2012-00596896
1.DEMURRER TO AMENDED CROSS-COMPLAINT

A demurrer presents an issue of law regarding the sufficiency of the allegations set forth in the complaint. Lambert v. Carneghi (2008) 158 Cal.App.4th 1120, 1126. The challenge is limited to the “four corners” of the pleading (which includes exhibits attached and incorporated therein) or from matters outside the pleading which are judicially noticeable under Evidence Code §§ 451 or 452. The complaint is read as a whole: material facts properly pleaded are assumed true; contentions, deductions or conclusions of fact/law are not. Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Jenkins v. JP Morgan Chase Bank, NA (2013) 216 Cal.App.4th 497, 506. In general, a pleading is adequate if it contains a reasonably precise statement of the ultimate facts, in ordinary and concise language, and with sufficient detail to acquaint a defendant with the nature, source and extent of the claim. Leek v. Cooper (2011) 194 Cal.App.4th 399, 413.

The elements for breach of contract are (1) parties capable of contacting, (2) their consent, (3) a lawful object, (4) sufficient cause or consideration, (5) plaintiff’s performance or excuse for failure to perform, (6) defendant’s breach, and (7) damage. Civil Code §§ 1550, 1605; CDF Firefighters v. Maldonado (2008) 158 Cal.App.4th 1226, 1239. A contract may be pleaded either by its terms—set out verbatim in the complaint or a copy of the contract attached to the complaint and incorporated therein by reference—or by its legal effect. Holcomb v. Wells Fargo Bank, NA (2007) 155 Cal.App.4th 490, 501. In order to plead a contract by its legal effect, plaintiff must “allege the substance of its relevant terms.” McKell v. Washington Mutual, Inc. (2006) 142 Cal.App.4th 1457, 1489. Plaintiff must also make clear whether the contract is oral, written or implied. CCP § 430.10(g). While performance can be satisfied by allegations in general terms, excuses must be pleaded specifically. Durell v. Sharp Healthcare (2010) 183 Cal. App. 4th 1350, 1367.

SCE alleges that Asplundh breached the service contract by failing to defend/indemnify SCE for harm allegedly caused by Asplundh’s “performance or nonperformance” under the agreement. Whether or not this is true, it is clearly enough of an averment to survive pleading attack. This is something better suited for summary judgment.

Equitable Indemnity and Apportionment

The right to indemnity flows from payment of a joint legal obligation on another’s behalf. 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 equitably responsible. Bailey v. Safeway, Inc. (2011) 199 Cal.App.4th 206, 212. In an indemnity action, the trier of fact must determine whether the indemnitee was held legally responsible for damages to a third party, whether the indemnitor’s conduct was a substantial factor in causing the harm, and if so, the indemnitee’s and indemnitor’s percentages of responsibility. Great Western Drywall, Inc. v. Interstate Fire & Cas. Co. (2008) 161 Cal.App.4th 1033, 1041. The purpose of equitable indemnification is to avoid the unfairness, under the theory of joint and several liability, of holding one defendant liable for the plaintiff’s entire loss while allowing another potentially liable defendant to escape any financial responsibility for the loss. Bailey v. Safeway, Inc. (2011) 199 Cal.App.4th 206, 212.

Equitable indemnity is not available absent the existence of a joint legal obligation to the injured party. Jocer Enters., Inc. v. Price (2010) 183 Cal.App.4th 559, 573. Stated another way, there can be no indemnity where the party from whom indemnity is sought owes no duty to the plaintiff. Wells Fargo Bank, NA v. Renz, 795 F.Supp.2d 898, 927 (N.D. Cal. 2011). “A fundamental prerequisite to an action for partial or total equitable indemnity is an actual monetary loss through payment of a judgment or settlement.” Western Steamship Lines, Inc. v. San Pedro Peninsula Hospital (1994) 8 Cal.4th 100, 110. “A plaintiff may not recover damages for an unpaid liability to a third party, unless the plaintiff proves to a reasonable certainty that the liability could and would be enforced by the third party against the plaintiff or that the plaintiff otherwise could and would satisfy the obligation … The facts that a third party has demanded payment by the plaintiff of a particular liability and plaintiff has admitted such liability are not, by themselves, sufficient to support an award of damages for that liability, because that third party may never attempt to force the plaintiff to satisfy the alleged obligation, and plaintiff may never pay the obligation.” Green Wood Indust. Co. v. Forceman Internat. Development Group, Inc. (2007) 156 Cal.App.4th 766, 776.

Here, SCE contends that Asplundh could be liable for indemnity if the allegations in plaintiff’s complaint (that Asplundh is partially responsible for the loss) come to fruition. The allegations in the complaint are expressly and impliedly incorporated in the cross-complaint (see FAXC ¶10). While it is true SCE does not directly contend that Asplundh did anything wrong, it is clear the claims are premised in the alternative should it later come to be that Asplundh did something wrong. This is something better suited for summary judgment.

DEMURRER OVERRULED. Asplundh to answer in 10 days.