Judge: Kerry Bensinger, Case: 22STCV25900, Date: 2023-08-10 Tentative Ruling

Case Number: 22STCV25900    Hearing Date: August 10, 2023    Dept: 27

Tentative Ruling

Judge Kerry Bensinger, Department 27

HEARING DATE:     August 10, 2023                     TRIAL DATE:  February 8, 2024

CASE:                         State Farm General Ins. Co. v. Kwok Tung Kong

CASE NO.:                 22STCV25900

DEMURRER WITHOUT MOTION TO STRIKE

MOVING PARTY:               Cross-Defendant Yvonne Mao, M.D., Inc.

RESPONDING PARTY:     Defendant/Cross-Complainant Kwok Kong Tung aka Tony Kwok-Tung Kong aka Anthony Kwok-Tung Kong dba KT Construction

I.          BACKGROUND

            On August 11, 2022, Plaintiff, State Farm General Ins. Co., filed this subrogation action against Defendant, Kwok Kong Tung aka Tony Kwok-Tung Kong aka Anthony Kwok-Tung Kong dba KT Construction (“KT Construction”), for damage incurred by Plaintiff’s insured, Li Properties, LLC’s property at 18 W. Sierra Madre Blvd, Sierra Madre, CA 91204 (the “Property”).  Plaintiff alleges that, on September 12, 2019, KT Construction was doing construction on the roof of the Property when a contractor dropped a pipe which damaged a toilet and caused water damage to the Property.

On May 24, 2023, KT Construction filed a Cross-Complaint for equitable indemnity, contribution, and declaratory relief against Cross-Defendants, Li Properties, LLC, and Yvonne Mao, M.D., Inc.  Plaintiff alleges that Cross-Defendants proximately caused the property damage through their wrongdoing, negligence, or other actionable conduct.

On Juy 13, 2023, Cross-Defendant, Yvonne Mao, M.D., Inc. filed this demurrer to the Cross-Complaint.  KT Construction has filed an Opposition.  Cross-Defendant has not filed a Reply. 

II.        LEGAL STANDARD FOR DEMURRER  

A demurrer tests the legal sufficiency of the pleadings and will be sustained only where the pleading is defective on its face.  (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 459.)  “We treat the demurrer as admitting all material facts properly pleaded but not contentions, deductions or conclusions of fact or law.  We accept the factual allegations of the complaint as true and also consider matters which may be judicially noticed.  [Citation.]”  (Mitchell v. California Department of Public Health (2016) 1 Cal.App.5th 1000, 1007; Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604 [“the facts alleged in the pleading are deemed to be true, however improbable they may be”].)  Allegations are to be liberally construed.  (Code Civ. Proc., § 452.)  In construing the allegations, the court is to give effect to specific factual allegations that may modify or limit inconsistent general or conclusory allegations.  (Financial Corporation of America v. Wilburn (1987) 189 Cal.App.3rd 764, 769.)   Judicial Council forms are not immune to demurrer.  (People ex rel. Dept. of Transportation v. Superior Court (1992) 5 Cal.App.4th 1480, 1486.) 

A demurrer may be brought if insufficient facts are stated to support the cause of action asserted.  (Code Civ. Proc., § 430.10, subd. (e).)  “A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.”  (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.)   

Where the complaint contains substantial factual allegations sufficiently apprising defendant of the issues it is being asked to meet, a demurrer for uncertainty will be overruled or plaintiff will be given leave to amend.  (Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2.)  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.)  

A failure to oppose a motion may be deemed a consent to the granting of the motion.  (Cal. Rules of Court, rule 8.54, subd. (c).)

III.      DISCUSSION

A.  Meet and Confer

Counsel for Cross-Defendant has complied with the meet and confer requirement.¿ (See Declaration of Mark R. Weiner.)

E.  Analysis

The place to begin is KT Construction’s “Statement of Facts” in its Opposition to the Demurrer.  KT Constructions writes: “State Farm is well aware of the following facts.  Li Properties owns the Premises. Yvonne Mao, M.D., Inc. leases a unit on the Premises from Li Properties.  The toilet that was allegedly damaged by KT Construction is located in the unit leased by Yvonne Mao, M.D.  The alleged incident with KT Construction dropping a pipe into a toilet occurred on July 30, 2019, 44 days before the toilet leak occurred.  The pipe at issue is EMT pipe which weighs ounces.  The end of the pipe landed directly in the toilet bowl.  There was no damage to the toilet.  It did not leak.  The toilet was used regularly by Dr. Mao’s office for the next 44 days until a water leak was discovered from the water tank to the toilet.  The plastic tubing supplying fresh water to the tank showed signs of aging and neglect.  Dr. Mao removed and discarded the toilet before a professional plumber could inspect it.”  (Opposition, p. 2:10-19.)

This may all be true, but Plaintiff did not plead these facts in the initial Complaint nor did KT Construction allege these facts in their Cross-Complaint.  Indeed, without reading KT Construction’s Statement of Facts, Cross-Defendant’s role in this case is unknown and uncertain. Whatever Dr. Mao did or did not do is similarly unknown and certain.    

A review of the allegations in support of each cause of action further underscores Cross-Defendant’s uncertain role in the alleged incident.  

The First Cause of Action is for equitable indemnity.  “Equitable indemnity is premised on a joint legal obligation to another for damages.”  (C.W. Howe Partners Inc. v. Mooradian (2019) 43 Cal.App.5th 688, 700 [cleaned up].)  “The elements of a cause of action 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 ... equitably responsible.”  (Bailey v. Safeway, Inc. (2011) 199 Cal.App.4th 206, 217.)  Here, the sole allegation regarding Cross-Defendant’s purported fault is the vague and non-specific allegation that “all or some portion of the plaintiff’s damages were proximately caused by the wrongdoing, the negligence of other actionable conduct on the part of the Cross-Defendants, and each of them.”  (Cross-Complaint, ¶ 5.)  The Cross-Complaint does not sufficiently allege the first element of an equitable indemnity claim.

The Second Cause of Action is for contribution.  The parties agree that the elements of an equitable indemnity claim are the same as a contribution claim.  The Second Cause of Action, then, fails for the same reason as the First Cause of Action.  The contribution claim is also independently subject to demurrer for the simple reason that it is duplicative of the equitable indemnity claim.  Duplicative causes of action are a proper basis for sustaining a demurrer.  (Palms Springs Villas II Homeowners Assn., Inc. v. Parth (2016) 248 Cal.App.4th 268, 290.)

The Third Cause of Action is for declaratory relief.  “To qualify for declaratory relief, a party would have to demonstrate its action presented two essential elements: (1) a proper subject of declaratory relief, and (2) an actual controversy involving justiciable questions relating to the party’s rights or obligations.”¿ (Jolley v. Chase Home Finance, LLC (2013) 213 Cal.App.4th 872, 909, [cleaned up].)¿¿Here, because the Court finds that the Cross-Complaint is uncertain and fails to allege facts sufficient to constitute causes of action for equitable indemnity or contribution, KT Construction fails to demonstrate that this action is a proper subject of declaratory relief. 

IV.        CONCLUSION

Based on the foregoing, the demurrer is SUSTAINED.  Leave to amend is GRANTED.

KT Construction is to file and serve the First Amended Cross-Complaint within 20 days of this order.

Yvonne Mao, M.D., Inc. is to file and serve their responsive pleading within 30 days of service of the First Amended Cross-Complaint.

Moving party to give notice, unless waived. 

Dated:   August 10, 2023                                          ___________________________________

                                                                                    Kerry Bensinger

                                                                                    Judge of the Superior Court

            Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter.  Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue.  If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.