Judge: Helen Zukin, Case: 19STCV34241, Date: 2022-09-20 Tentative Ruling
Case Number: 19STCV34241 Hearing Date: September 20, 2022 Dept: 207
Background
This dispute involves a tenant’s personal injury from mold
due to the landlord’s negligence. Plaintiff Michael Landman (“Plaintiff”) was a
tenant at the property located at 744 Amaroso Place, Apt 3, in Venice
California (“Subject Property”). Defendant David Freedman (“Freedman”), now
deceased, was the owner and landlord of the Subject Property. Shortly before he
passed away, on September 21, 2020, Freedman filed a Cross-Complaint against
the roofer, Cross-Defendant United Roofing Co. (“Cross-Defendant”), Freedman
subsequently filed a First Amended Cross-Complaint (the “Freedman FACC”) on
December 9, 2020, alleging causes of action against Cross-Defendant for
intentional misrepresentation, concealment, fraud, negligence, products
liability, indemnification, and apportionment of fault. Freedman subsequently
dismissed the Freedman FACC with prejudice on September 13, 2021.
Before Freedman passed away, the Subject Property was
transferred to a trust. On June 16, 2021, Plaintiff filed an amendment to the
complaint naming Martha Woliung as the Trustee of the David Freedman and Martha
Woliung Living Trust Dated October 17, 2019 (“the Trust” or
“Cross-Complainant”), in place of Doe 1. On April 13, 2022, the Trust filed a
Cross-Complaint against Cross-Defendant asserting the same causes of action as
were previously asserted in the Freedman FACC.
On July 8, 2022, Cross-Defendant demurred to the entire
Cross-Complaint as uncertain, ambiguous, and unintelligible under Code Civ.
Proc. § 430.10(f). Cross-Defendant also alleged the first cause of action for
intentional misrepresentation, second cause of action for concealment, third
cause of action for fraud, and fifth cause of action for products liability
fail to state facts sufficient to constitute a cause of action against
Cross-Defendant under Code Civ. Proc. § 430.10(e). Cross-Defendant further
alleged Cross-Complainant’s claims are barred by the statute of limitations
under Code Civ. Proc. § 366.1. Finally, Cross-Defendant separately moved to
strike Cross-Complainant’s claim for punitive damages.
On August 3, 2022, the Court overruled Cross-Defendant’s
demurrer for uncertainty, but sustained Cross-Defendant’s demurrer to the first
cause of action for intentional misrepresentation, second cause of action for
concealment, third cause of action for fraud, and fifth cause of action for
products liability for failure to state facts sufficient to constitute a cause
of action. The Court also granted Cross-Defendant’s motion to strike punitive
damages. However, the Court reserved judgment on Cross-Defendant’s allegations that
Cross-Complainant’s claims were barred by the statute of limitations. The Court
found Cross-Defendant was unclear as to which causes of action were barred by
the statute of limitations and reserved ruling until the parties filed
supplemental briefings on the issue.
Cross-Defendant and Cross-Complainant timely filed
supplemental briefs. In addition, on August 16, 2022, Cross-Complainant
requested dismissal without prejudice as to the causes of action for intentional
misrepresentation, concealment, fraud, negligence, and products
liability—leaving only causes of action for indemnification, apportionment of
fault, and declaratory relief (comparative fault/contribution).
The Court will now rule on whether Cross-Complainant’s causes
of action for indemnification, apportionment of fault, and contribution are
barred by the statute of limitations under Code Civ. Proc. § 366.1.
Demurrer Standard
When considering demurrers, courts read the allegations
liberally and in context. (Wilson v. Transit Authority of City of Sacramento
(1962) 199 Cal.App.2d 716, 720-21.) In a demurrer proceeding, the defects must
be apparent on the face of the pleading or via proper judicial notice.
(Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) “A demurrer
tests the pleading alone, and not on the evidence or facts alleged.” (E-Fab,
Inc. v. Accountants, Inc. Servs. (2007) 153 Cal.App.4th 1308, 1315.) As such,
the court assumes the truth of the complaint’s properly pleaded or implied
factual allegations. (Id.) However, it does not accept as true deductions,
contentions, or conclusions of law or fact. (Stonehouse Homes LLC v. City of
Sierra Madre (2008) 167 Cal.App.4th 531, 538.)
