Judge: Michael P. Linfield, Case: 19STCV32597, Date: 2023-08-22 Tentative Ruling
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Case Number: 19STCV32597 Hearing Date: April 5, 2024 Dept: 34
SUBJECT: Demurrer to First Amended
Cross-Complaint
Moving Party: V.M.
Rosich
Resp. Party: James Harden
V.M. Rosich’s Demurrer is SUSTAINED, without
leave to amend the Harden FACC. V.M. Rosich is DISMISSED from the Harden FACC.
PRELIMINARY COMMENT:
Cross-Defendant V.M. Rosich filed this demurrer; among other requests,
he asks “that the entire or part of the First Amended Complaint [sic: First Amended Cross-Complaint] be dismissed.” (See Motion, p. 3:18.) As indicated below, Cross-Defendant Rosich prevails
on his demurrer, and hence will be stricken as a cross-defendant. However, there is another cross-defendant in
this lawsuit, and it have not joined this demurrer. Therefore, the Court will not strike the
entire cross-complaint.
BACKGROUND:
On September 12,
2019, George Santopietro filed his Complaint against James Harden, Jeff
Wiseman, Patrick Michael, Lia Vasdekis, LA Estate Rentals LLC, and Solimar
Management LLC. The causes of action arise from damage that allegedly occurred
after these individuals and corporate entities rented George Santopietro’s real
property.
On February 20, 2020,
Jeff Wiseman and Solimar Management LLC filed their Cross-Complaint against
George Santopietro.
On April 13, 2020, LA
Real Estate Rentals LLC filed: (1) Answer to the Complaint; and (2) Joinder to
the Cross-Complaint.
On July 20, 2020, the
Court granted summary adjudication in favor of Solimar Management LLC and
against George Santopietro as to the second cause of action (breach of the
covenant of good faith and fair dealing) in the Complaint.
On April 13, 2021,
Jeff Wiseman and Solimar Management LLC filed their First Amended
Cross-Complaint (“Wiseman and Solimar FACC”).
On May 5, 2021,
George Santopietro filed his Answer to the First Amended Cross-Complaint.
On June 30, 2023, by
request of George Santopietro, the Clerk’s Office dismissed without prejudice
Lia Vasdekis from the Complaint.
On January 19, 2024,
James Harden filed his Cross-Complaint against Beverly Park North Homeowners
Association and Vmw Trust.
On January 22, 2024,
James Harden filed his First Amended Cross-Complaint (“Harden FACC”).
On
January 26, 2024, George Santopietro filed his First Amended Complaint
(“Santopietro FAC”).
On
February 5, 2024, Patrick Michael filed his First Amended Answer to the
Santopietro FAC.
On
February 5, 2024, Capital Investment Realty Group, LLC filed its First Amended
Answer to the Santopietro FAC.
On
February 6, 2024, James Harden filed his First Amended Answer to the
Santopietro FAC.
On
February 6, 2024, Jeff Wiseman and Solimar Management LLC filed their First
Amended Answer to the Santopietro FAC.
On
February 20, 2024, the Court found related cases 19STCV32597 and 23STCV19315,
and designated 19STCV32597 as the lead case.
On
March 5, 2024, V.M. Rosich filed their Demurrer. In support of the Demurrer,
V.M. Rosich concurrently filed a Request for Judicial Notice.
On
March 18, 2024, James Harden filed his Opposition to the Demurrer.
On
March 28, 2024, V.M. Rosich filed their Reply in support of the Demurrer.
ANALYSIS:
I.
Request
for Judicial Notice
V.M. Rosich requests that the Court take judicial notice of a quitclaim
deed.
The Court GRANTS judicial notice of this
item.
II.
Legal
Standard
“The party
against whom a complaint or cross-complaint has been filed may object, by
demurrer or answer as provided in Section 430.30, to the pleading on any one or
more of” various grounds listed in statute. (Code Civ. Proc., § 430.10.)
