TENTATIVE RULING

Defendant Kaijun “Kane” Lim’s Motion for Judgment on the Pleadings is GRANTED with thirty (30) days leave to amend.

Plaintiff Lori L. Tartol may amend her complaint only as authorized by the Court’s order and may not amend the complaint to add a new party or cause of action without having obtained permission to do so. (Harris v. Wachovia Mortgage, FSB (2010) 185 Cal.App.4th 1018, 1023.)

Defendant Kaijun “Kane” Lim to give notice. 

REASONING

Request for Judicial Notice

Defendant Kaijun “Kane” Lim (“Defendant”) requests judicial notice of Plaintiff Lori L. Tartol (“Plaintiff”)’s verified responses to Defendant’s Requests for Admission, Set One. Defendant’s request is GRANTED pursuant to Evidence Code section 452, subdivision (h).

Legal Standard

A motion for judgment on the pleadings has the same function as a general demurrer but is made after the time for demurrer has expired. (Code Civ. Proc., § 438, subd. (f).) Except as provided by statute, the rules governing demurrers apply. (Civic Partners Stockton, LLC v. Youssefi (2013) 218 Cal.App.4th 1005, 1012.) “Judgment on the pleadings is proper when the complaint does not state facts sufficient to constitute a cause of action against the defendant.” (Rolfe v. Cal. Transp. Comm’n (2002) 104 Cal.App.4th 239, 242; see also Code Civ. Proc., § 438, subd. (c)(1)(B)(ii).) “Like a demurrer, the grounds for the motion [for judgment on the pleadings] must appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice.” (Civic Partners Stockton, LLC v. Youssefi, supra, 218 Cal.App.4th at p. 1013.)

Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (See Goodman v. Kennedy (1976) 18 Cal.3d 335, 349 [court shall not “sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment”]; Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028, 1037 [“A demurrer should not be sustained without leave to amend if the complaint, liberally construed, can state a cause of action under any theory or if there is a reasonable possibility the defect can be cured by amendment.”]; Vaccaro v. Kaiman (1998) 63 Cal.App.4th 761, 768 [“When the defect which justifies striking a complaint is capable of cure, the court should allow leave to amend.”].) The burden is on the complainant to show the Court that a pleading can be amended successfully. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)

Analysis

Defendant moves for judgment on the pleadings as to Plaintiff’s claim for equitable indemnity against him. “Equitable indemnity, which requires no contractual relationship, is premised on a joint legal obligation to another for damages; it is subject to allocation of fault principles and comparative equitable apportionment of loss.” (C.W. Howe Partners Inc. v. Mooradian (2019) 43 Cal.App.5th 688, 700, quotation marks omitted.) “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.” (Ibid., quotation marks, brackets, and ellipses omitted.)

Plaintiff has not filed an opposition to this motion. While the moving party generally bears the initial burden of proof on its motion, and lack of opposition will not automatically entitle the moving party to prevail on its motion, a party’s failure to file an opposition can be considered a concession that the motion is meritorious. (See Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1410.)

In the third cause of action, Plaintiff seeks equitably indemnity from Defendant on the ground that Defendant, as part of The Oppenheim Group, Inc., made misrepresentations to the property buyer such that Plaintiff is entitled to equitable indemnity for any liability for those statements. (First Am. Compl. ¶ 36.) Defendant states that Plaintiff has made binding admissions that the misrepresentations were made by her agent to Defendant and the buyer, i.e., Plaintiff’s claims fails because she admits that Defendant did not commit the alleged fraud. This is supported by Plaintiff’s discovery response that she signed a Seller Property Questionnaire communicating the information, but this information was inserted at the direction of her agent. (Req. for Judicial Notice, Ex. 1.) Moreover, equitable indemnity requires a “joint legal obligation to another for damages,” but Plaintiff has denied any such obligation. Plaintiff has also failed to allege the specific nature of the purported misrepresentation made by Defendant. For these reasons, Defendant Kaijun “Kane” Lim’s Motion for Judgment on the Pleadings is GRANTED with thirty (30) days leave to amend.