2013-00154071-CU-CO

Picerne Construction Corp vs. A. Teichert & Sons, Inc.

Nature of Proceeding:   Hearing on Demurrer

Filed By:  Klotsche, John W.

Teichert’s Demurrer to the Complaint is sustained with leave to amend for failure to
state facts sufficient to constitute a cause of action.

Picerne’s Request for Judicial Notice is granted [See Poseidon Devel., Inc. v.
Woodland Lane Estates, LLC (2007) 152 Cal.App.4th 1106, 1117-18; see also
Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, 265 (“[A] court may
take judicial notice of the fact of a document’s recordation, the date the document was
recorded and executed, the parties to the transaction reflected in the recorded
document, and the document’s legally operative language, assuming there is no
genuine dispute regarding the document’s authenticity.”).)] , however the court does
not take judicial notice of the truth of matters stated in the court files except for findings
of fact and orders, and except to the extent such facts are beyond reasonable dispute,
or otherwise judicially noticeable. (See Poseidon Devel., supra, at pp. 1117-18.)

Picerne Construction Corp. has sued Teichert and other subcontractors for Express
Indemnity arising out of the language in the parties’ contract that requires the
subcontractors to indemnify Picerne for any defense costs incurred by Picerne in
defending claims arising out of the subcontractors work.  Picerne Construction Corp.
sued the owner in a separate lawsuit that went to arbitration.  In the arbitration, the
owner of the project sued Picerne for damages arising out of delay in the Project that
was allegedly caused by Teichert. Picerne alleged it defended those claims. Picerne
prevailed at arbitration.             Teichert contends that the claim for express indemnity is defective because Picerne
has not alleged that it has incurred any liability or paid for losses and damages in a
certain amount.  Although the Cross-Complaint alleges that Picerne defended the
Owner’s claims that Teichert’s work was negligent, Picerne has not alleged facts
showing the amount and payment of the loss.   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 Construction (1992) 7 Cal.App.4th 1375, 1380.

Picerne has not alleged facts showing a loss and the amount of damages sustained in
defending the claim of the Owner.

Picerne’s Amended Cross-complaint may be filed and served on or before June 10,
2014. Response to be filed and served within 15 days of service of the amended cross
-complaint, 20 days if served by mail.

The minute order is effective immediately.  No formal order pursuant to CRC Rule
3.1312 or further notice is required.