Judge: Gail Killefer, Case: 23STCV15386, Date: 2025-05-08 Tentative Ruling
Case Number: 23STCV15386 Hearing Date: May 8, 2025 Dept: 37
HEARING DATE: Thursday, May 8, 2025
CASE NUMBER: 23STCV15386
CASE NAME: Andrew Kipper v. Dich Mac, et al.
MOVING PARTY: Cross-Defendant Vista
Structural, Inc.
OPPOSING PARTY: Cross-Complainant Irwin Welker
TRIAL DATE: Not set.
PROOF OF SERVICE: OK
PROCEEDING: Demurrer to Cross-Complaint
OPPOSITION: 21 April 2025
REPLY: None
TENTATIVE: Cross-Defendant Vista’s demurrer to the
Cross-Complaint is sustained with leave to amend. Cross-Complainant is granted 10
days leave to amend. The court sets the OSC RE: Amended Complaint for, and
continues the Trial Setting to, May 28, 2025, at 8:30 a.m. Defendant to give
notice.
Background
On June 30, 2023, Andrew Kippler (“Plaintiff”) filed a Complaint
against Irwin Welker, Aaron Kuhl, Kuhl Design, Inc.; AR Construction General
Contractor Inc.; and Does 1 to 100.
The operative First Amended Complaint (“FAC”), filed January 29,
2024, alleges the following 17 causes of action:
1)
Negligence;
2)
Negligence Per Se;
3)
Violation of Bus. & Prof.
Code §§ 7159 and 1760;
4)
Negligent Supervision and
Retention;
5)
Violation of California Civ.
Code § 1088;
6)
Violation of California Civil
Code § 2079;
7)
Intentional Misrepresentation;
8)
Negligent Misrepresentation;
9)
Intentional Nondisclosure of
Material Facts;
10)
Negligent Nondisclosure of
Material Facts;
11)
Violation of California Civ.
Code §1102, et. seq.
12)
Breach of Contract;
13)
Breach of the Implied Covenant
of Good Faith and Fair Dealing;
14)
Violation of Bus. & Prof.
Code § 7044;
15)
Breach of Implied Warranties;
16)
Breach of Express Warranties;
and
17)
Breach of Implied Covenant to
Perform Work in a Good and Competent Manner.
On March 7, 2024, Irwin Welkler (“Welker”) filed a Cross-Complaint
alleging the following 5 causes of action::
1)
Implied Indemnity;
2)
Comparative Indemnity;
3)
Equitable Indemnity;
4)
Contribution; and
5)
Declaratory Relief.
On November 6, 2024, Cross-Complainant Welker amended the
Complaint to name Vista Structural, Inc. (“Vista”) as Roe #1.
Cross-Defendant Vista now demurs to the Cross-Complaint.
Cross-Complainant Welker opposes the Motion. No reply has been filed. The
matter is now before the court.
request
for JUDICIAL notice
The court may
take judicial notice of records of any court of record of the United States.
(Evid. Code, § 452(d)(2).) However, the court may only judicially notice the
existence of the record, not that its contents are the truth. (Sosinsky v.
Grant (1992) 6 Cal.App.4th 1548, 1565.)
Cross-Defendant Vista seeks judicial notice of the
following:
1)
Complaint, filed on July 22, 2023.
2)
First Amended Complaint, filed on January 29, 2024.
Cross-Defendant Vista’s request for judicial notice is
granted.
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. Discussion
A. Factual Summary
Plaintiff purchased a residential property located at 6226
Maryland Drive (the “Property”) for about $3,350,000 in June 2022. (FAC, ¶¶ 38,
46.) The home was previously purchased by Welker who purchased the Property in
2020 for $1,680,000 and has a history of “flipping” houses for quick profit. (Id.
¶¶ 38, 39.) Plaintiff alleges that Welker and others misrepresented to him the
quality and condition of the Property and the fact that no certificate of
occupancy had been issued or was about to be issued. The original Complaint
alleged that Vista was responsible for providing engineering services at the
Property, but is no longer a named as a Defendant by Plaintiff. (Compl., ¶ 50.)
B. 1st, 2nd, 3rd, and
4th Cases of Action – Implied Indemnity, Comparative Indemnity, Equitable
Indemnity, and Contribution.
Demurring Cross-Defendant Vista asserts it provides structural
engineering services but has no contract with Welker or Plaintiff and that all
work on the Property was done directly or indirectly by Welker as the seller.