“When any ground
for objection to a complaint, cross-complaint, or answer appears on the face
thereof, or from any matter of which the court is required to or may take
judicial notice, the objection on that ground may be taken by a demurrer to the
pleading.” (Code Civ. Proc., § 430.30, subd. (a).)
“A demurrer to a
complaint or cross-complaint may be taken to the whole complaint or
cross-complaint or to any of the causes of action stated therein.” (Code Civ. Proc.,
§ 430.50, subd. (a).)
“In reviewing the sufficiency
of a complaint against a general demurrer, we are guided by long-settled rules.
We treat the demurrer as admitting all material facts properly pleaded, but not
contentions, deductions or conclusions of fact or law. We also consider matters which may be judicially
noticed. Further, we give the complaint a reasonable interpretation,
reading it as a whole and its parts in their context.” (Blank v. Kirwan (1985)
39 Cal.3d 311, 318, citations and internal quotation marks omitted.)
III.
Discussion
A.
The Parties’ Arguments
The Harden FACC contains two causes of
action: (1) a cause of action for negligence against Beverly Park North
Homeowners Association; and (2) a cause of action for contract liability or
indemnity against V.M. Rosich and Beverly Park North Homeowners Association.
(Harden FACC, pp. 5:24–25, 6:21–22.)
V.M. Rosich demurs to the second cause of
action in the Harden FACC, arguing: (1) the Harden FACC does not state any
cause of action against V.M. Rosich because V.M. Rosich was not the owner of
the subject property; (2) that the Harden FACC does not state a cause of action
for contractual indemnity because there is no contract between V.M. Rosich and
James Harden; (3) that the second cause of action fails because the vacation
rental agreement does not contain an express indemnity provision; (4) that
James Harden cannot recover for implied contractual indemnity; and (5) that the
Demurrer should be sustained without leave to amend. (Demurrer, pp. 5:23–25,
6:22–23, 7:13–14, 8:1–2, 9:2, 10:1.)
James Harden disagrees, arguing that the
Demurrer should be overruled because the subject property was deeded to George
Santopietro by quitclaim deed in 2020 and thus V.M. Rosich owned an interest in
the subject property at all relevant times. (Opposition, pp. 2:2–8.)
V.M. Rosich reiterates: (1) that there is no
contract between V.M. Rosich and James Harden; and (2) that because of a 2003
quitclaim deed, V.M. Rosich did not own the subject property at the relevant
times. (Reply, p. 2:7–21.)
B.
Contractual Indemnity
1.
Legal Standard
The
current case law regarding indemnity is best explained by the Supreme Court in Prince
v. Pacific Gas & Electric Co. (2009) 45 Cal.4th 1151, 1157–58.
“In general, 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.) Historically, the obligation of
indemnity took three forms: (1) indemnity expressly provided for by contract
(express indemnity); (2) indemnity implied from a contract not specifically
mentioning indemnity (implied contractual indemnity); and (3) indemnity arising
from the equities of particular circumstances (traditional equitable
indemnity). (Ibid.; see PPG Industries, Inc. v. Transamerica Ins. Co. (1999) 20 Cal.4th 310, 318.)
“Although
the foregoing categories of indemnity were once regarded as distinct, we now
recognize there are only two basic types of indemnity:
express indemnity and equitable indemnity. (See Bay Development, Ltd. v. Superior Court (1990) 50 Cal.3d 1012, 1029–1030 & fn.
1 (Bay
Development).)
Though not extinguished, implied contractual indemnity is now viewed simply as
‘a form of equitable indemnity.’ (Id. at p. 1029; see E. L. White, Inc. v. City of Huntington Beach (1978) 21 Cal.3d 497, 506–507 (E. L. White).)
.
. .
“Express indemnity refers to an obligation that arises ‘by virtue
of express contractual language establishing a duty in one party to save
another harmless upon the occurrence of specified circumstances.’ (Bay Development, supra, 50 Cal.3d at p. 1029.) Express indemnity
generally is not subject to equitable considerations or a joint legal
obligation to the injured party; rather, it is enforced in accordance with the
terms of the contracting parties' agreement. (Markley v. Beagle (1967) 66 Cal.2d 951, 961.)
