Demurrer to Cross-Complaint
Builder Services Group, Inc. v. Smith and Company, et al., 23CV-0742
Hearing: Demurrer to Cross-Complaint
Date: August 5, 2026
Builder Services Group, Inc., doing business as TruTeam of California (TruTeam) provided labor and materials for a construction project owned by Laurel Creek LP (Laurel Creek). TruTeam was a subcontractor of Smith and Company (Smith and Co.) and supplied insulation labor and materials pursuant to three subcontracts. TruTeam was not paid for its work and recorded a mechanic’s lien.
TruTeam’s complaint alleges causes of action against Smith and Co. for breach of subcontract, labor and materials furnished, open book account, account stated and enforcement of Contractor’s License Bond. 1 TruTeam’s fifth cause of action is alleged against Smith and Co. and Laurel Creek and seeks to foreclose on the mechanic’s lien; that is the only cause of action alleged against Laurel Creek. 2
Laurel Creek filed a form cross-complaint against TruTeam and others alleging claims for indemnification, apportionment of fault, and negligence (Cross-Complaint). 3 TruTeam filed a demurrer to the entire Cross-Complaint on grounds of uncertainty (Code Civ. Proc., § 430.10(f)), and to each of the three causes of action alleged on the grounds that they fail to plead facts sufficient to state a cause of action against TruTeam (Code Civ. Proc., § 430.10(e).)
At the initial August 2025, hearing on the demurrer, the Court was advised that Laurel Creek had filed for bankruptcy, and the Court continued the demurrer to August 5, 2026.
On June 8, 2026, the Court was advised that the bankruptcy as to Laurel Creek was dismissed. While the parties have notified the Court that the bankruptcy has been dismissed, Laurel Creek is directed to file an official notice of lifting of the stay, along with a copy of the order of dismissal or termination of the bankruptcy proceedings.
TruTeam’s demurrer to the Cross-Complaint is now before the Court. Laurel Creek opposes the demurrer.
1 American Contractors Indemnity Company is also named as a Defendant on the sixth cause of action for enforcement of contractor’s license bond. 2 Civil Code section 8486(a)(1) permits a mechanic’s lien claimant to maintain a personal action to recover a debt against the person liable, either in a separate action or in an action to enforce a lien. 3 The causes of action in the Cross-Complaint are inadvertently numbered as the second (indemnification), third (apportionment of fault) and fourth (negligence), rather than the first, second and third.
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1.
Legal Standard
A demurrer challenges only the defects that appear on the face of the pleading under attack, or from matters outside the pleading which are subject to judicial notice. (Code Civ. Proc., § 430.30(a).) When reviewing a demurrer, a court must draw all reasonable inferences in favor of the plaintiff. (Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th 1228, 1239.) Moreover, “[t]he facts alleged in the pleading are deemed to be true, however improbable they may be.” (Berg & Berg Enterprises, LLC v. Boyle (2009) 178 Cal.App.4th 1020, 1034.) It is an abuse of the court’s discretion to sustain a demurrer without leave to amend if there is a reasonable possibility the complaint can be amended to state a cause of action. (Jensen v. Home Depot, Inc. (2018) 24 Cal.App.5th 92, 97.)
Code of Civil Procedure section 430.41 requires a party to meet and confer with the party who filed the questioned pleading before filing a demurrer. TruTeam has satisfied this requirement.
2. Equitable Indemnity and Apportionment of Fault
To overcome a demurrer for uncertainty a plaintiff need only set forth the essential facts of his case with reasonable precision and particularity sufficient to apprise the defendant of the nature, source and extent of the cause of action. (Youngman v. Nevada Irrigation Dist. (1969) 70 Cal.2d 240, 245.)
Here, the Cross-Complaint fails to allege any specific facts under its claims for equitable indemnity and apportionment of fault beyond those stated in the form. While that may be sufficient in an action arising out of different facts, here the Court finds the allegations insufficient to state a claim, and Laurel Creek’s theories of liability uncertain.
“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; American Motorcycle Assn. v. Superior Court (1978) 20 Cal.3d 578 [“a defendant is generally authorized to file a cross-complaint against a concurrent tortfeasor for partial indemnity on a comparative fault basis, even when such concurrent tortfeasor has not been named a defendant in the original complaint.”].) “[O]ne thing is clear: The doctrine applies only among defendants who are jointly and severally liable to the plaintiff. [Citation.]” (BFGC Architects Planners, Inc. v. Forcum/Mackey Construction, Inc. (2004) 119 Cal.App.4th 848, 852.)
The form complaint allegations do not fit the facts here. The only claim in TruTeam’s complaint alleged against Laurel Creek is the cause of action to foreclose on the mechanic’s lien, not any liability based in tort.4
4 The only other cross-complaint filed in this action was filed by Smith and Co. against CPIF California LLC; Laurel Creek is not named.
