Judge: Robert B. Broadbelt, Case: 20STCV10581, Date: 2022-10-20 Tentative Ruling

Case Number: 20STCV10581    Hearing Date: October 20, 2022    Dept: 53

Superior Court of California

County of Los Angeles – Central District

Department 53

MOVING PARTY:                Defendant Vladimir Elmanovich Architect, Inc.

RESPONDING PARTIES:    Plaintiffs Century West Associates, Inc., and Jamshid Kermani

Demurrer to Second Amended Complaint

The court considered the moving, opposition, and reply papers filed in connection with this demurrer.

BACKGROUND

Plaintiffs Century West Associates, Inc., and Jamshid Kermani (“Plaintiffs”) filed this action on March 16, 2020.  Plaintiffs filed their operative Second Amended Complaint on February 18, 2022, against defendants Cerritos Construction Company, Hello Plumbing Corporation, and Vladimir Elmanovich Architect, Inc.  Plaintiffs assert ten causes of action for (1) breach of written contract; (2) negligence; (3) equitable indemnity; (4) contribution; (5) express indemnity; (6) breach of implied warranties; (7) breach of express warranties; (8) declaratory relief: duty to defend; (9) negligent misrepresentation; and (10) declaratory relief: duty to defend.

Defendant Vladimir Elmanovich Architect, Inc. (“Defendant”) moves the court for an order sustaining its demurrer to Plaintiffs’ second, third, and fourth causes of action. 

DISCUSSION

The court sustains Defendant’s demurrer to Plaintiffs’ second cause of action for negligence because it does not state facts sufficient to constitute a cause of action, since (1) as to both Plaintiffs, they have not alleged that they have been damaged by the filing of 101 Benson LLC’s cross-complaint in the underlying arbitration and therefore have not alleged the element of damage; (2) the language in the construction contract, as attached to the complaint, establishes that 101 Benson, LLC cannot hold plaintiff Century West liable for any defects caused by Defendant; and (3) Plaintiffs have not alleged facts establishing that Defendant owed a duty to Plaintiffs.  (Code Civ. Proc., § 430.10, subd. (e); Peredia v. HR Mobile Services, Inc. (2018) 25 Cal.App.5th 680, 687 [“The elements of any negligence cause of action are duty, breach of duty, proximate cause, and damages”]; SAC Ex. A, Construction Contract, p. 10, ¶ 19 [“Contractor [i.e., plaintiff Century West] shall not be liable for the repair or replacement, except upon the payment of reasonable compensation, of any of its Work or installations damaged directly or indirectly through, by or as a result of defective design by [Benson’s] architect or defective materials directly supplied and installed by [Benson] or [Benson’s] representative”].)

Here, Plaintiffs allege that 101 Benson, LLC “intends to seek damages from Plaintiffs for damages that are directly attributable to design deficiencies in the plans and specifications prepared by [Defendant] for the project, and for delays caused by [Defendant] at the project.”  (SAC ¶ 23.)  Plaintiffs further allege their belief that 101 Benson, LLC will pursue such damages despite any limitations in the contract.  (Ibid.)  However, Plaintiffs do not allege that they have already suffered damages because of Defendant’s conduct.  Instead, Plaintiffs’ complaint further alleges that they “have and will suffer damages” in the form of “any sums paid by way of settlement, or in the alternative judgment rendered against Plaintiffs in the action herein.”  (SAC ¶ 35.)  Plaintiffs have not alleged that they have entered into a settlement with 101 Benson, LLC or that a judgment has been rendered against Plaintiffs in arbitration.

The court notes that Plaintiffs argue, in opposition, that any ruling on Defendant’s demurrer would be premature, because “the issue of whether the exculpation from liability language in the Prime Contract is enforceable to shield Century West from liability for design related defects and delays has not yet been decided by the arbitrator, and there is simply no guarantee…that the arbitrator will uphold the contractual exculpation of liability in favor of Century West.”  (Opp., p. 3:18-20.)  Defendant agrees, in both its moving and reply papers, that the Second Amended Complaint is not ripe and therefore cannot state facts sufficient to constitute a cause of action.  (Demurrer, p. 9:23-24 [“the new allegations show that the matter is arguably not ripe for adjudication”]; Reply, p. 2:4-6, 2:22-24.)

