Pierce Partners vs Campania LLC et al

Background: Plaintiff Pierce Partners (Partners) alleges that it is the owner of property located at 12 W. Cota Street and 607-621 State Street (the Property) in Santa Barbara, California. (Complaint, P.P. 2 & 4.) Sampling at the Property in July 2023 and November 2024 detected the presence of tetrachloroethylene or "PCE" and other hazardous substances in the environment at the Property. (Complaint, P. 3.) The area of contamination also includes the areas from or to which the contamination has migrated (the Site), which is located in a densely-populated urban area adjacent to other commercial properties, and has been impacted by the presence of PCE and other solid and hazardous wastes, including benzene, ethylbenzene, and napthalene. (Complaint, P.P. 2 & 11-12.)

Campania, LLC, (Campania), 46 Rue Antibe, LLC, (Rue Antibe), Safina Enterprises (Safina), Third Generation SB LLC, (Third Generation), and Van Wyk Family Limited Partnership (Van Wyk) (collectively, Defendants), caused or contributed to the past or present handling, storage, treatment, transportation, generation, release, or disposal of PCE and other hazardous substances, hazardous wastes, or solid wastes (the Contaminants) at the Property and the environment in and around the Site, by the use, release, disposal of, discarding, or spilling of Contaminants at properties owned, controlled, or operated by Defendants, and by failing to abate or prevent the contamination. (Complaint, P.P. 5-9 [describing the properties owned by Defendants] & 21-25.) The Contaminants which originated from Defendants' respective properties migrated to the Property, and continued to spread and migrate within the environment at the Site. (Complaint, P.P. 23 & 26.)

On July 2, 2025, Partners filed its complaint against Defendants asserting six causes of action: (1) cost recovery under the Hazardous Substance Account Recodification Act or HSAA; (2) abatement of a continuing public nuisance; (3) abatement of a continuing private nuisance; (4) equitable indemnity; (5) contribution; and (6) declaratory relief.

On July 24, Campania and Rue Antibe (for convenience of writing, the CRA Defendants), separately filed answers to the complaint of Partners, generally denying the allegations thereof and asserting 23 affirmative defenses, and filed a cross-complaint (the CRA Cross-Complaint) against Partners, Safina, Van Wyk, and Third Generation, asserting three causes of action (1) equitable/implied indemnity; (2) apportionment and contribution; and (3) declaratory relief.

On August 25, Partners filed an answer to the CRA Cross-Complaint, generally denying its allegations and asserting 33 affirmative defenses.

On November 20, Safina filed an answer to Partners' complaint, generally denying its allegations and asserting 30 affirmative defenses; separately filed an answer to the CRA Cross-Complaint; and separately filed a cross-complaint (the Safina Cross-Complaint) against Partners, the CRA Defendants, Van Wyk, and Third Generation, asserting two causes of action: (1) equitable indemnity and contribution; and (2) declaratory relief.

On November 21, Van Wyk and Third Generation (for convenience of writing, the VWTG Defendants) filed a motion for an order striking paragraph 6 of the prayer for relief contained in the complaint of Partners (the VWTG Motion), on the grounds that the complaint does not allege a basis for the recovery of attorney or expert fees under Code of Civil Procedure sections 1021.5 or 1021.6. Partners has filed an opposition to the VWTG Motion.

On November 25, the VWTG Defendants filed a demurrer to Partners' complaint, and to the first, second, fourth, fifth, and sixth causes of action asserted in the complaint (the VWTG Demurrer). Partners has filed an opposition to the VWTG Demurrer.

On December 15, the VWTG Defendants filed an answer to the CRA Cross-Complaint, generally denying its allegations and asserting affirmative defenses, and separately filed a cross-complaint (the VWTG Cross-Complaint) against Partners, the CRA Defendants, and Safina, asserting three causes of action: (1) equitable indemnity; (2) contribution; and (3) declaratory relief.

On December 22, the VWTG Defendants filed an answer to the Safina Cross-Complaint; and the CRA Defendants separately filed answers to the Safina Cross-Complaint, generally denying its allegations and asserting 21 affirmative defenses.

On January 6, 2026, the CRA Defendants separately filed their answers to the VWTG Cross-Complaint, generally denying its allegations and asserting affirmative defenses.

On January 13, Safina filed its answer to the VWTG Cross-Complaint, generally denying its allegations and asserting affirmative defenses.

