Judge: Michael Shultz, Case: 21STCV30596, Date: 2023-08-28 Tentative Ruling
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Case Number: 21STCV30596 Hearing Date: August 28, 2023 Dept: A
21STCV30596 Robby Castillo Ordonez, et al v. Holistic Healing
Alternative, Inc., et al.
[TENTATIVE] ORDER SUSTAINING DEMURRER TO THE CROSS-COMPLAINT AND
MOTION TO STRIKE BY CROSS-DEFENDANTS, HOLISTIC HEALING ALTERNATIVE, INC. AND
3-STAR MANAGEMENT, LLC
[TENTATIVE] ORDER GRANTING CROSS-DEFENDANTS’ MOTION TO STRIKE
I.
BACKGROUND
The Second Amended Complaint alleges that
Plaintiff, Robby Castillo Ordonez suffered third degree burns as a result of a
fire that occurred on real property owned by Don Devore and Bonita Devore Family
Trust (“the Trust”) and on which the remaining Defendants conducted a business.
Plaintiff was employed as an independent contractor manufacturing cannabinoid
liquid for vape pens. Plaintiff alleges claims for negligence, civil
harassment, and related statutory violations. Plaintiff’s spouse alleges a
claim for loss of consortium.
The Trust Defendants filed a
cross-complaint against the tenant and entities allegedly operating a business
on the property. The cross-complaint alleges claims for breach of contract; express,
equitable, and implied indemnity, and contribution. The business defendants,
Holistic Healing Alternative, Inc. and Star Management, LLC, (“Cross-Defendants”)
now demur to the claims for breach of various provisions of a contract (first
through third causes of action).
II.
ARGUMENTS
Cross-Defendants demur on grounds the
contract claims fail to state causes of action because Cross-Defendants were
not parties to the lease agreement between the Trust (landlord) and
Cross-Defendant, Larry Brennan (tenant), who was contractually obligated to
indemnify and hold the Trust harmless for damages. Cross-Defendants separately move
to strike any references to Cross-Defendants in the breach of contract claims. The
parties have met and conferred without success.
In opposition, the Trust argues that the
allegations made on information and belief are sufficient where the Trust does
not have any information about the true nature of the parties’ relationships. However,
the Cross-Complaint does allege that the Trust believes that Cross-Defendants
are involved in some manner as tenants, sub-tenants, employer/employee, agents
and in other capacities. The Trust
concedes it may have a legal basis for the cross-complaint after conducting
discovery. (Opp. 7:11-14.)
In reply, Cross-Defendants argue that the
Trust fails to provide a substantive response to the demurrer or motion to
strike.
III.
LEGAL STANDARDS
A demurrer tests the sufficiency of the pleading as a matter
of law and raises only questions of law. (Schmidt v. Foundation Health (1995) 35 Cal.App.4th 1702, 1706.) In testing its sufficiency, the
court must assume the truth of (1) the properly pleaded factual allegations;
(2) facts that can be reasonably inferred from those expressly pleaded; and (3)
judicially noticed matters. (Blank v. Kirwan
(1985) 39 Cal.3d 311, 318.) The Court may not consider contentions, deductions,
or conclusions of fact or law. (Moore v. Conliffe
(1994) 7 Cal.4th 634, 638.) The Cross-Complainant must show that the pleading alleges
facts sufficient to establish every element of each cause of action. (Rakestraw v. California Physicians Service (2000) 81 Cal.App.4th 39, 43.) Where the pleading fails
to state facts sufficient to constitute a cause of action, courts should
sustain the demurrer. (Code Civ. Proc., § 430.10(e); Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1126.)
A motion to strike is limited to matters that appear on the
face of the pleading or on any matter of which the court can take judicial
notice. (Code Civ. Proc., § 437.) The court may strike out any irrelevant, false, or
improper matter inserted in any pleading; or strike all or any part of the
pleading not drawn or filed in conformity with the laws of California, a court
rule, or an order of the court. (Code Civ. Proc. §436 subd. (a)-(b).)
IV.
DISCUSSION
Cross-Defendants
complied with the statutory requirement to meet and confer with
Cross-Complainants prior to filing the demurrer and motion to strike. (Code
Civ. Proc., § 430.41.) The parties were not able reach a resolution. (Decl. of
Michael T. Karikomi, ¶ 4.)
The first three causes of action are
based on an alleged breach of an obligation to indemnify, to defend, and to procure
insurance on behalf of the Trust as set forth in the commercial lease
agreement. (Cross-complaint, Ex. 1). A claim for express indemnity is based on express
contract language establishing a duty in one party to hold another harmless
under circumstances specified in the contract. (Prince v. Pacific Gas & Electric Co. (2009) 45 Cal.4th 1151, 1158).
The
commercial lease agreement is made between Don and Bonita DeVore on the one
hand and Larry Brennan on the other. (Cross-complaint, Ex. 1.) As Cross-Defendants
are not parties to the contract, there is no basis for liability against them for
the first three causes of action.
The
Trust argues that the general allegation that Cross-Defendants are responsible in
various capacities is sufficient to overrule demurrer. (Cross-complaint, ¶ 10).
However, that allegation is based on information and belief, which is not
sufficient standing alone.
A
pleading made on information and belief is insufficient if it “merely assert[s]
the facts so alleged without alleging such information that ‘lead[s] [the
plaintiff] to believe that the allegations are true. (Gomes
v. Countrywide Home Loans, Inc. (2011) 192 Cal.App.4th
1149, 1158–1159.) The Trust concedes that “it is impossible
at this time to know how Cross-Defendants became involved in the operation”
however, “discovery can and will answer these questions in the near future.”
(Opp. 4:20-28.)
V. CONCLUSION
As
the Trust cannot allege facts to establishing a basis for contractual liability
against Cross-Defendants, demurrer is SUSTAINED as to the first three causes of
action and the motion to strike is GRANTED without leave to amend. Any
reference to Cross-Defendants in the first three causes of action are stricken.
However, in the event discovery reveals a basis for liability, the Trust can
file a motion for leave to amend the cross-complaint. (Code
Civ. Proc., § 473.)