Judge: Mark H. Epstein, Case: 24SMCV02532, Date: 2025-05-29 Tentative Ruling

Case Number: 24SMCV02532    Hearing Date: May 29, 2025    Dept: I

The motion to strike is GRANTED WITH LEAVE TO AMEND.  Cross-complainant Blue Water Glass contends that cross-defendant Dickinson entered into a contract for a specific cope of work.  According to Blue Water, Dickinson’s conduct contributed to plaintiff’s injury.  Dickinson moves to strike the first cause of action for express indemnity.  There is no opposition.  The court believes that his should have been raised by demurrer, not a motion to strike.  (CLD Construction, Inc. v. City of San Ramon (2004) 120 Cal.App.4th 1141.)  That, however, is a technical defect and little purpose would be served by denying the motion on that ground.

On the merits, Dickinson argues that the contract does not disclose a duty to indemnity Blue Water.  There are two forms of indemnity that can be asserted.  One is express indemnity—which is at issue here.  That arises where a contractual provision expressly provides that one party will indemnify the other.  Implied indemnity—not at issue in this motion—arises where there is no express indemnity but the law will imply a right of indemnity.  The two are mutually exclusive.  To the extent that there is an express indemnity, generally it will displace an implied indemnity.  That is because the court will hold the parties to their agreement.  If they discussed and came to terms on an indemnity, then that is the only indemnity there will be absent one implied by law and that is unwaivable.    (C.L. Peck Contractors v. Superior Court (2984) 159 Cal.App.3d 828.)

Because the contract does not contain any express indemnification clause—at least that the court sees—the motion must be GRANTED.  Cross-complainant will have leave to amend either to show that there is such a clause or to proceed on the equitable indemnity theory only.  The court sees that Blue Water had a duty to obtain insurance naming Dickinson as an additional insured, but cross-complainant will have to explain how that is an express indemnity clause.

Cross-complainant has 30 days’ leave to amend.