On January 14, Partners filed a demurrer (the Partners VWTG Demurrer), on the grounds that the VWTG Cross-Complaint fails to state facts sufficient to constitute a cause of action against Partners, and is uncertain. The VWTG Defendants have filed an opposition to the Partners VWTG Demurrer.

On January 20, Partners filed a demurrer (the Partners Safina Demurrer) on the grounds that the Safina Cross-Complaint fails to state facts sufficient to constitute a cause of action against Partners, and is uncertain. Safina has filed an opposition to the Partners Safina Demurrer.

On February 2, pursuant to a stipulation by the CRA Defendants and Safina, Safina filed an amended answer to the CRA Cross-Complaint.

The VWTG Motion, the VWTG Demurrer, the Partners VWTG Demurrer, and the Partners Safina Demurrer were each calendared for hearing on March 23, 2026, and were continued by the court to April 27, 2026.

On May 1, pursuant to a stipulation and request by the parties, the court continued the VWTG Motion, the VWTG Demurrer, the Partners VWTG Demurrer, and the Partners Safina Demurrer to May 1, 2026.

Analysis: (1) The VWTG Demurrer to Partners' Complaint "In reviewing the sufficiency of a complaint against a general demurrer, we are guided by long-settled rules. 'We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.] We also consider matters which may be judicially noticed.' [Citation.] Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context." (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) "If the complaint states a cause of action under any theory, regardless of the title under which the factual basis for relief is stated, that aspect of the complaint is good against a demurrer." (Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 38.)

(a) Special demurrer for uncertainty The grounds for the VWTG Demurrer include that the complaint of Partners "impermissibly groups all Defendants together without giving them fair notice of the specific claims against them, which also renders the claims fatally uncertain." (Notice at p. 2, ll. 10-13.) The VWTG Demurrer also asserts that the complaint contains boilerplate "'throw-everything-at-the wall'" legal conclusions and fails to state facts explaining how, when, where, or with what material Defendants' properties became contaminated. (Memorandum at p. 11.) For these reasons, the VWTG Demurrer argues, the complaint is uncertain.

A party may specially demur to a complaint on the grounds that "[t]he pleading is uncertain." (Code Civ. Proc., Sec. 430.10, subd. (f).) " '[U]ncertain' includes ambiguous and unintelligible." (Smith v. Kern County Land Co. (1958) 51 Cal.2d 205, 209.) "A special demurrer on the ground that [a pleading] is (a) ambiguous, (b) unintelligible, or (c) uncertain is insufficient unless the demurrer points out specifically wherein the pleading is ambiguous, uncertain or unintelligible." (Coons v. Thompson (1946) 75 Cal.App.2d 687, 690.)

The general and conclusory arguments advanced in the VWTG Demurrer and described above do not explain, specifically, where the complaint of Partners is uncertain, and do not show why its allegations are so incomprehensible that the VWTG Defendants cannot reasonably respond. (Morris v. JPMorgan Chase Bank, N.A. (2022) 78 Cal.App.5th 279, 292.) For example, the complaint includes allegations which describe the specific location of each of the properties at issue at which the Contaminants, including PCE, were released, spilled or discarded, and which describe the specific nature of the Contaminants including their historic uses, among other things. (See Complaint, P.P. 11-27.) The VWTG Demurrer does not explain why those allegations are uncertain.

The demurrer itself also contains a general description of the allegations of the complaint including in regard to the purported release of the Contaminants at the properties of the VWTG Defendants. That description indicates or suggests that the complaint is not so unintelligible or ambiguous that the VWTG Defendants cannot understand the issues or the nature of the causes of action asserted by Partners in this case. (Youngman v. Nevada Irrigation Dist. (1969) 70 Cal.2d 240, 245 ["a plaintiff is required only to set forth the essential facts of his case with reasonable precision and with particularity sufficient to acquaint a defendant with the nature, source and extent of his cause of action"].)

In addition, allegations regarding the purported use, presence, release, disposal, or discharge of the Contaminants at or from the properties of the VWTG Defendants, the location of which are specifically described in the complaint, support a reasonable inference that those matters are within the knowledge of VWTG Defendants. "Nor will a demurrer for uncertainty lie where the facts are presumptively within the knowledge of the demurring parties." (Dumm v. Pacific Valves (1956) 146 Cal.App.2d 792, 799.)

To the extent the complaint is in some respects uncertain as to the specific Contaminants that originated, or were released or discarded, from the properties of the VWTG Defendants described in the complaint, those "ambiguities can be clarified under modern discovery procedures." (Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616.) For all reasons discussed above, the court will overrule the special demurrer of VWTG Defendants to the complaint.