The court agrees that the Second Amended Complaint fails to allege the element of damages because (1) Plaintiffs do not allege that 101 Benson, LLC has been successful in obtaining damages from Plaintiffs based on conduct that is attributable to Defendant, and (2) as to plaintiff Century West and Defendant, the contractual language confirms that Century West cannot be liable for damages based on damages as a result of Defendant’s defective design.  (SAC Ex. A, Construction Contract, p. 10, ¶ 19; SAC ¶ 23.)  “When damages are an element of a cause of action, the cause of action does not accrue until the damages have been sustained.  [Citation.]  ‘Mere threat of future harm, not yet realized, is not enough.’  [Citation.]”  (City of Vista v. Robert Thomas Sec. (2000) 84 Cal.App.4th 882, 886.) 

Further, the court finds that Plaintiffs have not alleged that Defendant owed them a duty.  Instead, the Second Amended Complaint and its exhibits demonstrate that (1) Defendant, as architect of record, owed a duty to 101 Benson, LLC (SAC ¶ 33); (2) Plaintiffs entered into the prime contract with 101 Benson, LLC and therefore owed a contractual duty to 101 Benson, LLC (SAC ¶¶ 12, 14); (3) Defendant and Plaintiffs did not enter into a contract with each other, thereby creating no contractual duty between them; and (4) the underlying cross-complaint alleges harm based on Plaintiffs’ alleged construction defects, not architectural defects attributable to Defendant (SAC Ex. B, ¶¶ 37, 42, 49).  (Ratcliff Architects. Vanir Construction Management, Inc. (2001) 88 Cal.App.4th 595, 605-606.)

The court therefore sustains Defendant’s demurrer to Plaintiffs’ second cause of action for negligence.  (Code Civ. Proc., § 430.10, subd. (e).)

The court sustains Defendant’s demurrer to Plaintiffs’ third cause of action for equitable indemnity because it does not state facts sufficient to constitute a cause of action since Plaintiff has not alleged the existence of a predicate tort against Defendant in light of the court’s ruling sustaining the demurrer to the cause of action for negligence.  (Code Civ. Proc., § 430.10, subd. (e); BFGC Architects Planners, Inc. v. Forcum/Mackey Construction, Inc. (2004) 119 Cal.App.4th 848, 852 [“With limited exception, there must be some basis for tort liability against the proposed indemnitor” to assert a claim for equitable indemnity].)

The court sustains Defendant’s demurrer to Plaintiffs’ fourth cause of action for contribution because it does not state facts sufficient to constitute a cause of action since Plaintiffs do not allege a predicate tort or other common liability for the reasons set forth in connection with the cause of action or equitable indemnity.  (Code Civ. Proc., § 430.10, subd. (e); C.W. Howe Partners, Inc. v. Mooradian (2019) 43 Cal.App.5th 688, fn. 9 [explaining that contribution and indemnity are related, and that the doctrine of contribution “‘presupposes a common liability which is shared by the joint tortfeasors’”].)

The burden is on the plaintiff “to articulate how it could amend its pleading to render it sufficient.”  (Palm Springs Villas II Homeowners Assn., Inc. v. Parth (2016) 48 Cal.App.4th 268, 290.)  To satisfy that burden, a plaintiff “must show in what manner he can amend his complaint and how that amendment will change the legal effect of his pleading.”  (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.)  The court finds that Plaintiffs have not met their burden of establishing that they can amend their pleading to render it sufficient and therefore sustains Defendant’s demurrer without leave to amend.

ORDER

The court sustains defendant Vladimir Elmanovich Architect, Inc.’s demurrer to plaintiffs Century West Associates, Inc. and Jamshid Kermani’s second, third, and fourth causes of action asserted in the Second Amended Complaint without leave to amend.  (Code Civ. Proc., § 430.10, subd. (e).)

The court orders defendant Vladimir Elmanovich Architect, Inc. to lodge and serve a proposed judgment of dismissal within 10 days of the date of this order.  (Code Civ. Proc., § 581, subd. (f)(1).) 

The court orders defendant Vladimir Elmanovich Architect, Inc. to give notice of this ruling.

IT IS SO ORDERED.

DATED:  October 20, 2022

_____________________________

Robert B. Broadbelt III

Judge of the Superior Court