M V P Construction, LLC vs. Davis/Reed Construction, Inc.

34-2021-00306654-CU-BC-GDS: M V P Construction, LLC vs. Davis/Reed Construction, Inc. 06/17/2026 Hearing on Demurrer to MVP Construction, LLC's Cross-Complainant in Department 8D

Tentative Ruling

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34-2021-00306654-CU-BC-GDS: M V P Construction, LLC vs. Davis/Reed Construction, Inc. 06/17/2026 Hearing on Demurrer to MVP Construction, LLC's Cross-Complainant in Department 8D

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***NOTICE: EFFECTIVE APRIL 13, 2026, THIS DEPARTMENT HAS MOVED TO THE TANI G. CANTIL-SAKAUYE COURTHOUSE LOCATED AT 500 G. ST. SACRAMENTO, CA. ALL MOTIONS NOTICED FOR DEPARTMENT 25 WILL BE HEARD IN DEPARTMENT 8D OF THE NEW COURTHOUSE. ALL PAPERS FOR THIS DEPARTMENT MUST BE FILED AT THIS NEW LOCATION AND WILL NOT BE ACCEPTED AT THE HALL OF JUSTICE OR GORDON D. SCHABER COURTHOUSE. ALL HEARINGS WILL TAKE PLACE AT THIS NEW LOCATION.***

TENTATIVE RULING:

The notice of motion does not provide notice of the Court’s tentative ruling system, as required by Local Rule 1.06(D). Moving counsel is directed to contact opposing counsel forthwith to advise of Local Rule 1.06, the Court’s tentative ruling procedure, and the manner to request a hearing. If moving counsel is unable to contact opposing counsel prior to the hearing, moving counsel shall be available at the hearing, in person or remotely, in the event opposing counsel appears without following the procedures set forth in Local Rule 1.06(B).

Cross-Defendant Davis/Reed Construction, Inc.’s (Davis/Reed) demurrer to Cross- Complainant M V P Construction, LLC (“MVP”) cross-complaint is ruled on as follows.

Background

This action is one of several consolidated cases all arising out of a construction project referred to as the Hyatt Centric City Center – Marshall Hotel. MVP is the Plaintiff and Davis/Reed is a defendant in the initial suit, filed August 20, 2021 (Case No. 2021- 00306654). Davis/Reed subsequently sued a third party, not at issue on this motion, in Case Number 2022-00324435. In August 2025, Davis/Reed amended that complaint to name MVP and seven other project subcontractors as defendants. MVP responded by filing the instant Cross-Complaint, naming Davis/Reed and the seven subcontractors as defendants.

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2021-00306654-CU-BC-GDS: M V P Construction, LLC vs. Davis/Reed Construction, Inc. 06/17/2026 Hearing on Demurrer to MVP Construction, LLC's Cross-Complainant in Department 8D

MVP’s Cross-Complaint alleges express indemnity against Davis/Reed and equitable indemnity against the subcontractors.

Davis/Reed now demurs to the cause of action for express indemnity on the grounds that the Cross-Complaint fails to state facts constituting a cause of action pursuant to Code of Civil Procedure section 430.10, subdivision (e). (Demurrer, at p. 2.) More particularly, Davis/Reed contends that the parties’ Subcontract does not require Davis/Reed to indemnify MVP and that a purported oral agreement is barred by the parol evidence rule. (Id. at pp. 6–9.)

MVP opposes the demurrer on the grounds that the Cross-Complaint sufficiently alleges the parties entered into a subsequent agreement requiring Davis/Reed to indemnify MVP.

Legal Standard

The function of a demurrer is to test the sufficiency of the pleading it challenges by raising questions of law. (Salimi v. State Comp. Ins. Fund (1997) 54 Cal.App.4th 216, 219; Nordlinger v. Lynch (1990) 225 Cal.App.3d 1259, 1271.) “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters.” (SKF Farms v. Super. Ct. (1984) 153 Cal.App.3d 902, 905.)

For the purpose of determining the effect of a complaint, its allegations are liberally construed, with a view towards substantial justice. (Code Civ. Proc. § 452; Amarel v. Connell (1988) 202 Cal.App.3d 137, 140–141; Quelimane Co., Inc. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 43, fn. 7.) In this respect, the Court treats the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law, and considers matters which may be judicially noticed. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Poseidon Development, Inc. v. Woodland Lane Estates, LLC (2007) 152 Cal.App.4th 1106, 1111–1112.)

