Judge: Thomas Falls, Case: 20STCV15419, Date: 2023-02-15 Tentative Ruling

Case Number: 20STCV15419    Hearing Date: February 15, 2023    Dept: O

HEARING DATE:                 Wednesday, February 15, 2023

RE:                                          EDGARDO PANO, JR. vs SERRANO DEVELOPMENT GROUP, INC., et al. (20STCV15419)

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CROSS-DEFENDANTS’ DEMURRER TO SUN AGGREGATES LLC’S CROSSCOMPLAINT

            Responding Party: Unopposed as of 2/6 (due 9 court days before hearing [02/01])

Tentative Ruling

CROSS-DEFENDANTS’ DEMURRER TO SUN AGGREGATES LLC’S CROSSCOMPLAINT is SUSTAINED. Leave to amend will only be granted upon a showing of how Sun Aggregates intends to cure the deficiencies.

Background[1]

This is a wrongful death case.

On April 22, 2020, Plaintiff Edgardo Pano, Jr. filed suit against SERRANO DEVELOPMENT GROUP, INC., a California Corporation; PACIFIC EMPIRE BUILDERS, INC., a California Corporation; AZUSA BLOCK 36, LLC, a California Limited Liability Company; CITY OF AZUSA, a Public Entity; JONELLE SOLLER for the death of his father who was struck by a truck while riding his bicycle.

On October 19, 2022, Sun Aggregates LLC (“Sun Aggregates”) filed a Cross Complaint for (1) EQUITABLE INDEMNITY; (2) CONTRIBUTION; (3) EXPRESS INDEMNITY; and (4) DECLARATORY RELIEF against Cross-Defendants, SERRANO DEVELOPMENT GROUP, INC., a California Corporation; PACIFIC EMPIRE BUILDERS, INC., a California Corporation; AZUSA BLOCK 36, LLC, a California Limited Liability Company; MANUAL D. TEJEDA TRUCKING INC., a California Corporation; LUIS EDUARDO RIOS MORALES dba RIOS TRUCKING; and RIGHT TRUCK INC.

On December 29, 202, Cross-Defendants SERRANO DEVELOPMENT GROUP, INC.; PACIFIC EMPIRE BUILDERS, INC.; and AZUSA BLOCK 36, LLC (collectively “Cross-Defendants”) file the instant Demurrer to Sun Aggregates’ cause of action for express indemnity.

Discussion

Moving Defendants file the instant demurrer on the grounds that Sun Aggregates has failed to properly state facts sufficient to constitute a cause of action for express indemnity.

A demurrer will lie in an action founded upon a contract when it cannot be ascertained from the pleading whether the contract is written or oral or implied by conduct. (Civ. Proc. Code, § 430.10, subd. (g).) “In an action based on a written contract, a plaintiff may plead the legal effect of the contract rather than its precise language.” (Construction Protective Services, Inc. v. TIG Specialty Ins. Co. (2002) 29 Cal.4th 190, 198-199.)

Here, the cross complaint merely alleges that the parties “entered into an agreement whereby Cross-Defendants agreed to defend, indemnify and hold harmless Cross- Complainant from any and all losses, expenses, damages, liability and claims such as that being claimed by Plaintiff.” (Cross-Complaint ¶14.) An action based upon express indemnity, however, requires “express contractual language establishing a duty,” but such express language is lacking. (Prince v. Pacific Gas & Electric Co. (2009) 45 Cal.4th 1151, 1158) (emphasis added). Accordingly, while Sun Aggregates need not provide the purported agreement as an exhibit, there are numerous uncertainties as to the form of the agreement (i.e., oral or written) and whether such an agreement contained a provision regarding express indemnity.

Therefore, the court sustains the demurrer based upon CCP section 431.10(g).

Conclusion

Based on the foregoing, the demurrer is sustained. Considering that Sun Aggregates did not respond to moving Defendants’ numerous meet and confer efforts nor did it file an Opposition to the instant motion such that it would be unfair for moving Defendants to proceed with a potential second demurrer on the same grounds, the court will only grant leave to amend if, during the hearing, Sun Aggregates provides how it intends to cure the defect(s) noted above.