Judge: Michael P. Linfield, Case: 21STCV28518, Date: 2023-02-17 Tentative Ruling
Case Number: 21STCV28518 Hearing Date: February 17, 2023 Dept: 34
SUBJECT: Motion for Judgment on the Pleadings
Moving Party: Cross-Defendant
Village Park Condominium Association, Inc.
Resp. Party: Defendant/Cross-Complainant Alice Salvo
Cross-Defendant’s Motion for Judgment on the
Pleadings is DENIED.
BACKGROUND:
On August 3, 2021, Plaintiffs Desiree Brown,
Nathan Brown-Winston, and Zion Perkins filed their Complaint against Defendants
Alice Salvo, Icon Realty Services, Inc., and Lemeheyo LLC regarding damages
Plaintiff allegedly suffered due to the conditions of their home.
On August 5, 2021, the Court appointed Desiree
Brown as the guardian ad litem for Plaintiff Zion Perkins.
On October 27, 2021, the
Court found related cases 21STCV28518 and 21STCV20947, and designated
21STCV28518 as the lead case.
On November 9, 2021,
Plaintiffs filed their First Amended Complaint.
On December 8, 2021, by
request of Plaintiffs, the Clerk’s Office dismissed without prejudice Defendant
Icon Realty Services, Inc. from the First Amended Complaint.
On January 18, 2022, Defendant Alice Salvo
filed her Answer to the First Amended Complaint.
On April 29, 2022, Defendant/Cross-Complainant
Alice Salvo filed her Cross-Complaint against Cross-Defendant Village Park
Condominium Association, Inc.
On May 31, 2022, Cross-Defendant filed its
Answer to the Cross-Complaint.
On January 23, 2023, Cross-Defendant filed its
Motion for Judgment on the Pleadings regarding the Cross-Complaint.
On February 6, 2023,
Defendant/Cross-Complainant filed her Opposition.
On February 9, 2023, Cross-Defendant filed its
Reply.
ANALYSIS:
I.
Motion for Judgment on the Pleadings
A. Legal Standard
“A motion for judgment on the pleadings
performs the same function as a general demurrer, and hence attacks only
defects disclosed on the face of the pleadings or by matters that can be
judicially noticed.” (Burnett v. Chimney Sweep (2004) 123 Cal.App.4th
1057, 1064.) “In deciding or reviewing a judgment on the pleadings, all
properly pleaded material facts are deemed to be true, as well as all facts that
may be implied or inferred from those expressly alleged.” (Fire Ins. Exch.
v. Super. Ct. (2004) 116 Cal.App.4th 446, 452.) A motion for judgment on
the pleadings does not lie as to a portion of a cause of action. (Id.)
“In the case of either a demurrer or a motion for judgment on the pleadings,
leave to amend should be granted if there is any reasonable possibility that
the plaintiff can state a good cause of action.” (Gami v. Mullikin Med. Ctr.
(1993) 18 Cal.App.4th 870, 876.) A non-statutory motion for judgment on the
pleadings may be made any time before or during trial. (Stoops v. Abbassi
(2002) 100 Cal.App.4th 644, 650.)
Because a motion for judgment on the pleadings
performs the same function as a general demurrer, the procedures in responding
to demurrers similarly apply to motions for judgment on the pleadings. (See
e.g., Evinger v. Moran (1910) 14 Cal.App. 328, 329.)
B. Discussion
1. The Parties’ Arguments
Cross-Defendant moves for judgment on the
pleadings, arguing: (1) that indemnity is not available against Cross-Defendant
because Cross-Defendant was not a party to the contract; (2) that the
Cross-Complaint does not assert a viable claim for indemnity; and (3) that
Cross-Complainant does not have standing to sue Cross-Defendant. (Motion, pp.
4:1–3, 5:18, 6:7–8.)
Defendant/Cross-Complainant opposes the
Motion, arguing it should be denied because: (1) Cross-Defendant failed to meet
and confer; and (2) Defendant/Cross-Complainant is the successor-in interest to
Lemeheyo, LLC.
Cross-Defendant argues in its Reply: (1) that
the Opposition did not refute the merits of the Motion; (2) that failure to
meet and confer cannot form the basis for a denial of the Motion; and (3) that
the corporate change fails to cure the defect. (Reply, pp. 2:4–5, 2:21–22,
3:6.)
2. Meet and Confer
a. Legal Standard
“Before filing a motion for judgment
on the pleadings pursuant to this chapter, the moving party shall meet and
confer in person or by telephone with the party who filed the pleading that is
subject to the motion for judgment on the pleadings for the purpose of
determining if an agreement can be reached that resolves the claims to be
raised in the motion for judgment on the pleadings. . . .” (Code Civ. Proc., §
439, subd. (a).)
“A determination by the court that
the meet and confer process was insufficient shall not be grounds to grant or
deny the motion for judgment on the pleadings.” (Code Civ. Proc., §439, subd. (a)(4).)
b. Discussion
Cross-Defendant’s Counsel admits that he
failed to meet and confer, claiming that it was due to attorney mistake. As the Court cannot grant or deny the Motion
based upon a failure to meet and confer, the Court moves on to the substantive
grounds upon which the Motion is based.
3.
