GLUMAC’s Demurrer to PERKINS’s Second Amended Cross-Complaint
The demurrer as to EDWARDS is therefore sustained to the entirety of the complaint, with 30 days leave to EDWARDS to file an amended complaint to state with more specificity any claims against demurring Defendants. This 30 days runs from the date of this hearing.
The court clarifies that EDWARDS cannot be represented in any subsequent filings in this case by any person other than herself, if that person is not a licensed California attorney.
On the renewed motion to compel responses to discovery:
With the court sustaining the demurrer as to all claims by Plaintiffs YEE and NOVAK without leave to amend, the part of the renewed discovery motion seeking to compel from them responses to discovery is rendered moot. However, because moving Defendants propounded the discovery and filed the motion before these plaintiffs’ claims were effectively rejected by the demurrer ruling, and because the discovery at issue appeared reasonably calculated to the determination of a motion and/or the subject matter of this action, the court finds they are entitled to sanctions against both YEE and NOVAK under C.C.P. §§2030.290(c), 2031.300(c), and/or 2033.280(c).
With half of the discovery at issue in this motion (four of the eight sets of discovery) propounded against NOVAK, a higher amount of sanctions is justified against him. The court therefore imposes sanctions in the amount of $1,200.00 against EDWARD LEOPOLD NOVAK, and in the amount of $600.00 against KEITH ETHAN LEE. Those sanctions are due and payable to moving counsel Richard Hurlburt of Legal Assistance to the Elderly within 30 days of service of this order.
With the court’s sustaining of the demurrer as to EDWARDS with 30 days leave to amend, the discovery propounded against her is not necessarily rendered moot by that ruling, except for the discovery pertaining to the other named Plaintiffs (YEE and NOVAK). The court therefore grants the renewed discovery motion, and orders EDWARDS to serve, within 30 days of service of this order, full and complete verified responses to all of the form interrogatories, and deems EDWARDS to have admitted requests for admissions 1-8.
The court also imposes sanctions in the amount of $600.00 against PEGGY S.K. EDWARDS. Those sanctions are due and payable to moving counsel Richard Hurlburt of Legal Assistance to the Elderly within 30 days of service of this order.
SUNDT CONSTRUCTION, INC. v. NORTHERN CALIFORNIA OFFICERS COMMUNITY dba PARADISE VALLEY ESTATES Case No. FCS059237
GLUMAC’s Demurrer to PERKINS’s Second Amended Cross-Complaint
TENTATIVE RULING
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Cross-Defendant GLUMAC demurs to the causes of action against it within Cross- Complainant PERKINS EASTMAN ARCHITECTS, D.P.C.’s (“PERKINS”) second amended cross-complaint (“PERKINS 2ACC”) for express indemnity and equitable indemnity.
PERKINS admits that it has not filed the certificate of merit required by Code of Civil Procedure section 411.35. Failure to do so is grounds for demurrer per Code of Civil Procedure section 411.35, subdivision (g). However, the statute does not forbid leave to amend to present a proper certificate of merit; accordingly, the court sustains GLUMAC’s demurrer with leave to amend. (Price v. Dames & Moore (2001) 92 Cal.App.4th 355, 360.)
The court addresses GLUMAC’s other arguments with PERKINS’s presumed amended pleading in mind, in the interests of judicial economy.
GLUMAC asserts that the indemnity claim is premature because PERKINS has not suffered damages yet. However, prospective claims for indemnity are approved practice. Our state Supreme Court has praised the practical advantages of indemnity cross-complaints as a method of making a complete determination of disputes among all parties in a single judicial proceeding. (Valley Circles Estates v. VTN Consolidated, Inc. (1983) 33 Cal.3d 604, 614.) The court recognizes that Valley Circles Estates spoke to equitable indemnity but the principles of judicial economy expressed and approved therein logically apply equally to claims of express indemnity.
GLUMAC argues that PERKINS has not alleged GLUMAC’s negligence and so cannot assert express indemnity. PERKINS has two provisions in its contract with GLUMAC under which it can seek indemnity: the first lets it seek indemnity “to the same degree” as it owes others under the Prime Agreement and the second lets it seek indemnity for any claim rooted in GLUMAC’s breach of contract or negligence. PERKINS can assert express indemnity under the first provision without needing to raise GLUMAC’s negligence.
PERKINS has also adequately alleged GLUMAC’s negligence, construing the PERKINS 2ACC reasonably. PERKINS alleges that GLUMAC’s work underpins purported design flaws for which Plaintiff PARADISE VALLEY ESTATES (“PVE”) sues PERKINS and alleges that GLUMAC had something to do with the problems PVE alleges. (PERKINS 2ACC at ¶¶ 36-37.) This sufficiently states that GLUMAC’s negligence contributed to the design flaws on which PVE sues.
An express agreement to indemnify displaces equitable indemnity. (Rossmoor Sanitation, Inc. v. Pylon, Inc. (1975) 13 Cal.3d 622, 628.) However, the PERKINS 2ACC states that GLUMAC rendered services for PERKINS until spring 2021 and then in June 2021 PERKINS assigned its contract with GLUMAC to PVE. (PERKINS 2ACC at ¶¶ 34-35.) PERKINS may plead express indemnity with regard to events occurring before assignment of the contract and equitable indemnity with regard to events occurring after assignment.
Conclusion. GLUMAC’s demurrer is sustained with leave to amend due to PERKINS’s failure to file the required certificate of merit. PERKINS is to file any amended pleading within ten days of the date of this order.
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