Analysis
On August 3, 2022, the Court ordered the parties to file
supplemental briefs on the following issues: “(1) which, if any, claims
asserted by Cross-Complainant are brought as a survivor or successor in
interest to Freedman, (2) whether those claims, if any, relate back to
Freedman’s original Cross-Complaint or FACC, (3) the applicable statute of
limitations for any such claims, and (4) when those statutes of limitations
would have expired if Freedman had not passed away.” (Order 8/3/22, p. 7.)
Cross-Complainant argues she brings her remaining causes of
action for indemnity, apportionment of fault, and contribution as a successor
in interest, and that the statute of limitations on all three causes of action
has not begun to accrue. Cross-Defendant does not appear to address whether the
statute of limitations bars Cross-Complainant’s remaining causes of action.
Rather, Cross-Defendant argues that Cross-Complainant
lacks standing as a successor in interest because she failed to immediately
file a declaration pursuant to Code of Civ. Proc. § 377.32.
1.
Successor in Interest
Cross-Complainant states—and Cross-Defendant does not
dispute—that Cross-Complainant brings her remaining causes of action against
Cross-Defendant as a successor in interest. However, Cross-Complainant
reasserts that as a successor in interest, Plaintiff David Freeman’s FAC
against her should have been dismissed with prejudice.
The Court will not relitigate this issue. “The Court
disagrees. In ruling on Cross-Complainant’s demurrer to the First Amended
Complaint, the Court was concerned only with the nature of the claims being
asserted by Plaintiff against Cross-Complainant.” (Order 8/3/22, p. 7.) Here,
the Court is concerned with the nature of claims being asserted by
Cross-Complainant against Cross-Defendant. “[T]he fact that Plaintiff has
asserted direct claims against Cross-Complainant does not mean
Cross-Complainant has not asserted survivor or successor in interest claims
against Cross-Defendant.” (Ibid.)
The Court finds Cross-Complainant brings her claims against
Cross-Defendant as a successor in interest. To be clear, this finding does not
affect Plaintiff’s claims against Cross-Complainant.
2.
Standing
Cross-Defendant argues that
Cross-Complainant lacks standing as a successor in interest because she failed
to immediately file a declaration pursuant to Code of Civ. Proc. § 377.32.
Code of Civ. Proc. § 377.32 requires:
The person who seeks to commence an
action or proceeding or to continue a pending action or proceeding as the
decedent’s successor in interest under this article, shall execute and file an
affidavit or a declaration under penalty of perjury under the laws of this
state stating all of the following:
(1) The decedent’s name.
(2) The date and place of the
decedent’s death.
(3) “No proceeding is now
pending in California for administration of the decedent’s estate.”
(4) If the decedent’s estate
was administered, a copy of the final order showing the distribution of the
decedent’s cause of action to the successor in interest.
(5) Either of the following,
as appropriate, with facts in support thereof:
(A) “The affiant or declarant
is the decedent’s successor in interest (as defined in Section 377.11 of the
California Code of Civil Procedure) and succeeds to the decedent’s interest in
the action or proceeding.”
(B) “The affiant or declarant
is authorized to act on behalf of the decedent’s successor in interest (as
defined in Section 377.11 of the California Code of Civil Procedure) with
respect to the decedent’s interest in the action or proceeding.”
(6) “No other person has a
superior right to commence the action or proceeding or to be substituted for
the decedent in the pending action or proceeding.”
(7) “The affiant or declarant
affirms or declares under penalty of perjury under the laws of the State of
California that the foregoing is true and correct.”
Indeed, Cross-Complainant admits she has not filed such a
declaration by stating in her supplemental brief, “if this Court now deems the
Trustee a successor in interest, we will file a declaration under penalty to
perjury pursuant to California Code of Civil Procedure § 377.32.” However,
Cross-Defendant argues that the declaration is a substantive requirement, therefore
Cross-Complainant lacks standing since she has failed to file such a
declaration, and Cross-Complainant’s remaining causes of action should be
dismissed with prejudice as a result. In support of its argument,
Cross-Defendant focuses on the language of Code of Civ. Proc. § 377.32
requiring a “person who seeks to commence an action or proceeding…” (Ibid.;
emphasis added.)
