Judge: Serena R. Murillo, Case: 19STCV42998, Date: 2023-03-24 Tentative Ruling
Case Number: 19STCV42998 Hearing Date: March 24, 2023 Dept: 29
TENTATIVE
Cross-Defendant
Gabriela Ochoa Jasso’s demurrer
to the cross-complaint is OVERRULED. Cross-Defendant’s motion to strike is
GRANTED in part and DENIED in part. The motion to strike is granted as to the
prayer for attorney fees, with 30 days leave to amend. The motion to strike is
denied as to the cause of action for express indemnity.
Legal Standard
Demurrer
A demurrer for sufficiency tests
whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.)
When considering demurrers, courts read the allegations liberally and in
context. (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal.App.4th 1216,
1228.) The court “treat[s] the demurrer as admitting all material facts
properly pleaded, but not contentions, deductions or conclusions of fact or law
….” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 525).) 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 pleadings alone and not the evidence or other extrinsic
matters; therefore, it lies only where the defects appear on the face of the
pleading or are judicially noticed. (Code Civ. Proc., §§ 430.30, 430.70.) The
only issue involved in a demurrer hearing is whether the complaint, as it
stands, unconnected with extraneous matters, states a cause of action. (Hahn,
supra, 147 Cal.App.4th at 747.)
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.) A demurrer
for uncertainty will be sustained only where the complaint is so bad that the
defendant cannot reasonably respond. (Code Civ. Proc., § 430.10, subd.
(f).)
Motion
to Strike
Any party, within the time allowed
to respond to a pleading may serve and file a notice of motion to strike the
whole or any part thereof. (Code Civ. Proc., § 435(b)(1).) The court may, upon
a motion or at any time in its discretion and upon terms it deems proper: (1)
strike out any irrelevant, false, or improper matter inserted in any pleading;
or (2) strike out all or any part of any 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; Stafford v. Shultz (1954) 42 Cal.2d 767, 782.)
Meet and Confer
The demurrer and motion to strike are
accompanied by the declaration of Marisa D. Sarti, which satisfies the
meet and confer requirements. (Code Civ. Proc. §§ 430.41, 435.5(a).)
Discussion
Demurrer
Cross-Defendant Ochoa Jasso demurs to the cross-complaint’s third cause of action for
express indemnity, arguing that it fails to state facts sufficient to
constitute a cause of action and is uncertain. Cross-Defendant
argues that the cross-complaint includes a cause of action for express
indemnity, despite there being no legal basis for an express indemnity claim.
In the cross-complaint, Cross-Complainant Ramirez contends that an unlawful
detainer agreement signed by the parties in March 2018 requires
Cross-Defendant Ochoa Jasso to indemnify Cross-Complainant in the ongoing
matter; yet, the word “indemnify” does not appear anywhere in the agreement. Cross-Defendant
argues that Cross-Complainant Ramirez is attempting to enforce an express
indemnity clause where one does not exist.
Cross-Defendant Ochoa Jasso also argues
that even assuming that an indemnity clause exists, it cannot be applied
against Cross-Defendant Ochoa because the phrase “relating to the tenancy” is
not defined in the agreement. The agreement also does not mention third-party
claims for personal injuries that occurred in the unit. Therefore, the alleged
express indemnity clause must be strictly construed against Cross-Complainant
Ramirez such that Cross-Defendant Ochoa Jasso does not have an express
contractual duty to indemnify Cross-Complainant Ramirez.
A
cause of action for express indemnity requires the following elements: (1)
contract defining the obligation of one party to make good on the loss another
party incurred and (2) occurrence of the loss or of some other legal
consequence of conduct. (See Rossmoor Sanitation, Inc. v. Pylon, Inc. (1975)
13 Cal.3d 622, 628. “Indemnity may be defined as the obligation resting on one
party to make good a loss or damage another party has incurred. This obligation
may be expressly provided for by contract, it may be implied from a contract
not specifically mentioning indemnity, or it may arise from the equities of
particular circumstances. Where, as here, the parties have expressly contracted
with respect to the duty to indemnify, the extent of that duty must be
determined from the contract and not by reliance on the independent doctrine of
equitable indemnity.”)(Citations Omitted).
The
Unlawful Detainer Agreement provides, in pertinent part, as follows:
“Defendant
agrees to vacate the subject property above leaving it free and clear of any
persons or personal property in a broom-clean condition. Defendant further
agrees to release and hold harmless Plaintiff from any claims present or future
related to the tenancy above.”
(Cross-Complaint ¶ 11.) Cross-Defendant argues the above-cited
provision is only a hold harmless provision. Cross-Defendant Ochoa Jasso did not
agree to indemnify Cross-Complainant Ramirez in the agreement at issue.
Cross-Defendant Ochoa Jasso only agreed to hold her harmless in that
Cross-Defendant Ochoa Jasso would not seek indemnification from
Cross-Complainant Ramirez relating to the tenancy. (See Queen Villas Homeowners Assn. v. TCB
Property Management (2007) 149 Cal.App.4th 1, 9. “Are the words
‘indemnify’ and ‘hold harmless’ synonymous? No. One is offensive and the other
is defensive—even though both contemplate third party liability
situations. ‘Indemnify’ is an offensive right—a sword—allowing an indemnitee to
seek indemnification. ‘Hold harmless’ is defensive: The right not to be
bothered by the other party itself seeking indemnification.”)
