Motion for Judgment on the Pleadings
The FAC alleges Theodore Robins Ford negligently repaired the Subject Vehicle during the repairs performed on or around February 24, 2020, and October 5, 2020. (FAC ¶ 31.) During the February 24, 2020 repair visit, Theodore Robins Ford documented multiple transmission-related concerns, replaced the 10-speed transmission assembly and transmission cooler and reprogrammed the PCM, yet failed to properly diagnose, repair, test, and verify the underlying transmission and fluid sealing defects, resulting in the continued manifestation of transmission- related problems following the repair. (Id.)
During the October 5, 2020, repair visit, Theodore Robins Ford again identified transmission fluid leaks, replaced the transmission pan, gasket, and rear seal after confirming fluid leakage through the transmission pan and from the rear seal area. (FAC ¶ 32.) Despite these repairs, the Subject Vehicle continued to experience transmission-related failures and fluid leaks. (Id.)
Here, the FAC’s allegations indicate that the negligent cause of action accrued by October 2020. Plaintiff alleges Theodore Robins Ford again identified transmission fluid leaks at the October 5, 2020 visit. (FAC ¶ 33.) This is sufficient to “put a reasonable person on inquiry.” (Norgart, supra, 21 Cal.4th at p. 398.) Plaintiff has not alleged any facts that would invoke the discovery rule or other exception that would postpone the accrual of the negligent repair cause of action.
Theodore Robins Ford also contends Plaintiff fails to state a cause of action for negligent repairs because the FAC does not adequately allege causation or damages.
To plead a claim for negligent repair, a plaintiff must allege the elements of negligence. The elements of negligence are duty, breach, causation, and damages. (Burgess v. Superior Court (1992) 2 Cal.4th 1064, 1072.)
The FAC alleges Theodore Robins Ford’s repeated failure to properly diagnose, repair, inspect, test, and verify the condition of the transmission system and associated fluid sealing components after multiple repair attempts directly and proximately caused the continued transmission malfunction, fluid leakage, loss of drivability, and resulting damages suffered by Plaintiff. (FAC ¶ 34.) The FAC does not state what damages Plaintiff suffered from Theodore Robins Ford’s alleged conduct. The allegations are insufficient to support a cause of action for negligent repair, and also prevent a determination as to the applicability of the economic loss rule and the independent tort doctrine. Without more, the court is unable to analyze whether Plaintiff is seeking tort recovery for purely economic losses.
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The motion for judgment on the pleadings is granted with leave to amend within 15 days of service of notice.
Defendant Theodore Robins Ford, Inc. to give notice.
59 Landau vs. 138 Motion for Judgment on the Pleadings 6th Street, LLC Cross-Defendant Albert J. Brown, as Trustee of the Al Brown Trust dated 22-01245356 December 5, 1989 (“Brown”), moves for judgment on the pleadings as to Cross- Complainant 138 6th Street, LLC’s (“138”) Second Cause of Action for express contractual indemnity and Third Cause of Action for equitable indemnity. The motion is DENIED for the reasons set forth below.
Second Cause of Action for Express Contractual Indemnity
“Express indemnity” refers to an obligation that arises by virtue of express contractual language establishing a duty in one party to save another harmless upon the occurrence of specified circumstances. (Prince v. Pacific Gas & Electric Co. (2009) 45 Cal.4th 1151, 1157.) An indemnitee seeking to recover on an agreement for indemnification must allege the parties' contractual relationship, the indemnitee's performance of that portion of the contract which gives rise to the indemnification claim, the facts showing a loss within the meaning of the parties' indemnification agreement, and the amount of damages sustained. (Four Star Elec., Inc. v. F & H Constr. (1992) 7 Cal.App.4th 1375, 1380.)
The Cross-Complaint sufficiently alleges these elements. It alleges that Brown and 138 entered into a written indemnity agreement in connection with the sale of the property. (Cross-Complaint, ¶ 11 & Ex. C.) The indemnity agreement states: “Seller indemnifies, defends, protects, and holds Buyer harmless from and against any and all actions, awards, claims, costs, damages, demands, expenses (including, without limitation, reasonable attorneys’ fees, costs and expenses and court costs and expenses), fees, judgments, liabilities, liens, losses and obligations (collectively, “Claims”) in any way arising or resulting from or in connection with that certain Residential Lease Agreement dated January 15, 2014 between Seller, as landlord, and Lisa Landau and Joshua Elder, together as tenant (collectively, “Tenant”), and Tenant’s occupancy of the Property prior to the close of escrow, including but limited any [sic] and all Claims set forth in that certain Letter Re: Demand for Compensation of Damages dated October 6, 2020 from Tenant’s attorney Bryan K.
