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
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1 STEPHANIE J. FINELLI, SBN 173462
Law Office of Stephanie J. Finelli
2 1007-7th Street, Suite 500
Sacramento, CA 95814
3 tel 916-443-2144
fax 916-443-1511
4
Attorney for Plaintiffs,
5
FLO and RODNEY ABBOTT
6
7 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
8 IN AND FOR THE COUNTY OF SACRAMENTO
9
10 FLORENTINE AND RODNEY ABBOTT, CaseNo. 07AS04450
11 Plaintiffs, ORDER ON MOTION FOR JUDGMENT ON
THE PLEADINGS
12 vs.
13 RONALD B R I T S C H G I , et. al..
14 Defendants
15
16 and related cross-action
17
18 The motion by Cross-defendants, Florentine and Rodney Abbott, for Judgment on the
19 Pleadings as to Richard Ruybalid individually and dba CA Construction's Cross-complaint for
20 indemnity came regularly for hearing on November 16, 2010 at 2-00 p.m. in Department 53 oi
21 the Sacramento County Superior Court, the Honorable David I. Brown presiding. Stephanie J.
22 Finelli appeared on behalf of plaintiffs and cross-defendants, Florentine and Rodney Abbott
23 Gregory Federico of Archer Norris appeared on behalf of defendant and cross-complainant, CA
24 Construction
25 After reviewing the papers and hearing oral argument of the parties, the court rules as
26 follows-
27 Cross-defendant, Florentine and Rodney Abbott's Motion for Judgment on the Pleadings
28 is GRANTED, without leave to amend.
Order - 1
Plaintiffs/cross-defendants move for judgment on the pleadings on the ground the
2 defendant contractor cannot state a cause of action for implied equitable indemnity against the
3 plaintiffs to assert what amounts to the defense of comparative negligence. Equitable indemnity
4 has been properly denied where, as here, equivalent relief is already available in the main action
5 Leko V Cornerstone Bldg Inspection Service (2001) 86 Cal App 4th 1109, 1118.
6 Plaintiffs hired CA Construction to be the foundation contractor of their home. Cross-
7 complainant alleges that plaintiffs were actively involved in the supervision, design and
8 construction of their home and contributed to the damages that they claim were caused by CA
9 Construction.
10 The only cause of action asserted against the plaintiffs/cross-defendants is implied
11 equitable indenmity. Such a claim is made when a third party is partially liable for a plaintiffs
12 injuries. See Leko v. Cornerstone Bldg. Inspection Service (2001) 86 Cal.App.4th 1109, 1115
13 1116 (joint and several liability of tortfeasors is required for implied equitable indemnity.) CA
14 Construction argues that plaintiffs are wearing "two different hats" so they can be liable for
15 comparative negligence as well as implied equitable indemnity in their role as "general
16 contractor." However, plaintiffs are individual plaintiffs and are not suing on behalf of anyone
17 else. There is no legal basis for the cross-complainant to obtain an award of money against
18 plaintiffs based on plaintiffs' alleged contributions to their own damages. The case of Daon
19 Corp V Place Homeo-wners Assn (1989) 207 Cal.App.3d 1449 is distinguishable since in that
20 case the plaintiff was acting on behalf of itself and on behalf of the homeowners, therefore it was
21 appropriate that the contractor could assert a claim for indemnity against the homeowners
22 association for damages that the individual condominium owners had suffered that Daon was
23 required to pay, if those damages were cause by the homeowners association.
24 CA Construction has not explained why it cannot be protected by asserting its affirmative
25 defense of comparative negligence.
26 ///
27
28
Order - 2
No leave to amend is granted since the only theory that cross-complainant seeks to allege
2 IS a claim for equitable indemnity based on the alleged negligent supervision of the construction
3 project by the plaintiffs.
