Judge: Lee W. Tsao, Case: 23NWCV02659, Date: 2024-09-25 Tentative Ruling

Case Number: 23NWCV02659    Hearing Date: September 25, 2024    Dept: C

BARAJAS AND NIEVES v. C.C.M. INVESTMENTS, LLC, ET AL.

CASE NO.:  23NWCV02659

HEARING:  9/25/24 @ 9:30 A.M.

#5

TENTATIVE RULING

Cross-Defendants Jose Vasquez Barajas and Veronica Nieves’ demurrer is OVERRULED in part and SUSTAINED in part without leave to amend as set forth below. 

Plaintiff to give NOTICE.

This motion is unopposed as of September 19, 2024.

Background

Plaintiffs/Cross-Defendants Jose Vasquez Barajas and Veronica Nieves (“Cross-Defendants”) bought property known as 9919 Pomering Road, Downey, California 90240 from Defendants/Cross-Complainants C.C.M. Investments, LLC, and Maria Pena (“Cross-Complainants”).  Cross-Complainants allegedly breached the sales agreement by not correcting all the violations with the City of Downey. Cross-Defendants allegedly had to spend more than $150,000.00 to finish the corrections.

Cross-Complainants countersue on the grounds that Cross-Defendants prevented Cross-Complainants from completing the repairs. Cross-Complainants countersue for the following:

1.    Indemnification

2.    Apportionment of Fault

3.    Declaratory Relief

4.    Breach of Contract.

Cross-Defendants demur to the first, second, third, and fourth causes of action on the grounds that they do not state facts sufficient to constitute causes of action and are uncertain.

Meet and Confer

The parties adequately met and conferred. (Decl. Khojayan, ¶¶ 3,4; Code. Civ. Proc., § 430.41, subd. (a).)

Legal Standard

A demurrer is an objection to a pleading, the grounds for which are apparent from either the face of the complaint or a matter of which the court may take judicial notice.  (Code Civ. Proc., § 430.30, subd. (a); see also Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The purpose of a demurrer is to challenge the sufficiency of a pleading by raising questions of law. (Postley v. Harvey (1984) 153 Cal.App.3d 280, 286.) 

Demurrers for uncertainty are disfavored and are granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond. (Mahan v. Charles W. Chan Ins. Agency, Inc. (2017) 14 Cal.App.5th 841, 848, fn. 3.) 

First Cause of Action: Indemnification

In general, indemnity refers to the obligation resting on one party to make

good a loss or damage another party has incurred. (Prince v. Pacific Gas & Electric Co. (2009) 45 Cal.4th 1151, 1157.) Historically, the obligation of

indemnity took three forms: (1) indemnity expressly provided for by contract

(express indemnity); (2) indemnity implied from a contract not specifically

mentioning indemnity (implied contractual indemnity); and (3) indemnity arising

from the equities of particular circumstances (traditional equitable indemnity). (Ibid.) Courts now recognize there are only two basic types of indemnity: express

indemnity and equitable indemnity. (Ibid.) Though not extinguished, implied contractual indemnity is now viewed as a type of equitable indemnity. (Ibid.)  

The right to implied contractual indemnity is based on the indemnitor’s

breach of contract. (West v. Super. Ct. (1994) 27 Cal.App.4th 1625, 1633.) A contract under which the indemnitor agreed to do work or perform services necessarily implies an obligation to do the work involved in a proper manner and to discharge foreseeable damages resulting from improper performance unless the indemnitee did something wrong to preclude recovery. (Ibid.) An action for implied contractual indemnity is not a claim for contribution from a joint tortfeasor; it is not founded upon a tort or upon any duty which the indemnitor owes to the injured third party. (Ibid.) It is grounded upon the indemnitor’s breach of duty owing to the indemnitee to properly perform its contractual duties. (Ibid.)

In addition, 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.) 

