Judge: Randall J. Sherman, Case: 2021-01180189, Date: 2022-08-19 Tentative Ruling

Cross-Defendant Cini-Little International, Inc.’s Demurrer to Travelers Insurance Co. and Intact Insurance Specialty Solutions’ Cross-Complaint in Intervention is overruled.  Cini-Little’s Request for Judicial Notice is granted.  In that regard, Exhibit 10 is a clean copy of the Cross-Complaint in Intervention, but the court’s file contains only a red-lined version, ROA 426, filed on March 17, 2022.  Cross-Complainants in Intervention should have filed a clean copy of their Cross-Complaint in Intervention.

The rules governing demurrers compel this court to accept as true the apparently false allegation in ¶38 of the Cross-Complaint in Intervention that “Cross-Complainants in Intervention have entered into a written contract with CLI whereby CLI would serve as Cross-Complainants in Intervention's landscape architecture subconsultant for the Project”.  Cini-Little cites authority suggesting that the third and fourth causes of action against it for express contractual indemnity and declaratory relief are barred because an insurer stands in the shoes of its insured, and has no greater rights than its insured.  Kaufman & Broad Communities, Inc. v. Performance Plastering, Inc. (2006) 136 Cal. App. 4th 212, 218; Truck Ins. Exch. v. Superior Court (1997) 60 Cal. App. 4th 342, 350.  However, the Cross-Complaint in Intervention alleges a direct contractual relationship between the parties, rather than what presumably is the insurers’ actual status, insurers for a suspended corporation.  Accordingly, based on the authority of CCP §436, this court, on its own motion at its discretion, hereby strikes, with 15 days’ leave to amend, the allegations in the Cross-Complaint in Intervention that the insurers were parties to contracts with the cross-defendants (allegations which appear to be the result of a careless copy-and-paste job by the insurers’ counsel, who also prepared the Cross-Complaint for Rosser International, Inc.).

Cross-Defendant Arcadia Studio, Inc.’s Demurrer to Travelers Insurance Co. and Intact Insurance Specialty Solutions’ Cross-Complaint in Intervention is sustained with 15 days’ leave to amend.  Two different judges in this case have sustained similar demurrers on behalf of other cross-defendants, and this court agrees those rulings were correct and should be followed here.  The thirteenth cause of action for comparative indemnity and apportionment of fault, and the fourteenth cause of action for total equitable indemnity, fail to state a cause of action.  Without a tort cause of action, there can be no basis for joint and several liability, and thus no basis for comparative or equitable indemnity.  Further, under the economic loss rule, there can be no tort recovery for economic damages alone, and since the County is suing Rosser only for contractual damages, the economic loss rule precludes comparative or equitable indemnity.

Cross-Complainants in Intervention Travelers Insurance Co. and Intact Insurance Specialty Solutions are ordered to give notice of the ruling unless notice is waived.