Kimberly M Jones vs Left Coast Inspection LLC et a

Case Number

23CV00522

Case Type

Hearing Date / Time

Mon, 10/14/2024 - 10:00

Nature of Proceedings

CMC; Demurrer to First Amended Cross-Complaint

Tentative Ruling

Kimberly M. Jones, et al. v. Left Coast Inspections, LLC, et al.

Case No. 23CV00522

           

Hearing Date: October 14, 2024                                             

HEARING:              Plaintiffs and Cross-Defendants’ Demurrer to First Amended Cross-Complaint of Defendant and Cross-Complainant Left Coast Inspections, LLC

ATTORNEYS:        For Plaintiffs and Cross-Defendants Kimberly M. Jones and 4615 Via Roblada, LLC: Majed Dakak and Ryan Davis

                                    For Defendant. Cross-Defendant, and Cross-Complainant Left Coast Inspections, LLC: Catherine L. Deter and Erinn K. De La Riva

                                     For Defendant and Cross-Complainant Judith H. Wood: Thomas S. Gelini and Jennifer A. Kung Gelini

                                    For Defendant Wood Environmental Services, LLC: No appearance                    

TENTATIVE RULING:

The demurrer is granted in part and overruled in part as follows:

1. The demurrer is sustained, without leave to amend, as to the third cause of action for contribution.

2. The demurrer is overruled in all other respects.

3. Left Coast Inspections, LLC shall file and serve its second amended cross-complaint, removing the third cause of action for contribution, no later than October 28, 2024.

Background:

This action commenced on February 7, 2023, by the filing of the complaint by plaintiff Kimberly Jones (“Jones”) against defendants Left Coast Inspections, LLC (“LCI”), Wood Environmental Services, LLC (“WES”), and Judith H. Wood. The complaint alleged causes of action for: (1) Professional Negligence; (2) Breach of Contract; and (3) Negligent Infliction of Emotional Distress (“NIED”). LCI filed a demurrer to the NIED cause of action. Prior to the hearing on LCI’s demurrer, Jones filed her first amended complaint (“FAC”).

The FAC contained two causes of action for professional negligence and breach of contract. LCI moved to strike the prayer for emotional distress damages cause of action from the FAC. On July 31, 2023, the motion to strike was granted with leave to amend.

On August 9, 2023, Jones filed a second amended complaint. LCI again moved to strike the emotional distress damages arguing that it is an improper prayer for relief. The motion was granted with leave to amend.

On November 15, 2023, plaintiffs filed the operative third amended complaint. (“TAC”) The TAC adds 4615 Via Roblada, LLC (“Roblada”) as a plaintiff.

As alleged in the TAC:

“In late 2021, Young Giants Trust entered into a contract to purchase the real

property located at 828 Ballard Canyon Road in Solvang, California . . .. Young

Giants Trust later assigned its right to purchase the Property to Plaintiff Roblada.” (TAC ¶ 9.)

Jones engaged LCI, to conduct a general home inspection, and defendant Judith Wood (“Wood”) to conduct an indoor mold assessment of the property. (Id. at ¶ 10.) Roblada’s purchase of the property was dependent upon the results of the inspections. (Ibid.) “Plaintiff, directly or through her agents, told [LCI] and Wood that plaintiff’s child has special needs and is highly susceptible and reactive to mold.” (Id. at ¶ 11.)

On October 7, 2021, “Darrell Clegg conducted an inspection of the property on behalf of [LCI].” (Id. at ¶ 12.) “On or about October 15, 2021, plaintiff received [LCI’s] Property Inspection Report, detailing the findings of its investigation. The Property Inspection Report did not disclose any mold, any defects with the property’s pool, or anything else that would give plaintiff cause for concern regarding a potential mold infestation of the property.” (Id. at ¶ 13.)

On October 7, 2021, Wood conducted the indoor mold assessment and prepared a report the next day finding that one portion of the kitchen required remediation, but that there was no other relevant mold identified in the property. (Id. at ¶¶ 14, 15.) Based on LCI’s and Wood’s reports, Roblada purchased the property. (Id. at ¶ 16.)