. . .
“Unlike express indemnity, traditional
equitable indemnity requires no contractual relationship between an indemnitor
and an indemnitee. Such indemnity ‘is premised on a joint legal obligation to another
for damages,’ but it ‘does not invariably follow fault.’ (Western Steamship Lines, Inc. v. San Pedro
Peninsula Hospital (1994) 8 Cal.4th 100, 114 (Western Steamship).) Although traditional equitable indemnity
once operated to shift the entire loss upon the one bound to indemnify, the
doctrine is now subject to allocation of fault principles and comparative
equitable apportionment of loss. (Bay Development, supra, 50 Cal.3d at pp. 1029–1030, fn. 10; American Motorcycle Assn. v. Superior Court (1978) 20 Cal.3d 578, 591–598 (American Motorcycle).)”
2.
Discussion
Here, James Harden argues that there is a
cause of action against V.M. Rosich for “contractual indemnity” (i.e., express
indemnity). James Harden does not argue that there is implied indemnity (i.e.,
equitable indemnity) at issue here.
Notably, the only specific allegations in the
pleading regarding V.M. Rosich are: (1) that V.M. Rosich “held title to the
property that is the subject of this lawsuit, 75 Beverly Park 90210, located in
the City of Los Angeles, California”; (2) that “[a]t the time of the Rental’s
inception, title of the property was allegedly held by [V.M. Rosich]”; and (3)
that V.M. Rosich and Beverly Park North Homeowners Association “are liable
under the Contract between Wiseman and Santopietro . . . and [they] are liable
to indemnify [Harden] against all claims Santopietro made against [Harden].”
(Harden FACC, ¶¶ 8, 17, 45.)
The Court has taken judicial notice of the
Quitclaim Deed listed as No. 03 1265851, recorded and filed on May 5, 2003 in
the Official Records of the Record’s Office for Los Angeles County, California.
This Quitclaim Deed involves a signed and notarized declaration by V.M. Rosich
that remises, releases, and forever quitclaims the property located at 75 Beverly
Park, Los Angeles, CA to George Santopietro.
The Court has not been provided with any
quitclaim from 2020, and the Court has not been requested to take judicial
notice of any such quitclaim.
The Court has been provided with a copy of
the “Vacation Rental Agreement” at issue. V.M. Rosich is not a signatory to the
Vacation Rental Agreement, nor is V.M. Rosich mentioned anywhere in that
document. The only provision in the Vacation Rental Agreement involving
indemnity is paragraph 24.C., which states:
“Indemnity and Hold Harmless: Occupant agrees to
indemnify, defend and hold harmless Owner and Owner’s Representative from all
claims, disputes, litigation, judgments, costs and attorney fees resulting from
loss, damage or injury to Occupant, Occupant’s guests or licensees or their
personal property.”
The Court agrees with V.M. Rosich’s
arguments.
First, James Harden cannot sustain a cause of
action for express indemnity against V.M. Rosich on this contract. There is no evidence
that V.M. Rosich is a signatory to or a beneficiary of the contract.
Furthermore, it is the “Occupant” who is required to indemnify and hold the
Owner harmless under the indemnity clause, not the other way around.
Second, V.M. Rosich has provided
judicially-noticeable evidence in support of its argument that it did not have
any ownership interest in the property since 2003 — more than a decade before
the incident at issue. No evidence has been submitted to the Court that would
indicate otherwise.
Thus,
after considering the matters that appear on the face of the pleading, as well
as judicially-noticeable material, it appears that V.M. Rosich’s demur to the
second cause of action for contractual indemnity must be sustained.
IV.
Conclusion
V.M. Rosich’s Demurrer is SUSTAINED, without
leave to amend the Harden FACC. V.M. Rosich is DISMISSED from the Harden FACC.