Judge Thomas D. Long, Case Number: 22STCV07986, Date: 2024-03-05 Tentative Ruling

On September 29, 2023, Cross-Defendant filed a demurrer without motion to strike to the Cross-Complaint. On October 31, 2023, Cross-Complainant filed an opposition. On November 3, 2023, Cross-Defendant filed a reply. On November 14, 2023, the hearing on the demurrer filed on September 29, 2023 was placed off calendar on the Court’s own motion, and the case was transferred to Department 48, Stanley Mosk Courthouse.

On November 28, 2023, Cross-Defendant filed the instant demurrer to the cross-complaint, which is now set for hearing on March 4, 2024. On February 27, 2024, Cross-Defendant filed a reply.

The Court considers the motion filed on November 28, 2023, the opposition filed on October 31, 2023, and the reply filed on February 27, 2024.

Cross-Defendant only makes reference to requests for judicial notice in its memorandum and has not filed such requests separately, however, “[a]ny request for judicial notice must be made in a separate document listing the specific items for which notice is requested and must comply with rule 3.1306(c).” (Cal. Rules of Court, rule 3.1113.) The Court also notes that Cross-Complainant’s opposition includes a “Request for Judicial Notice” in the title of the opposing papers, but there is no separately filed request. Thus, the Court declines to rule on any requests for judicial notice.

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, accepting the alleged facts as true. (Nolte v. Cedars-Sinai Medical Center (2015) 236 Cal.App.4th 1401, 1406.) “Because a demurrer challenges defects on the face of the complaint, it can only refer to matters outside the pleading that are subject to judicial notice.” (Arce ex rel. Arce v. Kaiser Found. Health Plan, Inc. (2010) 181 Cal.App.4th 471, 556.)

Before filing a demurrer, “the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” (emphasis added, Code Civ. Proc., § 430.41(a).)

Todd A. Daley provides a declaration where he states that on September 28, 2023, he emailed Cross-Complainant’s counsel, Cristine S. Capitulo, and requested a telephonic conference. (Daley Decl. ¶ 2.) He states that he conferred with Ms. Capitulo regarding his intention to file a demurrer and on what grounds. (Id.) He states that Ms. Capitulo did not offer to cure the legal insufficiency. (Id.)

In opposition, Cross-Complainant contests the sufficiency of Cross-Defendant’s meet and confer attempts, stating that Cross-Defendant did not meet and confer in good faith because Mr. Daley simply advised that an email would be sent explaining the basis for the request for a call without reference to a demurrer, but no email was received. (Capitulo Decl. ¶ 5, Exhib. E.) The email sent on September 28, 2023, states: “Hi Cristine, could you give me a call on this matter when you have a moment? My remote work line is 213 327 7091. Thank you!” (Id.) However, Cross-Complainant does not bring any evidence disputing that the parties telephonically conferred the following day, where according to Mr. Daley’s declaration, he explained Cross-Defendant’s intention to file a demurrer and the basis for doing so.

Cross-Defendant states that the first, fifth, sixth, and seventh causes of action fail as a matter of law because they are time-barred under Code of Civil Procedure sections 337(a) and/or 337.15(a)(1), (b), and (c). There is a four-year statute of limitations for breach of written contract claims pursuant to Code of Civil Procedure section 337(a) and a ten-year statute of repose for latent construction defect damage under Code of Civil Procedure sections 337.15(a)(1), (b), and (c). Cross-Defendant argues that Cross-Complainant’s first, fifth, sixth, and seventh causes of action are based on “indemnity” language purportedly contained in a 2004 and 2010 Master Subcontract Agreements which are time-barred. Further, Cross-Defendant points out that the 2004 Master Subcontract Agreement is not pled or before the Court.

In opposition, Cross-Complainant asserts that section 1.3 of the Master Agreement delineates that in the event there is no notice of termination between the parties said 2010 agreement automatically renews. (Capitulo Decl., Exhib. A.) That section states: “In the event that no notice of termination has been given by either Party within thirty (30) days before the termination date set forth in Paragraph 1.2, this Agreement shall continue in full force and effect for additional successive twelve (12) month periods or until either Party gives thirty (30) days’ prior written notice of termination. (Id.) Cross-Complainant also states that that Agreement contained an indemnity provision in section 5.1. (Id.)

In reply, Cross-Defendant asserts that the December 14, 2020 GPS “Purchase Order” only refers to a Master Agreement dated March 24, 2004 and does not make reference to nor incorporates the terms of the March 23, 2010 Master Agreement and the purported indemnity terms. The GPS Purchase order provides:

This Purchase Order will be deemed accepted by the addressee unless notice of nonacceptance is given to CANNON CONSTRUCTORS SOUTH, INC. within 5 days of receipt by addressee. This Purchase Order is subject to and shall be governed by all of the provisions of the Master Subcontract Agreement between CANNON CONSTRUCTORS, INC. and the addressee dated 3/24/04, and this entire Agreement is incorporated herein by this reference as if printed herein [sic] full. Addressee acknowledges that it has executed this Agreement, has a copy in its files and is fully familiar with its terms. No alterations or amendments can be made to this Purchase Order without a written amendment document executed by Cannon Constructors South, Inc.

First, the parties do not dispute that the first cause of action for express indemnity, fifth cause of action for declaratory relief re duty to defend, sixth cause of action for declaratory relief re duty to indemnify, and seventh cause of action for breach of contract are based on purported indemnity obligations contained in a Master Subcontract Agreement. However, the Purchase Order, on its face, does not contain any defense or indemnity language. Although Plaintiff asserts that the March 23, 2010 Master Agreement contains an auto renewal provision and an indemnity clause, Cross-Defendant correctly points out that the Purchase Order only refers to a March 24, 2004 Master Subcontract Agreement that is not before the Court. Additionally, since Cross-Complainant fails to point to any indemnity provision that would apply to the Purchase Order, the fifth and sixth causes of action for declaratory relief cannot stand. Thus, the first, fifth, sixth, and seventh causes of action fail as a matter of law.

Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org indicating intention to submit. If all parties in the case submit on the tentative ruling, no appearances before the Court are required unless a companion hearing (for example, a Case Management Conference) is also on calendar.

Hon. Thomas D. Long

Judge of the Superior Court