Judge Ronald F. Frank, Case Number: 20STCV07034, Date: 2023-08-22 Tentative Ruling

Judge: Ronald F. Frank, Case: 20STCV07034, Date: 2023-08-22 Tentative Ruling

Case Number: 20STCV07034 Hearing Date: November 21, 2023 Dept: 8

Tentative Ruling¿

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HEARING DATE: November 21, 2023¿¿

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CASE NUMBER: 20STCV07034

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CASE NAME: Ralph Mendoza, et al. v. Safety-Kleen Systems, Inc., et al

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MOVING PARTY: Defendant, Safety-Kleen Systems, Inc.

RESPONDING PARTY: Defendants and Cross-Complainants, Coit, Inc. and Coit Services

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TRIAL DATE: Not Set.

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MOTION:¿ (1) Demurer to the Coit Defendants’ Cross-Complaint

Tentative Rulings: (1) SUSTAINED with 30 days leave to amend

(2) The Court on its own motion sets a TSC on a date to be discussed at the hearing

I. BACKGROUND¿¿

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A. Factual¿¿

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On February 21, 2020, Plaintiff, Ralph Mendoza and Sonia Mendoza (“Plaintiffs”) filed a Complaint against, among others, Safety-Kleen and Coit, alleging Mr. Mendoza developed kidney cancer as a result of his employment as a customer service representative for Safety-Kleen. Safety-Kleen settled this matter with Plaintiffs and this Court granted its Motion for Determination of Good Faith Settlement.

On February 21, 2023, Coit filed a Cross-Complaint against Safety-Kleen asserting four causes of action: (1) Equitable Indemnity; (2) Contribution; (3) Apportionment; and (4) Contractual Indemnity.

Defendant, Safety-Kleen now files a Demurrer to the Fourth Cause of Action for Contractual Indemnity, the first three causes of action being barred by the Court’s determination of good faith settlement. Express contractual indemnity is an exception to the rule that under CCP section 877.6, a good faith settlement bars cross-complaints for indemnity or contribution. (C. L. Peck Contractors v. Superior Court (1984) 159 Cal.App.3d 828, 834)

B. Procedural¿¿

On October 18, 2023, Defendant, Safety-Kleen filed its demurrer. On November 7, 2023, Coit Defendants filed an opposition. On November 14, 2023, Safety-Kleen filed a reply brief.

II. GROUNDS FOR MOTION

Safety-Kleen files this demurrer on the grounds that it claims the Fourth cause of Action for Contractual Indemnity fails because Coit failed to either set out the contract verbatim in the cross-complaint, attach the contract to the cross-complaint, or allege the substance of the contract’s relevant terms.

III. ANALYSIS

A. Legal Standard

A demurrer can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) “To survive a demurrer, the complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form part of the plaintiff’s proof need not be alleged.” (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.) For the purpose of testing the sufficiency of the cause of action, the demurrer admits the truth of all material facts properly pleaded. (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967.) A demurrer “does not admit contentions, deductions or conclusions of fact or law.” (Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 713.)¿¿¿¿

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A pleading is uncertain if it is ambiguous or unintelligible. (Code Civ. Proc., § 430.10, subd. (f).) A demurrer for uncertainty may lie if the failure to label the parties and claims renders the complaint so confusing defendant cannot tell what he or she is supposed to respond to.¿ (Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2.) However, “[a] demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616.)

B. Discussion

Safety-Kleen argues that Coit’s fourth cause of action for contractual indemnity fails because Coit failed to set out the contract verbatim in the cross-complaint, attach the contract to the cross-complaint, or allege the substance of the contract’s relevant terms.

Contractual Indemnity

It is black letter law that to state a cause of action based upon a written contract, a party must specify whether the contract is verbal or in writing, and plead the terms of the contract verbatim or attach a copy of the written agreement. (Harris v. Rudin, Richmond & Appel (1999) 74 Cal.App,4th 299,307; Otworth v. Southern Pac. Transportation Co. (1985) 166 Cal.App.3d 452,459.) In its demurrer to the fourth cause of action here, Safety-Kleen relies on cases like Heritage Pacific Financial, LLC v. Monroy and McKell v. Washington Mutual, Inc. to argue that Coit’s Cross-Complaint’s cause of action for contractual indemnity is insufficient because the Cross-Complaint fails to include either: (1) attach a copy of the contract; (2) include the contract terms; or (3) allege the substance of the contract’s relevant terms. As a general rule, “[a]n 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.)

The Court reviews the language of the Cross-Complaint to measure its compliance against these legal standards. Here, the Cross-Complaint alleges that the Coit Defendants and Safety-Kleen contracted to provide indemnity to Cross-Complainants in the event that a third party makes a claim against Cross-Complainants for damages arising from, or related to, services provided. (XC, ¶ 21.) The Court finds that threadbare allegation to be insufficient to inform the cross-defendants what there terms of the purported contract are, such as what cross-defendants received as consideration in exchange for the indemnity agreement. The Cross-Complaint also alleges that Cross-Complainants have performed and satisfied all conditions precedent to the obligations of said agreement (XC, ¶ 23), but it fails to allege what those terms or conditions were. Cross-Complainants also allege that any and all claims, liability, obligations, or causes of action set forth in and arising out of Plaintiffs’ Complaint are within the indemnity provision of the contract entered into by Cross-Defendants and Cross-Complainants. (XC, ¶ 24.) However, the facts showing a loss within the meaning of the parties’ indemnification agreement, and the amount of damages sustained are not even vaguely specified in the cross-complaint. Further, the Cross-Complaint does not allege whether the contract providing for indemnification is oral, in writing, or arose in some other fashion. Without this information, the cross-complaint is unable to maintain a cause of action for contractual indemnity. As such, the demurrer is sustained. Given the holidays, the Court will give 30 days leave to amend.