(b) VWTG Demurrer to the first cause of action As to the first cause of action for cost recovery under the HSAA, codified as Health and Safety Code section 78000, the VWTG Demurrer argues that the complaint does not include specific facts to support any assertion that a release or threatened release has occurred; merely recites the elements of a claim under the HSAA without alleging how or when any releases occurred, what those releases consist of, or the source of the alleged release; fails to allege a causal connection or plausible migration pathway between any alleged releases on the VWTG Defendants' properties described in the complaint; and fails to allege how any releases caused Partners to incur response costs. For these reasons, the VWTG Demurrer argues, the complaint fails to state facts sufficient to constitute a claim under the HSAA.

That HSAA authorizes a private cost recovery action pursuant to which "[a] person who has incurred response or corrective action costs in accordance with this part, Chapter 6.5 (commencing with [Health and Safety Code] [s]ection 25100) of Division 20, or the federal act may seek contribution or indemnity from any person who is liable pursuant to this part." (Health & Saf. Code, Sec. 79670, subd. (a); see also Orange County Water Dist. v. Alcoa Global Fasteners, Inc. (2017) 12 Cal.App.5th 252, 297-298 (Orange County Water) [general discussion].)

To show a right to recover costs under the HSAA, " ' "a plaintiff must establish that (1) the site on which the hazardous substances are contained is a 'facility' under [the federal Comprehensive Environmental Response, Compensation, and Liability Act of 1980 or CERCLA's] definition of the term ...; (2) a 'release' or 'threatened release' of any 'hazardous substance' from the facility has occurred...; (3) such 'release' or 'threatened release' has caused the plaintiff to incur response costs that were 'necessary' and 'consistent with the national contingency plan,'...; and (4) the defendant is within one of four classes of persons subject to the liability provisions of Section 107(a) [of CERCLA]." ' [Citation.]" (Orange County Water, supra, 12 Cal.App.5th at p. 298.)

The VWTG Demurrer does not address or present any legal or factual argument as to whether the complaint alleges facts sufficient to show that the site where the hazardous substances are contained is a facility for purposes of CERCLA, or that the VWTG Defendants are within the classes of persons subject to liability. (See also Complaint, P.P. 33-36.) For these reasons, the VWTG Demurrer appears to concede that the complaint alleges facts sufficient to state the first and fourth elements of a claim under the HSAA and described above.

Further, "[i]n determining the merits of a demurrer, all material facts pleaded in the complaint and those that arise by reasonable implication, but not conclusions of fact or law, are deemed admitted by the demurring party. [Citations.] The complaint must be construed liberally by drawing reasonable inferences from the facts pleaded." (Rodas v. Spiegel (2001) 87 Cal.App.4th 513, 517.) The complaint alleges that hazardous substances, which include the Contaminants specifically described in the complaint and described above, were released or threatened to be released at or to the Site including from equipment at the Site, and that Partners has incurred and will incur costs to monitor and investigate the soil, soil vapor, groundwater, and indoor air as well as to remove or remediate the contamination. (Complaint, P.P. 38-39.)

These allegations, when read together with the other allegations of the complaint as a whole, are sufficient, at the pleading stage, to support, expressly and by inference, the second and third elements of a cause of action under the HSAA as further discussed above. (See also Orange County Water, supra, 12 Cal.App.5th at p. 305 [also noting that the plaintiff in that case was not required to prove "a causal connection between a release by each defendant and its response costs"], original italics.)

The court does not consider, at the pleading stage, whether Partners can prove those allegations. (Berg & Berg Enterprises, LLC v. Boyle (2009) 178 Cal.App.4th 1020, 1034.) For all reasons discussed above, the court will overrule the VWTG Demurrer to the first cause of action alleged in the complaint on the grounds stated.

(c) VWTG Demurrer to the second and third causes of action To the extent the grounds for demurrer to the second and third causes of action for, respectively, public and private nuisance asserted in the complaint are the same or similar as those further discussed above, the same or similar reasoning and analysis apply. As to the second cause of action for abatement of a public nuisance, the VWTG Demurrer asserts that the complaint fails to allege facts showing any impact to the public as a result of any purported contamination, such as whether that contamination invaded public water supplies, interfered with the use of public property or natural resources, or impacted any location other than the Property. For these reasons, VWTG Demurrer contends, the complaint fails to state facts sufficient to constitute a cause of action for public nuisance.

