case Number: 21STCV15818    Hearing Date: April 12, 2024    Dept: 37

CASE NUMBER:                   21STCV15818

CASE NAME:                        Jose Correa, et al. v. SO Group Realty, LLC, et al.

MOVING PARTY:                 Cross-Defendant Star Parking Management

OPPOSING PARTY:             Defendants/Cross-Complainants the Montgomery Management Company; the Estate of Francis J. Montgomery; Francis J. Montgomery individually and as Trustee of the Francis J. Montgomery Trust Dated November 24, 1993; Maria V. Mongomery, individually and as Trustee the MVM Evergreen Trust, dated March 19, 2016.

TRIAL DATE:                        Not Set

PROOF OF SERVICE:           OK

PROCEEDING:                      Demurrer to Cross-Complaint

OPPOSITION:                        29 March 2024

REPLY:                                  4 April 2024

TENTATIVE:                         Cross-Defendant Star Parking’s demurrer to the first and second causes of action in the Cross-Complaint are sustained with leave to amend. Cross-Complaints are granted 30 days leave to amend. The court sets the OSC RE: Amended Cross-Complaint for May 16, 2024, at 8:30 a.m. Moving party to give notice.

Background

on April 27, 2021, Jose Correa and Veronica Correa (“Plaintiffs”) filed a Complaint against SO Group Realty, LLC; Star Parking Management, Inc. (“Star Parking”); and Does 1 to 100. The Complaint alleges six causes of action: (1) Negligence, (2) Negligence Premises Liability, (3) Strict Products Liability: Manufacturing Defect; (4) Strict Products Liability: Design Defect; (5) Strict Products Liability: Failure to Warn; and (6) Loss of Consortium.

This action relates to an incident that occurred on June 6, 2019, when a heavy gate fell on Plaintiff Jose Correa, hitting him on the head and body.  The gate was part of a parking structure located on the corner of West 12th Street and Hope Street (the “Premises”) in the County of Los Angeles.

On August 23, 2021, Plaintiffs dismissed SO Group Realty, LLC as a Defendant. In January 2022, Plaintiffs added Montgomery Management Company; The Estate of Francis J. Montgomery; Francis J. Montgomery, individually and as Trustee of the Francis J. Montgomery Living Trust, dated November 24, 1993; and Maria V. Montgomery, individually, and as Trustee of the MVM Evergreen Trust, dated March 19, 2016, as Defendants.

On December 12, 2023, Defendants the Montgomery Management Company (“Montgomery management”); the Estate of Francis J. Montgomery (the “Estate”); Francis J. Montgomery individually and as Trustee of the Francis J. Montgomery Trust Dated November 24, 1993 (“FJM”); Maria V. Mongomery, individually and as Trustee the MVM Evergreen Trust, dated March 19, 2016 (“MVM”), filed a Cross-Complaint against Cross-Defendants Star Parking.

The Cross-Complaint alleges six causes of action: (1) Breach of Contract, (2) Express Indemnification, (3) Implied Indemnity, (4) Comparative Contribution, (5) Total Equitable Indemnity, and (6) Declaratory Relief.

On January 11, 2024, Cross-Defendant Star Parking filed a demurrer to the first and second causes of action of the Cross-Complaint. Cross-Complainants oppose the demurrer. The matter is now before the court.

Discussion

I.         Legal Standard

Where pleadings are defective, a party may raise the defect by way of a demurrer. (Coyne v. Krempels (1950) 36 Cal.2d 257, 262.) A demurrer tests the sufficiency of a pleading, and the grounds for a demurrer must appear on the face of the pleading or from judicially noticeable matters.¿ (CCP § 430.30(a); Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) In evaluating a demurrer, the court accepts the complainant’s properly pled facts as true and ignores contentions, deductions, and conclusory statements. (Daar v. Yellow Cab Co. (1976) 67 Cal.2d 695, 713; Serrano v. Priest (1971) 5 Cal.3d 584, 591.) Moreover, the court does not consider whether a plaintiff will be able to prove the allegations or the possible difficulty in making such proof. (Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 604.) 

Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.)¿ The burden is on the complainant to show the Court that a pleading can be amended successfully. (Ibid.)

II.        Demurrer[1]

Cross-Defendant Star Parking demurs to the first and second causes of action on the grounds that the Contract between the parties is only between Star Parking and Montgomery Management and not the remaining Cross-Defendants.

A.        Breach of Contract and Express Indemnification

The elements of a claim for breach of contract are: “(1) the existence of the contract, (2) plaintiff’s performance or excuse for nonperformance, (3) defendant's breach, and (4) the resulting damages to the plaintiff.” (Oasis West Realty, LLC v. Goldman (2011) 51 Cal. 4th 811, 821.) In addition, the complaint must demonstrate damages proximately caused by the breach. (St. Paul Ins. v. American Dynasty (2002) 101 Cal.App.4th 1038, 1060.)

“If the action is based on alleged breach of written contract, the terms must be set out verbatim in the body of the complaint or a copy of the written agreement must be attached and incorporated by reference.” (Harris v. Rudin, Richman & Appel (1999) 74 Cal.App.4th 299, 308.) Alternatively, “a plaintiff may plead the legal effect of the contract rather than its precise language.”¿ (Construction Protective Services, Inc. v. TIG Specialty Ins. Co. (2002) 29 Cal.4th 189, 198-199.)¿¿“[A]ll essential elements of a breach of contract cause of action [] must be pleaded with specificity.”¿(Levy v. State Farm Mutual Automobile Ins. Co. (2007) 150 Cal.App.4th 1, 5.) 

“Indemnity is a contract by which one engages to save another from a legal consequence of the conduct of one parties, or of some other person” (Civ. Code, § 2772.) Parties to an indemnity contract have great freedom of action in allocating risk, subject to limitations of public policy.  (See Peter Culley & Associates v. Superior Court (1992) 10 Cal.App.4th 1484, 1492 [parties may require negligence by the indemnitor as a condition to indemnification]; Continental Heller Corp. v. Amtech Mechanical Services, Inc. (1997) 53 Cal.App.4th 500, 505 [parties may establish a duty in the indemnitor to save the indemnitee harmless even if the indemnitor is not negligent].)  

The Cross-Complaint includes a 20-page document entitled “Standard Industrial/Commercial Single-Tenant Lease – Net.” (CC Ex. A.) Cross-Defendants assert that the contract is only

between Montgomery Management as “Lessor” and Star Parking as “Lessee” (CC Ex. A, § 1.1.) The Addendum to Lease asserts that Montgomery Management is not the owner of the Premises but acts as property manager and may at its option “require Lessee to name the owners of the Premise as additional insureds on any insurance policies.” (CC Ex. A, Addendum to Lease.)

Cross-Defendants point out that the contract makes no mention of the Estate, FJM or MVM being parties to the contract. There are no allegations in the Cross-Complaint that the Estate, FJM or MVM are the owners of the Premises, or that Montgomery Management exercised the option of requiring Star Company to add the Estate and FJM and MVM under the insurance policy. (See Schick v. Lerner (1987) 193 Cal.App.3d 1321, 1327 [“facts not alleged are presumed not to exist”].)

Based on the above, the court agrees that Cross-Complaint fails to state a viable claim for breach of contract and express indemnity. Accordingly, the demurrer is sustained with leave to amend.

Conclusion

Cross-Defendant Star Parking’s demurrer to the first and second causes of action in the Cross-Complaint are sustained with leave to amend. Cross-Complaints are granted 30 days leave to amend. The court sets the OSC RE: Amended Cross-Complaint for May 16, 2024, at 8:30 a.m. Moving Party to give notice.