DEMURRER
The demurrer of Nissi Electric Corporation (“Nissi”) to the first amended cross-complaint of Jamba Construction Inc. (“Jamba”) is sustained with leave to amend as to the first and third causes of action for express indemnity and declaratory relief and without leave to amend as to the second cause of action for equitable indemnity on the ground of failure to state facts sufficient to constitute a cause of action. The uncertainty demurrer is overruled.
Allegations
On December 19, 2022, Plaintiff, an employee of Nissi, was dispatched to install an electrical panel upgrade at a job site where Jamba was the general contractor. Plaintiff was tasked to work on an electrical panel located on a stair landing at the site. While Plaintiff working on the panel, there was a large electric arc flash that made contact to his face and caused him to back off the landing, which had no railing, a drop of approximately 5-10 feet. Plaintiff suffered various injuries including severe burns to his face, traumatic brain injuries and orthopedic injuries.
Plaintiff alleges Pacific Gas & Electric Company (“PG&E”) is liable for his injuries because it negligently left the power on while Plaintiff was working on the panel and/or failed to adequately rubberize the lines. Plaintiff’s allegations against Jamba are based on its control of the safety of the job site. Specifically, Plaintiff alleges Jamba exercised control by Nissi to work on the landing area despite the fact that there was a 5-10 foot drop at the edge of the landing, lacked a railing, and constituted a hidden hazardous condition that was not disclosed by Jamba.
Plaintiff alleges Jamba failed to add guardrails, cones, scaffolding and/or harnesses to warn workers and protect them from a fall off the unguarded landing.
On December 6, 2024, Plaintiff filed this action. On June 17, 2024, Plaintiff filed a first amended complaint alleging causes of action for general negligence and premises liability.
On October 13, 2025, Jamba filed a cross-complaint against PG&E and Nissi. On March 23, 2026, it filed a first amended cross-complaint against PG&E, Nissi, and Christian B. Sowul for express indemnity, equitable indemnity, and declaratory relief.
Presently before the Court is Nissi’s demurrer to the first amended cross-complaint. Nissi argues that Jamba’s causes of action are barred by Labor Code section 3864. It also argues that the causes of action are uncertain.
Standard
The function of a demurrer is to test the legal sufficiency of the challenged pleading. (Hernandez v. City of Pomona (1996) 49 Cal.App.4th 1492, 1497
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In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) The face of the complaint includes matters shown in exhibits attached to the complaint and incorporated by reference. (Frantz v. Blackwell (1987) 189 Cal.App.3d 91, 94.) “The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.” (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.)
Procedural Issues
Jamba’s opposing brief exceeds 10 pages in length but fails to include a table of contents and a table of authorities as required by California Rule of Court 3.1113(f).
Jamba submits a declaration in opposition to the demurrer. “... ‘A demurrer looks only to the face of the pleadings and to matters judicially noticeable and not to the evidence or other extrinsic matter.’” (Price v. Dames & Moore (2001) 92 Cal.App.4th 355, 359, citations and brackets omitted; see also Hahn, supra, 147 Cal.App.4th at 747.)
First Cause of Action – Express Indemnity
Labor Code section 3864 states:
If an action as provided in this chapter prosecuted by the employee, the employer, or both jointly against the third person results in judgment against such third person, or settlement by such third person, the employer shall have no liability to reimburse or hold such third person harmless on such judgment or settlement in absence of a written agreement so to do executed prior to the injury.
Jamba alleges that it and Nissi entered into a written agreement prior to the date of Plaintiff’s injury that required Nissi to indemnify Jamba for claims related to Nissi’s work at the Property. The “Property” is identified as 116 Lyford Drive, Belvedere Tiburon. Jamba states that a copy of the written agreement is attached as Exhibit B. Exhibit B, however, is a contract involving electrical work at 123 Sugarloaf Drive, Tiburon.
Jamba argues that the second sentence of paragraph 15 (“Any new work or proposals excepted by General Contractor or Project Manager shall be governed by the language of this Agreement unless otherwise agreed in writing”) “reads that new work or proposals not initially listed by Jamba in the Subcontract Agreement, are governed by the language of the Subcontract Agreement.” Such “new work” includes the work at the Property. The Court finds that this is a reasonable interpretation. “[N]ew work or proposals” can reasonably be read as including work at a different property.
However, Jamba has not alleged its interpretation in the first amended cross-complaint. “Where a complaint is based on a written contract which it sets out in full, a general demurrer to the complaint admits not only the contents of the instrument but also any pleaded meaning to which the instrument is reasonably susceptible.” (Aragon-Haas v. Family Security Ins. Services, Inc. (1991) 231 Cal.App.3d 232, 239, italics added.) “’[W]here an ambiguous contract is the basis of an action, it is proper, if not essential, for a plaintiff to allege its own construction of the agreement.
So long as the pleading does not place a clearly erroneous construction of the contract, in passing upon the sufficiency of the complaint, we must accept as correct plaintiff’s allegations as to the meaning of the agreement.’” (Ibid.) As presently pleaded, Jamba has simply pointed to a contract relating to a different property as the basis for its claims against Nissi.
Additionally, Jamba alleges no facts to show that there was “prior written approval” by Jamba of the work performed at the Property. Nor has it pleaded any reasonable interpretation of that provision which would render such requirement inapplicable.
Contrary to Nissi’s argument, Jamba alleges that Jamba and Nissi executed the Sugarloaf contract prior to December 19, 2022. (¶¶ 10 and 19.)
Second Cause of Action – Equitable Indemnity
As shown above, section 3864 only allows a third party to seek indemnity from an employer where there is a written agreement providing for indemnity. “Equitable indemnity is an equitable doctrine that apportions responsibility among tortfeasors responsible for the same indivisible injury on a comparative fault basis. ...” (Fremont Reorganizing Corp. v. Faigin (2011) 198 Cal.App.4th 1153, 1176-1177.)
Third Cause of Action – Declaratory Relief
In the event Jamba properly amends its cause of action for express indemnity, it may also pursue a cause of action for declaratory relief.
This action does not involve a “past wrong.” Jamba seeks a declaration that if it is found liable to Plaintiff, then it is entitled to indemnity pursuant to the terms of its contract with Nissi. It is “[a]ny person interested under a written instrument...or under a contract” and it seeks “a declaration of [its] rights” under that agreement, “including a determination of any question of construction” of the contract. (Code Civ. Proc., § 1060.)
Uncertainty
“’”Demurrers for uncertainty are disfavored, and are granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond.”’ ‘”A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.”’” (A.J. Fistes Corp. v. GDL Best Contractors (2019) 38 Cal.App.5th 677, 695, citations and brackets omitted.) The first amended crosscomplaint is not incomprehensible.
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