Case Name:??? Arthur Martinez v. Roem Development Corporation, et al.
Case No.:??????? 2013–1-CV-255688
Motion by Intervenor Interstate Fire and Casualty Company, on Behalf of Cross-Defendant Terradan Construction, Inc., for Judgment on the Pleadings as to the Cross-Complaint of Defendants and Cross-Complainants Roem Development Corporation, Roem Builders Incorporated, and 1st & Rosemary Senior
Factual and Procedural Background
??????????? This is a personal injury action. Defendants and cross-complainants Roem Development Corporation, Roem Builders Incorporated, and 1st & Rosemary Senior (collectively, ?Roem Defendants?) owned, leased, controlled, maintained, operated, developed, supervised, and inspected real property adjacent to the sidewalk on the south side of Rosemary Street, between First and Fourth Street, in San Jose (?Property?). (Complaint, p. 4.) The Roem Defendants had a duty to maintain the Property and conduct their affairs so as to avoid causing injury and damage to others, including plaintiff Arthur Martinez (?Plaintiff?). (Ibid.) Notwithstanding their duty, the Roem Defendants ?caused and allowed a hole or open concrete case at and below ground level to be located on the property adjacent to and in the proximity of the public sidewalk.? (Ibid.) They had actual and constructive knowledge of the hole and knew, or should have known, that ?such a hole or open case was a dangerous condition in that a person using the sidewalk, or otherwise coming into the area of the hole or open case, might step or fall into said hole or open case and thereby suffer injury.? (Ibid.) ?Nevertheless, [the Roem Defendants] ? maintained the hole or open case in its dangerous condition, failed to cover, enclose, fence, or warn of said hole or open case, and/or fenced around such hole or open case so as to leave it exposed to persons using the sidewalk and in the area.? (Ibid.) As a result of the Roem Defendants? negligent acts, Plaintiff stepped and fell into the hole, sustaining injury. (Ibid.)
Based on the foregoing, Plaintiff filed a complaint against the Roem Defendants, alleging causes of action for (1) negligence and (2) premises liability.
Subsequently, the Roem Defendants filed a cross-complaint against cross-defendant Terradan Construction, Inc. (?Terradan?), alleging claims for (1) equitable indemnity, (2) comparative negligence, (3) equitable contribution, (4) declaratory relief, (5) express defense and indemnity, and (6) implied contractual indemnity.
Thereafter, intervenor Interstate Fire and Casualty Company (?Interstate?) filed a motion for leave to intervene on behalf of Terradan, which was granted on July 28, 2015.
Currently before the Court is the motion by Interstate for judgment on the pleadings as to the cross-complaint of the Roem Defendants. The Roem Defendants filed papers in opposition to the motion and Interstate filed a reply.
Discussion
Interstate moves for judgment on the pleadings as to the entire cross-complaint on the ground of failure to state sufficient facts to constitute a cause of action. (See Code Civ. Proc., ? 438, subd. (c)(1)(B)(ii).)
- Request for Judicial Notice
Interstate?s request for judicial notice of the complaint and cross-complaint is GRANTED. (See Evid. Code, ? 452, subd. (d) [permitting judicial notice of court records].)
- Legal Standard
?Judgment on the pleadings is akin to a demurrer and is properly granted only if the complaint does not state facts sufficient to state a cause of action against that defendant.? (Shea Homes Limited Partnership v. County of Alameda (2003) 110 Cal.App.4th 1246, 1254.) The court accepts as true all material factual allegations, giving them a liberal construction, but it does not consider conclusions of fact or law. (Ibid.) The grounds for the motion must appear on the face of the complaint and in any matters subject to judicial notice. (Code Civ. Proc., ? 438, subd. (d); Smiley v. Citibank (South Dakota) N.A. (1995) 11 Cal.4th 138, 146 [?[T]he trial court generally confines itself to the complaint and accepts as true all material facts alleged therein? [and] may extend its consideration to matters that are subject to judicial notice.?].)
III.?????? Failure to Allege Facts Sufficient to State a Claim
??????????? Interstate argues that the entire cross-complaint fails to allege facts sufficient to state a claim against Terradan because: Plaintiff?s allegations are based solely on the alleged negligent inspection, maintenance, and/or management of a water meter vault; Terradan is only liable and obligated to defend and/or indemnify the Roem Defendants if Plaintiff?s alleged injuries arise out of or are related to its negligent performance of weed abatement and debris removal services under its contract with the Roem Defendants; and the cross-complaint does not contain any factual allegations demonstrating that Plaintiff?s injuries are in any way related to the weed abatement and debris removal services Terradan provided pursuant to the subject contract.
In opposition, the Roem Defendants implicitly concede that the cross-complaint, as currently pled, fails to allege facts sufficient to constitute a cause of action as they merely request leave to amend their pleading and submit a proposed first amended cross-complaint (?Proposed FAXC?).
Since the Roem Defendants acknowledge that the cross-complaint fails to state a claim, the Court finds that Interstate?s motion is well-taken. The only remaining question before the Court is whether the Roem Defendants should be given leave to amend their pleading.
A motion for judgment on the pleadings should not be granted without leave to amend if there is a reasonable possibility that a defect in the complaint can be cured by amendment. (Mendoza v. Rast Produce Co., Inc. (2006) 140 Cal.App.4th 1395, 1402.) The burden of proving there is a reasonable possibility the defect can be cured by amendment is on the plaintiff. (Ibid.) To meet this burden, the plaintiff must detail how, if given an opportunity, he could amend the complaint. (Careau & Co. v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1386.)
Here, the Roem Defendants submit a Proposed FAXC, which contains the following additional factual allegations: they assumed control over and secured the entire subject construction site by means of a six-foot cyclone fence; they entered into a contract with Terradan for mowing, weeding, and the removal of debris from the construction site; they confirmed with Terradan that the site was secured from public access by the fence and the purpose of the fence was to preclude unauthorized persons from accessing the site; it was contemplated and understood by the parties that Terradan would access the construction site through the fence and, at the conclusion of its services on each occasion, Terradan would return the fence to its pre-existing condition entirely surrounding the construction site; Terradan also owed it a duty to report any defect, compromise, or unsafe condition affecting the fence that was reasonably observable during its work and to refrain from any action that would cause or contribute to such a defect, including displacing the fence from its existing location and/or exposing hazards to the public that had been secured by the fence; Terradan was aware of a remnant water meter vault on the construction site that was protected from public access by the fence; the day before Plaintiff?s incident, Terradan negligently performed mowing, weeding, and debris removal services at the construction site so as to compromise and displace the security fence thereby exposing the water meter vault to the public; Terradan also failed to report the hazard to them at the conclusion of its work; and Terradan?s actions prevented them from discovering and/or mitigating the hazard. (Proposed FAXC, ?? 9-11, 14-17.) These additional factual allegations sufficiently demonstrate that there is a reasonable possibility that the defect(s) in the cross-complaint can be cured by amendment. Consequently, the Court finds that leave to amend the cross-complaint is appropriate.
Accordingly, the motion for judgment on the pleadings is GRANTED, with 30 days? leave to amend. (Code Civ. Proc., ? 438, subd. (h)(2).)