Judge: Joseph Lipner, Case: 24STCV20427, Date: 2025-05-20 Tentative Ruling
Case Number: 24STCV20427 Hearing Date: May 20, 2025 Dept: 72
SUPERIOR COURT OF CALIFORNIA
COUNTY OF LOS ANGELES
DEPARTMENT 72
TENTATIVE
RULING
|
RESTORE TACTICS, INC., Plaintiff, v. SOUTHERN CALIFORNIA CONFERENCE OF
SEVENTH-DAY ADVENTISTS, Defendant. |
Case No:
24STCV20427 Hearing Date: May 20, 2025 Calendar Number: 13 |
Plaintiff and Cross-Defendant Restore Tactics, Inc.
(“Plaintiff”) demurs to the cross-complaint filed by Defendant and Cross-Complainant
Southern California Conference of Seventh-Day Adventists (“Defendant”).
Plaintiff separately moves to strike certain portions of the
Cross-Complaint.
The Court OVERRULES the demurrer to the first claim.
The Court SUSTAINS the demurrer WITHOUT LEAVE TO AMEND for
the second, third, and fourth claims.
The Court SUSTAINS the demurrer WITH LEAVE TO AMEND with
respect to the fifth and sixth claims.
The Court GRANTS the motion to strike the claim for
emotional damages WITH LEAVE TO AMEND.
The Court grants the motion to strike the claim for
attorney’s fees WITHOUT LEAVE TO AMEND. If a basis for attorney’s fees later
becomes apparent, Defendant may seek leave to amend.
The Court DENIES the motion to strike in its remainder.
Defendant shall have 15 days to amend the Cross-Complaint.
This is a construction dispute.
Plaintiff is a licensed contractor that provides plumbing
and property restoration services. Defendant is the owner of real property
located at 700 South Glenoaks Boulevard, Burbank, California 91502 (the
“Property”).
In August 2023, Tropical Storm Hillary caused heavy water
damage to the Property, which was undergoing a roof replacement at the time.
On August 22, 2023, Plaintiff and Defendant entered into a
written agreement (the “Contract”). Plaintiff agreed to provide water damage mitigation
and restoration services at the Property in exchange for compensation.
Plaintiff was also retained to prevent future water damage and abate mold.
Defendant alleges that Plaintiff failed to mitigate future
water damage, resulting in additional billable work for Plaintiff.
During the work, Plaintiff retained an environmental testing
firm, Titan Environmental Services (“Titan”), to conduct limited testing for
lead and asbestos. Titan identified the presence of both. Plaintiff then hired
Burns Environmental (“Burns”) to abate the lead and asbestos identified in
Titan’s reports.
Defendant alleges that Plaintiff subsequently found
additional asbestos and proceeded to remove it despite not having a license to
do so. Defendant alleges that this work disturbed the asbestos, as well as lead
that was presence, into the entire site. Defendant alleges that the mold
remediation work, for which Plaintiff was hired, was substandard and grossly
negligent.
Defendant alleges that Plaintiff’s work has exposed the
congregants who use the Property to lead, mold, and asbestos. Defendant alleges
that it retained EnviroCheck Inc. (“EnviroCheck”) to test for hazardous
substances in August 2024, which resulted in resulted in a number of positive
tests for mold, asbestos, and lead. Defendant alleges that the testing showed
that the lead containing material was mishandled, causing dispersion throughout
the building. Defendant alleges that the testing also showed that over 40
percent of the asbestos samples taken were damaged in a way that made
dispersion a high risk.
Plaintiff alleges that Defendant never paid Plaintiff in
full for the services under the contract.
Plaintiff alleges that on June 17, 2024, Plaintiff recorded
a mechanic’s lien against the Property.
Plaintiff filed this action on August 13, 2024, raising
claims for (1) breach of contract; (2) foreclosure of mechanic’s lien; and (3)
goods and services rendered.
On December 2, 2024, Defendant filed the Cross-Complaint
against Plaintiff and Cucu Rios & Sons Construction (“Rios”). The
Cross-Complaint raises claims for (1) negligence; (2) equitable indemnity; (3)
contribution; (4) declaratory relief; (5) express indemnity; and (6) breach of
contract.
On April 3, 2025, Plaintiff filed this demurrer and motion
to strike. Defendant filed an opposition to each. Plaintiff has not filed a
reply in support of either.
In order to state a claim for negligence, a plaintiff must
allege the elements of (1) “the existence of a legal duty of care,” (2) “breach
of that duty,” and (3) “proximate cause resulting in an injury.” (McIntyre v. Colonies-Pacific, LLC (2014)
228 Cal.App.4th 664, 671.)
The Cross-Complaint adequately
alleges that Plaintiff had a duty of due care in its work, breached that duty
by mishandling asbestos and lead, and proximately caused contamination at the
Property by doing so.
The Court overrules the demurrer to
this claim.