Theis of the Theis Law Group, PC to Seller. This indemnity shall survive the close of escrow.”
The Cross-Complaint further alleges, Brown agreed to defend and indemnify 138 against claims arising from or connected with the lease and the tenants’ preescrow occupancy. (Ibid.) The agreement expressly includes the claims identified in the tenants’ October 6, 2020 demand. (Ibid.)
The Cross-Complaint also alleges that 138 performed its obligations under the indemnity agreement. (Cross-Complaint, Second Cause of Action, ¶ 10.) And that 138 tendered the defense of the underlying action to Brown on April 19, 2022. (Cross-Complaint, ¶ 18.) Brown allegedly refused to defend or indemnify 138. (Ibid.) As a result, 138 alleges that it incurred defense costs and other damages. (Cross-Complaint, Second Cause of Action, ¶¶ 11–12.)
Brown argues that the SAC seeks to hold 138 liable only for its own postacquisition conduct. The SAC, however, alleges that the hazardous conditions and Plaintiffs’ exposure began during Brown’s ownership. (SAC, ¶¶ 9–18.) It alleges that Brown’s attempted repairs were inadequate. (SAC, ¶¶ 11–15.) It also alleges that Plaintiffs suffered damages from the conduct of Defendants “and of their predecessor.” (SAC, ¶ 27.) In addition, the SAC alleges that Brown’s knowledge was imputed to 138 as the assignee of the rental agreement. (SAC, ¶ 6.)
These allegations overlap with the claims identified in the October 2020 demand, which the indemnity agreement expressly covers. The pleadings therefore do not establish that all claims against 138 fall outside the agreement as a matter of law. Whether Plaintiffs’ injuries arose from pre-escrow conditions, 138’s postacquisition conduct, or both presents a factual question that cannot be resolved on
the pleadings. Because the pleadings indicate that at least some of Plaintiffs’ claims may fall within the agreement, Brown has not established that the Second Cause of Action fails in its entirety.
Accordingly, the motion as to the Second Cause of Action is DENIED.
Third Cause of Action for Equitable Indemnity
The elements of a cause of action for equitable 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 equitably responsible. (Prince v. Pacific Gas & Electric Co., supra, 45 Cal.4th at p. 1157.) Equitable indemnity is premised on a joint legal obligation to another for damages, subject to allocation of fault principles and comparative equitable apportionment of loss. (Id. at p. 1158.)
The Cross-Complaint alleges that any liability imposed on 138 is not the result of 138’s own conduct. (Cross-Complaint, Third Cause of Action, ¶ 14.) Instead, it alleges that any such liability arises from Brown’s negligence, carelessness, fraud, conduct, acts, or omissions. (Ibid.) It further alleges that Brown received notice of Plaintiffs’ claims but refused to indemnify 138. (Id., ¶ 15.) Finally, it alleges that Brown is equitably responsible for the losses and expenses 138 incurs in the underlying action. (Id., ¶ 16.)
The SAC alleges that Plaintiffs experienced mold, rodent contamination, and HVAC defects beginning during Brown’s ownership. (SAC, ¶¶ 9–18.) It alleges that Plaintiffs were exposed to mold, rodent urine and feces, and other toxins beginning in at least 2016. (SAC, ¶ 17.) It also alleges that Plaintiffs’ injuries resulted from the conduct of Defendants and their predecessor. (SAC, ¶ 27.) The SAC does not apportion Plaintiffs’ injuries or damages between Brown’s and 138’s respective periods of ownership. Brown was subsequently identified as Doe 1 in the underlying action. (ROA 100.)
On the face of the pleadings, Brown and 138 may be successive tortfeasors whose alleged conduct contributed to the same continuing or indivisible injuries. Whether they share liability presents a factual question that cannot be resolved on the pleadings. Allocating any liability between their respective periods of ownership likewise requires the resolution of factual issues beyond the pleadings.
Brown has therefore not established that equitable indemnity is unavailable as a matter of law. Accordingly, the motion as to the Third Cause of Action is DENIED.
Ambiguity Regarding Claims
Brown alternatively argues that any ambiguity concerning whether Plaintiffs’ claims arose before or after escrow demonstrates that 138 failed to allege a covered loss. However, the pleadings do not establish that Plaintiffs’ claims arose solely after escrow. Any uncertainty may be resolved through discovery.
Accordingly, the motion for judgment on the pleadings as to the Second and Third Causes of Action is DENIED.
Cross-Complainant is ordered to give notice.
61 Samuel-K vs. Cara Motion for Summary Judgment and/or Adjudication