The form complaint for indemnity alleges that “[t]he principal action alleges, among other things, conduct entitling plaintiff to compensatory damages against me.” (Cmpl., ¶ 7.b.) However, an action to enforce a mechanics lien is not a legal action for damages but rather is a suit in equity. (9 Miller & Starr, Cal. Real Estate (4th ed. 2026) § 32.) No claim for legal damages is alleged by TruTeam against Laurel Creek.
Similarly, regarding apportionment of fault, the form complaint alleges that “If I am judged liable to plaintiff, each cross-defendant should be required: (1) to pay a share of plaintiffs [sic] judgment which is in proportion to the comparative negligence of that cross-defendant in causing plaintiff's damages...” (Cmpl., ¶ 8.b.) Here, cross-defendant TruTeam is also the plaintiff. Does Laurel Creek seek for it to pay a portion of its own judgment?
Laurel Creek’s opposition explains its theories of liability as follows:
If Laurel Creek is held liable on TruTeam’s Complaint-through foreclosure of the lien on its property or otherwise-for a loss caused by the conduct of Smith and Company, Wick’s Roofing, Inc., or B&R Elite Construction, those cross- defendants must bear their proportionate shares of that loss and indemnify Laurel Creek accordingly. And if Laurel Creek is held liable to any third party-including the multiple contractors and other parties that the Cross-Complaint alleges have already sued Laurel Creek as a result of the defective work-for harm caused in whole or in part by TruTeam’s own negligence, TruTeam must likewise bear its proportionate share.
(Opp., p. 7, ll. 16-23.)
The first sentence does not attempt to address its theory against TruTeam. As to the second, those facts are not alleged as part of the indemnity or apportionment of fault causes of action, only in Laurel Creek’s negligence cause of action.
Moreover, the form complaint cause of action for indemnity alleges that “[i]f I am found in some manner responsible to plaintiff or to anyone else as a result of the incidents and occurrences described in plaintiff’s complaint my liability would be based solely upon a derivative form of liability...” (Cmpl., ¶ 7.c. [emphasis added].) This conflicts with a theory of liability based on other pending actions.
Moreover, given that Laurel Creek’s liability has not yet been established in the other actions, the Court questions whether it is appropriate or efficient to file a cross-complaint for indemnity against TruTeam here, rather in the action where it has been sued by a third party and is liable for damages.
The Court sustains TruTeam’s demurrer to the indemnity and apportionment of fault causes of action in the Cross-Complaint. Because this is the first demurrer, the Court grants leave to amend.
3. Negligence
Laurel Creek’s cause of action for negligence alleges as follows:
THAT CROSS-DEFENDANTS, SMITH AND COMPANY, WICK’S ROOFING, INC., B&R ELITE CONSTRUCTION, AND BUILDER SERVICES GROUP, INC. A FLORIDA CORPORATION dba TRUTEAM OF CALIFORNIA PERFORMED WORK ON, BEFORE AND AFTER SEPTEMBER 19, 2022, AT 1150 LAUREL LANE SAN LUIS OBISPO, CALIFORNIA. THE WORK OF SAID CROSS-DEFENDANTS, AND EACH OF THEM, WAS DONE NEGLIGENTLY AND DANGEROUSLY BY EACH IF SAID CROSS- DEFENDANTS. AS THE RESULT OF THE NEGLIGENCE, DANGEROUS AND DEFECTIVE WORK OR CROSS-DEFENDANTS, AND EACH OF THEM, CROSS-COMPLAINANT, LAUREL CREEK, LP, SUSTAINED SIGNIFICANT AND ONGOING DAMAGE, LOSS OF USE, LOSS OF PROFITS, DIMINUTION OF VALUE, AND OTHER RELATED MONETARY DAMAGES. CROSS-COMPLAINANT HAS ALSO SUFFERED SIGNIFICANT DAMAGES BECAUSE IT HAS BEEN SUED BY MULTIPLE CONTRACTORS AND OTHER PARTIES AS A DIRECT AND LEGAL RESULT OF THE NEGLIGENCE OF CROSS-DEFENDANTS, AND EACH OF THEM.
(Cmpl., p. 5.)
TruTeam contends that this claim is uncertain and insufficiently pleaded, as these allegations consist mainly of legal conclusions and do not specify what any of the named Cross-Defendants did wrong or what went wrong with the project. TruTeam further contends that Laurel Creek’s recovery is only in contract, not in tort, and that the claim is barred by the economic loss doctrine.
While negligence need only be pleaded generally, here only conclusions are alleged. No facts articulate what work was allegedly done negligently or dangerously. TruTeam’s demurrer is sustained with leave to amend.
ORDER
TruTeam’s demurrer is sustained with leave to amend. Laurel Creek is directed to file an amended cross-complaint within ten (10) days from service of the notice of ruling. (Cal. Rules of Court, rule 3.1320(g).)
Laurel Creek is also directed to file an official notice of lifting of the bankruptcy stay, along with a copy of the order of dismissal or termination of the bankruptcy proceedings, within ten days of notice of this ruling.
TruTeam is directed to serve the notice of ruling. (Code Civ. Proc., § 1019.5.)
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