Cross-Defendant Vista states that the Cross-Complaint incorporates the
allegations in the FAC. (CC, ¶ 8 [“Said complaint, for purposes of its
allegations only, is incorporated by reference herein as though fully set forth
at length.”].) However, the FAC and the Cross-Complaint are devoid of factual
allegations showing how Vista is liable for damages to the Property and claims
for implied indemnity, equitable indemnity, comparative indemnity, and
contribution.
The only allegation against Vista in the Cross-Complaint, referred
to as ROE #1, is that “ROE is responsible in some manner for the happenings and
events hereinafter alleged and negligently or otherwise caused the losses
and/or damages as herein alleged.” (CC, ¶ 6.) The court finds that the
statement is too conclusory and devoid of facts, such that Vista cannot
adequately respond to the Cross-Complaint. “A complaint must set forth the
facts with sufficient precision to put the defendant on notice about what the
plaintiff is complaining and what remedies are being sought.” (Leek v.
Cooper (2011) 194 Cal.App.4th 399, 415.) Thus, Welker has failed to
plead these claims in a way that “gives notice of the issues sufficient to
enable preparation of a defense.” (Okun v. Superior Court (1981) 29 C.3d
442, 458; see also Cal. R. Ct., Rule 2.112(2) [requiring the complaint to
identify the nature of each cause of action asserted].)
Welker’s opposition states that “Welker’s Cross-Complaint
explicitly alleges that Vista's negligent structural engineering services
directly contributed to the structural deficiencies claimed by Plaintiff,
including defects in foundational work, framing, waterproofing, and roof
drainage” such that Vista is a joint tortfeasor. (Opposition, at p. 5:12-14.)
However, Welker cites to no such language in the Cross-Complaint. Nor does Welker point to allegations in the
FAC where the Plaintiff asserts that Cross-Defendant Vista is responsible for
or contributed to the structural deficiencies complained about in the FAC.
Facts not alleged in the pleadings are presumed not to exists. (Schick v.
Lerner (1987) 193 Cal.App.3d 1321, 1327.)
Therefore, the court sustains the demurrer to the 1st, 2nd, 3rd,
and 4th causes of action with leave to amend on the basis that those causes of
action are insufficiently pled against Cross-Defendant Vista.
C. 5th Cause of Action – Declaratory Relief
To state a declaratory relief claim, the plaintiff must allege a
proper subject of declaratory relief and an actual controversy involving
justiciable questions relating to the party’s rights or obligations. (See
CCP, § 1060; Jolley v. Chase Home Finance, LLC (2013) 213 Cal.App.4th
872, 909.) “Declaratory relief operates prospectively to declare future
rights, rather than to redress past wrongs.” (Canova v. Trustees of Imperial
Irrigation Dist. Employee Pension Plan (2007) 150 Cal.App.4th 1487, 1497 (Canova).)
The 5th cause of action for declaratory relief fails because it is
derivative of the other claims and cannot stand on its own, as it is dependent
on the other claims. (See The Ratcliff Architects v. Vanir Construction
Management, Inc. (2001) 88 Cal.App.4th 595, 607.)
The Cross-Complaint states:
An
actual controversy has arisen between cross-complainant IRWIN WELKER and
cross-defendants, and each of them, with respect to the rights, obligations and
duties of the parties: (a) cross-complainant IRWIN WELKER contends that he is
without fault, responsibility or blame for any of the damages which the
Plaintiff may have suffered. If there are any acts which have caused Plaintiffs
damage, these acts were committed by the cross-defendants and not the
cross-complainant. Cross-Complainant IRWIN WELKER contend that he is entitled
to indemnity from cross-defendants, and each of them. (b) Cross-complainant is
are [sic] informed and believes, and thereon allege, that the cross-defendants,
and each of them contend to the contrary.
(CC, ¶ 22.)
The court does not disagree with Welker’s contention that disputes
involving potential indemnity obligations are the proper subject for
declaratory relief. However, given that the Cross-Complaint and the FAC, as
incorporated by reference, are devoid of factual allegations against
Cross-Defendant Vista, the court fails to find that the Cross-Complaint
sufficiently alleges the existence of an actual controversy between Vista and
Welker.
Therefore, the demurrer to the fifth cause of action is also
sustained with leave to amend.
Conclusion
Cross-Defendant Vista’s demurrer
to the Cross-Complaint is sustained with leave to amend. Cross-Complainant is granted
10 days leave to amend. The court sets the OSC RE: Amended Complaint for, and
continues the Trial Setting Conference to, May 28, 2025, at 8:30 a.m. Defendant
to give notice.