Standing
and Capacity
a.
Legal Standard
“[T]he question of standing
to sue is different from that of capacity. Incapacity is merely a legal
disability, such as infancy or insanity, which deprives a party of the right to
come into court. The right to relief, on the other hand, goes to the existence of a
cause of action. . . . Where the complaint states a cause of
action in someone, but not in the plaintiff, a general demurrer for failure to
state a cause of action will be sustained.” (Parker v. Bowron (1953) 40 Cal.2d 344, 351.)
b. Discussion
Cross-Defendant argues that
Defendant/Cross-Complainant lacks standing to sue Cross-Defendant because
Defendant/Cross-Complainant is not the owner of the Subject Property. (Motion,
p. 6:7–13.) While Cross-Defendant has not listed this as a separate sub-heading,
Cross-Defendant also argues that Defendant Lemeheyo, LLC lacks the authority to
sue (i.e., that Defendant Lemeheyo, LLC lacks capacity). (Id. at p.
6:14–19.)
Defendant/Cross-Complainant opposes the
Motion, arguing: (1) that Defendant Lemeheyo, LLC has capacity for certain
purposes, such as distributing assets, because the entity was cancelled, not
suspended; and (2) that Defendant/Cross-Complainant now has standing because
Defendant Lemeheyo, LLC transferred assets to Defendant/Cross-Complainant. (Opposition,
pp. 2:19–27, 3:5–14.)
Cross-Defendant argues in its reply that the
corporate change fails to cure the defect. (Reply, p. 4:6.)
The Court disagrees with Cross-Defendants’
arguments.
First, Defendant/Cross-Complainant correctly
notes that it has filed a certificate of cancellation with the California
Secretary of State, which is different from a suspension. “[A] limited
liability company that has filed a certificate of cancellation nevertheless
continues to exist for the purpose of winding up its affairs, . . . disposing
of and conveying its property, and collecting and dividing its assets.” (Corp.
Code, § 17707.06,
subd. (a).) Thus, Defendant Lemeheyo, LLC did not lack capacity to transfer its
assets to Defendant/Cross-Complainant.
Second, Defendant/Cross-Complainant provides
the Court with a Grant Deed, signed January 26, 2023, in which Defendant
Lemeheyo, LLC appears to give Defendant/Cross-Complainant a property interest
in the Subject Property. Although the Grant Deed is signed after the filing of
the Motion, Cross-Complainant has not provided the Court with any statutory
authority or case law that would indicate this alone should deny
Defendant/Cross-Complainant standing as Defendant Lemeheyo’s successor in
interest. While it is not clear to the Court that a lack of property interest
would impede Defendant/Cross-Complainant’s cause of action for equitable
indemnity, any such issue now appears to be cured by the Grant Deed.
4. Indemnity
a. 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. 10 (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).)
b.
Discussion
Defendant/Cross-Complainant’s Cross-Complaint
pleads a sole cause of action for indemnification, apportionment of fault, and
declaratory relief. The Cross-Complaint does not clarify which type(s) of
indemnity Defendant/Cross-Complainant is pleading.
Defendant/Cross-Complainant has alleged: (1) that injuries referred to
in the Complaint were proximately caused and contributed to by the negligence
or other tortious misconduct on the part of Cross-Defendants; (2) that any
negligence of Defendant/Cross-Complainant was concurrent with the negligence or
other tortious misconduct of Cross-Defendant; and (3) that by reason of the
factual situation presented and current California authority,
Defendant/Cross-Complainant is entitled to be indemnified on the basis of
comparative indemnity principles to be applied between
Defendant/Cross-Complainant and Cross-Defendant. (Complaint, ¶¶ 10–13.)
Defendant/Cross-Complainant has not alleged that there is any contract,
contractual relationship, or contractual language that binds
Defendant/Cross-Complainant and Cross-Defendant.
Thus, the allegations are insufficient to constitute a cause of action
for express indemnity. However, these allegations are sufficient to plead a
cause of action for equitable indemnity. A cause of action for equitable
indemnity survives even though the allegations do not claim that
Cross-Defendant is in a contractual relationship with
Defendant/Cross-Complainant or that Cross Defendant was in a contractual
relationship with Plaintiffs.
The Complaint was filed 18 months ago, on August 3, 2021. The Cross-Complaint was filed ten months ago,
on April 29, 2022. On September 27,
2022, when the trial was continued upon stipulation of counsel, the Court
stated that there would be no further continuances of the trial. Trial is now scheduled for March 20, 2023,
just one month away. It is not clear to
the Court why Cross-Defendants waited nine months before filing its Motion for
Judgment on the Pleadings. Further, granting
the Motion for Judgment on the Pleadings with leave to amend would simply delay
the entire process.
As indicated above, the facts in the Cross-Complaint are sufficient to
state a cause of action for equitable indemnity, but not for express
indemnity. However, the one cause of
action in the Cross-Complaint is for “indemnification, apportionment of fault
and declaratory relief.” Cross-Defendant would only be entitled to relief as to
part to this cause of action. It is not clear
to the Court that it can grant a Motion for Judgment on the Pleadings as to
part of a cause of action.
II.
Conclusion
Cross-Defendant’s Motion for Judgment on the
Pleadings is DENIED.