On September 24, 2007 a
Order
was filed
involving a dispute between
and
for (Breach of Contract/Warranty)
in the District Court of Sacramento County.
Preview
SUPERIOR COURT OF CALIFORNIA,
COUNTY OF SACRAMENTO
GORDON D SCHABER COURTHOUSE
MINUTE ORDER
DATE: 11/16/2010 TIME: 02:00:00 PM DEPT: 53
JUDICIAL OFFICER PRESIDING: David Brown
CLERK: E. Brown
REPORTER/ERM: P. Clausen CSR# 3750
BAILIFF/COURT ATTENDANT: V. Carroll
CASE NO: 07AS04450 CASE INIT.DATE: 09/24/2007
CASE TITLE: Rodney Abbott, et al vs. Ronald Paul Britschgi, et al
CASE CATEGORY: Civil - Unlimited
EVENT TYPE: Motion for Judgment on the Pleadings - Civil Law and Motion - Demurrer/JOP
APPEARANCES
Stephanie Finelli, counsel, present for Plaintiff(s).
Gregory Federico, counsel, present for Defendant(s).
Nature of Proceeding: Motion for Judgment on the Pleading
TENTATIVE RULING
Cross-defendant Abbotts' Motion for Judgment on the Pleadings is granted, without leave to amend.
Plaintiffs/cross-defendants move for judgment on the pleadings on the ground the defendant general
contractor cannot state a cause of action for implied equitable indemnity against the plaintiffs to assert
what amounts to the defense of comparative negligence. Equitable indemnity has properly been denied
where, as here, equivalent relief is already available in the main action. Leko v. Cornerstone Bldg.
Inspection Service, (2001) 86 Cal. App. 4th 1109, 1118
Plaintiffs hired CA Construction to design and construct their home. Cross-complainant alleges that
plaintiffs were actively involved in the supervision, design and construction of their home and contributed
to the damages that they claim were caused by CA Construction.
The only cause of action asserted against the plaintiffs/cross-defendants is implied equitable indemnity.
Such a claim is made when a third party is partially liable for a plaintiff's injuries. See Leko v
Cornerstone Bldg. Inspection Services (2001) 86 Cal.App.4th 1109, 1115-1116 (joint and several liability
of tortfeasors is required for implied equitable indemnity) . CA Construction argues that plaintiffs are
wearing "two different hats" so they can be liable for comparative negligence as well as implied equitable
indemnity in their role as "general contractor." However, plaintiffs are individual plaintiffs and are not
suing on behalf of anyone else. There is no legal basis for the cross-complainant to obtain an award of
money against plaintiffs based on plaintiffs alleged contributions to their own damages. The case of
Daon Corp. v Place Homeowners Assn (1989) 207 Cal.App.3d 1449 is distinguishable since in that case
the plaintiff was acting on behalf of itself and on behalf of the homeowners, therefore it was appropriate
that the contractor could assert a claim for indemnity against the homeowners association for damages
that the individual condominium owners suffered that Daon was required to pay, if those damages were
caused by the homeowners association.
DATE: 11/16/2010 MINUTE ORDER Page 1
DEPT: 53 Calendar No.
CASE TITLE: Rodney Abbott, et al vs. Ronald Paul CASE NO: 07AS04450
Britschgi, et al
CA Construction has not explained why it cannot be protected by asserting its affirmative defense of
comparative negligence.
No leave to amend is granted since the only theory that cross-complaint seeks to allege is a claim for
equitable indemnity based on the alleged negligent supervision of the construction project by the
plaintiffs.
The prevailing party shall prepare a formal order for the Court's signature pursuant to C.R.C. 3.1312.
COURT RULING
After hearing oral argument the Court affirmed its tentative ruling with the following modification:
The phrase "general contractor" shall be replaced with "defendant contractor".
The first sentence of paragraph 3 shall be replaced with "Plaintiffs hired CA Construction to be the
foundation contractor".
