Judge: Peter A. Hernandez, Case: 25STCV00141, Date: 2025-06-09 Tentative Ruling
Case Number: 25STCV00141 Hearing Date: June 9, 2025 Dept: 34
Plaintiffs/Cross-Defendants’ Demurrer to Defendant/Cross-Complainant
Vivo Apartments Torrance LLC’s Cross-Complaint is OVERRULED.
Background
On January 3, 2025, Plaintiffs Cortlen Demond Arterberry,
Caylee Von Bergen, Charles Von Bergen, Candice Helene Arterberry, Joan May
Silengo, Carol Davis Perna, Francesco Perna, and Tina Marie Gutierrez
(“Plaintiffs”) filed a complaint against Defendants MC Torrance LLC, Vivo
Apartments Torrance, LLC, Fairway Vivo GP Fund LLC, and Vivo Investments LLC
(“Defendants”) arising from Plaintiffs’ tenancy alleging causes of action for:
1.
Breach of Implied Warranty of Habitability;
2.
Tortious Breach of Implied Warranty of
Habitability;
3.
Negligence;
4.
Intentional Infliction of Emotional Distress;
5.
Private Nuisance;
6.
Violation of Civil Code, Section 1942.4; and
7.
Violation of Business and Professions Code,
Section 17200.
On February
28, 2025, Defendant Vivo Apartments Torrance, LLC (“Cross-Complainant”) filed
an answer to Plaintiffs’ complaint and a cross-complaint against Plaintiffs/Cross-Defendants
alleging express indemnity.
On April 30,
2025, Cross-Defendants filed this Demurrer. On May 27, 2025, Cross-Complainant filed
an opposition. On June 2, 2025, Cross-Defendants filed a reply.
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 considering demurrers, courts
read the allegations liberally and in context. In a demurrer proceeding, the defects must be apparent
on the face of the pleading or via proper judicial notice. (Donabedian
v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) “A demurrer
tests the pleading alone, and not the evidence or facts alleged.” (E-Fab,
Inc. v. Accountants, Inc. Servs. (2007) 153 Cal.App.4th 1308, 1315.)
As such, the court assumes the truth of the complaint’s properly pled or
implied factual allegations. (Ibid.) The only issue a demurrer is
concerned with is whether the complaint, as it stands, states a cause of
action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.)
Where
a demurrer is sustained, leave to amend must be allowed where there is a
reasonable possibility of successful amendment. (Goodman v. Kennedy
(1976) 18 Cal.3d 335, 348.) The burden is on the plaintiff to show the court
that a pleading can be amended successfully. (Id.; Lewis v. YouTube, LLC
(2015) 244 Cal.App.4th 118, 226.) However, “[i]f there is any reasonable
possibility that the plaintiff can state a good cause of action, it is error to
sustain a demurrer without leave to amend.” (Youngman v. Nevada Irrigation
Dist. (1969) 70 Cal.2d 240, 245).
Discussion
Cross-Defendants demur, pursuant to Code of Civil
Procedure section 430.10 subdivision (e), to Cross-Complainant’s claim for
express indemnity in the cross-complaint on the grounds that it fails to state facts sufficient to constitute a cause
of action.
“An indemnitee seeking to recover on
an agreement for indemnification must allege the parties’ contractual
relationship, the indemnitee’s performance of that portion of the contract
which gives rise to the indemnification claim, the facts showing a loss within
the meaning of the parties’ indemnification agreement, and the amount of
damages sustained.” (Four Star Electric, Inc. v. F & H Construction (1992)
7 Cal.App.4th 1375, 1380.)
Here, Cross-Complainant
alleges to have entered into a contract agreement with Cross-Defendants for the
occupancy of Cross-Complainant’s property; that Cross-Defendants have agreed to
indemnify Cross-Complainant from all liability from any damage or injury
occurring on the property suffered by Cross-Defendants; that Cross-Defendants
have failed to indemnify Cross-Complainant by bringing an action against it;
and that Cross-Complainant has incurred damages. (Cross-Complaint, ¶¶ 3-8.)
Taking these allegations as true,
Cross-Complainant has pled sufficient facts to constitute an express indemnity
claim. Although Cross-Defendants may argue that the express indemnification
provision is inapplicable and void, the court finds that a demurrer is an
improper mechanism to dispute the validity of the indemnification terms. (E-Fab, Inc., supra, 153
Cal.App.4th 1315 [“A demurrer tests the pleading alone, and not the evidence or
facts alleged.” The court assumes the truth of the complaint’s properly pled or
implied factual allegations].)
The demurrer is overruled.
Conclusion
Plaintiffs/Cross-Defendants’ Demurrer to Defendant/Cross-Complainant Vivo
Apartments Torrance LLC’s Cross-Complaint is OVERRULED.