A nuisance is defined as "[a]nything which is injurious to health, including, but not limited to, the illegal sale of controlled substances, or is indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property, or unlawfully obstructs the free passage or use, in the customary manner, of any navigable lake, or river, bay, stream, canal, or basin, or any public park, square, street, or highway...." (Civ. Code, Sec. 3479.) "A public nuisance is one which affects at the same time an entire community or neighborhood, or any considerable number of persons, although the extent of the annoyance or damage inflicted upon individuals may be unequal." (Civ.

Code, Sec. 3480.) "[P]ublic nuisances are offenses against, or interferences with, the exercise of rights common to the public. " (People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090, 1103, original italics.) "It is this community aspect of the public nuisance, reflected in the civil and criminal counterparts of the California code, that distinguishes it from its private cousin, and makes possible its use, by means of the equitable injunction, to protect the quality of organized social life. Of course, not every interference with collective social interests constitutes a public nuisance.

To qualify, and thus be enjoinable, the interference must be both substantial and unreasonable. " (Id. at p. 1105, original italics.) "It is substantial if it causes significant harm and unreasonable if its social utility is outweighed by the gravity of the harm inflicted." (County of Santa Clara v. Atlantic Richfield Co. (2006) 137 Cal.App.4th 292, 305.)

Though the complaint alleges that the VWTG Defendants caused or contributed to the handling, storage, treatment, transportation, or disposal of the Contaminants into the environment around the Site "possibly including" state waters, and that the release of Contaminants creates a risk of vapors intruding into individual homes and places of work, those allegations are insufficient to show a substantial interference with or significant harm to an entire community or considerable number of persons. For these and all further reasons discussed above, the court will sustain the demurrer to the second cause of action. As the original complaint of Partners does not, on its face, show that it is incapable of amendment, the court will grant Partners leave to amend. (Eghtesad v. State Farm General Ins. Co. (2020) 51 Cal.App.5th 406, 411.)

(d) VWTG Demurrer to the fourth and fifth causes of action The fourth and fifth causes of action of Partners' complaint assert claims for, respectively, equitable indemnity and contribution. To the extent the grounds for demurrer to those causes of action are the same as those further discussed above, the same reasoning and analysis apply. The VWTG Demurrer further contends that the complaint fails to allege facts showing a current, joint legal obligation between Partners and Defendants owed to a third party; that the allegations of the complaint are speculative as to whether the VWTG Defendants are responsible for any action that may be brought in the future or whether Partners has been found liable in any action; and that Partners cannot seek indemnity for its own liability to the VWTG Defendants.

For these reasons, VWTG Demurrer contends, the complaint fails to state a claim for equitable indemnity.

"Indemnity may be defined as the obligation resting on one party to make good a loss or damage another party has incurred. [Citation.] This obligation may be expressly provided for by contract [citation], it may be implied from a contract not specifically mentioning indemnity [citation], or it may arise from the equities of particular circumstances [citations]." (Rossmoor Sanitation, Inc. v. Pylon, Inc. (1975) 13 Cal.3d 622, 628.) "Although the foregoing categories of indemnity were once regarded as distinct, we now recognize there are only two basic types of indemnity: express indemnity and equitable indemnity." (Prince v. Pacific Gas & Electric Co. (2009) 45 Cal.4th 1151, 1157 (Prince).)

The doctrine of equitable indemnity "avoid[s] the inequity of one co-tortfeasor bearing the entire burden of discharging the liability while the other co-tortfeasor is allowed to pay nothing. Thus, the purpose of equitable indemnity is to prevent the unjust enrichment of some co-tortfeasors at the expense of others, by requiring all co-tortfeasors to bear their fair share on a comparative fault basis." (Miller v. Ellis (2002) 103 Cal.App.4th 373, 380.) "[T]raditional equitable indemnity requires no contractual relationship between an indemnitor and an indemnitee.

Such indemnity 'is premised on a joint legal obligation to another for damages,' but it 'does not invariably follow fault.' [Citation.] Although traditional equitable indemnity once operated to shift the entire loss upon the one bound to indemnify, the doctrine is now subject to allocation of fault principles and comparative equitable apportionment of loss." (Prince, supra, 45 Cal.4th at p. 1158 & fn. 3.)