Cross-Defendants argue this cause of action requires a third-party payment of a certain obligation, but here, Cross-Complainants allege indemnity against their contractual counterparts. Cross-Defendants also argue that there are no allegations of damages or basis for restitution and the allegations in the cross-complaint do not match the contractual language.   

Cross-Complainants allege that Cross-Defendants prevented Cross-Complainants from completing the repairs. Further, Cross-Complainants allege the following: “If I am found in some manner responsible to plaintiff or to anyone else as a result of the incidents and occurrences described in plaintiff’s complaint, my liability would be based solely upon a derivative form of liability not resulting from my conduct, but only from an obligation imposed upon me by law; therefore, I would be entitled to complete indemnity from each cross-defendant.” (Cross-Complaint, ¶ 7c.)

The Court determines that equitable indemnity applies because Cross-Defendants’ alleged conduct is not addressed in the contract. 

The demurrer to the first cause of action is OVERRULED.

Second Cause of Action: Apportionment of Fault

Cross-Defendants argue the Cross-Complainant does not allege that any third party shares fault for Cross-Complainants’ damages, this cause of action is an affirmative defense rather than a separate cause of action, and Cross-Complainants do not allege the specific conduct that constitutes apportionment of fault.

Apportionment, or comparative fault, is conduct on the part of the plaintiff which falls below the standard to which he should conform for his own protection, and which is a legally contributing cause cooperating with the negligence of the defendant in bringing about the plaintiff's harm.¿ (Li v. Yellow Cab Co. (1975) 13 Cal.3d 804, 809.)

The comparative fault doctrine’s purpose is to permit the trier of fact to

consider all relevant criteria in apportioning liability. (Pfeifer v. John Crane, Inc. (2013) 220 Cal.App.4^th 1270, 1285.) The doctrine is a flexible concept, under which a jury properly may consider and evaluate the relative responsibility of various parties for an injury whether their responsibility for the injury rests on negligence, strict liability, or other theories of responsibility, in order to arrive at an ‘equitable apportionment or allocation of loss. (Ibid.)

Apportionment applies to tort causes of action, not breach of contract causes of action. (See Li v. Yellow Cab Co. (1975) 13 Cal.3d 804, 809; Pfeifer v. John Crane, Inc. (2013) 220 Cal.App.4^th 1270, 1285.) Because the cross-complaint does not allege any tort causes of action, apportionment of fault does not apply.

Leave to amend should be denied where the facts are not in dispute and the nature of the claim is clear, but no liability exists under substantive law. (Lawrence v. Bank of America (1985) 163 Cal.App.3d 431, 436.) 

The demurrer to the second cause of action is SUSTAINED without leave to amend.

Third Cause of Action: Declaratory Relief

Cross-Defendants argue that because Cross-Complainants did not allege any facts to establish their remaining causes of action, the Court cannot issue 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.) Code of Civil Procedure section 1060 authorizes actions for declaratory relief under a “written instrument” or “contract.” There is no law prohibiting that an agreement be written, rather than oral or implied by conduct. (See, e.g. Gaglione v. Coolidge (1955) 134 Cal.App.2d 518, 521-522.) But there is no basis for declaratory relief where only past wrongs are involved. (Osseous Technologies of America, Inc. v. DiscoveryOrtho Partners LLC (2010) 191 Cal.App.4th 357, 366, emphasis added.) 

Here, Cross-Defendants only allege past wrongs; thus, declaratory relief does not apply.

The demurrer to the third cause of action is SUSTAINED without leave to amend.

Fourth Cause of Action: Breach of Contract

Cross-Defendants argue that the breach of contract cause of action does not allege the required elements and it is unclear how Cross-Complainants suffered any damages.

To state a cause of action for breach of contract, Plaintiff must be able to establish the following: (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 can 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.) 

Here, Cross-Complainants allege that Cross-Defendants breached by preventing Cross-Complainants from completing the repairs. But the written contract contains no such term. 

The demurrer to the fourth cause of action is SUSTAINED without leave to amend.  

Accordingly, the demurrer is SUSTAINED in part and OVERRULED in part as set forth above.