In Spring 2022, Jones and her family returned to California from being overseas and upon stepping into the subject property plaintiff’s son had a “severe medical reaction due to the presence of mold, consisting of near anaphylactic shock that was averted only through the injection of multiple antihistamine shots into Plaintiff Jones’ son.” (Id. at ¶¶ 17, 18.) “Plaintiffs were unaware of the mold because Left Coast negligently failed to identify mold conducive conditions in its inspection report and Wood failed to identify mold in her mold inspection report. Had Left Coast and Wood acted with the skill, diligence, and prudence that other members of their respective professions commonly possess and exercise, then they would have identified the mold conducive conditions and mold. Additionally, had Plaintiff Jones known of the presence of mold, or the possibility of mold due to mold conducive conditions, she would not have brought her son to the Property and risked his wellbeing.” (Ibid.) “After her son’s severe medical reaction, Plaintiff Jones was forced to stop her move-in plans and suffered severe emotional distress as a result of this incident, including anguish and worry over the health and wellbeing of her son.” (Ibid.)

Plaintiff hired a contractor to perform certain demolition work and remediate the mold issue in the kitchen. (Id. at ¶ 19.) “Plaintiffs are informed and believe that this mold is what triggered the severe medical reaction in Plaintiff Jones’ son.” (Ibid.)

“Plaintiffs then hired another mold inspector to conduct a second mold assessment. The inspection revealed that there was substantial mold growth throughout the home that should have been identified in Wood’s report. Additionally, the inspection revealed mold conducive conditions that Left Coast should have identified in its report.” (Id. at ¶ 20.)

“Based on the newly performed mold investigation, plaintiff’s contractor determined that the mold infestation was so extensive that the property needed to be razed-the only salvageable portion of the property was the roof. Moreover, the contractor determined that the slope of the pool was not to code, causing water to drain into the home. The foundation of the home was also too close to the ground. These conditions caused exterior surface ground water intrusion which allowed mold to flourish.” (Id. at ¶ 21.)

On June 10, 2024, LCI filed its operative first amended cross-complaint (FACC) against plaintiffs Jones and Roblada. The FACC contains causes of action for: (1) Equitable Indemnity; (2) Apportionment; (3) Contribution; (4) Total Indemnity; (5) Declaratory Relief; (6) Negligence; (7) Declaratory Relief re: Contractual Mold Inspection Exclusion; and (8) Declaratory Relief re: Contractual Limitation of Liability.

On August 9, 2024, LCI dismissed the sixth cause of action for negligence.

Jones and Roblada now demur to the remaining causes of action.

LCI opposes the demurrer.

Analysis:

“When any ground for objection to a complaint, cross-complaint, or answer appears on the face thereof, or from any matter of which the court is required to or may take judicial notice, the objection on that ground may be taken by a demurrer to the pleading.” (Code Civ. Proc., § 430.30, subd. (a).) “Our consideration of the facts alleged includes ‘those evidentiary facts found in recitals of exhibits attached to [the] complaint.’ [Citation.]” (Alexander v. Exxon Mobil (2013) 219 Cal.App.4th 1236, 1250.)

“The party against whom a complaint or cross-complaint has been filed may object, by demurrer or answer as provided in Section 430.30, to the pleading on any one or more of the following grounds:

“(a) The court has no jurisdiction of the subject of the cause of action alleged in the pleading.

“(b) The person who filed the pleading does not have the legal capacity to sue.

“(c) There is another action pending between the same parties on the same cause of action.

“(d) There is a defect or misjoinder of parties.

“(e) The pleading does not state facts sufficient to constitute a cause of action.

“(f) The pleading is uncertain. As used in this subdivision, “uncertain” includes ambiguous and unintelligible.

“(g) In an action founded upon a contract, it cannot be ascertained from the pleading whether the contract is written, is oral, or is implied by conduct.

“(h) No certificate was filed as required by Section 411.35.” (Code Civ. Proc., § 430.10.)

“[A] court must treat a demurrer as admitting all material facts properly pleaded, it does not, however, assume the truth of contentions, deductions or conclusions of law.” (Travelers Indem. Co. of Connecticut v. Navigators Specialty Ins. Co. (2021) 70 Cal.App.5th 341, 358, citing Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 967.)

“To survive a demurrer, the complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form part of the plaintiff’s proof need not be alleged.” (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.)

As to the first, second, third, fourth, and fifth causes of action, plaintiff’s demurrer is, in part, based on an argument that plaintiffs cannot be liable to themselves. The crux of the argument is that claims for “indemnity, contribution and related principles each fail because these claims are to apportion liability between defendants.” (Demurrer, p. 1, ll. 15-16; emphasis omitted.)

As to the first and fourth causes of action for equitable and total indemnity: “Equitable indemnity is an equitable doctrine that apportions responsibility among tortfeasors responsible for the same indivisible injury on a comparative fault basis. [Citation.] “ ‘[T]he equitable indemnity doctrine originated in the common sense proposition that when two individuals are responsible for a loss, but one of the two is more culpable than the other, it is only fair that the more culpable party should bear a greater share of the loss.’ ” [Citation.] A right of equitable indemnity can arise only if the prospective indemnitor and indemnitee are mutually liable to another person for the same injury. [Citation.]” (Fremont Reorganizing Corp. v. Faigin (2011) 198 Cal.App.4th 1153, 1176-1177.)