A demurrer may be sustained only if the complaint lacks any sufficient allegations to entitle the plaintiff to relief. (Financial Corp. of America v. Wilburn (1987) 189 Cal.App.3d 764, 778.) “[P]laintiff need only plead facts showing that he may be entitled to some relief . . . [W]e are not concerned with plaintiff’s possible inability or difficulty in proving the allegations of the complaint.” (Highlanders, Inc. v. Olsan (1978) 77 Cal.App.3d 690, 697.) A demurrer admits the truth of all material facts properly pled and the sole issue raised by a general demurrer is whether the facts pled state a valid cause of action, not whether they are true. (Serrano v. Priest (1971) 5 Cal.3d 584, 591.) The Court draws all reasonable implications and inferences in favor of upholding the

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2021-00306654-CU-BC-GDS: M V P Construction, LLC vs. Davis/Reed Construction, Inc. 06/17/2026 Hearing on Demurrer to MVP Construction, LLC's Cross-Complainant in Department 8D

complaint. (Poseidon Development, Inc. v. Woodland Lane Estates, LLC, supra, 152 Cal.App.4th at p. 1112.)

Analysis

Express indemnity is “an obligation that arises by virtue of express contractual language establishing a duty in one party to save another harmless upon the occurrence of specified circumstances.” (Prince v. Pacific Gas & Electric Co. (2009) 45 Cal.4th 1151, 1158 [internal quotation marks omitted].) Express indemnity is enforced according to the parties’ agreement. (Ibid.)

In relevant part, MVP alleges:

15. On information and belief, Davis/Reed entered into several contracts for the work of improvement and construction project referred to as the Hyatt Centric City Center – Marshall Hotel (the “Project”).

16. On or around November 14, 2019, Cross-Complainant entered into a contract with Davis/Reed, as general contractor, to provide certain work, labor, and/or materials for drywall, metal stud framing, acoustical sealant, and fire caulking at the Project. A true and correct copy of the subcontract (“Subcontract”) is attached hereto as Exhibit A and incorporated by this reference.

17. During the Project, scheduling issues arose with the Subcontractors and Davis/Reed instructed Cross-Complainant to complete its work regardless of the scheduled construction sequence.

18. Cross-Complainant agreed to complete its work out of sync with the Project schedule in or around April of 2021, at the direction of Davis/Reed and on the condition that Davis/Reed indemnify Cross-Complainant and hold Cross-Complainant harmless for all resulting damages.

19. Cross-Complainant is informed and believes that Davis/Reed has a duty to indemnify, protect, and hold harmless Cross-Complainant.

(Cross-Complaint, ¶¶ 15–19.)

Davis/Reed bases its arguments on two provisions in the Subcontract:

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2021-00306654-CU-BC-GDS: M V P Construction, LLC vs. Davis/Reed Construction, Inc. 06/17/2026 Hearing on Demurrer to MVP Construction, LLC's Cross-Complainant in Department 8D

Article 11. Indemnity

(a) To the fullest extent permitted by law, [MVP] agrees to indemnify and defend [Davis/Reed] from any allegations, claims, costs, demands, losses, expenses, liabilities, damages, judgments, actions, suits, fines, penalties, attorneys’ or other fees (“Claims”), even if such Claims are groundless, false, or without merit, arising from, related to, incidental to, or in any way connected to Subcontractor’s work.

(Cross-Complaint, Exh. A [“Subcontract”], ¶ 11(a).)

Article 25. Entire Agreement. It is agreed that this Subcontract represents the entire agreement between the parties and supersedes all prior negotiations, representations or agreements, either written or oral. Except as otherwise provided herein this Subcontract may be modified only by a written agreement signed by the parties hereto.

(Subcontract, ¶ 25 [emphasis added].)

Davis/Reed contends that the express indemnity provision in the Subcontract plainly requires MVP to indemnify Davis/Reed. (Demurrer, at pp. 6:22–7:6.) And because the Subcontract is an integrated agreement that can be modified only in writing, evidence of any supposed oral indemnity agreement is barred by the parol evidence rule. (Id., at p. 7:20–8:5.)