4 IT IS SO ORDERED
5
6 ^Dated:
_ DEC - 2 2010 «
By:
7
Judge David Brown of Sacramento County
Superior Court
8 KEVIN R. CULHANE
SIGNATURE PURSUANT
9 Approved as to form: TO 635 CCP
10
11
12
Gregory Federico
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Order - 3
Document Filed Date
December 06, 2010
Case Filing Date
September 24, 2007
Category
(Breach of Contract/Warranty)
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Preview
'•r 1 STEPHANIE J. FINELLI, SBN 173462 Law Office of Stephanie J. Finelli 2 1007-7th Street, Suite 500 Sacramento, CA 95814 3 tel 916-443-2144 fax 916-443-1511 4 Attorney for Plaintiffs, 5 FLO and RODNEY ABBOTT 6 7 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA 8 IN AND FOR THE COUNTY OF SACRAMENTO 9 10 FLORENTINE AND RODNEY ABBOTT, CaseNo. 07AS04450 11 Plaintiffs, ORDER ON MOTION FOR JUDGMENT ON THE PLEADINGS 12 vs. 13 RONALD B R I T S C H G I , et. al.. 14 Defendants 15 16 and related cross-action 17 18 The motion by Cross-defendants, Florentine and Rodney Abbott, for Judgment on the 19 Pleadings as to Richard Ruybalid individually and dba CA Construction's Cross-complaint for 20 indemnity came regularly for hearing on November 16, 2010 at 2-00 p.m. in Department 53 oi 21 the Sacramento County Superior Court, the Honorable David I. Brown presiding. Stephanie J. 22 Finelli appeared on behalf of plaintiffs and cross-defendants, Florentine and Rodney Abbott 23 Gregory Federico of Archer Norris appeared on behalf of defendant and cross-complainant, CA 24 Construction 25 After reviewing the papers and hearing oral argument of the parties, the court rules as 26 follows- 27 Cross-defendant, Florentine and Rodney Abbott's Motion for Judgment on the Pleadings 28 is GRANTED, without leave to amend. Order - 1 Plaintiffs/cross-defendants move for judgment on the pleadings on the ground the 2 defendant contractor cannot state a cause of action for implied equitable indemnity against the 3 plaintiffs to assert what amounts to the defense of comparative negligence. Equitable indemnity 4 has been properly denied where, as here, equivalent relief is already available in the main action 5 Leko V Cornerstone Bldg Inspection Service (2001) 86 Cal App 4th 1109, 1118. 6 Plaintiffs hired CA Construction to be the foundation contractor of their home. Cross- 7 complainant alleges that plaintiffs were actively involved in the supervision, design and 8 construction of their home and contributed to the damages that they claim were caused by CA 9 Construction. 10 The only cause of action asserted against the plaintiffs/cross-defendants is implied 11 equitable indenmity. Such a claim is made when a third party is partially liable for a plaintiffs 12 injuries. See Leko v. Cornerstone Bldg. Inspection Service (2001) 86 Cal.App.4th 1109, 1115 13 1116 (joint and several liability of tortfeasors is required for implied equitable indemnity.) CA 14 Construction argues that plaintiffs are wearing "two different hats" so they can be liable for 15 comparative negligence as well as implied equitable indemnity in their role as "general 16 contractor." However, plaintiffs are individual plaintiffs and are not suing on behalf of anyone 17 else. There is no legal basis for the cross-complainant to obtain an award of money against 18 plaintiffs based on plaintiffs' alleged contributions to their own damages. The case of Daon 19 Corp V Place Homeo-wners Assn (1989) 207 Cal.App.3d 1449 is distinguishable since in that 20 case the plaintiff was acting on behalf of itself and on behalf of the homeowners, therefore it was 21 appropriate that the contractor could assert a claim for indemnity against the homeowners 22 association for damages that the individual condominium owners had suffered that Daon was 23 required to pay, if those damages were cause by the homeowners association. 24 CA Construction has not explained why it cannot be protected by asserting its affirmative 25 defense of comparative negligence. 26 /// 27 28 Order - 2 No leave to amend is granted since the only theory that cross-complainant seeks to allege 2 IS a claim for equitable indemnity based on the alleged negligent supervision of the construction 3 project by the plaintiffs. 4 IT IS SO ORDERED 5 6 ^Dated: _ DEC - 2 2010 « By: 7 Judge David Brown of Sacramento County Superior Court 8 KEVIN R. CULHANE SIGNATURE PURSUANT 9 Approved as to form: TO 635 CCP 10 11 12 Gregory Federico 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Order - 3