Judge: Lee W. Tsao, Case: 19NWCV00083, Date: 2023-03-09 Tentative Ruling

Case Number: 19NWCV00083    Hearing Date: March 9, 2023    Dept: C

KELTERITE CORPORATION v. CITY OF SANTA FE SPRINGS

CASE NO.:  19NWCV00083

HEARING:  03/09/23

#8

TENTATIVE ORDER

     I.        Cross-Defendant GENTRY BROTHERS, INC.’s Demurrer to Defendant/Cross-Complainant DANIEL REYES’ First Amended Cross-Complaint is OVERRULED in part and SUSTAINED without leave to amend.

    II.        Cross-Defendant PAVEWEST, INC.’s Demurrer to Defendant/Cross-Complainant DANIEL REYES’ First Amended Cross-Complaint is OVERRULED in part and SUSTAINED without leave to amend in part.

Moving Parties to give Notice.

Defendant/Cross-Complainant DANIEL REYES’ Request for Judicial Notice is GRANTED. (Cal. Ev. Code §452.)

Plaintiffs KELTERITE CORPORATION and SIALIC CONTRACTORS CORPORATION’s operative Sixth Amended Complaint (“6AC”) alleges that Defendant ONWARD ENGINEERING (“Onward”) is an agent of CITY OF SANTA FE SPRINGS (“City”). Defendant/Cross-Complainant DANIEL REYES (“Reyes”) is an employee of Onward. Reyes, on behalf of himself and while acting in the course and scope of employment with Onward as a project manager and agent for the City, wrongfully interfered with Plaintiff Kelterite’s business and contractual relationships by banning and preventing asphalt materials of Kelterite from being used on various projects undertaken by the City.

Reyes’ FAXC alleges that “GENTRY made untrue statements that REYES ‘rejected’ KELTERITE thus proximately causing and contributing to PLAINTIFF’s alleged damages from allegedly being unable to supply its materials in CITY OF SANTA FE SPRINGS for other customers due to CROSS DEFENDANT GENTRY’s statements and the alleged breach of the alleged contracts by other customers. [¶] In addition… PAVEWEST made untrue and defamatory statements in writing and verbally to others, including but not limited to, that CROSS-COMPLAINANT had a ‘personal vendetta’ against PLAINTIFF and did not want PLAINTIFF making money in the CITY OF SANTA FE SPRINGS thus proximately causing and contributing to PLAINTIFF’s alleged damages from allegedly being unable to supply its materials in CITY OF SANTA FE SPRINGS to other customers due to… PAVEWEST’s statements and the alleged breach of the alleged contracts by other customers” (FAXC ¶¶9-10.)

Reyes’ subject FAXC asserts the following causes of action: (1) Equitable Indemnity; (2) Comparable Indemnity; (3) Declaratory Relief; (4) Contribution and Repayment; (5) Tort of Another; and (6) Contractual Indemnity.

First, Second, Third, and Fourth Causes of Action

“A right of equitable indemnity can arise only if the prospective indemnitor and indemnitee are mutually liable to another person for the same injury.” (Fremont Reorganizing Corp. v. Faigin (2011) 198 Cal.App.4th 1153, 1177.) Equitable indemnity “applies only among defendants who are jointly and severally liable to the plaintiff.” (Stop Loss Ins. Brokers, Inc. v. Brown & Toland Medical Group (2006) 143 Cal. App. 4th 1036, 1040.) There must be some basis for tort liability against an indemnitor, which generally is based upon a duty owed to the plaintiff, although other theories may apply, including vicarious or strict liability (Weseloh Family Ltd. Partnership v. K.L. Wessel Construction Co., Inc. (2004) 125 Cal.App.4th 152, 175.)

The demurrer to the first, second, third, and fourth causes of action is overruled. Reyes alleges that Gentry and Pavewest made untrue statements about Kelterite, thus causing some of Kelterite’s claimed injuries. Construing the allegations liberally in favor of Reyes, the Court finds that they are sufficient to withstand demurrer. The arguments raised in the instant demurrers involve factual determinations inappropriately resolved at this stage in the litigation.  

Fifth Cause of Action – Tort of Another

Damages for the “tort of another” are a species of remedy in tort, not a separate cause of action. (See Prentice v. North Am. Title Guaranty Corp., Alameda Division (1963) 59 Cal.2d 618.) However, “the nature and character of a pleading are to bet determined from its allegations, regardless of what they may be called….” (City of Santa Paula v. Narula (2003) 114 Cal.App.4th 485, 491.) Given the Court’s ruling as to the rest of Reyes’ causes of action, the demurrer to the fifth cause of action is overruled.

Sixth Cause of Action – Contractual Indemnity (against Gentry)

Reyes is a non-party to the contractual indemnity provision at issue. Therefore, Reyes has no standing to enforce the indemnity provision in the contract between Cross-Defendant Gentry and the City. The Court notes that the City is not named as a Cross-Defendant in the subject FAXC. The indemnification provision at issue only gives the City the right to enforce indemnification on behalf of itself and of its agents, officers, representatives, or employees.

The demurrer to the sixth cause of action is sustained without leave to amend.