Judge: Mark A. Young, Case: 23SMCV02078, Date: 2024-07-02 Tentative Ruling
Case Number: 23SMCV02078 Hearing Date: July 2, 2024 Dept: M
CASE NAME: 1735 Westgate LLC v. Ecogreen
Construction Inc., et al.
CASE NO.: 23SMCV02078
MOTION: Demurrer to the Cross-Complaint by Ecogreen
HEARING DATE: 7/2/2024
LEGAL STANDARD
A demurrer for sufficiency tests whether
the complaint states a cause of action. (Hahn v. Mirda (2007) 147
Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations
liberally and in context. In a demurrer proceeding, the defects must be
apparent on the face of the pleading or via proper judicial notice. (Donabedian
v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) A demurrer tests the
pleadings alone and not the evidence or other extrinsic matters. Therefore, it
lies only where the defects appear on the face of the pleading or are
judicially noticed. (CCP §§ 430.30, 430.70.) At the pleading stage, a plaintiff
need only allege ultimate facts sufficient to apprise the defendant of the
factual basis for the claim against him. (Semole v. Sansoucie (1972) 28
Cal. App. 3d 714, 721.) A “demurrer does not, however, admit contentions,
deductions or conclusions of fact or law alleged in the pleading, or the
construction of instruments pleaded, or facts impossible in law.” (S. Shore
Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 732, internal citations
omitted.)
A special demurrer for uncertainty is
disfavored and will only be sustained where the pleading is so bad that
defendant cannot reasonably respond—i.e., cannot reasonably determine what
issues must be admitted or denied, or what counts or claims are directed
against him/her. (CCP § 430.10(f); Khoury v. Maly’s of Calif., Inc.
(1993) 14 Cal.App.4th 612, 616.) Moreover, even if the pleading is somewhat
vague, “ambiguities can be clarified under modern discovery procedures.” (Ibid.)
“Liberality in permitting amendment is
the rule, if a fair opportunity to correct any defect has not been given.” (Angie
M. v. Superior Court (1995) 37 Cal.App.4th 1217, 1227.) It is an abuse of
discretion for the court to deny leave to amend where there is any reasonable
possibility that plaintiff can state a good cause of action. (Goodman v.
Kennedy (1976) 18 Cal.3d 335, 349.) The burden is on plaintiff to show¿in
what manner¿plaintiff can amend the complaint, and¿how¿that
amendment will change the legal effect of the pleading.¿(Id.)
MEET AND CONFER
Before filing a demurrer or motion to
strike, the moving party must meet and confer in person or by telephone with the
party who filed the pleading to attempt to reach an agreement that would
resolve the objections to the pleading. (CCP §§ 430.41, 435.5.) Counsel’s
declaration regarding one mail correspondence exchanged between the parties
does not satisfy CCP § 430.41(a)’s requirement that the parties meet and confer
in person or by telephone. (Aroustamian Decl. ¶¶ 2-3.) On this occasion, the
Court will proceed to address the merits of the demurrer despite the
insufficiency of the meet and confer efforts. The Court cautions the parties
that a code-compliant meet and confer effort is required for each demurrer and
motion to strike on subsequent pleadings.
ANALYSIS
Defendant/Cross-Defendant Precise Air Systems demurs to the
Cross-Complaint filed by Cross-Complainant Ecogreen Construction Inc.
Negligence
The elements
of negligence are: 1) a legal duty owed to plaintiffs to use due care; 2)
breach of duty; 3) causation; and 4) damage to plaintiff. (County of
Santa Clara v. Atlantic Richfield Co. (2006) 137 Cal.App.4th 292,
318.) “Ordinarily, negligence may be alleged in general terms, without
specific facts showing how the injury occurred, but there are ‘limits to the
generality with which a plaintiff is permitted to state his cause of action,
and . . . the plaintiff must indicate the acts or omissions which are said to
have been negligently performed. He may not recover upon the bare
statement that the defendant’s negligence has caused him injury.’
[Citation].” (Berkley v. Dowds (2007) 152 Cal.App.4th 518,
527.) However, there is no requirement that plaintiff identify and allege
the precise moment of the injury or the exact nature of the wrongful act. (Hahn
v. Mirda (2007) 147 Cal.App.4th 740, 747.)
Generally, the
CC alleges the basic elements of negligence. On May 12, 2023, Plaintiff
filed the underlying complaint against Ecogreen relating to and pertaining to
work performed at six single family residences, located at 118050, 11851,
11854, 11855 and 11859 Bella Court, Los Angeles, California, 90025 (hereinafter
referred to as the “Properties”). (CC ¶ 13.) Plaintiff makes several claims for
breach of contract and negligence from this work. (¶ 14.) The “Subcontractor
Cross-Defendants” entered into contracts to fully indemnify Cross-Complainant
and to obtain necessary insurance on behalf of Cross-Complainant as it relates
to the work performed at the Properties, and/or are otherwise liable to Cross-Complainant
for the damages for which Plaintiff seeks to recover. (Id.) Such defendants thereby
owed a duty to Cross-Complainant to exercise reasonable care in the performance
of its work at the Properties. (¶16.) Precise allegedly breached this duty “by
negligently, carelessly, and wrongfully failing to use reasonable care in
connection with their work performance in the construction of the Properties.
