Motion to strike Referee's report; Motion to compel inspection; Request to vacate premises; Request for stay
The Court sets a review hearing for July 24, 2026 at 10:00 a.m. in Department 6. Each party and the Referee shall file a status report of no more than three (3) pages in connection with preparation of the property for sale no later than two weeks prior thereto. No further briefing or declarations are authorized with respect the same.
Plaintiff Horner’s request that Carver be ordered to vacate the premises is denied without prejudice. Carver’s request for a stay is denied without prejudice. Any such requests must be made by noticed motion.
Carver’s May 8, 2026, declaration and amended declarations, filed in violation of the Court’s April 3, 2026, order and without leave, are ordered stricken.
The parties are reminded that they have an obligation to ensure that all legal citations fully and accurately represent the applicable law. This applies to parties represented by counsel and to those that represent themselves.
6. CU0001978 Bridgett Higginbotham vs. Pacific Specialty Insurance, et al.
Defendant Greenspan Adjusters International, Inc.’s Demurrer to Pacific Specialty Insurance Company’s Cross-Complaint
Defendant Greenspan Adjusters International, Inc.’s (“GAII”) demurrer to the Cross-Complaint of Pacific Specialty Insurance Company (PSIC) is overruled.
Legal Standard
On demurrer, a court's function is limited to testing the legal sufficiency of the complaint. Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 113-114. In determining a demurrer, the court assumes the truth of the facts alleged in the complaint and the reasonable inferences that may be drawn from those facts. Miklosy v. Regents of the Univ. of Cal. (2008) 44 Cal.4th 876, 883. A court must determine if the factual allegations of the complaint are adequate to state a cause of action under any legal theory. Barquis v. Merchants Collection Assn. (1972) 7 Cal.3d 94, 103
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Contentions, deductions and conclusions of law, however, are not presumed as true. Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 967. A plaintiff is not required to plead evidentiary facts supporting the allegation of ultimate facts; the pleading is adequate if it apprises the defendant of the factual basis for the plaintiff's claim. Perkins v. Superior Court (1981) 117 Cal.App.3d 1, 6. A demurrer is not the appropriate procedure for determining the truth of disputed facts. Fremont Indemnity Co., 148 Cal.App.4th at 113-114.
“If a complaint does not state a cause of action, but there is a reasonable possibility that the defect can be cured by amendment, leave to amend must be granted.” Milligan v. Golden Gate Bridge Highway & Transportation Dist. (2004) 120 Cal.App.4th 1, 6.
First Cause of Action: Equitable Indemnity
GAII argues its demurrer to PSIC’s cause of action for equitable indemnity must be sustained because it requires joint liability in tort which is not alleged and does not exist. The Court disagrees.
“[T]he right to indemnity flows from payment of a joint legal obligation on another’s behalf.” AmeriGas Propane, LP v. Landstar Ranger, Inc. (2014) 230 Cal.App.4th 1153, 1167. “The elements of a cause of action for indemnity are (1) a showing of fault on the part of the indemnitor and (2) resulting damages to the indemnitee for which the indemnitor is . . . equitably responsible.” Bailey v. Safeway, Inc. (2011) 199 Cal.App.4th 206, 217. California common law recognizes a right of partial indemnity under which liability among multiple tortfeasors may be apportioned according to the comparative negligence of each.’ The test for indemnity is thus whether the indemnitor and indemnitee jointly caused the plaintiff’s injury.”
AmeriGas Propane, L.P. v. Landstar Ranger, Inc. (2010) 184 Cal.App.4th 981, 989. For purposes of equitable indemnity, “it matters not whether the tortfeasors acted in concert to create a single injury, or successively, in creating distinct and divisible injury.” Blecker v. Wolbart (1985) 167 Cal.App.3d 1195, 1203.
In the context of equitable indemnity, joint and several liability is expansive, not limited to the traditional meaning of “joint tortfeasor,” and can apply to acts that are concurrent, successive, joint, or several, where they create a detriment caused by several actors. Greystone Homes, Inc. v. Midtec, Inc. (2008) 168 Cal. App. 4th 1194, 1208. See, e.g. Considine Co. v. Shadle (1986) 187 Cal. App. 3d 760, 769 (“A defendant sued for breach of contract may have a right of implied indemnity against a third person whose wrong caused the defendant’s breach.”). “ ‘Where the transaction rests upon related facts, whether concurrent or successive, joint or several, which legally create a detriment compensable against multiple actors, the right of indemnity should follow....” GEM Developers v. Hallcraft Homes of San Diego, Inc. (1989) 213 Cal.App.3d. 419, 431 (citation omitted).
Here, PSIC has alleged in its Cross-Complaint that any injuries suffered by Plaintiff were proximately caused not by their acts, but rather by the negligence or breach of fiduciary duty by GAII:
PSIC has denied, and continues to deny, each and every allegation of Plaintiff’s First Amended Complaint, including all allegations of wrongdoing or breach of the policy on the part of PSIC. ... [T]o the extent Plaintiff sustained any injuries or damages as alleged in her First Amended Complaint, the acts and/or omissions of Greenspan and Cross Defendants are the sole and direct proximate cause thereof due to their failure to accurately, honestly, timely, and reasonably advise Plaintiff regarding the amount of money and extent of coverage, including code upgrade coverage, that would be contractually afforded to Plaintiff under her homeowners’ insurance policy, the laws and regulations in effect that would control which code upgrades were actually necessary to repair her residence, the selection of Defendant SELECT ENVIRONMENTAL to undergo demolition at the Property, and the legal, contractual, and financial ramifications of Plaintiff optionally choosing to raze her home and expand its foundational footprint.
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