Judge: Michael E. Whitaker, Case: 21STCV40732, Date: 2023-03-23 Tentative Ruling

Case Number: 21STCV40732    Hearing Date: March 23, 2023    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely (which is highly encouraged).  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING

MOTION

Plaintiff Hasmik Poghosyan (Plaintiff) sued Defendants Scenic Homes, Inc., Phoenicia Restaurant, and Ara Kalfayan (collectively, Cross-Complainants) based on a slip and fall incident which occurred on Cross-Complainants’ premises. 

Cross-Complainants then filed a Cross-Complaint against Cross-Defendants Aram Alajajian and Alajajian Marcoosi Architects, Inc. (collectively, Cross-Defendants) asserting causes of action for indemnity and contribution.  The First Amended Cross-Complaint (FAXC) is currently the operative pleading. 

Cross-Defendants demur to the FAXC.  Cross-Complainants oppose the demurrer.  Cross-Defendants reply.

Foremost, Cross-Defendants contend that Cross-Complainants’ opposition is untimely. Per Code of Civil Procedure section 1005, all papers opposing a motion shall be filed with the Court and a copy served on each party at least nine court days before the hearing. (Code Civ. Proc., § 1005, subd. (b).) Based on the hearing date of March 23, 2023, Cross-Complainants were thus required to file and serve the opposition by no later than March 10, 2023.  Cross-Complainants did not file their opposition until March 17, 2023.  Notwithstanding, Cross-Defendants have submitted a reply to the opposition with full briefing on the merits.  The Court therefore concludes that Cross-Defendants will not be prejudiced by the Court’s consideration of Cross-Complainants’ opposition on its merits and exercises its discretion to do so.

REQUEST FOR JUDICIAL NOTICE

Under Evidence Code section 451, “[j]udicial notice shall be taken of . . .  [t]he decisional, constitutional, and public statutory law of this state and of the United States and the provisions of any charter described in Section 3, 4, or 5 of Article XI of the California Constitution.” (Evid. Code, § 451, subd. (a).) Under Evidence Code section 452, “[j]udicial notice may be taken of the following matters to the extent that they are not embraced within Section 451: (a) The decisional, constitutional, and statutory law of any state of the United States and the resolutions and private acts of the Congress of the United States and of the Legislature of this state. (b) Regulations and legislative enactments issued by or under the authority of the United States or any public entity in the United States. (c) Official acts of the legislative, executive, and judicial departments of the United States and of any state of the United States. (d) Records of (1) any court of this state or (2) any court of record of the United States or of any state of the United States.” (Evid. Code, § 452, subds. (a)-(c).)

Here, the Court grants Cross-Defendants’ requests for judicial notice of the FAXC and the Complaint per Evidence Code section 452, subdivision (d). 

ANALYSIS

“It is black letter law that a demurrer tests the legal sufficiency of the allegations in a complaint.”  (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.)  In ruling on a demurrer, the court must “liberally construe[]” the allegations of the complaint.  (Code Civ. Proc., § 452.)  “This rule of liberal construction means that the reviewing court draws inferences favorable to the plaintiff, not the defendant.”  (Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th 1228, 1238.)  A general demurrer lies where the facts alleged in the complaint or matters judicially noticed show that plaintiff is seeking relief from the same defendant on the same cause of action as in a prior action, or is asserting an issue decided against plaintiff in the prior action. (Boeken v. Phillip Morris USA, Inc. (2010) 48 Cal.4th 788, 792.)

Cross-Defendants demur to the FAXC which states two causes of action for (1) indemnity, and (2) contribution.  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. (C.W. Howe Partners, Inc. v. Mooradian (2019) 43 Cal.App.5th 688, 700.)  Similarly, contribution also requires a finding of joint liability. (See Coca Cola Bottling Company v. Lucky Stores, Inc. (1992) 11 Cal.App.4th 1372, 1378.)

Cross-Defendants specifically argue that the FAXC does not state the necessary facts to state the two causes of action, based on Cross-Complainants failure to obtain a certificate of merit as required by Code of Civil Procedure section 411.35.

Code of Civil Procedure section 411.35, subdivision (a), requires the attorney for the plaintiff to file a certificate of merit on or before the date of service of the complaint, in every action arising out of the professional negligence of a person holding a valid architect’s certificate, a valid registration as a professional engineer, or a valid land surveyor’s license.  (Code Civ. Proc. § 411.35, subd. (a).)  The failure to file a certificate in accordance with section 411.35 shall be grounds for a demurrer or a motion to strike.  (Code Civ. Proc. § 411.35, subd. (g).) 

The Court notes, as Cross-Defendants highlight, a certificate of merit is not included in the FAXC.  In opposition, Cross-Complainants concede that they have not yet been able to obtain and file a supporting certificate of merit from the architect they have consulted with.  However, Cross-Complainants request the Court either reschedule the hearing for the instant demurrer, or grant them leave to amend so that they have the opportunity to re-file their cross-complaint with the correct certificate of merit documentation.  In reply, Cross-Defendants argue that it is too late for Cross-Complainants to obtain and file a certificate of merit.

The certificate of merit must be filed within the statute of limitations or within 60 days of the timely filing of the complaint.  (Curtis Eng’g Corp. v. Superior Court, 16 Cal. App. 5th 542, 550 [holding that the trial court was required to dismiss the complaint because the certificate of merit was not filed within the statute of limitations or within 60 days after filing the original complaint].)   

But the Court concludes that the applicable statutes of limitations for the equitable indemnity and contribution causes of action asserted in the FAXC have not lapsed. 

With respect to the claim for equitable indemnity, the “[c]ause of action does not accrue until the person pays the injured third party's claim.”  (Preferred Risk Mutual Ins. Co. v. Reiswig (1999) 21 Cal.4th 208, 213.)  And regarding the claim for contribution, “[s]uch right of contribution may be enforced only after one tortfeasor has, by payment, discharged the joint judgment or has paid more than his pro rata share thereof. It shall be limited to the excess so paid over the pro rata share of the person so paying and in no event shall any tortfeasor be compelled to make contribution beyond his own pro rata share of the entire judgment.”  (Code Civ. Proc., § 875, subd. (c).)  Under Section 875, a claim for contribution arises after judgment is entered against two or more tortfeasors.  (See General Electric Co. v. State of Cal. ex rel. Dept. Pub. Wks. (1973) 32 Cal.App.3d 918, 925 [“It has now been repeatedly held that the condition of this statute—a money judgment rendered jointly against two or more defendants—must exist before either may assert a right to contribution from the other”].) 

Here, Cross-Complainants do not allege that they paid all or a portion of the damages for Plaintiff’s underlying claims, or that a judgment has been entered against two or more tortfeasors, such as Cross-Complainants and Cross-Defendants, based upon Plaintiff’s claims.  Thus, the Court finds that the causes of action for equitable indemnity and contribution have not accrued and Cross-Complainants still have an opportunity to file a supporting certificate of merit.  As such, the Court shall sustain Cross-Defendants’ demurrer with leave to amend. [1]

CONCLUSION AND ORDER

Therefore, the Court sustains Cross-Defendants demurrer to the FAXC with leave to amend and orders Cross-Complainants to file and serve an amended cross-complaint in conformance with the Court’s ruling within 20 days of notice of the Court’s ruling. 

Cross-Defendants shall provide notice of the Court’s ruling and file a proof of service of such.