Furthermore, "joint and several liability in the context of equitable indemnity is fairly expansive. [I]t is not limited to 'the old common term "joint tortfeasor"....' It can apply to acts that are concurrent or successive, joint or several, as long as they create a detriment caused by several actors. [Citation.]" (BFGC Architects Planners, Inc. v. Forcum/Mackey Construction, Inc. (2004) 119 Cal.App.4th 848, 852 (BFGC Architects).) "The elements of a cause of action for indemnity are (1) a showing of fault on the part of the indemnitor and (2) resulting damages to the indemnitee for which the indemnitor is contractually or equitably responsible." (Expressions at Rancho Niguel Ass'n v. Ahmanson Developments, Inc. (2001) 86 Cal.App.4th 1135, 1139, original italics.)

The complaint alleges that Partners has responded to the presence of the Contaminants at the Site purportedly caused by the VWTG Defendants releasing or discarding those Contaminants during business operations at their respective properties, by investigating the lateral and vertical extent of soil vapor and indoor air impacts; and that the VWTG Defendants are responsible for costs and expenses to investigate and clean up the Contaminants at the Site. (Complaint, P.P. 66-70.) The complaint further alleges that Partners has given the Department of Toxic Substances Control notice of the commencement of this action, as required by section 79670, subdivision (c), of the Health & Safety Code. (Complaint, P. 40.)

If the express allegations of the complaint described above are proven, a trier of fact could reasonably find or infer fault on the part of the VWTG Defendants, and resulting damage to Partners for which the VWTG Defendants may be equitably responsible. The procedural history of this case set forth above also shows that Partners is named as a cross-defendant in these proceedings. For all reasons discussed above, the complaint is sufficient to show "some basis for tort liability against" the VWTG Defendants, and a duty owed to Partners, which, if proven, can support a cause of action for equitable indemnity. (BFGC Architects, supra, 119 Cal.App.4th at p. 852.)

Furthermore, the allegations of the complaint under the circumstances present here and as further discussed above, are sufficient to appropriately preserve the issue of equitable indemnification. (Lemos v. Eichel (1978) 83 Cal.App.3d 110, 119 [discussion preservation of indemnification issues "at any stage of the proceedings"]; Martin v. County of Los Angeles (1996) 51 Cal.App.4th 688, 698 [general discussion].) The VWTG Demurrer also does not explain why Partners are precluded from filing an indemnity action in these proceedings notwithstanding whether or not the complaint shows that the claim for indemnification has accrued. (Smith v.

Parks Manor (1987) 197 Cal.App.3d 872, 879-880 [general discussion of anticipatory claims for equitable indemnity prior to accrual]; see also Sears, Roebuck & Co. v. International Harvester Co. (1978) 82 Cal.App.3d 492, 496-497 [discussing "heirarchy of interests" and the "reduction of the transactional cost through simplification of the litigation process in a system which reimburses injured persons for loss caused by negligence"]; Teachers Insurance Co. v. Smith (1982) 128 Cal.App.3d 862, 865 [a suit for indemnity is "independent"].)

The allegations of the complaint are also sufficient to show, expressly and by inference, that Partners has suffered loss or damage as a result of the presence of the Contaminants at the Property and Site. (Jocer Enterprises, Inc. v. Price (2010) 183 Cal.App.4th 559, 574 [discussing accrual of claim for equitable indemnity].) For all reasons discussed above, the court will overrule the demurrer to the fourth cause of action for equitable indemnity on the grounds stated.

The grounds for demurrer to the fifth cause of action for contribution are the same as those further discussed above. Therefore, the same reasoning and analysis apply. (See also Prince, supra, 45 Cal.4th at p. 1162, fn. 7.) For the same reasons discussed above, the court will also overrule the demurrer to the fifth cause of action on the grounds stated.

(e) VWTG Demurrer to the sixth cause of action The sole grounds for demurrer to the sixth cause of action for declaratory relief asserted in Partners' complaint is that the claim is derivative of other causes of action. As the court will overrule the demurrer to the first, third, fourth, and fifth causes of action for the reasons discussed above, the court will also overrule the demurrer to the sixth cause of action on the grounds stated. (Qualified Patients Assn. v. City of Anaheim (2010) 187 Cal.App.4th 734, 751 ["[a] general demurrer is usually not an appropriate method for testing the merits of a declaratory relief action, because the plaintiff is entitled to a declaration of rights even if it is adverse to the plaintiff's interest"].)

