Case Name: GHC of Sunnyvale, LLC dba Cedar Crest Nursing & Rehab Center v. Drain Doctor, Inc., et al.

Case No.: 1-14-CV-264016

Demurrer by defendant Drain Doctor, Inc. to the Complaint of Plaintiff GHC of Sunnyvale, LLC dba Cedar Crest Nursing & Rehab Center

On January 6, 2014, Plaintiff filed a complaint against Defendant Drain Doctor, Inc., asserting causes of action for: (1) breach of contract; and (2) negligence. The complaint alleges that Plaintiff hired Drain Doctor “to conduct inspections of clogged drain pipes in the skilled nursing center operated by Plaintiff.” (Complaint, ¶4.) “Defendants conducted inspections of the pipes at the Facility on each of August 16, 22, and 23, 2013. On each of August 16, 22, and 23, 2013, after each inspection and as indicated on the Service Contracts, Defendants informed Plaintiff that the main drain line, running down the middle of the length of the Facility, was broken and required replacement.” (Complaint, ¶5.) “In reliance on the inspection and report of Defendants, Plaintiffs closed the Facility, displacing all patients residing in the Facility, in order to tear up the floor of the Facility to replace the ‘broken’ main drain line as reported and recommended by Defendants. Upon the demolition of the floor of the Facility, Plaintiffs discovered that the main drain line underlying the Facility was not broken in any material aspect and did not need replacing.” (Complaint, ¶6.)

On May 22, 2014, Drain Doctor filed this demurrer to Plaintiff’s complaint on the ground that the pleading does not state facts sufficient to constitute a cause of action. (Code Civ. Proc. § 430.10, subd. (e).)

Drain Doctor argues first that the allegations found within the pleading are contradicted by facts found in the exhibits (service agreements) attached to the complaint: specifically, that nowhere in the service agreements is there a recommendation to dig up and replace the main drain line. “If facts appearing in the exhibits contradict those alleged, the facts in the exhibits take precedence.” (Holland v. Morse Diesel International, Inc. (2001) 86 Cal.App.4th 1443, 1447, superseded on other grounds as stated in White v. Cridlebaugh (2009) 178 Cal.App.4th 506, 521.) Drain Doctor acknowledges the service agreements do state the following: “recommendations replace bad section of 6” line;” “sewer pipe broken inside the build;” and “line broken.” The statements contained in the service agreements do not necessarily contradict the allegations of the complaint. It cannot be said, as a matter of law, that the “6” line,” “sewer pipe,” and broken “line” do not correspond to the main drain line referenced in Plaintiff’s allegations. Moreover, a reasonable inference can be drawn that the recommendation to replace the broken drain line requires digging.

Drain Doctor also contends the complaint is barred by the exculpatory provision of the service agreements, which states, in relevant part:

Company shall perform the work in a professional manner, however, this responsibility should not create further obligation besides indicated on the invoice. Company is only responsible for limited warranty as provided in this Agreement. Company has right to refuse providing service to customer for any reason. … Company warranties are limited as specified on the face thereof, if customer fails to make payment, Company cannot provide any warranty whatsoever. Warranties are limited only to specific job that Company worked on and cannot be applied or transferable to ant [sic] other problems. … Company cannot be liable for any work performed by or materials installed/manufactured by others, unless otherwise indicated on the face of the Agreement.

“A general demurrer will lie where the complaint ‘has included allegations that clearly disclose some defense or bar to recovery.’ ” (Cryolife, Inc. v. Superior Court (2003) 110 Cal.App.4th 1145, 1152.) “A written release may exculpate a tortfeasor from future negligence or misconduct. [Citation.] To be effective, such a release ‘must be clear, unambiguous, and explicit in expressing the intent of the subscribing parties.’ [Citation.]” (Benedek v. PLC Santa Monica (2002) 104 Cal.App.4th 1351, 1356.) For a release to be effective, “the writing must expressly show the intent to extinguish the obligation. And it must be free from invalidating causes such as mistake, fraud, and undue influence.” (1 Witkin, Summary of California Law (10th ed. 2005) Contracts, §946, p. 1040.)

In conclusory fashion, Drain Doctor argues the exculpatory language above “absolves defendant for any damages to plaintiff after defendant completed its work at plaintiff’s premises.” (Defendant’s Memorandum of Points and Authorities, p. 5, lines 22 – 23.) Plaintiff has alleged defendant did not competently perform its work in a professional manner. (Complaint, ¶8.) On the face of only one of the three service agreements, Drain Doctor excludes “drain warranty.” However, as Plaintiff points out in opposition, the complaint does not allege a breach of warranty. Nor are there any allegations that liability is based upon work performed by or materials installed/ manufactured by others. The purportedly exculpatory language cited by Drain Doctor does not, on its face or as a matter of law, defeat the claims asserted in the complaint.

Accordingly, the demurrer on the ground that the pleading does not state facts sufficient to constitute a cause of action is OVERRULED.