DATE: 11/16/2010 MINUTE ORDER Page 2
DEPT: 53 Calendar No.
Document Filed Date
November 16, 2010
Case Filing Date
September 24, 2007
Category
(Breach of Contract/Warranty)
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SUPERIOR COURT OF CALIFORNIA, COUNTY OF SACRAMENTO GORDON D SCHABER COURTHOUSE MINUTE ORDER DATE: 11/16/2010 TIME: 02:00:00 PM DEPT: 53 JUDICIAL OFFICER PRESIDING: David Brown CLERK: E. Brown REPORTER/ERM: P. Clausen CSR# 3750 BAILIFF/COURT ATTENDANT: V. Carroll CASE NO: 07AS04450 CASE INIT.DATE: 09/24/2007 CASE TITLE: Rodney Abbott, et al vs. Ronald Paul Britschgi, et al CASE CATEGORY: Civil - Unlimited EVENT TYPE: Motion for Judgment on the Pleadings - Civil Law and Motion - Demurrer/JOP APPEARANCES Stephanie Finelli, counsel, present for Plaintiff(s). Gregory Federico, counsel, present for Defendant(s). Nature of Proceeding: Motion for Judgment on the Pleading TENTATIVE RULING Cross-defendant Abbotts' Motion for Judgment on the Pleadings is granted, without leave to amend. Plaintiffs/cross-defendants move for judgment on the pleadings on the ground the defendant general contractor cannot state a cause of action for implied equitable indemnity against the plaintiffs to assert what amounts to the defense of comparative negligence. Equitable indemnity has properly been denied where, as here, equivalent relief is already available in the main action. Leko v. Cornerstone Bldg. Inspection Service, (2001) 86 Cal. App. 4th 1109, 1118 Plaintiffs hired CA Construction to design and construct their home. Cross-complainant alleges that plaintiffs were actively involved in the supervision, design and construction of their home and contributed to the damages that they claim were caused by CA Construction. The only cause of action asserted against the plaintiffs/cross-defendants is implied equitable indemnity. Such a claim is made when a third party is partially liable for a plaintiff's injuries. See Leko v Cornerstone Bldg. Inspection Services (2001) 86 Cal.App.4th 1109, 1115-1116 (joint and several liability of tortfeasors is required for implied equitable indemnity) . CA Construction argues that plaintiffs are wearing "two different hats" so they can be liable for comparative negligence as well as implied equitable indemnity in their role as "general contractor." However, plaintiffs are individual plaintiffs and are not suing on behalf of anyone else. There is no legal basis for the cross-complainant to obtain an award of money against plaintiffs based on plaintiffs alleged contributions to their own damages. The case of Daon Corp. v Place Homeowners Assn (1989) 207 Cal.App.3d 1449 is distinguishable since in that case the plaintiff was acting on behalf of itself and on behalf of the homeowners, therefore it was appropriate that the contractor could assert a claim for indemnity against the homeowners association for damages that the individual condominium owners suffered that Daon was required to pay, if those damages were caused by the homeowners association. DATE: 11/16/2010 MINUTE ORDER Page 1 DEPT: 53 Calendar No. CASE TITLE: Rodney Abbott, et al vs. Ronald Paul CASE NO: 07AS04450 Britschgi, et al CA Construction has not explained why it cannot be protected by asserting its affirmative defense of comparative negligence. No leave to amend is granted since the only theory that cross-complaint seeks to allege is a claim for equitable indemnity based on the alleged negligent supervision of the construction project by the plaintiffs. The prevailing party shall prepare a formal order for the Court's signature pursuant to C.R.C. 3.1312. COURT RULING After hearing oral argument the Court affirmed its tentative ruling with the following modification: The phrase "general contractor" shall be replaced with "defendant contractor". The first sentence of paragraph 3 shall be replaced with "Plaintiffs hired CA Construction to be the foundation contractor". DATE: 11/16/2010 MINUTE ORDER Page 2 DEPT: 53 Calendar No.