(2) The VWTG Motion "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., Sec. 435, subd. (b)(1).) Upon a motion to strike made under Code of Civil Procedure section 435, the court may "strike out any irrelevant, false, or improper matter inserted in any pleading" or "strike all or part of any pleading not filed in conformity with applicable law, court rules, or an order of the court." (Code Civ. Proc., Sec. 436(a) & (b).) The grounds for a motion to strike must appear on the face of the pleading or from matters which the court may take judicial notice. (Code Civ. Proc., Sec. 437, subd. (a).)

Noted above, the VWTG Motion seeks an order striking paragraph 6 of the prayer for relief, in which Partners requests an award of attorney fees and litigation costs pursuant to Code of Civil Procedure section 1021.5, and section 1021.6. (Complaint at p. 12 ["Prayer for Relief"], P. 6.) As to the request under section 1021.5, the VWTG Defendants assert that this case does not seek enforcement of important rights affecting the public interest, and that instead, Partners seeks to recover for its own alleged damages only in regard to its investigation and cleanup of the Property. For these reasons, the VWTG Motion argues, the request for attorney fees under Code of Civil Procedure section 1021.5 should be stricken from the complaint.

Code of Civil Procedure section 1021.5 provides: "Upon motion, a court may award attorneys' fees to a successful party against one or more opposing parties in any action which has resulted in the enforcement of an important right affecting the public interest if: (a) a significant benefit, whether pecuniary or nonpecuniary, has been conferred on the general public or a large class of persons, (b) the necessity and financial burden of private enforcement, or of enforcement by one public entity against another public entity, are such as to make the award appropriate, and (c) such fees should not in the interest of justice be paid out of the recovery, if any." (Code Civ.

Proc., Sec. 1021.5.) " '[T]he Legislature adopted section 1021.5 as a codification of the "private attorney general" attorney fee doctrine that had been developed in numerous prior judicial decisions. [T]he fundamental objective of the private attorney general doctrine of attorney fees is " 'to encourage suits effectuating a strong [public] policy by awarding substantial attorney's fees ... to those who successfully bring such suits and thereby bring about benefits to a broad class of citizens." ' [Citations.]

The doctrine rests upon the recognition that privately initiated lawsuits are often essential to the effectuation of the fundamental public policies embodied in constitutional or statutory provisions, and that, without some mechanism authorizing the award of attorney fees, private actions to enforce such important public policies will as a practical matter frequently be infeasible. ' [Citation.]" (Conservatorship of Whitley (2010) 50 Cal.4th 1206, 1217-1218, original italics.)

The same or similar analysis set forth above in regard to the demurrer to the second cause of action for public nuisance applies here. The complaint does not, for the same or similar reasons discussed above, allege facts which show or suggest that the causes of action asserted by Partners will result in the enforcement of any right affecting the public interest, or show that any success by Partners in these proceedings will result in the conferring of a significant benefit on the general public or a large class of persons. (Karuk Tribe of Northern California v.

California Regional Water Quality Control Bd., North Coast Region (2010) 183 Cal.App.4th 330, 363 [general discussion].) In addition, to the extent Code of Civil Procedure section 1021.5 authorizes the recovery of expert witness fees (Robinson v. City of Chowchilla (2011) 202 Cal.App.4th 382, 402), the same reasoning and analysis apply. For all reasons discussed above, the court will grant the motion to strike the request for attorney and expert witness fees pursuant to Code of Civil Procedure section 1021.5, with leave to amend.

As to the request for an award of costs, attorney, and expert witness fees pursuant to Code of Civil Procedure section 1021.6, the VWTG Motion asserts that Code of Civil Procedure section 1021.6 does not apply here because the complaint asserts only a claim for equitable indemnity and not implied indemnity, and does not allege the existence of any lawsuit against Partners requiring it to act to protect its interests or an action by or against a third person. "Upon motion, a court after reviewing the evidence in the principal case may award attorney's fees to a person who prevails on a claim for implied indemnity if the court finds (a) that the indemnitee through the tort of the indemnitor has been required to act in the protection of the indemnitee's interest by bringing an action against or defending an action by a third person and (b) if that indemnitor was properly notified of the demand to bring the action or provide the defense and did not avail itself of the opportunity to do so, and (c) that the trier of fact determined that the indemnitee was without fault in the principal case which is the basis for the action in indemnity or that the indemnitee had a final judgment entered in his or her favor granting a summary judgment, a nonsuit, or a directed verdict." (Code Civ. Proc., Sec. 1021.6.)