The Court disagrees. Code of Civ. Proc. § 377.32 requires a
“person who seeks to commence an action or proceeding or to continue a
pending action or proceeding as the decedent’s successor in interest..” to
file a declaration. (Ibid.) Cross-Defendant offers federal case law
stating, “federal courts have dismissed claims brought by successors in
interest where the plaintiff fails to allege facts or attach documents to the
complaint showing compliance with [Section 377.32].” (Keiper v. Victor
Valley Transit Auth. (C.D. Cal. June 25, 2015) WL 3929641, at *5). However,
this is an unreported case. More importantly, the Keiper Court went on
to conclude that “section 377.32 provides no basis for dismissing Plaintiffs'
first or third claims.” (Ibid.) Accordingly, Cross-Complainants
remaining causes of action will not be dismissed on this basis.
Cross-Complainant is ordered to file a declaration in
compliance with Code of Civ. Proc. § 377.32 no later than October 3, 2022.
3.
Statute of Limitations
In its original demurrer,
Cross-Defendant argued Cross-Complainant’s “claims are entirely barred
by the statute of limitations pursuant to Section 366.1” (Demurrer at 8.) The
Court withheld judgment pending further briefing on which claims are barred and
why. (Order 8/3/22, p. 7.) Cross-Complainant has since dismissed her causes of
action for intentional misrepresentation, concealment, fraud, negligence, and
products liability, and argues the statute of limitations has not begun to
accrue on her remaining causes of action for indemnification, apportionment of
fault, and contribution.
Code Civ. Proc. § 366.1 provides: “If a person entitled to
bring an action dies before the expiration of the applicable limitations
period, and the cause of action survives, an action may be commenced before the
expiration of the later of the following times: … The limitations period that
would have been applicable if the person had not died.”
The Statute of Limitations for indemnification accrues when
there is judgment or settlement. (See US. Cold Storage vs. Matson Navigation
Co. (1984 20 21 162 Cal App 3rd 1228.) "Under well established
California law, however, a cause of action for equitable indemnity arises only
when the indemnitee actually incurs a loss by payment of the underlying claim
or judgement." (Id. at p. 1231.) Like the right to indemnity, the
right to contribution accrues after judgment or settlement. (See Code Civ.
Proc. §875(c).) Apportionment is also treated similarly to equitable indemnity.
(American Motorcycle Assn. vs. Superior Court (1978) 20 Cal 3rd 578,
583.)
Here, judgment has yet to be rendered against the deceased
or Cross-Complainant as his successor-in-interest. The limitations period that
would have been applicable if the deceased had not died has yet to accrue.
Cross-Defendant does not appear to dispute this, and thus Cross-Complainant’s
remaining causes of action for indemnity, apportionment, and contribution are
not barred by the statute of limitations.
Cross-Defendant’s demurrer to Cross-Complainant’s causes of
action for indemnity, apportionment, and contribution is overruled.
4.
Motion to Strike
Punitive Damages
In its August 3, 2022 order, the
Court granted Cross-Defendant’s motion to strike punitive damages from the
cross-complaint, but reserved judgment as to whether it was with or without prejudice
pending further briefing by the parties. Cross-Complainant since dismissed her
causes of action for intentional misrepresentation, concealment, fraud,
negligence, and products liability, and the remaining
causes of action are for indemnity apportionment, and contribution.
Punitive damages are not recoverable under the remaining causes of action, and
therefore Cross-Defendant’s motion to strike punitive
damages from the cross-complaint is granted with prejudice.
Conclusion
Cross-Defendant’s demurrer to Cross-Complainant’s causes of
action for indemnity, apportionment, and contribution is OVERRULED.
Defendant’s motion to strike
punitive damages from the cross-complaint is GRANTED with prejudice.
Cross-Complainant is ordered to file a declaration in
compliance with Code of Civ. Proc. § 377.32 no later than October 3, 2022.