Judge: Kerry Bensinger, Case: 24STCV23784, Date: 2025-02-25 Tentative Ruling

Case Number: 24STCV23784    Hearing Date: February 25, 2025    Dept: 31

Tentative Ruling

Judge Kerry Bensinger, Department 31

HEARING DATE:      February 25, 2025                                      TRIAL DATE:  Not set

CASE:                                GH Palmer, Inc., et al. v. Aquatherm, L.P., et al.

CASE NO.:                 21STCV23784

MOTION TO DISMISS DEFENDANTS’ CROSS-COMLAINT AS TO PLAINTIFF GH PALMER, INC.

MOVING PARTY:               Plaintiff/Cross-Defendant GH Palmer, Inc.

RESPONDING PARTY:     No opposition

I.          INTRODUCTION

On June 25, 2021, plaintiffs GH Palmer, Inc. (“GH Palmer”), Palmer/Flower Street Properties, and GHP Management Corporation (collectively, “Plaintiffs”), initiated this action against defendants Aquatherm, L.P., AENA NA, L.C., and Aquatherm GMBH (collectively, “Defendants”), for (1) Breach of Express Warranty, (2) Strict Products Liability – Manufacturing Defect, and (3) Strict Products Liability – Design Defect.  As alleged in the Complaint, GH Palmer, a real estate developer, owns and operates apartment complexes known as “The Lorenzo,” the “Da Vinci,” and “Broadway Palace”.   Defendants sold defective Aquatherm piping to Plaintiffs which were installed in the Subject Properties.  The pipes were sold with a warranty, which Defendants have refused to honor.

On February 23, 2024, Defendants filed a Cross-Complaint against GH Palmer, Inc. and GJM Engineering, Inc. (“GJM”) for (1) Negligence, (2) Contribution, and (3) Implied and Equitable Indemnity.  The Cross-Complaint alleges as follows: GJM is a plumbing contractor that installed the allegedly defective piping in the Subject Properties.  After construction on the Lorenzo was completed, Aquatherm L.P. identified and advised GH Palmer and/or GJM that GJM used improper installation methods, system design, system maintenance, and system operations for the Aquatherm piping. 

On May 9, 2024, GH Palmer filed a demurrer to the Cross-Complaint.  The court sustained the demurrer as to all causes of action without leave to amend on August 19, 2024.

On December 23, 2024, GH Palmer filed this Motion to dismiss Defendants’ Cross-Complaint As to Plaintiff GH Palmer.

The motion is unopposed.

II.        DISCUSSION & LEGAL STANDARD 

            Pursuant to Code of Civil Procedure section 581, GH Palmer seeks an order dismissing Defendants’ Cross-Complaint as to GH Palmer. 

Code of Civil Procedure section 581 states, “The court may dismiss the complaint as to that defendant when: (1) Except where Section 597 applies, after a demurrer to the complaint is sustained without leave to amend and either party moves for dismissal.”  (Code Civ. Proc., § 581(f)(1).)  The term “Complaint” means “complaint and a cross-complaint.”  (Code Civ. Proc. § 581(a)(2).)

            Here, GH Palmer moves for dismissal following the court’s order sustaining GH Palmer’s demurrer to Defendants’ Cross-Complaint without leave to amend.  (See Minute Order, dated August 19, 2024.)  Dismissal of Defendants’ Cross-Complaint as to GH Palmer is therefore warranted.

III.       CONCLUSION

            The unopposed Motion to Dismiss the Defendants’ Cross-Complaint As To GH Palmer, Inc. is GRANTED.  The Cross-Complaint is dismissed as to Plaintiff GH Palmer, Inc. with prejudice.

Moving party to give notice. 

Dated:   February 25, 2025