Because Code of Civil Procedure section 1021.6 "imposes liability on a tortious indemnitor for attorney fees it causes an innocent indemnitee to incur[]" (Fidelity Mortgage Trustee Service, Inc. v. Ridgegate East Homeowners Assn. (1994) 27 Cal.App.4th 503, 514), the same or similar reasoning and analysis apply in regard to the demurrer to the fourth cause of action further discussed above. For the same or similar reasons discussed above, and as the court will overrule the demurrer to the fourth cause of action for equitable indemnity, the court will deny the VWTG Motion as to the prayer for an award of attorney fees under Code of Civil Procedure section 1021.6. (See also Wilson, McCall & Daoro v.

American Qualified Plans, Inc. (1999) 70 Cal.App.4th 1030, 1036 [noting that the statute's "reference to the 'principal case' does not necessarily mean the original action filed by the plaintiff" and instead "refers to the action which caused the innocent indemnitee to defend itself and thereby incur attorney fees"].)

Though the opposition of Partners to the VWTG Motion fails to explain, with reasoned argument, why Code of Civil Procedure section 1021.6 permits the recovery of expert witness fees or litigation costs, "a prevailing party is entitled as a matter of right to recover costs in any action or proceeding." (Code Civ. Proc., Sec. 1032, subd. (b).) Items allowable as costs under Code of Civil Procedure section 1032 are set forth in section 1033.5. As to expert witness fees, the statute allows only those "[f]ees of expert witnesses ordered by the court." (Code Civ.

Proc., Sec. 1033.5, subd. (a)(8).) "Fees of experts not ordered by the court[]" are expressly disallowed unless authorized by law. (Code Civ. Proc., Sec. 1033.5, subd. (b)(1).) For all reasons discussed above, the request of Partners for an award of litigation costs appears essential to the causes of action asserted in the complaint. "[M]atter that is essential to a cause of action should not be struck and it is error to do so." (Quiroz v. Seventh Ave. Center (2006) 140 Cal.App.4th 1256, 1281.)

Therefore, and for these reasons, to the extent the VWTG Motion seeks an order striking a request for an award of litigation costs, the court will deny the motion as to any such request. The court will, for the reasons further discussed above, grant the motion as to the request for expert witness fees.

(3) Partners VWTG Demurrer The grounds for the Partners VWTG Demurrer include that the VWTG Cross-Complaint fails to distinguish Partners from the other named cross-defendants; fails to plead facts showing that the VWTG Defendants and Partners are joint tortfeasors including in regard to which, if any activities, operations, or conduct by Partners caused or contributed to contamination, or when any such activity or conduct occurred; improperly alleges that Partners is both a victim and cause of the contamination at issue; and lacks clarity as to the specific claims asserted against Partners in regard to any conduct which caused or contributed to the contamination, or when. For these reasons, the Partners VWTG Demurrer asserts, the VWTG Cross-Complaint fails to state facts sufficient to constitute any cause of action and is uncertain.

In their opposition, the VWTG Defendants assert that Partners' own complaint contains the same deficiencies asserted in the Partners VWTG Demurrer; that Partners contributed to the purported contamination at the Property and the Site at issue in these proceedings; and that Partners necessarily understands the harms for which the VWTG Cross-Complaint seeks an apportionment of liability such that the pleading is not uncertain.

The VWTG Cross-Complaint alleges the filing of the complaint by Partners; that Partners contends in that complaint that environmental contamination exists at the Property which migrated from the properties owned by the VWTG Defendants; that to the extent the Property is contaminated, that contamination was caused by "Cross-Defendants"; and that the VWTG Cross-Complaint seeks indemnity from Partners for that purported contamination. (VWTG Cross-Complaint, P.P. 2-6.) Because the term "Cross-Defendants" is not defined in the VWTG Cross-Complaint, which also refers separately to Partners as the "Plaintiff", it is unclear from the context of the allegations whether the term "Cross-Defendants" includes Partners, or whether the VWTG Defendants seek indemnity for their own purported conduct as alleged in the complaint of Partners. (See, e.g., VWTG Cross-Complaint, P. 6 [referring to capitalized term "Plaintiff" separately from capitalized term "Cross-Defendants"].)

In addition, and ostensibly relevant here based on the points advanced by the VWTG Defendants' opposition to the Partners VWTG Demurrer, "[a]n indemnity claim effectively seeks to apportion among the parties to the indemnity action the precise liability claimed by the plaintiff in the main action; therefore the indemnity claim of necessity arises out of the same occurrences or series of occurrences as asserted by the plaintiff." (Time for Living, Inc. v. Guy Hatfield Homes/All American Development Co. (1991) 230 Cal.App.3d 30, 39.)