MVP responds that the Cross-Complaint does not allege that the parties entered into an oral agreement and that the parol evidence rule bars evidence only of prior or contemporaneous agreements. (Opp., at pp. 8:25–9:21.)

The parol evidence rule is codified in two statutes. (Riverisland Cold Storage, Inc. v. Fresno-Madera Production Credit Assoc. (2013) 55 Cal.4th 1169, 1174.) “The execution of a contract in writing, whether the law requires it to be written or not, supersedes all the negotiations or stipulations concerning its matter which preceded or accompanied the execution of the instrument.” (Civ. Code, § 1625.) “Terms set forth in a writing intended by the parties as a final expression of their agreement with respect to the terms included therein may not be contradicted by evidence of a prior agreement or of a contemporaneous oral agreement.” (Code Civ. Proc., § 1856, subd. (a).)

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2021-00306654-CU-BC-GDS: M V P Construction, LLC vs. Davis/Reed Construction, Inc. 06/17/2026 Hearing on Demurrer to MVP Construction, LLC's Cross-Complainant in Department 8D

The plain language of section 1856 applies only to “prior” or “contemporaneous” agreements. (See Riverisland, supra, at p. 1174 [“The written terms supersede statements made during the negotiations.”].) MVP alleges a subsequent agreement between the parties. (Cross-Complaint, ¶¶ 16–18.) The parol evidence rule does not bar any evidence of the alleged subsequent agreement.

MVP alleges the existence of an agreement, not that the agreement is oral or in writing. (See Cross-Complaint, ¶ 18.) On demurrer, the Court must draw all reasonable inferences in favor of upholding the pleading. The Court finds it reasonable to infer that the alleged agreement is in writing and is therefore not prohibited by the Subcontract’s provision requiring modifications to be made in writing.

Davis/Reed argues that a party must attach any written contract to properly plead a claim for express indemnity. (Demurrer at p. 7:7–11.) Davis/Reed does not cite any authority to support this argument. A court need not consider an issue lacking in reasoned, substantial argument and citation to supporting authority. (Allen v. City of Sacramento (2015) 234 Cal.App.4th 41, 52; Woods v. Horton (2008) 167 Cal.App.4th 658, 677.) Furthermore, Davis/Reed waived this argument by not stating it as one of the grounds for its demurrer.[1] (Miles v. Deutsche Bank Nat. Trust Co. (2015) 236 Cal.App.4th 394, 401.)

MVP also argues that the parties may have entered the alleged indemnity agreement, even if the agreement is oral. (Opp., at p. 9:22–10:27.) Parties may orally modify a contract even when the contract states that it can be altered only in writing. The parties may do so by performance of an oral agreement. (LGCY Power, LLC v. Super. Ct. (2022) 75 Cal.App.5th 844, 867 [discussing Civ. Code, § 1698, subd. (b)].) Parties may also waive the restrictive provision expressly or by conduct. (Wind Dancer Production Group v. Walt Disney Pictures (2017) 10 Cal.App.5th 56, 78 [discussing Civ. Code, § 1698, subd. (d)].) Indulging all inferences in favor of upholding the pleading, as the Court must do on demurrer, the Court finds that MVP has adequately pled its claim for express indemnity.

Disposition

For the reasons stated, Davis/Reed’s demurrer is OVERRULED. Davis/Reed shall file and serve its Answer to the Cross-Complaint no later than July 1, 2026.

This minute order is effective immediately. No formal order or other notice is required. (Code Civ. Proc., § 1019.5; Cal. Rules of Court, rule 3.1312.)

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2021-00306654-CU-BC-GDS: M V P Construction, LLC vs. Davis/Reed Construction, Inc. 06/17/2026 Hearing on Demurrer to MVP Construction, LLC's Cross-Complainant in Department 8D

[1] Davis/Reed belatedly raises this ground for demurrer in Reply. (Reply at p. 3:9–24.)

This is too late. (Cal. Rules of Court, rule 3.1320(a); Miles v. Deutsche Bank Nat. Trust Co. (2015) 236 Cal.App.4th 394, 401.) New arguments generally may not be asserted in reply. (Reichardt v. Hoffman (1997) 52 Cal.App.4th 754, 764.)