[…] Cross-Defendants and each of them carelessly, negligently, and wrongfully
failed to use reasonable care in discharging their duties in the performance of
their work and supply their respective products in a workmanlike manner in
connection with the Properties.” (Id.) As a result, Cross-Complainant
sustained damages including, but not limited to, litigation costs and expenses,
fees to inspect, repair, replace and mitigate damage to the properties. (¶ 17.)
While
the CC alleges, as matters of ultimate fact, that the Subcontractor Defendants had
a contractual duty to perform the construction work at the properties with
reasonable care, the CC does not allege that Precise is among the Subcontractor
Defendants. The CC alleges that “Recinos Glass, Regency Plastering,
Professional Painting and Rosales Roofing” are referred to as the
“Subcontractor Cross-Defendants.” (Compl., ¶ 6.) Thus, the CC does not allege
that Precise had any duty to Cross-Complainant, or breach any such duty.
Precise
also raises the economic loss doctrine. (Aas v. Superior Court (2000) 24
Cal.4th 627.) However, as Aas makes clear, this rule would only preclude
negligence claims that have not resulted in property damage or personal injury.
(Id. at 636.)
Accordingly,
demurrer is SUSTAINED with leave to amend as to the first cause of action.
Breach of
Contract Causes (Express Indemnity, Duty to Defend, Defective Work)
Precise demurs to the contract
claims (second, third and fourth causes of action). Precise argues that the CC
fails to state a claim for breach of contract arising from a failure to defend,
indemnify or maintain insurance. However, these causes of action are not
directed against Precise. Precise was added as Roe 2. The second, third and
fourth causes of action are alleged against Roes 11-100. Additionally,
the facts of the breach of contract cause of action only state that the
Subcontractor Cross Defendants agreed to the indemnity contracts. (CC ¶¶ 19,
31, 38.) The claim therefore is not made against Precise. Accordingly, the
demurrer is moot as to these causes of action.
Implied
Indemnity and Contribution/Apportionment
Precise demurs to the fifth and sixth causes of action. Precise
argues that Cross-Complainant is precluded from asserting
entitlement to equitable indemnity at the same time as express indemnity (E.L.
White, Inc. v. City of Huntington Beach (1978) 21 Cal.3d 497 506-507
["An express indemnity clause is accorded a certain preemptive effect,
displacing any implied rights which might otherwise arise within the scope of
its operation."].) Even if this is proper grounds for demurrer, as
discussed above, Cross-Complainant has not alleged that Precise is subject to
an express indemnity contract. Thus, the demurrer is unfounded.
Accordingly, the demurrer is OVERRULED as to these causes of
action.
Declaratory
Relief
Precise demurs to the final cause of action for declaratory
relief. A party’s declaratory relief complaint
must specifically allege that an actual, present controversy exists, and must
state the facts of the respective claims concerning the disputed subject
matter. (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 79.) The
complaint will be found sufficient if it sets forth facts showing the existence
of an actual controversy relating to the parties’ legal rights and duties, and
requests the court to adjudge these rights and duties. (Ludgate Ins. Co. v.
Lockheed Martin Corp. (2000) 82 Cal.App.4th 592, 606.) “Strictly
speaking, a demurrer is a procedurally inappropriate method for disposing of a
complaint for declaratory relief.” (Lockheed Martin Corp. v. Continental
Ins. Co. (2005) 134 Cal.App.4th 187, 221.) Nevertheless, the court may
sustain a demurrer to a declaratory relief claim if the complaint fails to
allege an actual or present controversy, or that the controversy is not
justiciable or if it determines that a judicial declaration is not “necessary
or proper at the time under all the circumstances.” (CCP § 1061; DeLaura v.
Beckett (2006) 137 Cal.App.4th 542, 545.) If no facts are alleged with
would render necessary or proper a declaration with respect to the future
conduct of the parties, resolution by demurrer is appropriate. (Osseous
Technologies of America, Inc. v. DiscoveryOrtho Partners LLC (2010) 191
Cal.App.4th 357, 376 [there is no basis for declaratory relief where only past
wrongs are involved].)
Cross-Complainant alleges that an actual controversy
has arisen and now exists between itself and Precise regarding their respective
rights, duties, and obligations for indemnity and contribution. (CC ¶51.) Indeed,
Precise disputes its alleged duty to indemnify, defend or contribute to
Plaintiff’s claimed damages. Therefore, the Court may declare these prospective
rights to indemnify and/or contribute between Ecogreen and Precise. (¶ 52.)
Accordingly,
the demurrer is OVERRULED as to this cause of action.
Cross-Complainant
may file an amended cross-complaint within 20 days.