Judge: Mark A. Young, Case: 23SMCV02078, Date: 2024-12-17 Tentative Ruling
Case Number: 23SMCV02078 Hearing Date: December 17, 2024 Dept: M
CASE NAME: 1735 Westgate LC, et al., v. Ecogreen
Construction Inc., et al.
CASE NO.: 23SMCV02078
MOTION: Demurrer to the First Amended
Cross-Complaint
HEARING DATE: 12/17/2024
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.)
Any party, within the time allowed to
respond to a pleading may serve and file a notice of motion to strike the whole
or any part thereof. (CCP § 435(b)(1); Cal. Rules of Court, Rule 3.1322(b).)
The court may, upon a motion or at any time in its discretion and upon terms it
deems proper: (1) strike out any irrelevant, false, or improper matter inserted
in any pleading; or (2) strike out all or any part of any pleading not drawn or
filed in conformity with the laws of California, a court rule, or an order of
the court. (CCP §§ 436(a)-(b); Stafford v. Shultz (1954) 42 Cal.2d 767,
782 [“Matter in a pleading which is not essential to the claim is surplusage;
probative facts are surplusage and may be stricken out or disregarded”].)
“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.)
ANALYSIS
Defendant/Cross-Defendant Precise Air Systems demurs to the
First Amended Cross-Complaint (FACC) filed by Cross-Complainant Ecogreen
Construction Inc. (Roe 2).
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.)
On May 12, 2023, Plaintiff filed
the underlying complaint against Ecogreen relating 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”). (FACC ¶ 12.) Cross-Defendants, including Precise, entered into
contracts to fully indemnify Ecogreen, or are otherwise liable for Plaintiff’s
alleged damages. (¶ 13.)
According to the FACC, Cross-Defendants, including
Precise, owed a duty to Cross-Complainant to exercise reasonable care in the
performance of their work on the Properties. (FACC ¶ 15.) Precise breached
their duty by negligently, carelessly, and wrongfully failing to use reasonable
care in connection with their work performance in the construction of the
Properties 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, and replace, and mitigate damage to the Properties. (¶
16.) Thus, the FACC alleges the ultimate facts of negligence against Precise,
including a contractual duty to perform the construction work at the properties
with reasonable care.
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.) Here, the FACC
alleges property damage. (FACC ¶ 16.)
Accordingly, the demurrer is OVERULED as to this cause of
action.
Contract-Based
Causes
Precise
demurs to the contract claims (second, third and fourth causes of action),
arguing that the FACC fails to allege a breach of contract with
specificity.
“The
standard elements of a claim for breach of contract are: ‘(1) the contract, (2)
plaintiff’s performance or excuse for nonperformance, (3) defendant’s breach,
and (4) damage to plaintiff therefrom.’” (Wall Street Network, Ltd. v. New
York Times Co. (2008) 164 Cal.App.4th 1171, 1178.) Parties may expressly
contract for a duty to indemnify. (Valley Crest Landscape Development, Inc.
v. Mission Pools of Escondido, Inc. (2015) 238 Cal.App.4th 468, 479.) Indemnity
refers to “the obligation resting on one party to make good a loss or damage
another party has incurred.” (Rossmoor Sanitation, Inc. v. Pylon, Inc.
(1975) 13 Cal.3d 622, 628.) Although the categories of indemnity were once
regarded as distinct, California courts now recognize only two basic types of
indemnity: express indemnity and equitable indemnity. (Bay Development, Ltd.
v. Superior Court (1990) 50 Cal.3d 1012, 1029–1030, fn. 10.) The elements
of a cause of action for 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 contractually or equitably responsible." (Great Western
Drywall, Inc. v. Interstate Fire & Gas Co. (2008) 161 Cal.App.4th 1033,
1041.)
Cross-Complainant
states claims for breach of contract and express immunity against Precise. The
breach of contract arises from an alleged failure to defend, indemnify or
maintain insurance. Cross-Defendants agreed to defend and indemnity
Cross-Complainant, relative to claims arising out of, or related in any way, to
the Cross-Defendants’ alleged acts/omission. (FACC ¶ 18.) The agreements
between Cross-Complainant and the Cross-Defendants contain express indemnity
which require defense and indemnity. (Id., ¶19, Ex. A.) Further, Cross-Defendants
were to carry and pay for insurance, and named Ecogreen and the owner as
additional insureds. (¶¶ 20-21.) Plaintiff’s complaint arises from acts or
omissions of Cross-Defendants, including Precise, and in connection with the
performance of the contracts entered with Cross-Complainant. (¶ 22.) Cross-Defendants
breached one or more of the provisions of the contracts in one or more of the
following ways: (a) by failing to obtain the insurance required therein; (b) by
refusing to indemnify Cross-Complainant; and/or (c) by refusing to defend Cross-Complainant.
(¶ 23.) Cross-Defendants failed to defend and/or indemnify Cross-Complainant
against any claims for damages arising out of the Cross-Defendants’ alleged
acts/omissions. (¶ 24.) If Cross-Complainant is found to be liable to
Plaintiff, such damage was ultimately caused by the acts, breaches, and
omissions of the Cross-Defendants. (¶ 25.) Thus, Cross-Complainant is entitled
to indemnification from the Cross-Defendants for any amount that
Cross-Complainant may become obliged to pay. (¶ 25.) Further, Cross-Defendants
have notice of the action, but failed to undertake defense of the action and
refused to indemnify Cross-Complainant. (¶ 26.)
As
set forth above, Cross-Complaint has sufficiently alleged facts supporting the
breach of contract causes of action. Accordingly, the demurrer is OVERRULED as
to these causes of action.
Equitable
Indemnity
Precise
demurs to the FACC on the grounds that it cannot claim both contractual and
equitable indemnity. Precise cites no authority suggesting that
Cross-Complainant cannot plead alternative legal theories. A plaintiff is
entitled to plead facts or legal theories in the alternative, even ones that
are inconsistent. (Rader Co. v. Stone (1986) 178 Cal.App.3d 10,
29.) When a pleader is in doubt about what actually occurred or what can
be established by the evidence, he or she may¿plead¿in the alternative and make¿inconsistent¿factual
allegations. (Mendoza v. Rast Produce Co., Inc.¿(2006) 140 Cal.App.4th
1395, 1402;¿Adams v. Paul¿(1995) 11 Cal.4th 583, 593.) Otherwise, the
claim is well-stated. (FACC ¶¶ 43-46.) Cross-Complainant alleges tort liability
and implied contractual indemnity against Precise, which is all that is
required at the pleading stage. (See BFGC Architects Planners, Inc. v.
Forcum/Mackey Construction, Inc. (2004) 119 Cal.App.4th 848, 852 [equitable
indemnity applies “among defendants who are jointly and severally liable to the
plaintiff”].)
Accordingly,
the demurrer is OVERRULED.
Declatory
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. (FACC ¶50.)
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 contribution between Ecogreen and Precise. As the
claim alleges a justiciable controversy regarding the parties’ legal duties,
the demurrer cannot be sustained.
Accordingly,
the demurrer is OVERRULED as to this cause of action.
Precise
to file an answer within 20 days.