Case Number: EC061328    Hearing Date: November 07, 2014    Dept: A

Adarme v Rancho Horizon, LLC

DEMURRER

Calendar: 8
Case No: EC061328
Date: 11/7/14

MP: Cross-Defendant, Bank of America
RP: Cross-Complainant, Melrose 6 Homeowners

ALLEGATIONS IN CROSS-COMPLAINT:
The Plaintiffs claim that their property was wrongfully sold in a foreclosure proceeding to Rancho Horizon, LLC. Further, the Plaintiff claims that the Melrose 6 Homeowners Association, caused damages because it allowed the locks to be changed at the Plaintiffs’ property and for the Plaintiffs’ property to be removed.
Melrose 6 Homeowners seeks indemnity and contribution from the Cross-Defendants because their negligence caused the Plaintiffs’ damages.

CAUSES OF ACTION IN CROSS-COMPLAINT:
1) Indemnity
2) Contribution

RELIEF REQUESTED:
Demurrer to first and second causes of action.

DISCUSSION:
Trial is set for February 23, 2015.

This hearing concerns the demurrer filed by the Cross-Defendant, Bank of America, to the first and second causes of action in the Cross-Complaint on the ground that they lack sufficient facts.

1. First Cause of Action for Indemnity
Under the law, when multiple tortfeasors are responsible for an indivisible injury suffered by the plaintiff, each tortfeasor is jointly and severally liable to the plaintiff for those damages and thus may be held individually liable to the injured plaintiff for the entirety of such damages. American Motorcycle Assn. v. Superior Court (1978) 20 Cal. 3d 578, 582, 586-587, 590. This joint and several liability doctrine ensures that the injured party receives adequate compensation for the injuries, even if one or more of the responsible parties do not have the financial resources to pay for their share of the liability. Id. at 588, 590. Fairness dictates that the wronged party should not be deprived of his or her right to redress, but that the wrongdoers should be left to work out between themselves any apportionment. Id. at 590.
The right to indemnity flows from payment of a joint legal obligation on another’s behalf. Western Steamship Lines, Inc. v. San Pedro Peninsula Hospital (1994) 8 Cal. 4th 100, 114. The elements of a cause of action for indemnity are the following:

1) a showing of fault on the part of the indemnitor;
2) resulting damages to the indemnitee for which the indemnitor is contractually or equitably responsible.
Gouvis Engineering v. Superior Court (1995) 37 Cal. App. 4th 642, 646.

Equitable indemnity principles govern the allocation of loss or damages among multiple tortfeasors whose liability for the underlying injury is joint and several. GEM Developers v. Hallcraft Homes of San Diego, Inc. (1989) 213 Cal. App. 3d 419, 426. Under the principles of equity, liability for damage will be borne by each joint tortfeasor in direct proportion to his or her respective fault. American Motorcycle, 20 Cal. 3d at 583, 598.
A review of the Cross-Complaint reveals that there are no allegations identifying the fault on the party of the Cross-Defendant, Bank of America. In paragraph “IV”, the Cross-Complainant alleges that if the Plaintiff sustained injuries, it was the result of the Cross-Defendant’s negligence. However, this is a conclusion of law, i.e., the Cross-Defendant was negligent. There are no allegations identifying the manner in which the Cross-Complainant will show the Cross-Defendant was at fault, i.e., there are no allegations identifying the acts or omissions that were negligent and that caused the Plaintiff’s injuries. There are no allegations to demonstrate that the Cross-Defendant is a joint tortfeasor on the claims brought against the Cross-Complainant in the Plaintiff’s operative pleading, which is the Second Amended Complaint filed on May 1, 2014.
When ruling on a demurrer, the Court assumes the truth of factual allegations; however, the Court does not assume the truth of contentions, deductions, or conclusions of fact or law. Moore v. Regents of University of California (1990) 51 Cal. 3d 120, 125. Here, the Cross-Complaint alleges only a conclusion of law, i.e., the Cross-Defendant was negligent. The Court does not assume the truth of this conclusion. Since there are no factual allegations to support this conclusion, the Cross-Complaint does not contain sufficient facts.
Therefore, there are grounds to sustain the demurrer to the first cause of action. Since this is the original Cross-Complaint, the Court will grant leave to amend.

2. Second Cause of Action for Contribution
This claim is based on CCP section 875(a), which provides that when a money judgment has been rendered jointly against two or more defendants in a tort action there shall be a right of contribution among them. The right of contribution presupposes a common liability which is shared by the joint tortfeasors on a pro rata basis. Alisal Sanitary Dist. v. Kennedy (1960) 180 Cal. App. 2d 69, 75.
In paragraph “I” of the second cause of action, the Cross-Complaint alleges that the Plaintiff’s damages were caused by the negligence of the Cross-Defendant. This conclusion of law is not assumed to be true and does not plead facts demonstrating that the Cross-Defendant is a joint tortfeasor. Since there are no factual allegations, the Cross-Complaint does not contain sufficient facts.
Therefore, there are grounds to sustain the demurrer to the second cause of action. Since this is the original Cross-Complaint, the Court will grant leave to amend.

RULING:
Sustain demurrers to first and second causes of action with ten days leave to amend.