The
elements for equitable indemnity are (1) a showing of fault on the part of the
indemnitor and (2) resulting damages to the indemnitee for which the indemnitor
is contractually or equitably responsible. (Gouvis Engineering v. Superior
Court (1995) 37 Cal.App.4th 642, 646.) “To state a claim for equitable
indemnity, a defendant must allege the same harm for which he may be held
liable is properly attributable—at least in part—to the cross-defendant.” (Platt v. Coldwell Banker Residential Real
Estate Services (1990) 217 Cal.App.3d 1439, 1445, fn.7.)
“The
right to indemnity flows from payment of a joint legal obligation on another’s
behalf.” (Bailey v. Safeway, Inc. (2011) 199 Cal.App.4th 206, 212.)
Here,
Defendant has not alleged a joint legal obligation. Rather, Defendant alleges
that, if Defendant has not paid Plaintiff under the Contract, then that is Plaintiff’s
fault – and not Defendant’s. The only alleged damages to Defendant, the
indemnitee, would be damages claimed by Plaintiff against Defendant. Indemnity
is therefore not the correct legal theory under which to pursue Defendant’s
claim.
The
Court therefore sustains the demurrer to this claim without leave to amend.
A claim for contribution requires allegations of (1) “a
money judgment,” (2) “rendered jointly against two or more defendants in a tort
action,” (3) “in accordance with the principles of equity,” (4) “after one
tortfeasor has, by payment, discharged the joint judgment or has paid more than
his pro rata share thereof,” (5) without intentional injury by the tortfeasor.
(Code Civ. Proc., § 875, subds. (a)-(d).)
Defendant
has not alleged a judgment against Defendant, let alone a judgment against
Plaintiff and Defendant jointly. Defendant thus has not stated a claim for
contribution.
The
Court sustains the demurrer to this claim without leave to amend.
Here,
the only relief that Defendant seeks is retrospective. Defendant seeks
declarations about what Plaintiff should have done. The same is true for
Defendant’s request for a declaration of a duty to indemnify – while nominally
prospective, the entire dispute at issue is Plaintiff’s past conduct.
The
Court therefore sustains the demurrer to this claim without leave to amend.
“An indemnitee seeking to recover on an agreement for
indemnification must allege the parties’ contractual relationship, the
indemnitee’s performance of that portion of the contract which gives rise to
the indemnification claim, the facts showing a loss within the meaning of the
parties’ indemnification agreement, and the amount of damages sustained.” (Four Star Electric, Inc. v. F & H
Construction (1992) 7 Cal.App.4th 1375, 1380.)
Here, Defendant has not adequately alleged facts showing
that the parties entered into an indemnity agreement. Defendant only
conclusorily alleges that the parties entered into agreements which contained
indemnity provisions, with no further clarification. (Cross-Complaint ¶¶
72-73.) Further, Defendant’s allegations of performance appear to be
mis-written – Defendant alleges that it has performed all of the necessary
conditions and duties required under “said subcontract agreements”, despite no
alleged subcontract between Plaintiff and Defendant. (Cross-Complaint ¶ 76.)
The Court sustains the demurrer to this claim with leave to
amend.
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.)
If a breach of
contract claim “is based on alleged breach of a 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, 307.) In some circumstances, a plaintiff may also “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.)
Defendant has not attached the Contract or set forth its
terms verbatim, nor has Defendant alleged its own performance or excuse for
nonperformance.
The Court sustains the demurrer to this claim with leave to
amend.
Plaintiff argues that these paragraphs allege a contract
without adequate supporting facts. This issue is resolved under the demurrer.
The Court denies the motion as moot.
Plaintiff argues that this paragraph alleges an unspecified
environmental report. The allegations make it clear that this refers to Titan’s
report. The Court denies the motion.
Plaintiff argues that this portion is irrelevant. Defendant
alleges that Plaintiff failed to comply with regulations for the handling and
disposal of lead. This is relevant to the negligence claim. The Court denies
the motion.
These portions are part of the equitable indemnity claim,
for which the Court sustains the demurrer without leave to amend. The Court
denies the motion as moot.
Plaintiff argues that the emotional damages that Defendant
alleges are not appropriate because they are not permissible in a contract
dispute and because they were incurred by individuals who are not in privity
with Defendant. Defendant raises a negligence claim, so emotional damages are
conceptually proper. However, the damages would appear to have been suffered by
individuals – not Defendant, an entity. Defendant has not alleged a basis on
which it can claim these damages.
The Court grants the motion with leave to amend.
Defendant admits that it has not alleged a contractual or
statutory basis for attorney’s fees, but wishes to raise the claim in case such
a basis becomes apparent in discovery.
The Court grants the motion. If a basis for attorney’s fees
appears, Defendant may seek leave to amend.
Plaintiff argues that there are “numerous statements and
allegations in the Cross-Complaint that are neither pertinent nor supported by
an otherwise sufficient claim or defense” (Motion at 9:23-25) and “are not
supported by facts” (Motion at 10:16-17) without any further clarification as
to which portion of the Cross-Complaint it attacks.
The Court denies the motion as to these statements and any
remaining statements that Plaintiff seeks to strike, because it has not
provided a basis to do so.