However,
Cross-Complainant’s alleged construction of the provision cited above – as an
indemnity provision - is not “clearly erroneous” and, therefore, the Court must
accept as correct Cross-Complainant’s allegations as to the meaning of the
provision for purposes of the instant demurrer.
(See Aragon-Haas v. Family
Security Ins. Services, Inc. (1991) 231 Cal.App.3d 232, 239. “‘[W]here an ambiguous contract is the
basis of an action, it is proper, if not essential, for a plaintiff to allege
its own construction of the agreement. So long as the pleading does not place a
clearly erroneous construction upon the provisions of the contract, in passing
upon the sufficiency of the complaint, we must accept as correct plaintiff's
allegations as to the meaning of the agreement.’ Whether a contract is
ambiguous is a question of law.” (Id. (Citations Omitted).) “Where a complaint is based on a written
contract which it sets out in full, a general demurrer to the complaint admits
not only the contents of the instrument but also any pleaded meaning to which
the instrument is reasonably susceptible.”
(Id.) In the cross-complaint, Cross-Complainant
alleged the agreement cited above requires Cross-Defendant to indemnify
Cross-Complainant. (Cross-Complaint ¶
11.) Cross-Complainant alleges that “as
part of that agreement, cross-defendant agreed to indemnify cross-complainant…
and Defendant further agrees to release and hold harmless Plaintiff from any
claims present or future related to the tenancy above…” (Id.) The provision cited above is reasonably susceptible to
Cross-Complainant’s pleaded meaning (i.e., that the provision is one for
indemnity).
Further, as to whether
the terms “related to the tenancy” covers Plaintiff’s claim in this action, the
cross-complaint alleges that “Cross-Defendant has had and continues to have an
obligation to defend and indemnify Cross-Complainant against all claims arising out of the
tenancy, including the claim of plaintiff Jasso-Gudino in this matter.”
(Cross-Complaint, ¶ 12.) Again, the pleading
does not place a clearly erroneous construction upon the provisions of the
contract, and thus, in passing upon the sufficiency of the complaint, the Court
must accept as correct plaintiff's allegations as to the meaning of the
agreement. For this reason, the contract is not uncertain, and alleges sufficient
facts to constitute a cause of action for express indemnity. As a result, the
demurrer is OVERRULED.
Motion
to Strike
Cross-Defendant Ochoa Jasso also
moves to strike the cause of action for express indemnity, making the same
arguments made in the demurrer.
It is
improper to strike a whole cause of action pursuant to a motion to strike. (See
Quiroz v. Seventh Ave. Center (2006) 140 Cal.App.4th 1256, 1281.)
Instead, such a challenge must be made in a demurrer. (See id.) As such, the motion
to strike is denied as to the third cause of action for express indemnity as the
Court has already ruled on the demurrer to this cause of action.
Next, Cross-Defendant moves to
strike the prayer for attorney fees, arguing that even if the express indemnity
cause of action is proper, Cross-Complainant Ramirez is not entitled to
attorneys’ fees for her express indemnity claim because no statute provides
attorneys’ fees for express indemnity claims and the agreement at issue does
not have an attorneys’ fees provision.
Code of Civil Procedure section 1021 states that, “[e]xcept as
attorney’s fees are specifically provided for by statute, the measure and mode
of compensation of attorneys and counselors at law is left to the agreement,
express or implied, of the parties.” Attorney’s fees are allowable as
items of costs only when authorized by contract, statute, or law. (Code
Civ. Proc. § 1033.5, subd. (a)(10).)
Cross-Complainant relies on Civil Code section 2778 to argue that in the case of an
indemnification agreement, the indemnitee is expressly permitted to recover the
costs of defense against the claim for which they are entitled to indemnification.
Civil Code section 2778(3) provides: “An indemnity against claims, or demands,
or liability, expressly, or in other equivalent terms, embraces the costs of
defense against such claims, demands, or liability incurred in good faith, and
in the exercise of reasonable discretion.” (Civil Code section 2778(3).)
However, Civil Code section 2778 does not specifically provide for attorney
fees, and Cross-Complainant has not cited to any authority that says it does.
Second, Cross-Complainant has not cited to any provision in the parties’
agreement providing for attorney’s fees. Therefore, Cross-Defendant’s motion to
strike attorney’s fees is GRANTED with 30 days leave to amend.
Conclusion
Accordingly, Cross-Defendant Gabriela
Ochoa Jasso’s demurrer to the
cross-complaint is OVERRULED. Cross-Defendant’s motion to strike is GRANTED in
part and DENIED in part. The motion to strike is granted as to the prayer for
attorney fees, with 30 days leave to amend. The motion to strike is denied as
to the cause of action for express indemnity.
Moving party to give notice.