To the extent the VWTG Cross-Complaint arises from the occurrences described and liability claimed by Partners in its complaint, that pleading does not show, expressly or by inference, why Partners is responsible for the presence of the Contaminants at the Property or the Site, or why Partners caused the harm for which Partners seek to recover in their complaint. (Ibid.).

Furthermore, to the extent the VWTG Cross-Complaint asserts an indemnity claim against Partners for the purpose of establishing a right to recover attorney fees under Code of Civil Procedure section 1021.6, that statute "does not establish the criteria for an implied indemnity. It presupposes the existence of 'a claim for implied indemnity' on which the party seeking attorney's fees has prevailed. For this reason a claim for implied indemnity must be established under the existing law of indemnity." (Watson v.

Department of Transportation (1998) 68 Cal.App.4th 885, 890.) As further discussed above, the VWTG Cross-Complaint includes no allegations showing a relationship between Partners and the VWTG Defendants "giving rise to indemnity under the established categories of implied indemnity, e.g., implied contractual indemnity, vicarious liability, or an intentional tort giving rise to complete equitable indemnity." (Id. at pp. 890-892 [also noting that "[a] tortfeasor is one who is liable for damages to the injured plaintiff.

If the alleged tortfeasor is not liable at all no tenable claim can be made for indemnity...."].) Moreover, to the extent the VWTG Defendants contend in their opposition, that Partners caused or contributed to any contamination or the presence of the Contaminants at the Property or the Site, those facts are not alleged in the VWTG Cross-Complaint.

For all reasons discussed above, the court will sustain the demurrer of Partners as to the first and second causes of action asserted in the VWTG Cross-Complaint only, with leave to amend. (See also Civ. Code, Sec. 1432; Morgan Creek Residential v. Kemp (2007) 153 Cal.App.4th 675, 684 ["[t]he right of contribution, although necessarily related to some former transaction or obligation, exists ... [i]n situations where two or more parties are jointly liable on an obligation"].) As the court will sustain the demurrer with leave to amend, the court need not reach the demurrer to the third cause of action for declaratory relief.

Furthermore, Partners fails to explain why the VWTG Cross-Complaint does not show the existence of an actual controversy relating to the rights and duties of the parties in regard to the presence of the Contaminants at the Property or Site, or the claims alleged in Partners' complaint. (See C. Dudley De Velbiss Co. v. Kraintz (1951) 101 Cal.App.2d 612, 615-616; Kirkwood v. California State Automobile Assn. Inter-Ins. Bureau (2011) 193 Cal.App.4th 49, 59; Herrmann v. Fireman's Fund Ins. Co. (1954) 127 Cal.App.2d 560, 566 ["declaratory relief may be asked alone or with other relief...."].)

(4) Partners Safina Demurrer The allegations of the Safina Cross-Complaint are similar to those asserted in the VWTG Cross-Complaint described above. For example, the Safina Cross-Complaint alleges or effectively alleges that Partners owns the Property; that Safina incorporates by reference the allegations of Partners' complaint including as to the migration of hazardous substances onto the Property from nearby properties; and that "Cross-Defendants" are responsible in some manner for the occurrences alleged in the complaint. (Safina Cross-Complaint, P. 1, 8, 10, 11.) In addition, the grounds for the Partners Safina Demurrer to the Safina Cross-Complaint are the same or effectively the same as those further discussed above. The same reasoning and analysis apply here.

For example, though the opposition of Safina asserts that the Safina Cross-Complaint "alleges in detail" that Partners "owned, operated, managed, and/or controlled the property and facilities from which hazardous substances were released[]" and that Partners' "acts and omissions, including their handling, storage, disposal, and failure to remediate Contaminants, caused or contributed to the contamination that is the subject of" the complaint, Safina fails to present any information showing, on a point-by-point basis, where those allegations appear in the Safina Cross-Complaint. For the same or similar reasons discussed above, the court will sustain the Partners Safina Demurrer as to the first cross-claim asserted in the Safina Cross-Complaint only, with leave to amend.

As to the second cross-claim for declaratory relief, the same reasoning and analysis apply here. For all reasons discussed above, and at this stage of the proceedings, the court will overrule the demurrer of Partners to the second cross-claim for declaratory relief asserted in the Safina Cross-Complaint.

Tentative Ruling: The Estate of Joel Gonzalez et al vs Christina Almada

Tentative Ruling: The Estate of Joel Gonzalez et al vs Christina Almada