“It is well-settled in California that equitable indemnity is only available among tortfeasors who are jointly and severally liable for the plaintiff's injury.” (Stop Loss Ins. Brokers, Inc. v. Brown & Toland Medical Group (2006) 143 Cal.App.4th 1036, 1040.)

What plaintiffs fail to acknowledge is that while the FACC solely names the plaintiffs as cross-defendants, there are two of them. While not likely in the present situation, it is not an impossibility that one plaintiff could be found to be liable to the other plaintiff along with LCI. There is no defect that appears on the face of the FACC that precludes LCI from pleading causes of action for indemnity. The demurrer to the first and fourth causes of action will be overruled.

Plaintiffs next argue that the second cause of action, for apportionment, is not a legitimate cause of action. While plaintiffs are correct that apportionment is a legal principle that is the foundation for equitable indemnity and contribution amongst joint tortfeasors: “If the complaint states a cause of action under any theory, regardless of the title under which the factual basis for relief is stated, that aspect of the complaint is good against a demurrer. “ ‘[W]e are not limited to plaintiffs’ theory of recovery in testing the sufficiency of their complaint against a demurrer, but instead must determine if the factual allegations of the complaint are adequate to state a cause of action under any legal theory. The courts of this state have . . . long since departed from holding a plaintiff strictly to the “ ‘form of action’ ” he has pleaded and instead have adopted the more flexible approach of examining the facts alleged to determine if a demurrer should be sustained.’ “ [Citations.]” (Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 38-39.)

The second cause of action, for apportionment, is essentially a request for declaratory relief and will be viewed as such. The demurrer to the second cause of action will be overruled.

Plaintiffs next argue that the third cause of action, for contribution, is not ripe because the right for contribution can only exist after a judgment has been rendered declaring more than one tortfeasor liable to another party.

“(a) Where 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 as hereinafter provided.

“(b) Such right of contribution shall be administered in accordance with the principles of equity.

“(c) Such right of contribution may be enforced only after one tortfeasor has, by payment, discharged the joint judgment or has paid more than his pro rata share thereof. It shall be limited to the excess so paid over the pro rata share of the person so paying and in no event shall any tortfeasor be compelled to make contribution beyond his own pro rata share of the entire judgment.” (Code Civ. Proc., § 875, subd. (a)-(c).)

“[A] resolution of the loss-sharing claims of multiple tortfeasors are most often completely resolved by a comparative indemnification cross-complaint in the underlying action rather than by a post judgment claim for contribution.” (Coca-Cola Bottling Co. v. Lucky Stores, Inc. (1992) 11 Cal.App.4th 1372, 1379.) “After the judgment in favor of plaintiff . . . and against both defendants had been entered and fully satisfied . . ., then and only then was a claim for contribution ripe.” (Id. at p. 1380.)

A claim for contribution is not yet ripe. “ ‘A demurrer may be sustained when the complaint shows on its face the claim is not ripe for adjudication.’ [Citation.]” (County of Santa Clara v. Superior Court (2009) 171 Cal.App.4th 119, 131.) The demurrer to the third cause of action, for contribution, will be sustained. As there is no probability that LCI would be capable of amending the cause of action for contribution, the demurrer is sustained without leave to amend.

Plaintiffs next demur to the fifth cause of action, for declaratory relief regarding indemnification on the grounds that plaintiff cannot be liable to themselves. The demurrer to the fifth cause of action will be overruled for the same reason that the demurrer to the fourth and fifth causes of action will be overruled.

Next, plaintiffs demur to the seventh cause of action, for declaratory relief re: contractual mold inspection exclusion. In doing so, plaintiffs essentially argue the merits of their claims against LCI. Specifically, that plaintiffs are not alleging that LCI was responsible for testing the mold. Rather, plaintiffs argue that they brought an action against LCI for failing to identify mold-conducive conditions. Plaintiffs’ arguments are fact based and would require the court to improperly consider extrinsic documents. There is no defect that appears on the face of the FACC relative to the seventh cause of action and the demurrer will be overruled.

Finally, plaintiffs demur to the eighth cause of action, for declaratory relief re: contractual limitation of liability. In doing so, plaintiffs solely argue the validity of the contractual limitation of liability. Again, a demurrer is not the proper way to argue the merits of a case. The cause of action is good as against a demurrer and the demurrer will be overruled.