Judge: Thomas D. Long, Case: 22STCV30603, Date: 2023-05-16 Tentative Ruling

Case Number: 22STCV30603    Hearing Date: November 7, 2023    Dept: 48

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

On November 21, 2022, Plaintiffs Charles Christian Hostetter and Ida Marie Brun Folmann filed a first amended complaint (“FAC”) against Defendants An Feng aka Andrew Feng, Capriwell Construction Inc., Capriwell Development and Construction, Michelle Jones, and Graff Real Estate dba Ashby & Graff Real Estate.

On March 14, 2023, Cross-Complainants Michelle Jones and Graff Real Estate dba Ashby & Graff Real Estate filed a Cross-Complaint against Cross-Defendant Philippe Til aka Philippe Til Tomaszewski, seeking comparative equitable indemnity, contribution, and declaratory relief. 

On June 5, 2023, Cross-Defendant filed a demurrer to the cross-complaint.

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.)  Courts also consider exhibits attached to the complaint and incorporated by reference.  (See Frantz v. Blackwell (1987) 189 Cal.App.3d 91, 94.)  A special demurrer for uncertainty under Code of Civil Procedure section 430.10, subdivision (f) is disfavored and will only be sustained where the pleading is so bad that defendant or plaintiff cannot reasonably respond—i.e., cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against him or her.  (Khoury v. Maly’s of Calif., Inc. (1993) 14 Cal.App.4th 612, 616.)  Even if the pleading is somewhat vague, “ambiguities can be clarified under modern discovery procedures.”  (Ibid.)

Cross-Defendant argues that there is no equitable indemnity for fraud, misrepresentation, and concealment.  (Demurrer at p. 3.)  Equitable indemnity “applies only among defendants who are jointly and severally liable to the plaintiff,” and “[w]ith limited exception, there must be some basis for tort liability against the proposed indemnitor.”  (BFGC Architects Planners, Inc. v. Forcum/Mackey Construction, Inc. (2004) 119 Cal.App.4th 848, 852.)

Cross-Defendant cites Civil Code section 875, subdivision (d):  “There shall be no right of contribution in favor of any tortfeasor who has intentionally injured the injured person.”  Despite this prohibition for contribution, “the Supreme Court has yet to consider whether comparative equitable indemnity applies to concurrent intentional tortfeasors.”  (Baird v. Jones (1993) 21 Cal.App.4th 684, 690; see Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1127 [declining to consider whether the equitable indemnity doctrine permits an intentional tortfeasor to obtain indemnity from concurrent intentional tortfeasors on a comparative fault basis].)

Cross-Complainants deny that they are responsible for the FAC’s damages, and “[a]ny such damages are the legal and proximate result in whole or in part of the acts of Cross-Defendants.”  (Cross-Complaint ¶ 8.)  “Cross-complainant and Cross-Defendants are not joint tortfeasors in pari delicto.”  (Cross-Complaint ¶ 8.)  Taking these allegations as true, as the Court must on demurrer, the Court cannot find that Cross-Defendant is not a joint tortfeasor and should not share the liability.  Furthermore, Cross-Defendant does not acknowledge that the FAC also alleges negligence, and the Cross-Complaint seeks equitable indemnity for liability as a result of all matters alleged in the FAC.

Cross-Defendant also argues that the causes of action fail to state facts and are uncertain.  (Demurrer at pp. 4-5.)  According to Cross-Defendant, the alleged fiduciary duties that were breached are not accurately stated per the Civil Code, and there are no facts showing that Cross-Defendant breached his statutory duty.  (Ibid.)

A real estate broker has a duty to a buyer to “conduct a reasonably competent and diligent visual inspection of the property offered for sale and to disclose to that prospective buyer all facts materially affecting the value or desirability of the property that an investigation would reveal.”  (Civ. Code, § 2079, subd. (a).)  The Cross-Complaint alleges that Cross-Defendant owed “a duty of care to advise Plaintiffs of all material information they became aware of during the sale of the Subject Property” and “had a fiduciary duty to advise Plaintiffs as to the condition of the Subject Property, history of the construction, and construction specifics to Plaintiffs, and to disseminate information to Plaintiffs’ related to the Subject Property which Plaintiffs could rely upon.”  (Cross-Complaint ¶ 10.)  This is sufficient.  The adequacy of the inspection and disclosures is a factual issue outside the scope of demurrer.

The demurrer is OVERRULED.  Cross-Defendant is ordered to file an answer within 10 days.  (California Rules of Court, rule 3.1320(j)(1).)

Moving party to give notice.

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.

         Dated this 7th day of November 2023